Volume 4 — Johnson's New York Chancery Reports

THE bill of the plaintiffs stated, that in 1730, Casper Ham, the grandfather of the plaintiffs, with the consent of the proprietor of the manor of Rensselaer, entered into possession on the east side of the Hudson river, of a part of the manor then being a wilderness, except a few settlements near the river. That Casper Ham had the promise of a lease from the proprietor, and paid an annual rent.

BILL for a partition. Jacob Kniskern died possessed of a large real and personal estate in Schoharie, and by his last will, dated the 23d of February, 1818, he gave to his wife, “ all his beds and bedding, together with all his household furniture, his negro wench S. and negro boy and her comfortable support and maintenance out of his estate, to be, from time to time, rendered and paid to her by his executors, and the privilege and use of one room in his dwelling-house…

THE bill stated that the plaintiffs, together with Robert L. Livingston and Edward P. Livingston, on the 29th of April, 1817, leased to the defendant, certain lands in the city of Jersey, for one year, paying to the lessors the yearly rent of 1U0 dollars, in half yearly payments, with liberty to the defendant to extend the term for four years after the expiration of the first year, which he elected to do, subject to the same rent.

THE bill stated, that in April, 1813, David Stafford was seised of seventy-two acres of land, and his son P. S. of thirty acres of land adjoining. In April, 1813, they executed a judgment bond to the defendant, for the payment of. 437 dollars, with interest. On this bond, judgment was soon after entered up in the Court of C. P. of Washington county.

THE bill stated that John Young was the original patentee of lot No. 55, in Hannibal, in the county of Oswego. That the plaintiff purchased the lot of Young, on the 5th of November, 1810. That the plaintiff is in possession of the south half of the lot; and the defendant, not having any lawful title to the possession of the same, has been for a long time, and is now, in possession of the north half of the lot, i. e. of 300 acres.

THE bill stated, among other things, that on the 25th of October, 1817, the agent of the Lansingburgh bank applied to the plaintiff, and Mosher, and William Fan, Kirk and Joseph Smith, the endorsers of two notes given to the bank, for the balance due op them, amounting to 2,230 dollars, for security, by judgment.

UPON the coming in of the defendant’s answer, Foot, for the defendant, moved to dissolve the injunction which had been issued in this cause, on the ground, that the answer denied the equity of the bill, and especially, that the , injunction ought to be dissolved as against Martin Adsit, Raymond Adsit, and Jesse Adsit, who were no parties to the bill, and who were enjoined from the payment of certain notes given by them to the defendant. He cited 7 Fes. 257. Iveson v. Harris.

THE bill stated, that by the “ act to amend the act, enfáie^ an acf t0 incorporate the Ulster and Orange Branch Turnpike Company,” passed the 11th Jdpril, 1817, (sess. 40. c. 213. s. 1.) the Governor was authorised to appoint three freeholders, &c. whose duty it should be, as soon as may be after the acceptance of their appointment, to make a iust, equitable, and proportionate assessment on all the 1 J 1 • .. .. . , lands lying adjoining or contiguous to the said turnpike…

J. T. IRVING, for the plaintiff, moved for leave to file a supplemental bill, and for an injunction to stay the sale of mortgaged premises, founded on the matter therein contained, or to set aside an order of the 7th of December, 1813, dissolving the injunction founded on the original bill, on terms, or for a rehearing thereon.

THE bill of the plaintiff, who was of the age of five years, filed by her next friend, stated that the mother of the plaintiff, in her life time, being seized of real estate, at the request of J)., her brother, who pretended that her husband, at his decease, was indebted to him, executed a bond and mortgage to the defendant D., with a power of sale, to secure the debt.

THE bill stated, that in June, 1809, the plaintiffs filed their bill against Joseph Winter, which bill, among other things, stated, that the defendant held in trust, for the plaintiff, T. G., “divers lands in Cosby's Manor,” and in the patent of Springfield, and “ certain parts or parcels of land in the Oriskany patent.” That the defendant, J. W., had proceeded to sell “ various parts and parcels of the land lying in Cosby's Manor,” &c. That he had in his hands contracts for…

THE bill stated, that the legislature, by an act of the 27th of March, 1798, granted an exclusive privilege to it. Livingston, of using steam boats “in all creeks, rivers, bays, and waters, whatsoever, within the territory or jurisdiction of this state,”, for fourteen years, &c. That by the act of the 5th of April, 1803, the privilege was granted to R. R. Livingston and Robert Fulton, for twenty years. That they complied with the terms upon which that privilege was granted.

THE bill stated a regular seisin and possession, by the plaintiff, and those under whom he claimed, to the premises described, and situated in the eighth ward of the city of New-York, and that the same had been inclosed and improved by him and them, with buildings, &fc. for upwards of twenty-five years last past.

AN injunction was awarded in the case of John fl. Livz~ngs~om v. .daron Ogdert and Thomas Gibbons,* prohibiting the said Gibbons, and his agents and servants, from navigating with any boat or vessel, propelled by steam or fire, the waters in the Bay of JVew-York, or in the Hudson river, between Staten Island and Powles Hook.” The injunction was duly served on Vanderbilt, as master of the steam boat Bellona, belonging to Gibbons, and on several of the persons employed in her.

<p>Where a solicitor files a bill in propria persona, a notice served on h« agent, as a solicitor of the Court, is good service.</p>

THE bill stated, that in August last, an agreement was entered into between the defendants and Jacob Barker, of JVew-York, by which they agreed, that they would, once in each week, assort and make up into a sealed package, all the bills of the plaintiffs which should, from time to time, be in the possession of the defendants, and direct the same to Barker, and hold the same subject to his order, or deposit the same, as he should designate, to the end that the same might be…

THE bill, which was filed the 4th of February, 1812, by John Brinckerhoff, JYathan Morey, and Aaron Wilcox, against Levinus Lansing, Otis Bates, and James Adams, stated, that Russel Forsyth obtained a judgment against the defendant, Bates, on the 5th of December, 1810; and that by virtue of a.fi.fa. issued thereon, a house and lot in Lansingburgh, was sold to the plaintiff B. for 1,100 dollars, and a deed accordingly executed to him by the sheriff, dated December 14, 1811,…

HENRY moved for the allowance of a habeas corpus to bring up the body of the infant, alleged to be detained wrongfully by Henry Garrison, of Philipstoum, in Putnam, county, or by Sally Wollstonecraft, the mother of the said infant, or by Joseph T. Jackson, of Fishkill, in Dutchess county, or by one of them. In support of the motion, he read the following papers : 1.

ON the coming in of the answer, J. Radcliff, for the defendant, moved to dissolve the injunction heretofore issued in this cause, restraining' the defendant from further inter-meddling with the concerns of a periodical publication, entitled, “ The JYew-York City-Hall Recorderand he also further moved, to restrain the plaintiff from proceeding at íaw on the judgment entered up in the Supreme Court, mentioned in the pleadings as being taken as liquidated damages, for the same…

THE bill stated, among other things, that Richard De Cantillon, in his life time, owned seventy-two acres of land on the Hudson river, which, in his title deed, was described as beginning at a hemlock tree, on the bank of Grom, Elbow Creek, and described by metes and bounds, and running to the Hudson, and along the river to the creek, and then as the creek runs, including the creek, to the place of begitining.

<p>HENRY, for the defendant Gibbons, moved for an order that the name of Aaron Ogden be struck out of this cause, as a party defendant, or that the defendant Gibbons be permitted to defend this suit alone, in the same manner, in all respects, as if the bill had been filed against him alone.</p> <p>He, at the same time, presented a petition of the defendant G., with an affidavit thereto annexed, stating that he is a citizen of the state of JYew-Jersey, and resides therein, and that the plaintiff is a citizen of the state of JYew-York, and resides therein. That the plaintiff, shortly before the 3d day of May last, filed his bill in this suit, praying for an injunction, as in the bill stated\ and that on the 3d of May a motion was made for an injunction, according to the prayer of the bill. That the motion, as to the defendant Ogden, was denied, and as to the defendant G, it was denied, so far as respected the navigation of the waters of the sound between Elizabethtown Point and Am-boy, in the state of JYew-Jersey, and it was granted only so far as to restrain the defendant G. from navigating with vessels propelled by steam, the bay of JYew-York, &c. That the defendant is owner of the steam boat, called the Bellona, and is desirous of employing her in the coasting trade, for which she is licensed. That she is duly enrolled'' at the port of Perth Amboy, in JYew-Jersey. That the petitioner is sole owner of the boat, and has no interest or concern on the subject, with the other defendant O. That the matter in dispute in the said cause exceeds 500 dollars. That being desirous of removing the above cause into the Circuit Court of the United States, he offers sufficient security for entering the cause and his appearance, in the said Court, on the first day of its next session.</p> <p>opposed the motion and petition: 1. Because, here was a suit against two defendants, and one of them was no party to the petition. 2. Because, the defendant G. had already appeared, in fact, and made a defence, and this Court had passed upon his rights fin this cause, on the third day of May last.*</p> <p>Henry, in reply, deferred to 1 Caines’ Rep. 248., and Coleman’s Cases, 58., to show that an application for this purpose is in time, though bail may have been excepted to : to 4 Johns. Rep. 493, to show that after judgment against the casual ejector, the landlord is in time; and to JYewland’s Ch. Pr. 35. to show that an appearance in chancery is entered with the clerk.</p> <p>He insisted that the defendant G. had never entered his appearance with one of the clerks, and that the paper on file, purporting to be his answer, had been used merely as an affidavit.</p>

PETITION of Susannah F. Bostwick, stating, that her father, Joseph Watkins, now deceased, by his will, directed his estate, real and personal, to be appraised, and that his executors should put at interest, on good security, one eighteenth part thereof, and pay the interest of such part to the petitioner, during her life, in half yearly payments ; and he then devised the principal, after her death, to her heirs.

D. WASHBURN was brought before the Chancellor upon habeas corpus, allowed and directed to the sheriff of Rensselaer county.

BILL to stay the proceeding to sell under a power contained in a mortgage, upon a charge that considerable payments have been made, and «se nojcreáited or allowed, and that, by a parol agreement, when the mortgage was taken, the time of payment was enlarged. An injunction was allowed at the expiration nearly of the six months, on a deposit of a sum sufficient to meet the expenses of advertising, &c. The answer admitted some payments, and denied others.

THE bill stated, that the plaintiiT is one of the children and heirs of Peter Bregaui, deceased, and that the defendant and Bareni Vanderpoel were appointed administrators of P. B., and that the defendant was, afterwards, appointed administrator of John Bregaw, one of the sons of P. B. and who died without issue, and intestate. The bill charged the defendant with various acts of fraud and breach of trust, as administrator of P. B., and as administrator of John Bregaw.

<p>Whether an attorney for the plaintiff can purchase the property of the defendant sold under execution, by the sheriff, for his own benefit ? Quaere.</p> <p>Where the farm of the defendant, worth two thousand dollars, was sold under a judgment and execution, on which not more than eighty dollars was due, to the attorney of the plaintiff, who attended the sheriff’s sale, at the request of the plaintiff, for ten dollars: Held, that under the circumstances, the purchase by the attorney wgs not to be considered as absolute, or intended originally for his own benefit, but in trust for the respective interests of the parties to the execution; and the debtor, on a bill filed by him for that purpose, was allowed to redeem the estate, on paying the balance due on the execution, and the amount paid by the attorney, with interest, &c.</p> <p>It seems, that the gross inadequacy-of price, connected with the facts, that the sale was on a stormy day, when no person but the attorney and deputy sheriff were present, might have warranted the inference of fraud, if the conclusion, that the purchase was made in trust, had not been a sufficient ground for letting in the debtor to redeem his estate. ,</p>

THE bill, which was filed May 30th, ISIS, stated, that the plaintiff, David Hayes, and the defendants, Thomas Ward, Nathaniel Camp, and Cyrenus Beach, resided at Newark, in the state of New-Jersey. That the defendant C. B. applied to Joseph Walter, a partner in trade with Silas Hayes, for money; and proposed to furnish notes, with which to raise five thousand dollars, and as an inducement to W., proposed to take him into partnership, in a manufacturing establishment, 8ze.

BETWEEN the years 1795 and 1812, Theophylact Bache became indebted to the firm of Sauer, Eyre Co, of Sheffield, in England, of which the plaintiff is surviving partner; the amount of which debt, including interest, as stated in the account annexed to the bill, was 402Z. 3s. sterling.

THIS cause came before the Court upon exceptions to the Master’s Report, in respect to the amount due to the defendant upon the mortgage which the plaintiff, C, Ferine, wished to redeem. (See S. C. vol. 3. p. 508.)

THE bill, which was filed December 15, 1814, stated, that on the 15th oí February, 1803, the defendant (proprietor of the manor of L.) entered into an agreement, in writing, with William Fritz, to execute a lease to him of the farm on which he then lived, in great lot No. 3., in L., for the lives of W. F. and his wife, and his son A. W. F. was to pay to the defendant 480 dollars and 37 cents, with interest, from the 1st of May, 1800, on the 1st of May, 1805, and the annual…

AARON OGDEN filed his bill, on the 21st of October, 2818, against Thomas Gibbons, stating, that on the 19th of March +, ÍSFtj the Legislature granted to John Fitch, the exclusive right of using, for a limited time, a steam boat, &c. That on the 2'th of March, 1788, the Legislature repealed the act so made in favour of Fitch and passed an act granting a similar right to Robert R. Livingston, for twenty years; and on the 5th of April, 1803, granted the like right to Robert R.…

THE defendants pleaded in bar certain outstanding judgments, and that those creditors ought to have been made parties to the suit. The plaintiffs, instead of amending their bill, by making those creditors parties, upon the terms directed by the Chancellor, (vide S. C. v. 3. p. 427.) traversed the plea, by replying and taking issue upon it, and putting the defendant to prove it. The cause came on to be heard upon the proofs taken under that issue.

BILL to redeem mortgaged premises. The defendant set np an absolute sale, by an assignment, absolute in terms, of the right of Mitchell in the land, and denied the fact of a loan. But the defendant, at the same time, admitted in his answer, that after the assignment was executed, he gave Mitchell, at his request, time to return the money, and take back the assignment.

PETITION of Aaron Folger, committee of the estate of the lunatic, stating that he was appointed committee in August, 1818. That in the autumn of 1818, on the petition of Thomas Folger, stating that he was grantee of a farm of the lunatic, by deed, dated a few days before the inquisition had been found, an issue was awarded to try the question of lunacy.

ON the 23d of August, 1819, the plaintiff, on an ex parte application, without notice, obtained an order, “ that the defendants answer the amended bill, with the exceptions, in •this cause, in four weeks after the service of a copy of this order, or show cause why an attachment should not issue •against them.” 1.

PETITION of the plaintiff, stating, that in October, 1818, he filed his bill, charging, that he had obtained an exclusive right under Messrs.

BILL for an injunction to stay execution on a judgment rendered against the plaintiff, for 44 dollars and 15 cents, before a Justice of the Peace, by default.

BILL for a divorce, a mensa et thoro, by the wife against the husband, on the ground of cruel and' inhuman treatment. The parties were married in the city of New-Yorjc, in May, 1814, .where they have since resided. The bill charged various acts of personal violence and brutality, on the part of the husband, in April, July, and August, 1818, which were proved; and that he was of a very hasty and ungovernable temper.

THE bill, filed July 27th, 1819, stated, that Frederick JDavoue, the father of the plaintiff, being seized of real and personal estate, on the 7th of February, 1809, made his will, by which, among other bequests, he bequeathed to the plaintiff a legacy of 5,500 dollars, payable to him, when he came of full age.

THE bill stated, that George Croghan, deceased, on the 6th of February, 1799, executed a judgment bond to Joseph Simon, deceased, conditioned to pay 2,200Z. sterling, on the 6th of February, 1782, with interest. That in April term, 1779, a judgment was entered upon that bond, in the Court of Common Pleas, in Westmoreland county, Pennsylvania.

BILL for an injunction, filed June 14,1819. The plaintiff, Caleb Adams, master of the ship Middlesex, which rhad been chattered by R. Pettit, of London, while sailing on the voyage, with a cargo of goods onboard, from London, bound to Ncw-York, was obliged to put into Fay at, in distress, where the ship was condemned as unseaworthy, and sold for the benefit of all concerned.

<p>THE bill, filed in July, 1812, stated, that the plaintiff was seised in fee of lot No. 33, in Lysander, in Onondaga county, and of lot No. 76, in Solon, in Cortlandt county, which he purchased, in 1792, bona fide, and for a valuable consideration, of Henry Platner. That the plaintiff took • possession of the lots, and continued in the enjoyment thereof, until disturbed by the defendants. That in April term, 1787, Abraham Bachman obtained a judgment against H. Plainer, in the Supreme Court, for 773 pounds, debt, and 6 pounds 18 shillings, costs, and the judgment was docketted the 16th oí April, 1787. The plaintiff, when he purchased the lots, was ignorant of the judgment. That Bach-man and Platner, having had various dealings together,'before and after the judgment, came to a settlement of their accounts on the 4lh of July, 1798, in which settlement, the judgment was included; and a considerable balance was found due to P. from B., for the payment of which he executed a bond to P. on the same day. That on the settlement, a receipt in full for the judgment was given by B. to P., which receipts, together with other receipts for previous payments on the judgment, came to the hands of Charles Vincent, the son-in-law of P. who had access to his papers, shortly after the imprisonment of P. That C. V. delivered the receipts to B. or to Jacob F. Miller, his executor, or to Jacob R. Han Rensselaer, after the death of Miller. That satisfaction of the judgment was neglected to be entered on record. That P. was convicted of forgery, in June, 1799, and sentenced to the state prison for life, and continued in prison until the 10th of June, 1806, when he was pardoned. That in October term, 1799, the judgment was fraudulently revived by two writs of scire facias, returned nihil, and which were issued by B., or by some other person, with his privity, both of them well knowing that the judgment was satisfied. That in the vacation following October term, B. or some other person, with his privity, issued a test fi. fa. on the judgment, to the sheriff of Ontario county, who sold, as the property of P., three lots of land, and part of another, containing above 841 acres of land, for 332 dollars and 25 cents. That B. having died soon after the execution had issued, the judgment was fraudulently revived, in the names of George Monell, Jacob F. Miller, and Catharine Bachman, as executors of B., in Ociober term, 1800. That Monell, soon after the revival of the judgment, being informed that the judgment had been satisfied, refused to be concerned in any further proceedings upon it, and requested of Miller an indemnity for all claims against him as executor, which Miller gave to him, accordingly. That Miller, afterwards, well knowing that the judgment had been satisfied, fraudulently sold and assigned it to Jacob R. Van Rensselaer, for some trifling consideration. That Van Rensselaer, before he took the assignment, knew, or had grounds to believe, or suspect, that the judgment had been satisfied. That he, afterwards, as assignee, in the vacation after October term, 1802, fraudulently issued a test ■ fi. fa. on the said judgment, to the sheriff of Delaware, requiring him to levy 689 dollars and 48 cents, as the residue of the judgment. That the sheriff seized several lots in Delhi, owned by persons deriving title from P., who, in order to protect themselves, agreed with the defendant, Samuel Shenvood, either as agent of J. R. Van Rensselaer', or as having an interest in the judgment, that the sheriff should set up their respective lots for sale, and the owners purchase them for some trifling consideration, and receive deeds from the sheriff, and that the owners should be responsible for the ■ payment of the 689 dollars and 48 cents, in proportion to the quantity of land owned by them respectively; that the greater part of the said sum should be immediately paid, and for the balance, an execution should issue for the sale of the lands in the military tract, and if they failed to produce the balance, the owners of the said lots should pay it in the proportions above mentioned. That the defendant S., who had the" entire direction of the sale, either as agent, or as having an interest therein, procured the sheriff to assist in carrying the agreement into effect; and he, accordingly, sold the lots to the owners thereof, for trifling sums, executed deeds to them, and returned on the execution, that he had levied 402 dollars and 80 cents, and that Plainer had no other lands, &c. on which to levy the residue. That the said owners of-lots paid the greater part of the 689 dollars and 48 cents under the agreement; and for the residue, several other writs of test.fi. fa. were fraudulently issued for the sale of lots in the military tract. That the defendant S., at the time of the said sale, had notice, or had ground to believe or suspect, that the said judgment had been satisfied before issuing ^the said execution to the sheriff of Delaware ; but conceiving + the design of a fraudulent and profitable speculation, owing to the situation of Platner, by overreaching, by means of sales under the judgment, titles derived from P., and by selling the remainder of the lots owned by him for nominal prices. That in pursuance of such fraudulent design, the defendant S. made the said agreement, and procured it to be carried into effect; and. proposed to the defendant W., who resided on the military tract, to be concerned with him in the purchase of lands in that tract. That the defendant W., with notice of this corrupt and fraudulent design of the defendant S., fraudulently agreed to the proposal, and the two defendants associated accordingly for that purpose. That the defendants then procured from J, R. Van Rensselaer, or some other person, an assignment of the said judgment, for a trifling sum, but with notice to both, or with grounds to believe, or suspect, that the judgment had been satisfied. That the defendants, as assigness of the said judgment, and in prosecution of their corrupt and fraudulent design, in the November vacation of the Supreme Court, in 1803, fraudulently caused a test, fi, fa. to be issued to the sheriff of the county of Cayuga, and delivered to a deputy of the sheriff, (P. Hughes,) without his knowledge. That the sale under the execution was entirely under the direction of the defendants, or one off them ; and by artful and corrupt practices between them and the deputy sheriff, the latter, without the privity of the sheriff, sold to the defendant, or to some other person for their use, above forty military lots, of great value, and which had been levied on as the property of Plainer, for eleven dollars and twenty-eight cents. That the execution was returned by the deputy, in the name of the sheriff, and without his privity ; and the return mentioned the lands and tenements generally, without designating the lots. That the defendant W. then applied to the sheriff to execute a conveyance for the lots, which the sheriff refused to do; and the defendants took a deed from the deputy sheriff, which was fraudulently executed by him. 2'hat the defendants, in further prosecution of their corrupt and fraudulent design, in the May vacation of the Supreme Court in 1806, fraudulently caused another test.fi. fa. for the residue, to be issued to the sheriff of the county of Onondaga. That the sheriff sold to the defendants, or to some other person, for their use, and executed a deed for divers military lots, seized as the property of Platner, for eighteen dollars and fifty-two cents, and among which were the two lots above mentioned, belonging to the plaintiffs. That the sale was fraudulently conducted by the sheriff, who, in his return to the execution, speaks of levying on lands generally, without designating the lots sold. That the defendants, as assignees aforesaid, in further prosecution of their corrupt and fraudulent design, in February vacation of the Supreme Court in 1807, fraudulently issued another test. fi. fa. to the sheriff of the county of Seneca, under which execution the sheriff sold to the defendants, or to some other person for their use, divers military lots of great value, seized as the property of Plainer, for twenty five dollars and forty cents 5 that the sale was corruptly conducted by the sheriff, who returned a levy on the lands generally, without designating the lots. That the defendants, uñdéi? cover of their fraudulent deed, had taken possession of the two lots belonging to the plaintiff, by procuring an attornment from the person in possession. That the plaintiff was ignorant of the said judgment, or of any proceedings thereon, until he was so fraudulently dispossessed of the said lots. The plaintiff prayed, that the defendants might be decreed to quiet his title to the said lots, by executing to him a release of their pretended interest in the same ; and be decreed to deliver up the possession thereof to the plaintiff. The plaintiff offered to pay the principal and interest of what the defendant gave for the lots, and the costs and charges of the execution and sale, if, in equity, the same could be demanded.</p> <p>The defendant, Samuel Sherwood, in his answer, filed December 12th, 1812, admitted, that he had seen a deed on record from H. Plainer to the plaintiff, for the two lots above mentioned. That he believed that A. Bachman obtained a judgment, as stated by the plaintiff. That he never knew or heard that the judgment was satisfied, in whole- or in part, except so far as it was satisfied by executions issued under it. That while he acted as agent of J. R. Van Rensselaer, and superintended the sale in Delaware county,in 1803, Stephen Hogeboom, who attended that sale, suggested that the judgment was satisfied, but as his lands were sold under the execution, and he became a purchaser, the defendant S. placed no confidence in the suggestion. That Jacob R. Van Rensselaer always assured this defendant that the same was a just subsisting judgment, and in no wise satisfied or paid, except by the collections on the executions. That the defendant knew.nothing, nor has he heard of the bond or receipt said to be given by Abraham Bachman to H. Platner, nor does he believe any were + ever given. The defendant admitted that H. P. was convicted, imprisoned, and pardoned, as charged; that the judgment was revived by the executors of A. Bachman, in 1799 or 1800, but he did not recollect whether he ever knew or heard of any other revival. He denied any knowledge or suspicion that the judgment was fraudulently revived. That a test. fi. fa. issued upon the judgment to the sheriff of Ontario, but what lands were sold the defendant did not know. That he believed the sum made upon such test. fi. fa. was 132/. 18s. (332 dollars 25 cents.) That he always believed that the execution issued, by direction of the plaintiff, to collect a just and'subsisting debt. That he does not know whether the judgment was revived by the executors of B. before or after the execution to the sheriff of Ontario, though he always supposed it was before. That he never knew or heard of the refusal of the executor, G. Monell, or of the indemnity to him, That he had understood from 'J. R. V. R. that the judgment was assigned by the executors of B. to him, on the 4th of December, 1802, and that he then allowed on his accounts, and paid them, in cash, 275/. 15s. 10c/. (689 dollars and 48 cents,) being the balance then due upon the judgment; and that the transaction was fair, without any knowledge or just ground to suspect that the judgment was satisfied. That in October vacation, 1802, a test. fi. fa. for the residue, was sent to the sheriff of Delaware, and the indorsement on the execution was to levy 275/. 15s. lOd. with interest on 248/. 14s. 2d. That the defendant was constituted by J. R. V. R. his agent, with written directions to attend the sale, and without any interest therein. That the sheriff-was directed to sell the right of H. P. to lots No. 10.20. and 40. in Whitesborough patent, in Delhi, (except such parts thereof as were possessed by Levi Baxter, William Reside, Joseph Denio, and George Fisher, who were then actual settlers thereon,) with a view that the execution should be satisfied, by the sale of wild lands in the hands of those who had purchased for speculation. That the settlers not being apprized of this direction, or not assenting to it, agreed with Stephen Hogeboom, the owner of the wild land, that they and he were to pay their proportions of the execution, according to the number of acres each held, or of the amount of sales, if it did not satisfy the execution. That the sale was duly advertised, and held at the court house, on the 16th of April, 1803. That the sale was proceeding when the defendant entered the room, the property of Hogeboom being up. That the sheriff agreed to delay the sale a few minutes, and propositions were made to the defendant, (then the agent of J. R. V. R., and in no other manner interested,) for some terms, better than immediately paying the execution, as some of them had not in hand the necessary amount of money. That the defendant said, he had no authority to consent to any accommodation as it respected Hogcboom’s land, but was authorized to accommodate the settlers. That the interval of the sheriff’s delay lasted twenty minutes, during which time it was agreed between the defendant and the settlers, (excluding Hogeboom,,) that instead of paying up the execution and discharging the judgment, they might become purchasers of it, and take an assignment, so that if any property of II. P. could afterwards be discovered, they might be reimbursed. That the settlers then took the direction of the sale, and the sale of Hogeboom’s land was continued, and was struck off to him, under the previous agreement between him and the settlers, for the amount supposed to be his proportion. That the settlers, understanding that a sale under this judgment would protect their lands under younger judgments, chose to have their lots sold, and they were sold, and each owner became a purchaser. The lands of the four settlers named, amounted to 684 acres, and the land of Hogeboom was 856 acres, and the amount due on the execution, including sheriff’s fees, was 706 dollars and 62 cents. That in pursuance of his agreement with the settlers, he, as agent, received of the sheriff and of the settlers, 695 dollars and 51 cents in cash, or a note equal thereto. That he detailed the transaction to J. R. V. R. and requested an assignment of the judgment to Levi Baxter, for the benefit of the settlers. That 695 dollars and 51 cents was the amount of the execution, with interest up to the day of sale. That the amount for which thejudgment was to be assigned was 292 dollars and 70 cents. That ff. R. V. R. assigned the judgment to Levi Baxter, the 3d of June, 1803, in consideration of 287 dollars and 77 cents, unt'l which time, the defendant had no interest in the business, except as agent. That the sheriff executed deeds to the purchasers,, and he probably drew them. That the lands so sold would, at. that period, if uncultivated, have been worth from three to eight dollars an acre. That the defendant supposed the reason why the lands, were not bid higher was, that no person present was disposed to make the settlers pay move than they were obliged to, or to reduce the balance, which by their purchase of the judgment they might obtain from the property of II. P. That he thinks it probable the sheriff returned on the execution that he had levied 402 dollars and 80 cents, as that was the sum made by him, on the sales, besides his fees. That soon after the assignment of the judgment, the four settlers named called on the defendant to make arrangement to collect the balance due on the execution out of the property of IL P. That it was agreed between them and the defendant, that he should become their agent, in collecting the balance, for a reasonable compensation. That the defendant commenced an inquiry, and ascertained that II. P. owned military titles, and lie suggested that it would be best for them to purchase in the title of H. P., supposed to be precarious, and by risking the title of several lots, they might get some good ones. That objections were made, and it was. finally agreed between Baxter and the defendant, that they would hazard that risk, and the other defendants agreed to accept whatever was made out of the sales upon the execution, according to their shares. That this defendant then proposed to the defendant W. that if he would engage in the risk, and at- , tend to the sales, any purchases made under the same should accrue to the benefit of him and the defendant, and Levi B., in equal shares. That the defendant TV. agreed, and the defendant then caused a test. fi. fa. to be issued to the sheriff of Cayuga, on the 20th of December, 1803, and sent it to the defendant W. That the defendant TV. informed him that a sale was advertised for the 5th of March, 1804. That this defendant attended the sale. That he had no interest in the judgment in contemplation, when the assignment was' made to L. Baxter, and that the assignment was made solely with a view to collect the balance out of the property of H. P. That the execution was not delivered to a deputy of the sheriff of Cayuga, with a design to conceal it from the sheriff. That the sale in Cayuga was in a tavern, in Scipio. That a number of persons were present, of whom the defendant named four. That several persons bid. That some lot or lots were struck off to Joshua Patrick, to Benja■min Tucker, and Eleazar Burnham, and all or the greater part of the remainder to the defendant W. That the lots were set up separately, and the persons present seemed to suppose PlatnePs title spurious, and were not willing to bid. That the lot struck off to Ebenezer Burnham was intended for the defendant W., this defendant, and Levi B. That a deed was drawn by the defendant, and executed the next day, by the deputy, in the name of the sheriff. That twenty-five lots, lying in twelve different towns, (the number of each lot, and the towns, being mentioned,) were sold for ten dollars and one cent. That nothing was said, at the time of the sale, touching the judgment, or the amount due upon if. That he drew, for the deputy, the return on the execution.That the defendant, on his return home, informed the proprietors of the assignment, of- what had been done, and offered then to take his share of the purchase, and they to allow him for his trouble and expense, which they declined. That the defendant then bought out their respective shares, and allowed them the principal and interest of them respectively. That on the 21st of October, 1812, he bought in the share of Levi Baxter, so that he is now sole owner of the balance due on the judgment. That a test. fi. fa. for the residue, was issued to the sheriff of Onondaga, and this defendant, and the defendant W. attended the sale, on the 15th of October, 1806. A number of persons were present. The deputy sheriff sold the right of if. P. to twenty-two lots in eleven towns, (all mentioned,) and they were purchased for the benefit of the defendant, and the defendant W., and Levi Baxter. Each lot was sold separately, and no lot brought more than three or four dollars. Nothing wras said, at the time of the sale, relative to the judgment, or the amount due thereon. That the sale was fair and legal. That the defendant drew the return to the execution, and the deputy sheriff executed a deed. The two lots of the plaintiff were included in the sale or the deed. That in February vacation, 1807, a test. fi. fa. for the residue, was issued to the sheriff of Seneca, and a sale took place, and the defendant W., and Levi Baxter, were present, and a number of lots (eleven) were sold for the benefit of themselves and this defendant, and all the proceedings were fair and legal. That in October, 1807, the defendant W. took possession of the two lots of the plaintiff, under claim of title, and has exercised acts of ownership ever since. That the defendant does not claim title to the two lots of the plaintiff, under the deed of the sheriff aforesaid, or in pursuance of the sale, in May vacation, 1806. That he claims title to the said lots by virtue of a sale, by the sheriff of Onondaga, under the said judgment in May vacation, 1807, to the three associates, aijd by virtue of a release from the defendant W* and Levi B., on the 30th of September, 1812, of all their ■ right and title. The defendant admitted he received a let - ° _ _ ter from the plaintiff, dated the 7th of December, 1811, demanding a release of his claim to the two lots of the plaintiff, and that the defendant did not answer the letter. That if the plaintiff will bring an ejectment, the defendant will stipulate not to introduce, in his defence, any title whatsoever, derived under the said judgment. That this suggestion is not made, because the defendant is apprehensive that a title derived under the said judgment is not good; but because he is satisfied that the plaintiff never had any title to the two lots he claims.</p> <p>The answer of the defendant Walter Wood, filed the SOth'of November, 1812, stated that he did not believe that the plaintiff was ever seized of the two lots. He admitted his purchase of H. P., as stated, and the judgment of Abraham B. He said that he knew nothing of any satisfaction of the judgment, except by the executions and sales, and believed it to have been a good and subsisting judgment. That he did not believe any such receipt existed, as stated in the bill; and that he understood the executors of B. revived the judgment. He did not believe that it was fraudulently revived. That he knew nothing of the Ontario execution. That he believed the judgment was assigned to Jacob R. Van Rensselaer, for a fair and valuable consideration. That he knew nothing of the Delaware execution. That in 1807, the defendant <S. informed him of the judgment, and that it was assigned to Levi B., and that there was a balance. which the defendant S., and Levi B., wished to collect, and proposed, if the defendant would engage in the risk of ex emu-ally obtaining title, that the purchases should be for the joint benefit of the three, and he agreed to the proposal; and a test. ji. fa. was issued to the sheriff of Cayuga. That he believed the balance appearing was justly due, and he delivered the execution to the deputy sheriff in Scipio. That the execution contained an indorsement, to levy 292 dollars 70 cents, and interest. That there was nó design of secresy fa the defendant, and that he believed all was fair. That he searched the clerk’s office, and believed that many of the Plainer lots were worth attention, and might “ become beneficial to themselves.” That his hopes have been, in a degree, realized. That the sheriff’s sale was on the 5th of March, 1804, and duly advertised, and the lots, (naming them,) were sold separately, and bid off for the benefit of the three associates. That a number of persons attended, besides the two defend- . ants. That no conversation was had, as he recollects, at the sale, relative to the judgment or the monies due. That the deed was executed by the deputy, on the day of the sale, to the three associates. That the sheriff (Hughes) did execute a deed to Benjamin Tucker, for lands purchased at such -sale. That an execution on the judgment was issued to the sheriff of Onondaga, on which he was directed to levy 281 dollars 42 cents, and interest; and a sale was duly advertised, and took place on thé 15th of October, 1806. That? a number of persons were present. That the plaintiff S., and Levi B. were also present. That the sale was by the deputy sheriff, and a number of lots were sold, (naming them,) separately. The deed was executed, on the same day, by the deputy, to the three associates. That a lot sold for above four dollars. That the persons present were deterred from buying, from an opinion that Platner’s title was bad. He recollected no conversation, at the sale, relative to the judgment, or the amount due. That he believed every thing was fair and legal. That the two lots of the plaintiff were not sold. That a test. fi. fa., for the residue, then issued to the sheriff of Seneca, in February vacation, 1807, and a sale was made on the 25th of May, 1807, and eleven lots, lying in five towns, (naming them,) were sold, and bid off by the defendant, and Levi B., and a deed was given by the sheriff to the three associates. That several persons attended the sale, and bid. The price of all the lots was twenty-eight dollars. That soon after this last sale, Benjamin Tucker iniimated that the judgment had been paid and satisfied. That he did not believe in the suggestion. That in October, 1807, he took possession of the two lots of the plaintiff, and continued in possession to the 30th of September, 1812, and exercised ownership, and then sold them to the defendant S. and received an indemnity. The defendant admitted that he received a letter from the plaintiff, in December, 1811, requiring a' release, and that he did not answer the letter. He admitted that he gave the agent of the plaintiff a memorandum, stating, among other things, that on the 7th of September, 1807, the sheriff of Onondaga sold to the three associates, the two lots of the plaintiff aforesaid. That these two lots, with others, were purchased at the sheriff’s sale, under the said judgment, on the 7th of September, 1807.</p> <p>Replications having been filed to these answers, numerous witnesses were examined, and much evidence given on both sides; but the material parts of.it being noticed by the Chancellor, in his opinion, it is unnecessary to detail it here.‘</p> <p>The cause stood over for consideration to this day.</p>

THE bill, filed April 9tb, 1817, stated, that the plaintiff 'Abraham Herring, being indebted to the plaintiff, W. Lvpion, as trustee of Margaret Anderson, an infant, on the 1st of June, 1807, mortgaged to L., to secure the bond of H. for 1,000 dollars, lot No. 6. in Camillus, in Onondaga county, containing 600 acres.

BILL for a partition of a tract of land of 29,812 acres, lying in the counties of Tioga and Broome. It appeared from the pleadings and exhibits in the cause, that Col. Daniel Coxe, of Trenton, New-Jersey, (grandfather of the plaintiffs, Daniel Coxe, and Grace Kempe,) who died in 1739, derived from his father, Doctor Coxe, of London, sundry rights under the crown of Great Britain, to lands in the North American colonies.

THE bill stated, that W. S. the father of the plaintiff, by his will, dated October 18th, 1801, devised his personal estate, after payment of his debts, to the plaintiff, and his brother A. S., equally; and one part of his real estate to the plaintiff, and the other to his brother A. S. describing them particularly, and the survivor was to take the whole, if the other died under age.

THE bill stated, that Robert Livingston, proprietor of the manor of Livingston, on the 22d of January, 1722, executed a perpetual lease to Peter Cole, of a farm, of about 216 acres, at the rent of one-tenth of the yearly produce, four fat hens, 8zc.

THE bill, filed October 29tb, 1817, stated, that Robert Livingston, jun. proprietor of the manor of L., by a deed dated the 10th of September, 1773, conveyed a tract of land in the manor, containing about 500 acres, to his son, Henry Livingston, in fee, reserving an annual rent of seven pounds ten shillings, for ever.

THE bill, in this causé, which was filed the 19th of April, 1814, was substantially for the same matter for which a bill was filed on the 9th of June, 1810, by Ephraim Snow, •against Amaziah Rust, which cause was set down for a hearing on the bill and answer, the 10th of September, 1812, when no person appearing on the part of the plaintiff, the bill was dismissed with costs; and the decree of dismissal was enrolled.

THIS was a bill to set aside, and to have cancelled, a deed, purporting to have been executed on the 6th day of February, 1790, by JY. Gorham and O. Phelps, to William Ewing, in fee, for undivided parts of certain lots of land lying in the county of Genesee, and recorded in the clerk’s office of that county, on the charge, that it had been falsely and-fraudulently altered.

THE Master, in pursuance of the decretal order in this cause, (vide S. C. vol. 3. p. 553.) by which he was direct-, ed, “ to take an account of the proceeds of the fund created by the will of the testator, to pay legacies, and the amount of the debts and funeral expenses, and to make to the defendants all just allowances, and to examine-the parties upon interrogatories, as he should deem necessary,” reported a balance due to the plaintiff, out of the fund, of 2,936 dollars,…

<p>If a trustee by implication, is to be affected by an equity, that equity must be pursued within a reasonable time.</p> <p>Where the defendant, a bona fide purchaser without notice, and those under whom he claimed, had been in possession of land, above twenty-six years, before the plaintiffs filed their bill to enforce their claim, founded on an implied trust, the bill was dismissed, but without costs, under the circumstances of the case.</p> <p>A defendant whó answered an original bill, after a decree against him, petitioned for a rehearing, which was granted, and the plaintiffs filed a bill of revivor and supplement, to which the defendant answered and disclaimed, he was held + entitled to costs, on the dismissal of the bill. ^ *</p>

THE bill, filed August, 1816, stated, that Anthony Dumond died, unmarried, and intestate, on the 3d of November, 1814, possessed of a considerable personal estate, &c. leaving a mother, Catharine Dumond, and two sisters of the half blood, Maria (the assumed wife of Samuel Magee, of Catskitt) and Catharine, the wife of Thomas Harrett, residing in the state of Ohio.

BILL for an injunction, filed July 17th, 1819, and an injunction allowed. The defendants put in their answer, denying all equity in the bill. The material facts in the bill and answer, will be found in the opinion delivered by the Court.

<p>The doctrine of contribution -is not so much founded on contract, as on the principle of equity and justice, that where the interest is common, the burden, also, should be common; and this principle, that equality of right requires equality of burden, has a more extensive and effectual operation in a Court of equity, than in a Court of law.</p> <p>Thus, where there was an old party wall between two owners of houses, in the city of JVew-Yortc, and one of them being desirous . to build a new house on his lot, pulled down the old house, and with it, the party wall which was ruinous, and rebuilt it with his new house, the owner of the adjoining house and lot, is bound to contribute raleably to the expense of the new wall of partition.</p> <p>He is not, however, bound to contribute to building the new wall higher than the old; nor, if materials more costly, or of a different nature, are used, is he bound to pay any part of the extra expense. Where one of the defendants dies after the argument of a cause, and before judgment, the decree will be entered, so as to have relation back, as of the day of the final hearing.</p>

THE bill, which was sworn to, stated, that the plaintiff was married to the defendant, on the 5th of July, 1814. That, at the time she was married, she was, as she is now informed, and believes, in a state of insanity and mental derangement 5 and that she should never have consented to the marriage, if she had been in possession of her reason. That she continued insane, as she has been informed, and believes, and so she charged the fact to be, for six months.

THE plaintiffs filed their bjll for relief against an assessment made to defray the expense of a common sewer, in the city of New-York, and for an injunction to restrain the defendants from collecting the assessment, or taking any measures for that purpose. The material facts stated in the bill will be found in the opinion delivered by the Court. zThe Chancellor took the bill for consideration.

THE plaintiffs filed a bill, in 1810, to foreclose a mortgage executed by the defendant to them. The defendant put in his answer, on the 12th of November, 1810, in which he admitted the execution and forfeiture of the mortgage, and that he had paid only 360 dollars towards interest, in the spring of 1805.

MOTION to amend the bill, by adding new and material charges, after issue joined, a rule to produce witnesses, a commission to take testimony sued out, and one witness examined. The petition stated, that after issue joined, and while the solicitor for the plaintiffs was preparing to take testimony, the matter proposed to be introduced by way of amendment, was discovered. The affidavit, as to the above facts, was sworn to by the solicitor for the plaintiffs.

MOTION to set aside a decree by default, and subsequent proceedings, as irregular; 1. Because, the defendant’s solicitor was not ruled to answer, before the entry of the rule taking the bill pro confesso ; 2. Because, the defendant died immediately after the entry of the final decree, and before the Master received the decretal order to sell the mortgaged premises.

THE bill stated, that Joseph Icard, by will, authorized the plaintiffs, as his executors, and the survivor of them, to sell two lots of land in the city of JYew-YorJc, if imperious circumstances of the times, or the extreme hazard of depreciation in value of that property, should, in the best judgment of the plaintiffs, render it prudent to sell the same.

THE bill stated, that on the 10th of November, 1817, the defendant mortgaged to the plaintiffs lands in the county of Delaware, in this state, to secure the payment of a bond of the defendant and B. North, to them, for 3,000 dollars, which was given to secure such sums of money as should be thereafter lent by the plaintiffs to the_ obligors, or either of them.

THE defendant filed his answer on the 13th of December, 1819. In January term, 1820, he moved to dissolve the injunction heretofore issued in this cause, on the ground that the answer denied the equity of the bill. The motion was overruled.

PETITION stating, that Betsey W. was seized, as heir, to an undivided moiety of 208 acres of land, in the town of Buffalo, and county of Niagara. That the lot is unproductive, and could not well be divided without lessening its value. That she is seventeen years of age, and married to Alanson W., who is twenty-three years of age.

PETITION of the plaintiffs, stating that they, as assignees of Benjamin Gray, of Manchester, in England, a bankrupt, filed their bill against the defendant, as administratrix of William Renwick, late of the city of New- York, deceased, for discovery and account of an unsettled copartnership, and the dealings between B, G. and W. R. as partners in trade.

THE original bill was filed, March 28th, 1818, against Robert Ross, the testator. The plaintiffs’ testator, William, Henderson, died the 19th of January, 1812, having, by his last will, appointed the plaintiffs his executors.

THE bill, filed August 4, 1819, stated, among other •things, that the plaintiffs were owners of several lots of land in Lawyer and Gimmer's + Patent, in Schoharie county, and among the rest, of fifty acres, part of lot No. 1, in the first allotment of the patent. That, in 1811, an action of ejectment was brought by the plaintiffs against the defendant, who was in possession of the fifty acres.

THE bill stated, that the plaintiffs were administrators of the goods and chattels of Stephen Seymour, deceased, and that the defendants, claiming distributive shares of the estate, had applied to the surrogate of Ulster cdunty, from whom they received letters of administration, and sued out a citation to the plaintiffs to appear before him, on a given day, and account for the personal estate in their hands to be administered; that they had appeared and offered to account…

AT a rehearing of this cause,(a) before the Chancellor, at his chambers, by consent, for the defendant, moved for leave to read as evidence, the deposition of James B. Murray, showing and correcting a mistake in his testimony, taken on his examination in chief, and read at the former hearing. The deposition was taken before a commissioner, on the 21st of June, 1819. He cited, in support of the motion, 1 Johns. Ch. Rep. 526. 2 P. Wms, 646. Dickens, 677. 2 Madd.

THE bill stated the different acts of the legislature,. giving and securing to R. E. Livingston and R. Fulton, the right of navigating- the waters of this state, with boats or vessels moved by steam or fire, &sc.

<p>PETITION of the plaintiff, stating, that the defendant, B., put in his separate answer, the 24th of December, 1819, to the plaintiff’s bill. That notice of exceptions to the answer was served on the agent of the plaintiff’s solicitor, on the 14th of January last. Sixteen days having expired, and no notice of submitting to answer the exceptions being received, an order was entered on the 31st of January, referring the exceptions to a Master residing at Poughkeepsie, in Dutchess county. That I. Hooker, the Master, summoned the defendant (who lives in the city of JYew-York) to appear at the hearing, on the 11th of February, which summons was duly served on the defendant’s solicitor, the 4th of February. That the defendant not appearing at the day appointed, the Master proceeded to hear the exceptions ex parte, and decided that they were well taken. This report was filed four days thereafter, and a subpoena for further answer served on the 22d of February. On the 6th of March, the defendants, on petition, obtained an order, that the defendants have four weeks, from the 3d of March, to except to the Master’s report, instead of answering the exceptions, and that, in the mean time, the question of costs, up,on the exceptions, be reserved. That, this order was obtained without notice, and was irregular. That being ignorant of the order of the 6th of March, the plaintiff, on petition, which was served on the defendant’s solicitor, obtained an order, on the 20th of March, that the‘ defendant pay the costs of the exceptions, and the proceedings subsequent, to compel a further answer ; which order was taken, without any opposition, and the notice of taxation for the 31st of March, served. On the 25th of March, the plaintiff’s solicitor first received a copy of the order of the 6th of March, which had not been served on his agent. That on the 30th of March, the defendant obtained another rder, ex parte, without notice, enlarging ¿he time for excepting the report twelve days. The plaintiff prayed that dhe om.-rs of the 3d and 20th of March, olbitiitred by him, might be confirmed; and that the ex parte ciiderr of tlw defendants, of the 6th and 30th of March, might be vacated, and that the defendants pay the costs of the application. After reading the affidavit of the defendants’ solicitor, an order was entered, Jpril 18th, 1820, ordering that 4»-' further consideration of the motion be postponed to djo t ¡ir í day of the next term of this Court, “ to the end, shat i«:e hearing of the exceptions to the" Master’s report waay be brought on, and the same be considered in connection v tv this motion.”</p> <p>The questions arising on this order, were argued by P. Haggles, for the plaintiff; and by</p>

IN the bond, for which the mortgage in this case was taken as security, the interest was expressed to be at six per cent per annum. The day of payment having passed, the bond and mortgage became forfeited. The question was, whether the plaintiffs were not entitled to seven per cent, interest, being the lawful interest, from the time of the forfeiture.

EXCEPTIONS to the defendant’s answer: 1. Thai the answer fo* tb, in h 2. Because, the defendant has, in his answer, from a part _of the 17th page thereof) to a part of the 19th page thereof, beginning, &tc. stated matters not necessary to answer any allegations in the bill, to which he is not interrogated, and upon which no pertinent interrogatories can be framed, or depositions .given, and which are totally irrelevant, immaterial, and highly scandalous.

IN March, 1810, the plaintiff purchased of the defendant his right or share in his father’s real and personal estate, which was subject to debts and incumbrances, for 375 dollars. On receiving a deed of conveyance from the defendant, the plaintiff gave him a note for the consideration money, payable in May, 1811.

<p>When the securities held by a trustee, are directed by a decree confirming a Master’s report, tobe assigned to the cestui que trust, the responsibility of the trustee ceases; and there having been no culpable negligence or default on his part in taking them, he is not to be charged with them, on making a final decree, on the equity reserved, though they may have been, perhaps, impaired by the delay of the litigation between the parties.</p> <p>If a decretal order of reference is silent as to the mode of calculating interest, and the Master does not allow annual rests, the plaintiff should apply, on the coming in of the report, for an order on the Master to report his reasons for rejecting the claim; or make the rejection a ground of exception to the report. If he does neither, and the report is confirmed, he cannot, on a final hearing, on the equity reserved, make the objection to the report.</p> <p>In a suit brought by a cestui que trust, against his trustees, for an account, &c., no costs were allowed the plaintiff, the conduct of the defendants being fair and honest, and the allegations of misconduct unfounded.</p>

WILLIAM OGDEN\ one of the firm of Murray Ogden, purchased public stock of the United States, to the amount of 11,979 dollars and 22 cents, with his own monies, derived from his wife’s estate. The house of M. O. were utterly insolvent, when the purchase was made, and the interest of the stock was pledged to Mrs. Murray, his wife’s mother, for life, and the stock was placed under her control, the better to secure the payment of that interest.

ISAAC CLASON, of the City of Neiv- York, merchant, died in February, 1815, and the defendants are his executors. In his life time, he was indebted to Frederick Mullett, of London, in the sum of 2,665/. Is. 10c?. sterling, being the admitted balance of an account between them.

THE defendants, who are stock and exchange brokers ° in the city of New-YorJc, and had purchased shares of United States’ bank stock for the plaintiff, and had received a transfer of other shares for the plaintiff, making together four hundred and thirty shares in their hands.

BILL, filed November 8, 1819, stating, that in September, 1814, the defendant, at the request of the plaintiff, and W. Minturn, made a promissory note for 2,900 dollars, payable to them or order, which was discounted at the Bank of New- York, for the benefit of J. W. M. That before the note became due, the plaintiff and W. M. failed, and the note was protested for non-payment.

BILL by the wife against her husband, for a divorce My Hist, a mensa et thoro, on a charge of cruel and inhuman treatment, The answer of the husband denied every substantial charge of improper conduct: and he recriminated, and charged the plaintiff with a series of acts of cruel and abu- . . sive treatment, and admitted that it would be proper, and intimated a strong desire that a divorce should be decreed. The cause was set down for hearing, upon the bill and answer.

BILL for a discovery of payments, alleged to have been made by the intestate, on his bond to the defendant, and which bond was then in suit at law. The bill charged, that 011 application to the defendant, she refused to admit the paymen ts.

MOTION on the part of the plaintiffs, for further time to except to the answer, and for leave to amend the bill, after the Said answer, and after a plea accompanying the same, but not noticed for argument.

<p>ICHABOD BRUSH, the testator, formerly of Demarara¡ South America, but late of Huntington, in the county of Suffolk, deceased, being seised of real and personal estate here and elsewhere, made his will, duly executed and attested, dated March 6, 1807, by which he directed, (1.) That his plantation, slaves, and effects, in the colony of Demarara, be sold by his executors: (2.) That his executors ■ pay to Miss E. Wilkins, 20,000 dollars, in five annual payments, and in case of her death, to her parents: (3.) That they pay to the plaintiff, his sister, 500 dollars, annually, during her life. The testator, after making various other bequests, and giving the residuum of his estate to his brothers and sisters, appointed five executors, of whom the defendants, of the city of JVew- York, were two. In June, 1808, the testator married Miss E. Wilkins; and afterwards, made another will, dated Huntington, March 14, 1809, in which he revoked all former wills, and made various bequests and dispositions of his estate, different from those contained in his former will; giving to the plaintiff an annu- „ ity of 300 dollars, for life, and to his wife, jointly with the child of which she was then enseint, his estate at Huntington, &c., and appointed the defendants, and two of the other persons, named in the former will, his executors, who were directed to sell his plantations, slaves, 8zc. in D. The testator died at H. the 1st oí August, 1809, leaving one child; and the second will, subscribed by him, but not published in the presence of witnesses or attested, was found with the first will, sealed up in the same envelope, among his valuable papers. The defendants treated the first will as a nullity, and on the 22d of August, 1809, proved the second, as the testator’s last will and testament; and no person proved or acted under the first will. The bill charged, that the defendants had possessed themselves of the personal estate of the testator, in this state, and in Demarara, and received the produce of the real estate; and prayed that the defendants might be decreed to set forth the situation, 8tc. of the real estate at D., and the produce thereof, and to account with the plaintiff for the personal estate, and the income of the real estate, which had come to their hands, and pay to the plaintiff her annuity, and for general relief. , -</p> <p>The defendants, in their answer, admitted that they proved the second will, and possessed themselves of the pcrsonal estate, and made an inventory, to which they referred, containing a just and true account of such personal estate; that they were advised, that the slaves on the plantation belonging to the testator in D., by the laws of that colony, passed with the plantation as immoveable property ; that the testator owed debts, beyond all the personal estate which had come to their knowledge, exclusive of that specifically bequeathed, unless the plantation, slaves, cattle, &c. in D., were to be considered personal property; that the defendant, W., had been appointed guardian of the person and estate of the infant son of the testator, and had received the rents and profits of the real estate, but they insisted that they were not accountable therefor except to the infant, or without his being made a party. They admitted, that if the plantation, slaves, &c. at D., were to be deemed personal property, or if the real estate at D., or the profits thereof, were to be charged with the payment of the annuity to the plaintiff, under the second will, there was sufficient to pay and secure it to her, but not otherwise, &c., and they set forth a schedule of the debts of the testator.</p> <p>A witness was examined to prove the laws of Demarara, who deposed, that he was born in D., and had resided there a considerable portion of the time, for the last ten years, and, for the last three years, was an officer in the Civil and Criminal Court of Justice of that colony, and was well acquainted with its laws. That by the laws of D., slaves on the plantations are considered as attached to or part of them, and descended and passed with the plantation to the heir,-(unless the plantation be duly devised) as real estate. That the same formalities are required to devise personal as real estate. That he did not consider himself qualified to give a correct answer, whether by the laws of D., a will duly executed, becomes revoked by a subsequent marriage and birth of a child. That a will concerning real estate in D., by a person residing in another country, and which was valid to pass real estate by the laws of such country, would be a valid will in JO., though not executed with the formalities required there. That by the laws of D., a will must be executed by the testator in the presence of a notary; or in the presence of seven witnesses; or being executed without witnesses, be sealed up and delivered to the secretary or clerk of the Court, who indorses his signature and keeps the will.</p> <p>The cause came on to be heard on the pleadings and proofs.</p> <p>They cited Doug. 38. Burr. 2171. 1 Equ. Cas. Abr. 413. 2 Salk. 593. note by Evans. 2 East, 541. 7 Vesey, 364. Sir S. Romilly, arguendo. 1 Phillim. Rep. 469.</p> <p>He cited, Arab. 721. 5 Term Rep. 49. 4 Maulé Sehv. 10. 1 Phill. Rep. 469. 2 Atk. 267. Bynk. Observ. Jur. Rom. lib. 2. c. 1, 2. 11. Poth. Trait, des Donat. Testamen. c. 6. s. .2. 1 Dodson’s Adm. Rep. 263, Demarara, &c.</p> <p>The cause stood over for consideration until this day.</p>

<p>IN 1815 and 1816, the defendant, Gurdon S. Munford, and Samuel Stillwell, were joint owners of the brig Phoenix, and her cargo, on a trading voyage to the Mediterranean, &c. After disposing of her outward cargo, which was shipped in the joint names of Mumford and Stillwell, and taking in another, the Phoenix went to the coast of Brazil, sold her cargo, and took in another, and arrived at the Havanna, where the captain invested the proceeds arising from the sale of the brig, and of the last cargo, in sugar and coffee. S. having become insolvent, the defendant, who had heard of the arrival of the Phoenix at H., in order to secure his claims against S. arising out of their joint concern in three other vessels, and voyages, and to indemnify himself for losses arising from his connection with S., wrote to the master of the Phoenix at H., directing him to consign the cargo, in which the proceeds arising from the sale of the brig and cargo at II. should be invested, to the defendant individually. The master, accordingly, and with the advice of merchants there, shipped the sugar and coffee so purchased with the proceeds of the brig and her cargo, on board the brig Newton, consigned to the defendant, at New-York, as if he was the sole owner. The Newton arrived at New-York, with the cargo, so consigned, to the defendant, on the 24 th February, 1817; and the defendant entered the cargo at the Custom-House, took possession of it, and sold it, and applied the proceeds of S.’s share to the payment, as the defendant alleged, in his answer, of the deb:;, of Stiihvell. Stillwell had, on the 27th N roll, f 316, ass-gi-.fd all hi» estate, real ood personal, aerunting to a Schedule annexed to the deed of assignment, including the brig Phcenisk and her cargo, to the plaintiffs, in trust, for all his creditors. The bill alleged, that the defendant had notice of this assignment soon after it was executed, and ]ong before the arrival of the JYewton with her cargo. That the plaintiffs, relying on the assignment, and that the property would come to their hands, paid the debts of S. and, among the rest, bonds at the Custom House, to a large amount. That all the property assigned, including the cargo of the Newton, is insufficient to pay the Custom House bonds, and debts due to the other creditors of S. That the creditors of N. relying upon the assignment, and ' on the good faith with which it was made, pursuant to the stipulations contained in it, did, by an instrument executed by them, under their hands and seals, prior to the 1st of September, 1816, and annexed to that assignment, release and discharge S. from the debts owing to them respectively. That the plaintiffs have demanded the proportion of S. in the cargo sent by the Newton, and the proceeds, of the defendant, who has refused to deliver or pay to them any part thereof. The bill prayed, that the defendant might be decreed to account, &c. and pay over to the plaintiffs the one half of the proceeds of the brig Phcenin and cargo, &e. and for general relief.</p> <p>The defendant, in his answer, admitted the material facts stated in the billand insisted on his right to retain the proceeds of the Phcenix and cargo, and to apply the proportion of S. to the payment of the amount due from S. to him, on the settlement of their partnership transactions; and he offered to come to an account and general settlement of all his dealings and transactions with S.</p> <p>The cause, this day, came on to be heard on the pleadings and proofs.</p> <p>They cited 2 Johns. Ch. Rep. 144. 9 Johns. Rep. 502. Abbot on Ships, 82. 1 Montague on Partnership, 102. 181. 2 Term Rep. 409. 1 Campbell N. P. Rep. 95.</p> <p>The cause stood over for consideration to this day.</p>

THE plaintiff, as mortgagor, filed a bill to redeem against James Hickok and Horatio Hickok, aministrators of Ezra Hickok, the mortgagee, deceased, and Daniel Hickok, Daniel Boardman, and Stephen Brayton.

A DECREE was entered in this causé; on the 13th of June, 1820, on the coming in of the Master’s report, [by which it appeared, that there was due to the plaintiffs, as trustees of a charity school, on two bonds and mortgages in ^he pleadings mentioned, for interest, 1,575 dollars.

PETITION of the plaintiff, stating a decree for the sale of mortgaged premises, lying in the city of New- York, to satisfy the mortgage debt due to the plaintiff, and a junior mortgage held by one of the defendants, and a sale thereon, by a Master, in pursuance of the decree, to William Reynolds, for 2,550 dollars. That, at the time of the sale, the .premises were represented as free and clear from all incumbrances.

PETITION of the defendant Cornell, stating, that through inadvertence, and unintentionally', his right and interest, stated in his answer, to a portion of the surplus of the proceeds of the mortgaged premises, after satisfying the plaintiff, were omitted to be provided for by the decree, which was prepared by the plaintiff’s counsel, and entered by consent of the solicitors of all the parties.

THE BILL, in this cause, was taken pro confesso, and -an order for that purpose was obtained and entered on the 17th of July last.

BILL for an account and payment of moneys received by the defendant for and on behalf of the testator. It appeared, by the bill, that Ph. Miller, the testator, was an inhabitant of the state of Georgia, and died there, and that his widow, Catharine Miller, was one of the executors of his will, and took upon herself, exclusively, the trust, . , , . . , and acted as an executrix; and the claim in the bill was foun¿e¿ Up0n dealings by the defendant with her in that character.

BILL for a specific performance of a contract, on the part of the defendant, to sell land to the plaintiff. It appeared, from the pleadings and proofs, that the plaintiff had made default in the payments which, by the contract, were made a condition precedent to the conveyance.

1 THE bill stated, that Jeremiah Lansing, of Albany, who died in February, 1810, by his last will, appointed the plaintiffs, and the defendant, G. Lansing, jun. his executors. G. L., who had united with the plaintiffs in the execution of the will, removed to Herkimer in 1811, and the whole care of the estate, from that time, devolved on the plaintiffs.

THE plaintiffs brought an action of assumpsit in the Su-, preme Court, against the defendants, Roorback and Mitchell, for meal and corn sold to them, as partners. The capias was returned taken as to Mitchell, and not found as to Roor- ■ back. A second capias was issued against R. to answer simulcumM. which was returned not found.

BILL charged that the defendant was daily running the steam boat Bellona, between the State of JVew-Jersey and the city of New-York.

BILL filed July 22d, 1819, against Robert L. Livingston, the executors of R. Fulton, Dominick Lynch, Jun. and others, stating, among other… Held: that the inhabitants of a town, which comes within the distinction of Kyd, “ as a community of known description recognized by law, might make ordinances or by-laws for the reparation of .the church, or a highway, or of any such thing, which is for the general good of the public; and, in such case, a greater part shall bind, the…

PETITION of J. Lansing, Junr. one of .the. defendants, stating that the defendant S. Lansing, and his wife, on the 10th July, 1816, mortgaged to the plaintiff a farmin the town of Bethlehem, in the county of Albany, containing 83 acres, to secure the payment of 1060 dollars, with interest; and that on the 10th day of July, 1819, there were 108 dollars 96 cents of interest due.

BILL for dower. The question was as to costs and mesne profits. The .widow claimed the mesne profits from the death of her husband, who died seized, in 1803, and also costs. There had been no demand of dower of the heir or terre-tenant.

BILL to foreclose a mortgage. The defendant, L., suffered the bill to be taken pro confesso, and the other defendants answered. The defendant, L., had a mortgage on the premises subsequent to the one owned by the plaintiffs.

BEQUEST by will of a bank share to Cornelia Thompson. The plaintiff claimed the beqtiest, on the ground that her name, which was Caroline Thomas, had been mistaken by the testatrix, or by the person employed to draw her will, and that the plaintiff was the person intended.

THIS cause came on to be heard upon the equity reserved, upon the coming in of the Master’s report, (vide ante, p. 388.

THE petition of Jacob Berry, one of the defendants, stated, that on the 10th of August last, he became a purchaser of the premises mentioned in the pleadings in this cause, which were sold under a decree of this Court. That on the 12th of August, the master executed a deed to him, for the consideration of eight thousand three hundred and fifty dollars, being the price at which the premises were struck off, and deemed to be their full value.

IN 1815, and long time before, Lemuel Brown and Jedediah Fay were partners in trade, at Owego, in Broome county, and became indebted to Kellogg Sprague, merchants, in New-York. Brown died on the 1st of December, 1815, intestate, leaving Elizabeth B. defendant, his widow, and nine of the defendants, his children. On the 1st January, 1816, administration of his estate was granted to his widow, and to the defendants, J. McQuigg and A. Brown.

BILL to foreclose a mortgage. The defendants were purchasers, under a sale on execution at law, since the first day of May last, of the mortgagor’s equity of redemption in the mortgaged premises, and received the sheriff’s certificate of the sale and purchase, in pursuance of the act, entitled, “ an act in addition to the act concerning judgments and executions,” passed the 12th of April, 1820.

THE plaintiffs, Egbert Benson, Charles M‘Evers, and Roswell L. Colt, executors of Anthony Rutgers, deceased, in behalf of themselves and other creditors of Jacob Le Roy, deceased, who should come in and contribute to the expense of the suit, filed their original bill, on the 14th of November, 1818, against Peter A. Jay, administrator, with the will annexed, of Jacob Le Roy, deceased, Martha Le Roy, widow, and Harriet, Goldsbrow, Mary and Cornelia, children of the said J. Le…

THOMAS OGILVIE, by his last will, dated the 8th of n , September, 1812, empowered his executors to sell his estate at auction, and to execute deeds for the real estate, to the purchasers in fee} and to divide the proceeds among his children, and appointed his wife and the plaintiffs, executors. The testator died on the 18th oí March, 1816, and his wife died on the 12th of May, 1818.

THE bill was filed July 3,1818, against Mathew Brown, junr., Silas Smith, Oliver Culver, Ira West, Russel Smith, and Benjamin Huntington, trustees of the Genesee Manufacturing Company, and stated, among other things, that in October, 1817, Russel Smith, one of the defendants, applied to the plaintiffs, to purchase goods on credit, and offered the notes of the Genesee Manufacturing Company, which was incorporated in March, 1811, as security.

THE bill, filed in May, 1818, against the defendants named in the last cause, and David Brown, and Francis Drown, stated that the plaintiff held three promissory notes, dated October 2,1816, given in the name of the Genesee Manufacturing Company, and signed by the defendant, M. B., by order of the trustees, payable in one, two, and three years from the dates, respectively, being for a balance due on a contract for erecting a building for the company, one of which notes was…

SUPPLEMENTAL bill, filed September 2,'1819, against the defendants, as assignees of James Robertson, an insolvent debtor, setting forth the original bill of discovery, filed February 2d, 1809, against Robertson, White Mat-lack, and Robert C. Allyn, and their answers.

THE bill stated, among other things, that the plaintiff and D, K. Allen, were partners in trade, under the firm of FI. &p D. K. Allen, and became insolvent on the 16th of April, 1818. That D. K. A., being arrested and imprisoned, applied for his discharge under the 9th section of the insolvent act, and having assigned his estate to the plaintiff, Thorp, according to the act, was, on the 16 th of December, 1818, discharged from his debts.