Volume 5 — Denio's New York Reports

The defendant was indicted in the oyer and terminer in April, 1845, for the offence of nuisance.

Trover, for a canal boat, called the “ W. W. Fassett,” tried at the Schenectady circuit in October, 1844, before Parker, circuit judge.

'Demuekee to pleas. The declaration was in covenant. The first count set forth that on the 20th of November, 1759, John Tan Rensselaer executed a deed indented of bargain and sale in fee to Andreas Muller, of a certain farm in Claverack, which was described; on condition that Muller and his heirs should pay to Tan Rensselaer, his heirs, executors, administrators and assigns, as a yearly rent for said land, the yearly tenth of all the profits thereof, and four fat hens; that…

<p>Motion to set aside the report of referees. The action, was assumpsit for goods, &c. sold and delivered. Plea, nonassumpsit.</p> <p>The plaintiff gave in evidence an agreement in writing, under seal, between himself and the defendant, by which the latter agreed to sell to the former a farm in Ghent, Columbia county, and to execute to him a good'and sufficient quit-claim deed therefor, with a covenant against the defendant’s own acts ; in consideration of which the plaintiff agreed to sell and convey to the defendant certain lands in Michigan. The price per acre of the several parcels of land was fixed by the agreement, and as there would be a large balance payable to the defendant for the farm sold by him, the plaintiff agreed to sell and did thereby sell to the defendant a quantity of wheat which the plaintiff then had stored with one Mellen at Hudson, which the defendant was to take at 94 cents per bushel, and he was also to take certain flour barrels owned by the plaintiff and another person, at certain prices specified in the agreement—the wheat to be measured to the defendant as he should call for it. The plaintiff was to assume certain mortgages upon the premises which the defendant was to convey to him, and to secure the balance of the purchase money by his bond and a mortgage on the farm. The agreement was dated October 24, 1842, and the conveyance and bond and mortgage were to be executed on the 15th day of December then next, before which day all the wheat was to be delivered. At the foot of the agreement the plaintiff and another person signed an undertaking to the defendant respecting the quality of the wheat, to the effect that if mixed with four parts of sound, and perfect wheat to one part of, the wheat in question it would make superfine flour. Pursuant to the agreement a- large quantity, of the wheat referred to and of the barrels was delivered to the defendant prior to the 15lh of December; andón or about that day the defendant offered to execute the conveyance of the farm-; but the plaintiff! alleging that he had been deceived and defrauded in the bargain, refused to perform on his part, and demanded the wheat which had been delivered on the agreement, which was refused. The action was sought to be maintained on the alleged ground that the defendant had committed a fraud upon the plaintiff, by representing the title of the farm, which was known to he held under a lease in fee from one Yan Rensselaer, to be good, whereas by the provisions of the lease it was subject to be forfeited for alienation without license, for non-payment of quarter sales, and for cutting down timber, and had been actually forfeited when the agreement was executed, for breaches of these conditions. After evidence on both sides touching the alleged fraud, the defendant offered to show that the wheat in question would not answer the terms of the guarantee at the foot of the agreement, and was not worth over fifty cents per bushel. The plaintiff’s counsel objected to this evidence and the referees sustained the objection and excluded it. Many other questions arose and were decided by the referees, who ultimately reported in favor of the plaintiff for the value of the property delivered on the contract, at the prices fixed thereon, with interest.</p>

Assumpsit on a promissory note by an endorsee against the maker, tried at the New-York circuit in October, 1844, before Kent, late Cir. J. The note purported to be made by the defendant, payable to the order of Charles L. Denman, and to be endorsed by him and by three other persons.

Assumpsit tried at the Onondaga circuit in September, 1844, before Whiting, Cir. J. The defendants were sued as common carriers of a quantity of salt shipped by the plaintiffs in the defendants’ vessel at Oswego, consigned to the plaintiffs’ agents at Chicago. The evidence tended to show that 269 barrels were shipped and that only 121 barrels were delivered to the consignees. What had become of the residue did not appear.

Debt on bond. The defendant Wilgus had been arrested by virtue of a warrant issued by O. B, Matteson, a supreme court commissioner, upon the prosecution of one Swab, pursuant to the third and subsequent sections of the act to abolish imprisonment for debt, &c. (Stat. 1831, p. 396;) and on the 20th day of December, 1842, was brought before the commissioner, and applied for an adjournment of the proceeding to the 27th of the same month, which was granted.

<p>The rule of evidence which permits, a party to a suit to give evidence on his own. behalf to the court, touching the loss or destruction of a paper, in order to lay a. foundation for the admission of secondary evidence, is not limited to facts peculiarly within the knowledge of the party—as that the paper ¡s not in his own possession—but allows him to testify to any matters pertinent to the inquiry.</p>

Black recovered a judgment against Post before a justice of the peace in an action of trespass. The latter brought a certiorari to the court of common pleas, and among other matters in the affidavit upon which the certiorari was allowed, it was stated that the plaintiff and the justice were related.

Case,, for negligence by the servant of the defendant, who was, as alleged, the proprietor of a ferry across the Hudson river between Schagticoke and Stillwater, by means of which a span of horses belonging to the plaintiff which he was in the act of driving on to the ferry-boat were drowned. Plea, not guilty. The cause was tried at the Rensselaer circuit, in March, 1842, before Cushman, late Cir. Judge.

<p>Certiorari to the general sessions of Kings county. Townsey was indicted in the court below for a misdemeanor in selling strong and spirituous liquors and wines.. The first count in the indictment, upon which alone the conviction was had, was as follows: “ that on the 3d day of May, 1846, a majority of the electors of the city of Brooklyn in said county of Kings present and voting, did in pursuance of an act of the legislature of the state of New-York, entitled ‘An act relating to excise and to licencing retailers of intoxicating liquors,’ passed May 14, 1845, and of an act entitled ‘ An act to amend an act entitled an act relating to excise and to licencing retailers of intoxicating liquors,’ passed February 16, 1846, cast their votes for ‘ no licence,’ whereby it became and thereupon was from thenceforward unlawful for the board of excise of the said city of Brooklyn to grant to any person whatever any licence to sell intoxicating or spirituous liquors or wines in said city of Brooklyn until said determination of said electors shall have been reversed in the manner in the said acts mentioned and provided for, and that said determination of the said electors hath not been in any manner reversed, but remains in full force. And the jurors aforesaid, &c. do further present, that Alexander Townsey, of, &c. afterwards, to wit, on the first day of July, 1846, at, &c. without being licenced or permitted by the commissioners of excise of the said city of Brooklyn, to sell strong and spirituous liquors and wines to be drank in his house, did sell by retail to divers citizens of the state and to divers persons to the jurors unknown, strong and spirituous liquors and wines, to wit: one pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of whisky, one pint of cordial, one pint of bitters, to be drank in the house, shop, out-house, yard and garden appertaining thereto, of the said Alexander Townsey, and did suffer such liquors and wines sold by him, under his direction or authority, to be drank in his house, shop, out-house, yard and garden, in contempt of the people of the state of New-York, against the form of the statute in such case made and provided, and against the peace of the people of the state of New-York and their dignity.” The defendant pleaded not guilty.</p> <p>The prosecution proved that at the election in May, 1846, a majority of the votes of the city of Brooklyn were given for “ no licence,” and then gave evidence tending to show that the defendant had, after that time, sold spirituous liquors and wine by the small measure to be drank in his house. It appeared that he kept a house of entertainment. The defendant’s counsel took sundry objections to a conviction, similar to those urged on the argument here; but the court refused to interfere tc arrest the trial, and the ease was finally submitted to the jury, who found the defendant guilty. The defendant took a bill of exceptions.</p>

<p>An Mictment upon a statute, must state all the facts and circumstances which constitute the statute offence, so as to bring the accused perfectly within the provisions of Ihe statute.</p> <p>Therefore an indictment for embezzlement under the statute concerning that offence, (2 R. S. 678, § 59,) must aver that the defendant was a clerk or servant of some person, (or an -officer nr agent of a .corporation,) and that the property he is charged with embezzling came to his possession or under his care by virtue of such employment.</p> <p>A count charging that the defendant received the property as the agent of an individual is bad.</p> <p>So also, it is bad, if it state that the defendant received' the property as the agent of .an individual named, though the count afterwards proceed to aver that it came to -the defendant’s possession and under his care as such servant as aforesaid, and that while lie was such servant, he converted it. The construction being that such servant, me ant such a servant as an agent may be.</p> <p>Where á constable was employed to collect certain demands’ without suitj if thfi debtors would pay, and by procuring and serving, process before a justice of the peace, if they would not; held, that he was not a servant of the creditor within the meaning of the statute concerning embezzlement. Per Beardsley", C. J.</p>

Motion to set aside report of a referee. The action was assumpsit on an account for goods, merchandize, lumber, &c. The defendant, with his plea, gave the usual notice of set-off. On the trial, the defendant, to prove his account, introduced his books, and gave preliminary proof under which he claimed that they were entitled to be received in evidence.

Tucker sued Nellis before a justice, and the only witness which he offered to prove the case on his part being rejected on the ground of interest, the justice decided that he should be nonsuited. The defendant said he did not wish to have costs awarded in his favor, but the plaintiff insisted that .the judgment should be with costs, in order that he might have the question reviewed, and so the justice decided.

<p>Error to the Oneida common pleas, to review a judgment of that court affirming a judgment rendered by a justice of the peace. The action in the justice’s court was for the breach of a warranty in the sale of a cow—that the animal was good and young. After evidence as to the warranty and the breach, the plaintiff’s counsel inquired of a witness who had seen the cow, what she would have been worth if good and young, and also what she would have been worth provided she gave four quarts of milk a day. The questions were severally objected to on the ground that they called for matters of opinion, and in both instances the objections were overruled, and the witness gave material testimony on these points. The defendant having had judgment against him in both the courts below, brought error here.</p>

<p>Assumpsit on a promissory note against the endorsers, tried at the St. Lawrence circuit, before Willard, Cir. J. The plaintiff had been appointed the receiver of the St. Lawrence Bank, an association organized under the general banking law, pursuant to proceedings against that institution as an insolvent corporation; and an assignment to him of its effects had been made. A promissory note made by Sylvester Gilbert, payable to the order of and endorsed by the defendants, for the sum of $1107,10, three- months from date, at the St. Lawrence Bank, and dated December 29th, 1840, was proved and given in evidence. To prove a presentment and notice of non-payment, the plaintiff examined W. H. Hoard,, who testified that he was the teller of the bank when the note fell due; and that on that day he drew the note from the package where it was kept, and, knowing that the maker had no funds, to pay the note in the bank, he gave notice of non-payment to the endorsers without any formal demand of payment or any actual examination of the maker’s account..</p> <p>The defendants moved for a nonsuit, insisting that there had not been a sufficient presentment of the note for payment. The judge, however, held the demand sufficient, and denied the motion.</p> <p>Gilbert, the maker, was then examined as a witness by the defendants, and testified that the note in question was the last of a series of four notes, the first having been given by the same makers and endorsers for the sum of $1000, on’ the 30lh day of April, 1839, payable seventy-five days from date, and the others being successive renewals of the first, nothing being added to the original debt except interest and fees of protest. On the discount of the first of said notes the witness said he received the certificate of deposit, which was presented by the defendants’ counsel. It was signed by the president and cashier, was dated April 30th, 1839, and by it it was certified that the witness had deposited in the St. Lawrence Bank one thousand dollars, which the bank promised to repay to the witness or order at their office, three months from the date thereof, and oh the surrender of the certificate, with interest at the rate of Jive per cent, per annum. The witness said he paid the discount on the note at the time it was discounted at the rate of seven per cent.; that he applied to the. cashier to have such a note discounted, who said he would do it if the witness would take a certificate of deposit; that the witness then obtained the defendants’ endorsement to the said first note, and returned and left the note and took the certificate. The witness said he was at that time a director and the vice president of the. bank. that the discounting of said note was reported by the cashier to the board of directors, and that the same was approved of by the board.</p> <p>The plaintiff’s counsel examined Mr. Doty, the president, and Mr. Bacon, one of the directors of the bank at the time the first note above referred to was discounted, and they testified in substance, that when Gilbert applied for the discount, he said he wished a certificate of deposit for the purpose of remittance; and the first of these witnesses stated that he understood Gilbert to say that a certificate would answer his purpose better than bills. Gilbert was recalled by the defendants and testified that the transaction respecting the discount of the said first note was with the cashier alone, neither of the plaintiff’s witnesses being present. The plaintiff proved that Gilbert had said that the certificate was not imposed upon him by the bank; that he wanted it to send south. It was shown that drafts on New-York were at a premium of from fills of one per cent, to one per cent, at that time, and were not readily obtainable.</p> <p>The defendants’ counsel asked the judge to charge that the transaction proved was usurious per se ; and also that if the jury should find that Gilbert took the certificate for the purpose of effecting the discount of the note, and not because he preferred it to money, the transaction was usurious. The judge refused so to charge; but he instructed the jury that the case should be viewed with more indulgence on account of having been brought by a receiver upon paper discounted for Gilbert, who was vice president and a director of the bank; that the question was whether it was made a condition on the part of the bank to the discount that Gilbert should take the certificate of deposit instead of money; that if so, the transaction was usurious and the plaintiff could not recover; but if that was not so the transaction was free from usury. The judge then commented on certain discrepancies in Gilbert’s testimony, and remarked that the jury might easily believe a case might exist in which a party would prefer a certificate of deposit to bills, for the purpose of remittance, and that if he declined to take the bills because he preferred a certificate, and had so stated, there would be no usury in the case. He added, at the close of the charge, that if Gilbert took the certificate with his own consent, and it was not forced upon him, the transaction was not usurious. The defendants’ counsel excepted to the charge, and the jury found a verdict for the plaintiff for the amount of the note. The defendants moved for a new trial on a bill of exceptions.</p>

Trover, for a quantity of lumber, tried at the Chemung circuit, in October, 1844, before Monell, late Cir. J. In the spring of 1843, the lumber belonged to the firm of Davis, Thomas & Co. which consisted of Cornelius Davis, Taft and Floyd. Two persons of the name of Thomas, had been members of the firm, but had withdrawn before this time.

The judgment in the common pleas was on a certiorari prosecuted by Cheney against Windsor to review a judgment of a justice of the peace in favor of Windsor as defendant, in a suit which Cheney had brought against him as sheriff of Otsego county, for a false return to a fi. fa. The common pleas affirmed the judgment of the justice, and awarded double costs in favor of Windsor, i. e. thirty dollars.

<p>Certiorari to two justices of the peace, to review proceedings had before them, under the provisions of the revised statutes relative to the support of bastards. The facts are sufficiently stated in the opinion of the court.</p>

<p>In a summary proceeding on the complaint of an overseer of highways to fine a person assessed to perform' highway labor, for neglect to attend when notified, pursuant to 1 R. S. 510, § 41 el seq., the question whether the complainant is an overseer of highways of the town, is a jurisdictional fact. It may, therefore, be controverted when the warrant for a.fine is offered in evidence in a collateral suit, e. g. in trespass by the party fined against the party on whose complaint the fine was imposed.</p>

The plaintiff in error was indicted in the sessions, in June, 1845, for arson in burning a bam of Ebenezer Perkins at Hannibal, Oswego county,, on the first day of April, 1845. The defendant pleaded not guilty, and the trial took place in December, 1845.

Assumpsit on a promissory note, against the defendant as third endorser. The note was made by G. D. Wall, dated New Brunswick, N. J., June 12, 1840, and was for the payment $751,18 at the State Bank (N. J.) three months after date. It was endorsed by the payee and another person and then by the defendant. The only question was, whether the presentment for payment and notice of non-payment were sufficiently proved. The note was lost.

The defendant was indicted in the sessions in October, 1846, for the offence of selling strong and spirituous liquor by retail, without licence, and for selling such liquor to be drank in his shop, &c. contrary to the provisions of the revised statutes. (1 R. S. 680, §§ 15, 16, 25.) The indictment did not contain any allusion to the excise law of 1845. The defendant having pleaded not guilty, the trial took place in March, 1847.

<p>Necessary food far a team, is not exempt from levy and sale on execution.</p> <p>Statutes, exempting portions of a debtor’s property from liability for his debts, are in derogation of the common law, and are not to be extended by an equitable construction.</p>

Ejectment, tried at the Albany circuit, in October, 1844, before Parker, Cir. J. The declaration was for a piece of land described by specifying the adjoining owners, and which was stated to be all the land in the possession of the defendant in the parcel of land theretofore demised by Stephen Van Rensselaer deceased, to William Davis.

Covenant for rent on a lease in fee, dated 8th December, 1813, executed by Stephen Van Rensselaer, since deceased, to William Davis, for 188T37 acres of land in Guilderland, tried at the Albany circuit in October, 1844, before Parker, Cir. J. The lease was produced and proved.

Assumpsit on a policy of insurance, against loss by fire, tried in February, 1847, at the Tompkins circuit, before Gray, Cir. J. The plaintiff was nonsuited on the trial. The facts are sufficiently stated in the opinion of the court. The plaintiff moves for a new trial on a bill of exceptions.

Trover for cattle, farming implements and growing crops, tried a second time at the Columbia circuit in March, 1846, before Parker, Cir. Judge. The leading facts were the same which appeared on the former trial, of which a report may be found in 1 Denio, 407.

Demurrer. The declaration was in covenant on a contract for the sale of lands, by the vendor against the vendee.

Covenant, tried at the Allegany circuit in October, 1844, before B. Whiting, Cir. Judge.

Motion to set aside the report of a referee. The action was assumpsit, in which the plaintiffs, as boat owners and carriers by the Erie canal, sought to recover of the defendant the balanee of freight on a quantity of flour carried from Buffalo, and consigned and delivered to the defendant at Albany.

Motion to set aside the report of a sole referee. The action was assumpsit for goods sold and delivered. Plea non-assumpsit. The plaintiff was a merchant, and the goods for the-sale of which he sought to recover, were delivered by him subsequent to May 1, 1844, on the orders of Marble & Penny, who were manufacturers of cotton goods, at The Farmers’ Factory, so called, in the neighborhood of the plaintiff’s store.

Trover for certain cows and sheep. Plea, not guilty. The cause was tried at the Westchester circuit in November, 1844, before Ruggles, late Cir. J. It appeared that the property in controversy had belonged to the plaintiff, who had leased it with a farm to one Reynolds, who during the term sold it to the defendant. After the plaintiff had proved a prima facie case, the defendant called Reynolds as a witness, who was objected to by the plaintiff on the ground of interest.

Ejectment, tried at the Washington circuit, in October, 1844, before Willard, Cir. J. William Burch was the source from which both parties claimed title. The plaintiff’s title was as follows: 1. A mortgage from William Burch to Lewis Fort, dated in April, 1838, 'the day was blank,) and recorded on the 13th day of that month, in Washington county, in which the land was situate; 2.

<p>One who purchases land which is under incumbrance, and receives a conveyance without covenants, cannot set up a concurrent agreement by parol on the part of the grantor to pay off the incumbrances.</p> <p>Such agreement is parcel of an entire agreement "for the sale of lands, and to be valid, must be in writing.</p>

<p>To constitute a valid levy upon goods under a fi. fa. as against strangers to the suit, the officer must take possession of the property by manual acts, or he must declare that a levy is intended which must be acquiesced in by those who are present and interested in the question. ^</p> <p>Enough must be done to make the officer a trespasser, if the process were not a justification. Per Beardsley, C. J.</p> <p>Viewing the property by the officer, and his mentally intending to levy, and after-wards making a memorandum to that effect which is not communicated to anj one, will not amount to a levy.</p> <p>Where an actual levy on goods is made under a fi. fa. and they are left in the possession of the defendant, who continues to exercise acts of ownership over them; and afterwards a fi. fa. in favor of another creditor is delivered to another officer, it is his duty to levy upon the goods, notwithstanding such prior levy, Per Beardsley, C. J.</p> <p>Where there are several executions against the same defendant, delivered at different times, the one first delivered is entitled to preference, though a levy is first made upon the other.</p> <p>Two executions against the same debtor, are successively delivered to different officers to execute, the first being levied before the second is delivered; then a third execution against the same debtor is delivered and immediately levied; after that, and before the second is levied the first is withdrawn; the second execution is entitled to a preference over the third, and if the officer in whose hands it is, suffer the avails of the property to be applied on the third, he having information of the withdrawal of the first before a sale on the third, and he then return his execution nulla bona, he is liable for a false return. Per Whittlesey, J.</p>

p. 193, § 5,) to review a verdict or appraisement of the value of certain lands belonging to John J. Hill and Adam Aldrich, taken by said rail-road company for the purposes of their track, and for the damages, &c. The return stated that the jury were empanneled and sworn on the 29th day of August, 1844; that among the lands which they were required to appraise, was a vacant piece of ground belonging to Hill and Aldrich, on the west side of Broadway, in the city of Albany,…

Case, tried at the Albany circuit, in October, 1844, before Parker, Cir. J. The action was for obstructing a way. The two first counts alleged that it was a way appurtenant to the plaintiff’s farm in Watefvliet, by means of which he was accustomed, and was entitled, to pass and repass to and from his house and farm to and from the common and public highway leading to Hudson river at West Troy.

Motion to set aside the report of a sole referee. • The action was by the holder against the fourth indorser of a promissory note. It was made by A. Hackley, payable to the order of P. Cassety nine months after date, at the Onondaga County Bank, for §460 ; and was indorsed by the payee and by two other persons and then by the defendant. The plaintiff’s name had been indorsed on the note, but when produced at the trial, that indorsement was erased.

Ejectment for an undivided half of certain lands in the county of Monroe, tried at the circuit court for that county in September, 1846, before Dayton, Cir. J. The facts necessary to be stated to present the question of law appear from the opinion of the court. After the testimony had been given, the judge charged the jury that the plaintiff was entitled to recover an undivided half of the premises mentioned in the declaration.

The errors relied upon consisted in certain rulings of the court and in its charge to the jury. These were stated in a paper annexed to the record, being a narative of the trial drawn up in the form of a bill of exceptions. It is not certified to be a copy of a bill of exceptions, nor is there any signature attached to it.

Trover, for the conversion of three bonds and three mortgages, brought of October term, 1844. Plea, not guilty, and the statute of limitations, with notice of special matter. The cause was tried in April, 1845, before Whiting, Cir.

Hunger sued the plaintiffs in error in the court below in case, for the negligence of the defendants in that suit in running their steam engine and cars, by means of which two oxen, the property of the plaintiff, were run over and killed. Plea, not guilty.

The plaintiffs in error brought assumpsit in the court below, and the only question on the trial was whether their demand was barred by a bankrupt discharge, which the defendant had obtained m the course of proceedings in bankruptcy instituted by himself, and which he had pleaded to the plaintiffs’ declaration.

The plaintiff in error was indicted in the sessions in May, 1845, for that he “being an evil disposed person, on the twentieth day of March, 1845, with force and arms, at the town of Ovid, in the county of Seneca aforesaid, unlawfully, wilfully, and maliciously,- did break in pieces and destroy, two windows, in the dwelling house of Moses Cory, (he, the said Moses Cory being the owner of said windows,) to the great damage of the said Moses Cory, against the form of the…

Assumpsit against the defendant, as a stockholder of The Jefferson Woollen Company, a manufacturing corporation formed under the act of 1811, to recover a demand against the company, to the amount of the defendant’s stock. Non-assumpsit having been pleaded, the cause was tried at the Albany circuit in October, 1844, before Parker, Cir. J. The incorporation of the company was proved, and it was admitted that the defendant was a stockholder to the amount of $500..

<p>A party to a suit may give in evidence, to impeach the credit of a witness of his adversary, a written or sworn statement of such witness, made on another occasion, contradicting his testimony then given, without calling the attention of the witness to it, otherwise than by giving it in evidence on the trial.</p> <p>Written documents are not received in evidence by proving their authenticity on the trial. To be evidence in the cause they must be read, or the reading must be expressly or impliedly waived.</p> <p>Documents not given m evidence while the testimony is being taken, may yet be read on the argument, at the discretion of the court or referees; but where such permission is given, explanatory evidence should, be received from the opposite party, if necessary to prevent a surprise.</p> <p>An offer by a party complaining of surprise, on a trial before referees, to give rebutting evidence, should be absolute, and not be made to depend upon a statement of the referees, as to the effect on their minds of the evidence to be answered.</p> <p>Where the defendant examined his son-in-law as a witness in his behalf, and it was shown that he had made statements contradicting the facts sworn to by him on the trial; held that it was competent for the defendant to answer the imputation of bias on the part of the witness in his favor, to show that they were not on friendly terms.</p>

Ejectment for dower, tried at the Albany circuit in April, 1843, before Cushman, late Cir. J. The plaintiff claimed dower in the premises described in the declaration, as the widow of Francis Costigan, who died in August, 1840. It was proved, on the part of the plaintiff) that Costigan purchased the premises in fee, in 1799, and was in possession until the year 1839; that on the 7th day of September, 1839, he intermarried with the plaintiff.

Ejectment, tried at the Montgomery circuit, in May, 1845 before Willard, Cir. J. The declaration was for about seven acres of land descrmeti by metes and bounds, being part of lot number ten, in a patent granted to P. Livingston and others. The plaintiff gave evidence tending to show title in himself to the whole of lot number ten in 1830, and proved that in the fall of 1843 the defendant was in possession of the seven acres in question. The defendant gave in evidence, 1.

Motion to set aside the report of.a sole referee. The action was assumpsit, brought to recover for the support of Mary De Freest, the widow of Derick J. De Freest, deceased. It appeared that D. J'. De Freest, who died about 1832, had devised a farm to the plaintiff and N. De Freest, who were his sons, charged with and subject to the support of his widow.

Motion to set aside a report of referees. The action was assumpsit, of January term, 1844, for non-payment of rent and other breaches of the provisions of a lease which the plaintiff had given to the defendant.

<p>One whose wife may inherit land from a claimant out of possession, may lawfully maintain the suit of such claimant to recover the land, under- an agreement to have the whole avails of the recovery.</p> <p>Accordingly, where a person claiming title to land held adversely, executed a power of attorney to her son-in-law, to bring suits in her name for the land, but for his own benefit; held that the transaction was legal.</p> <p>The provision of the revised statutes, allowing a party bound by an instrument under seal to set up a want of consideration, at law, is limited to actions and set-offs upon such instruments, and does not apply where a specialty is giver in evidence for a collateral purpose.</p> <p>Hence in asswmpsit for -money had and received, brought by-an executor, in which the defendant- makes title to the money under a mortgage executed by the te** tatrix, it is not competent for the plaintiff to show that the mortgage was given without consideration.</p> <p>The executors of a deceased person cannot impeach a voluntary transfer of property made by their testator, unless there exist debts against the estate. Per Beardsley, C. J.</p>

Assumpsit, tried at the Broome circuit, in November, 1844, before Monell, late Cir.

Ejectment for an undivided part of the north half of lot number 13 in a tract of 5029 acres in Charlton, Saratoga county, tried at the circuit for that county held in December, 1845.

<p>Error tó tiré mayor’s court of the city of Albany.- The ácíion in the court below was on a policy of insurance against fire, by the insured: against the insurers. The property had beeh destroyed by fire within the period- insured ; and the plaintiff had á verdict á!nd judgment id- the court below for the amount of the loss, which the defendants' sought to review ód this writ of error. The facts upon which the questions óf law arose are sufficiently stated in the opinion of the court.</p>

Assumpsit ón a promissory note, against the second indorser, ,ried at the Seneca circuit, in November, 1844, before Whiting, Cir. J. The plaintiffs proved the defendant’s indorsement to a note dated July 9, 1843, made by N. P. Lee, to the order of A. Reading, for- the payment of two thousand dollars at the Seneca County Bank, [at Waterloo,] nine months from date, indorsed by the payee and by the defendant.

Motion to set- aside the report of a referee. The action was assumpsit on a promissory note by an indorsee against' the maker and indorser. The note was made by the defendant Worth- to the order of the other defendant, and by him indorsed,-dated February 17,1840, for $7000, payable three months from date, at the Watervliet Bank, was proved and read in evidence. Evidence was then given to charge the indorser, and the plaintiff rested.

The suit in the court below was by Lord against Brown and Bouck. It was an appeal from a justice’s court, and was tried in the common pleas in June, 1846. The action was trespass for breaking and entering the plaintiff’s close, and driving away a yoke of oxen and three cows.

Trespass for taking a horse, tried at the Westchester circuit, in November, 1844, before Ruggles, late Cir.

Assumpsit, tried at-the Schenectady circuit, in October, 1844, before Parker, Cir. J’. The plaintiff sought to recover the amount of a bill of fees for services rendered by him as a master in chancery, in a proceeding instituted by the Exchange Bank of Genesee, in the court of chancery, against the Clinton Bank.

Assumpsit, tried at the Onondaga circuit, in April, id46, before Whiting, Cir. J. The declaration was for goods sold, and on the guaranty of a promissory note. Plea, non-assumpsit.

Motion to set aside the report of a referee. The following facts were proved: Shortly before the general election in 1844, the defendant was desirous of having a bet made with one Thompson upon t'he result of that election, and caused the plaintiff to be informed of such his wish.

Motion to set aside an. inquisition! The action was case for seducing the plaintiff’s daughter: The defendant suffered a default, and the damages were assessed by virtue of a writ of inquiry, executed, before the- sheriff of Fulton county, on the 13th day of December, 1844, at the sum of $1000.

<p>Assumpsit, tried at the Rensselaer circuit in November, 1844, before Parker, Cir. J. The suit was originally commenced in January, 1843, by the plaintiff’s intestate, but he dying after issue joined, the present plaintiff was appointed his administratrix, and by an order "of the court was substituted as plaintiff. The declaration contained the general counts in indebitatus assumpsit for goods sold, and money had and received. Vies., non-assumpsit. The plaintiff claimed to recover for certain factory machinery, namely, a lathe and two hat carders.</p> <p>The facts appearing upon the trial, which are material to be stated, are the following: The defendant was a collector of taxes for the third district of the city of Troy, and in that character had in his hands the assessment roll, tax list and warrant for the collection of the county taxes, in that district, issued in December, 1839, and an assessment roll, list and warrant for the city taxes for the same district, for the same year. On each of these lists, George B. Warren was assessed in a sum of money, in the aggregate amounting to about sixty dollars, on a cotton factory situated in that district. Upon these warrants the defendant, in the spring of 1840, seized and sold the machinery in question to pay the taxes aforesaid assessed on the factory. The plaintiff gave evidence to show that the property when so sold belonged to the intestate. Evidence was also given to show to whom the factory belonged at different periods. In the course of the trial, the defendant’s counsel offered to prove what one Laban Tucker, then deceased, had sworn to on a former trial, between the intestate and the present defendant, in trover brought by the intestate for the property in question in this suit. The plaintiff’s counsel objected to the evidence, and the judge sustained the objection and the testimony was excluded. The defendant’s counsel excepted.</p> <p>The judge charged the jury that the collector’s warrants did not justify the taking of the property of the intestate for the tax on the factory; that no other property than that of Warren could be taken for that tax ; that the warrants were therefore no protection to the defendant, and that the action of assumpsit for goods sold was well brought in this case, and the rule of damages was the value of the property and not merely what it sold for. The defendant’s counsel excepted. Verdict for the plaintiff. The defendant moves to set aside the verdict on a bill of exceptions.</p>

Motion to set aside the report of a referee. The action was assumpsit for the balance of the purchase price of a quantity of barley. Plea, non-assumpsit.

The plaintiff in error filed a petition in the court below for his portion of certain lands, which, as he alleged, he held in common with eight other persons, to whom the petition was addressed.- The petition stated that Leonard Aldrich died seized of the premises in August, 1831, leaving a widow and eight children, and having made his will, by which he devised an undivided third part of all his property to his wife, and the undivided two-thirds to his son Lewis; the devise…

Ejectment, tried at the Richmond circuit in November, 1846, before Edmonds, Cir. J. The declaration was for a lot of land at Tompkinsville in ¿he town of Castleton, on Staten Island, which was particularly described, and was made land, formed by filling up in the bay.

Demurrer to a return of the canal commissioners to an alternative mandamus.

Motion to set aside the report of referees. The action was debt on a sealed agreement, dated December 23d, 1840, by which the plaintiff agreed to deliver to the defendant, by the first day of July then next, at certain places specified, certain timber and plank, at certain prices per foot, payable when the whole should be delivered and accepted. One count averred the delivery of the lumber according to the contract, and that the price had not been paid.

Information in the nature of a quo warranto to determine the tide of the defendant to the office of supervisor of the town of Pawling, in the county of Dutchess, tried at the Dutchess circuit in March, 1844, before Pvuggles, late Cir.

Ejectment, tried at the Albany circuit, in April, 1847, before Parker, Cir. J. The plaintiff sought to recover an undivided fourth part of a lot of land in the city of Albany. It was proved that Jacob Roseboom died seized in fee of the premises in 1797, leaving a widow—Hester Roseboom— and four children, of whom the plaintiff was one.

<p>A tenant, who, while in possession, has taken a conveyance in. fee from a stranger, is not entitled to notice to quit from his landlord.</p> <p>A tenant cannot set up against his landlord, a title acquired by him during his tenancy, hostile in its character to the title which he acknowledged in accepting the demise.</p> <p>Accordingly where a tenant entered under a demise made in 1835, and during his tenancy, purchased a title derived from a tax sale which took place in 1834; held that he could not assert such title against his landlord.</p> <p>But a tenant may acquire a title consistent with that admitted by the demise, as a tax sale made during his term.</p> <p>A party in possession of land holding under another person, cannot render his possession adverse, except by an open and notorious act. If he take a secret conveyance in fee of the land from one claiming to be owner, and keep it secret, the character of his possession is not changed.</p>

Assumpsit, tried at the Albany circuit in April, 1845, before Parker, Cir. J. Plea, non-assumpsit. The plaintiff on the trial sought to recover against the defendant as the maker of a note and the acceptor of a bill of exchange, as follows: “ Rochester, Sept. 21, 1844. $801,84.

Assumpsit, tried at the Westchester circuit in April, 1845, before Ruggles, late Cir. J. The declaration contained the common money counts, and annexed to it was the copy of a written instrument purporting to be signed by the defendant, as follows: “ $5000. On demand, I promise to pay Benjamin Seacord or order, five thousand dollars, value received, with six per cent interest; but no demand is to be made as long as the interest is paid. New Rochelle, May 1, 1842.

Demurrer to a replication. The declaration was in debt on a judgment rendered in this court in August, 1810, in favor of the plaintiff’s intestate against Elmendorf, the intestate represented by the defendants, for $2744,40 of debt, and $14,43 damages and costs.

<p>A reservation upon a grant in fee of “ one day’s service with carriage and horses,” (that, with the other rent, being made payable on a particular day in each year,) is legal. It is not void for uncertainty.</p> <p>The place of rendering the service is not necessarily on or near the land, but wherever the landlord shall require it to be done.</p>

Covenant, tried at the Albany circuit in February, 1845, before Parker, Cir. Held: that, as the facts were uncontradicted, the plaintiffs were entitled in point of law to recover the sum mentioned, and that interest had been properly included in the amount. The defendant excepted. Verdict for the plaintiffs- for $146. The defendant moves for a new trial on a bill of exceptions.

Motion to set aside the report of a referee. The action was covenant for the non-payment of rent, brought by the executors of the lessor against the defendant Peter Roberts as assignee of the lessee, and was tried in June, 1844.

Ejectment, tried at the Rensselaer circuit., in November, 1844, before Parker, Cir. J. The action was brought to recover part of a lot of two hundred and fifty-seven acres of land, which Stephen Van Rensselaer the elder, on the 24th day of March, 1794, granted in fee, subject to an annual rent, to Zophar Roberts.

Assumpsit, to recover the amount of the taxed bills of costs in ten several suits in the supreme court in which the plaintiffs in this case were the plaintiffs’ attorneys. Flea, non-assumpsit.

Assumpsit tried at the Herkimer circuit in September, 1847, before Willard, Cir. J. The declaration contained the common money counts, and also special counts on a guaranty. Plea, non-assmmpsit. On the trial the plaintiff proved and gave in evidence a promissory note, and an instrument indorsed thereon and signed by the defendants, as follows: “$715,88.

Case, tried at the Oswego circuit, in December, 1844, before Gridley, Cir.

Motion to set aside the report of a referee. The action was debt on a joint bond of the defendants executed on the 24th of August, 1839, to the plaintiff as sheriff of the county of Albany, in the penal sum of $7000.

Motion to set aside report of referees. The action was brought upon a promissory note made by the defendant Hiram W. Kilborn to Allen Kilborn. The defence set up was, that Hiram and Allen Kilborn were brothers, and interested with other heirs in the estate of their father, who had left some parol direction concerning its disposition.

Motion to set aside report of referees. The plaintiff brought an action of assumpsit against the defendants. The declaration contained the ordinary money counts, and appended to it was a notice that under them a bill of exchange of which the following is a copy would be given in evidence: “ No. 189. To the treasurer of the county of Chemung.

Trover for a horse power and machinery connected with it for malting pumps. The action was tried at the Jefferson circuit in June, 1845, before Gridley, Cir. Judge. The horse power and machinery Were erected by John L. Farrar. He owned a small farm upon which was a building within which the whole was placed.

Bloomer, plaintiff in the court below, declared upon an account for goods sold and delivered. The defendant below pleaded 1. Non-assumpsit; 2. Non-assumpsit infra sex anuos, and 3.

Trespass fov false imprisonment. The plaintiff was sheriff of the county of Dutchess, and the defendant surrogate of the county .of Ulster. A subpoena had been served upon A. U. Jordan, a witness, to attend an accounting before the surrogate. Upon his default in appearing, the surrogate made an order that an attachment issue to bring th.e witness before him “ to testify” on the accounting. The attachment was directed to the plaintiff, and delivered to him.

Pearce sued Wilkins, Rollins and J. B. Glentworth, who constituted a partnership under the firm of Wilkins, Rollins & Co. upon an agreement to pay at its maturity a' draft drawn upon Pearce by Glentworth and accepted by Pearce. It was alleged in the declaration, that the draft was accepted for the accommodation of the firm. Glentworth suffered judgment by default, and Wilkins & Rollins defended.

<p>The Gth article of the treaty of 1783 not only harred the escheat of lands held by British subjects in this state, but gave them capacity to transmit them by descent ; but the descent must be to a citizen.</p> <p>Where a British subject holding lands here died previous to the treaty of 1794, leaving no citizen heirs, his land escheated, and the provisions of the treaty did not pass the lands to alien heirs.</p> <p>The act of 1845, (Laws 1845, p. 94,) does not operate to confirm a title previously conveyed by an alien heir of one holding real estate.</p> <p>Where several ejectments were pending between one claiming title and persons having only the naked possession of lands, and an agreement was made between all the parties that the suits should be stayed and await the event of a suit between other parties in which the same questions arose, held that a judgment in that suit would operate as an estoppel between the parties to the agreement; and this, although the judgment was one as in case of nonsuit.</p>

The defendants had been arrested under the provisions of the act to abolish imprisonment for debt, and applied to the officer for a discharge upon making the assignment as provided by the act. The petition set forth that the petitioners had given “ a bond pursuant to the 101A section of the act.” The application was opposed by the relator upon several grounds, one of which was that the papers did not show enough to give the officer jurisdiction.

<p>Where a public officer deposits money in a bank upon an account kept in his own name, with his official addition, in the absence of evidence to the contrary it is to be regarded as his own funds and subject to his draft.</p>

The plaintiff brought assumpsit against the defendant, as endorser of a promissory note for $6000, made by Gilbert Ogden Fowler, dated August 10, 1843, payable six months after date. The cause was tried at the Orange circuit on the 17th September, 1845, before the Hon. Charles H. Buggies, circuit judge. The endorsement, presenlation for payment, non-payment and notice to defendant, were admitted, and the plaintiff rested.

Yedder brought assumpsit in the court below against the superintendents of the poor of Schenectady county, for services as a j ustice of the peace, performed at their request. The cause was referred to a sole referee.

<p>The right of a corporation to make a promissory note in the transaction of the business contemplated in its charter is recognized by 1 R. S. 768, § 3. But it must affirmatively appear that it was made in the course of its legitimate business: the fact will not be presumed.</p> <p>A corporation cannot be bound by its agents for acts not within the powers conferred upon it by its charter. Contracts based on such acts are void, and a subsequent ratification by the directors will not render them valid.</p> <p>The authority of agents of a corporation must be shown. Proof that a promissoiy note purporting to be made by it was signed by the president and secretary, is not sufficient without proof of their authority to sign it. Per Lott, Senator.</p> <p>A resolution passed by the stockholders of a corporation does not bind it. It can only act in the manner provided by its charter. Per Lott, Senator.</p> <p>The provision in the act incorporating the Rossie Lead Mining Co. (Laws of 1837, p. 396,) rendering the stockholders liable for its debts, is applicable to persons owning stock when the suit is brought, and not to those who were stockholders when the debt was contracted. Per Lott and Vxn Suhujnluvf&tirSenaterxr- .Barlow and Talcott, Senators, contra.</p> <p>..... ... ......... i. Oakley, (2 Hill, 265,) and Moss v. The Rossie Lead Mining Co (5 id. 137,) disapproved. Per Lott, Senator.</p>

<p>Error from the supreme court. The defendant was sped for not collecting an execution, to him directed, against one Rosenbury, for f>806,24. The declaration contained two counts: the first alleged a levy upon sufficient property to satisfy the execution, and a neglect to return it; the second, a neglect to levy before the return day, although there was sufficiént goods of the defendant' to satisfy it. The cause has been x tWice before the supreme court. (5 Hill, 588, and 7 Id. 120.) Upon a denial of the motion' for a new trial upon the case made at the second trial, (7 Hill 120,) the case was converted into a bill of exceptions, and" comes before this court upon writ of error. At that trial, the plaintiffs gave in- evidence an exemplification of the execution which was delivered to Babcock, the under-sheriff of the defendant, on the 21st of May, 1840, and was returnable on the first Monday of July then next. Upon it's being read the defendant insisted that the return should also be read in evidence. This was-objected to by the plaintiffs, but thejudge admitted the same with the-qualification that such part thereof as did' not strictly form a part of the sheriff’s return should not be used as evidence, to which ruling the plaintiffs excepted The return set forth a levy by the under-sheriff on the 21st day of May, 1840; upon a store of goods of the defendant in the execution, of sufficient value to satisfy it, and that he, there upon, took a receipt for the same from one Ellsworth, by which he agreed to deliver them on demand, or to pay the amount oí the execution with costs, and left the goods in the defendant’s possession : that on the 31st day of May, 1840, he was served with an order made by Hon. D. Moseley, circuit judge, staying the proceedings on the execution until the first Tuesday of August then next, and that on the 22d June, 1840, the goods, with the stove in which they were levied upon, were casually consumed by fire, excepting a small portion which he had sold and upon which he had made $17,37; and that Ellsworth, the receiptor, was of sufficient responsibility for the same. The return was dated December 28, 1840. Evidence was given tending to show that after the levy, and before the fire, a considerable quantity of the goods had been sold, and that more of the goods were saved from the fire than were accounted for in the return. No evidence of the stay of proceedings was offered by thedefendant excepting the return upon the execution. The plaintiff’s counsel requested the circuit judge to charge,</p> <p>1. That the return of the sheriff did not constitute a defence to the action, even if true: 2. That there was no evidence that the defendant was stayed upon the execution; and 3. That the return of the sheriff, that the goods were destroyed by the fire, was no evidence in his favor. The circuit judge refused so to charge, and charged the jury that the return of the sheriff, if true, formed a good defence to' the action, and the same was evidence for the sheriff that the goods levied on had been destroyed : that whether the goods had been saved from the fire, was a question of fact, and if they found any were saved, they should next find their value: that on that question there was no very direct evidence: the plaintiff, in any event, would not recover beyond the value of the goods saved, and those sold after the levy and before the fire: if the jury should believe any were so sold they would have to arrive at it the best way they could : that they would be warranted in taking into consideration in connexion with the other evidence, that part of the sheriff’s return which stated that the goods were all destroyed, except the portion sold by the sheriff, as appeared from his return. If enough of the goods were saved from the fire to amount to the claim of the plaintiffs, then the defendant was liable for the whole: if not enough, then to the extent of the value of the goods saved from the fire, and of those sold after the levy and before the fire. The plaintiffs excepted to the refusal to charge, as requested, and t.o the charge as delivered. There were other exceptions taken on the trial which did not become material in the final disposition of the cause. The jury found for the defendant.</p>

<p>Where a deed conveyed 20,100 acres of land on the west side of Genesee river, bounding it easterly “ on the bank of the river agreeable to the traverse,” and reserving “ out of the above described lands one hundred acres which is conveyed by deed to A. and is to be laid out in a square form, as near as the traverse of the river will admit, and the said A’s mill to be the centre of the eastern boundary,” the whole tract including the one hundred acre reservation is bounded by the bank of the river and not by the thread of the stream.</p> <p>A reservation or exception in a deed is to be taken as part of the premises granted, and not of lands not included in the general description.</p>

On error from the supreme court. The cause originated in the superior court of the city of New-York, where the plaintiffs sued the defendants upon an implied warranty on the sale of 194 barrels of mess beef, that it was good, sound and merchantable, when it proved to be sour, tainted and unwholesome.

The cause came before the supreme court upon special verdict, in May, 1845. A report of the case, in which the special verdict is given at length, with the reasons of the court, will be found in 1 Denio, 61 The cause was argued here by

<p>Error from the supreme court. The cause originated in a justice’s court and' was carried by appeal to the Onondaga common pleas, where judgment was obtained by the plaintiff, which, on writ of error, was reversed by the supreme court in January term, 1843. A report of the facts then appearing in the case, with the opinion of the court, will be found in 4 Hill, 158. Upon the second trial before the common pleas, it was shown by the plaintiff that in July, 1839, Ray, the plaintiff, signed a note with Houghtaling, as his surety. The note was for $200, payable January 1, 1841. Early in September, 1840, one Philips let about sixteen acres of land to Houghtaling, to cultivate a crop of wheat upon shares. Houghtaling proceeded to cultivate the same, and upon the 16th of September had finished sowing the wheat, excepting the dragging in of about a bushel and a half. He then called upon Ray and “ turned him out” his half of the wheat, “to secure him for the note,” and “told him to sell it "or do what he had a mind to with it, and pay up the note.” Ray thereupon employed Houghtaling to finish dragging in the wheat, and directed his own hired man to look after the wheat and see that the fences did not get down, and to keep cattle out, which he did. On the 3d of October Houghtaling purchased of Philips the land on which the wheat was sowed, together with Philips’ half of the crop. On the 5th of October he turned out this half to Ray in the same manner he had turned out the other, and for the same purpose. The defendant then showed that on the 21st of July, 1840, he delivered to the sheriff an execution upon which the wheat was subsequently sold. It was returnable the third Monday of October, 1840. On the 19 th day of September, the sheriff levied upon the whole crop of wheat and sold it on the last day of October, 1840, the defendant, who was the attorney of the plaintiff in the execution, directing the sale. At the time of the levy the sheriff did not know of what had taken place between Houghtaling and Ray, and he kept secret the fact that tie had made a levy.</p> <p>The plaintiff’s counsel requested the court of common pleas to charge, that by the levy on the 19th September, the sheriff acquired no legal possession available against the owners of the wheat, Ray and Philips, and Houghtaling then having neither property in nor possession of the wheat, the sheriff was a trespasser, and no foundation for a constructive levy would arise from the sheriff’s act. He also requested the court to submit to the jury the question of a change of possession of the wheat from Houghtaling to Ray, alleging that inasmuch as it was a growing crop, evidence of title was evidence of possession, no other being practicable: at all events that there was some evidence of change of possession for the jury. The court omitted to do this, and charged that if the sheriff levied on the whole crop on the 19th of September, and Houghtaling became the owner of one half of it afterwards, and in the life of the execution, the levy was good and effectual to hold such after acquired interest in the wheat; that as to the half first turned out to Ray, Ray’s interest in it must be regarded as that of a mortgagee of personal property, and there was no evidence that such a mortgage was filed in the town clerk’s office; that the execution and levy conferred a better right than Ray’s to that half of the wheat, unless Ray showed an actual and continued change of possession of the wheat; that Houghtaling being shown to have been engaged as apparent owner in finishing the putting in of the wheat after the turning out to Ray, and Ray not being shown to have exercised any acts of ownership over it from the time it was turned out until the levy, there was no evidence before the jury of the actual change of possession, which the law required in the case of a mortgage of •personal property not filed; and that for these reasons the defendant was entitled to their verdict. The plaintiff’s counsel excepted to the omission to charge as requested, and also to the charge given. The following opinion was delivered upon the last argument of the cause in the supreme court, by</p>

Error from the supreme court. The action was trover for a quantity of saw logs cut by the Indians occupying the Cattaraugus reservation, and sold by them to the defendants. The plaintiffs claiming title under the pre-emptive right secured to the state of Massachusetts, by the convention made between Massachusetts and New-York, in 1786. The facts of the case, and the opinion of the court by Bronson, J. are contained in 6 Hill, 546, et seq. The cause was here argued by

<p>Error to the supreme court. The facts of the case, with the points argued by the counsel for the respective parties, and the reasons of the supreme court, will be found in 1 Denio, 483. The cause was argued here, by</p>

Error from the supreme court. The questions arose upon demurrer to the declaration. A report of the case before the court below, with the reasons of the court, is contained in 1 Hill, 115. The cause was argued here by

. The respondent, .Mrs. .Ellis, was one of several heirs of William Messerve, who died leaving real estate, her share of which was worth about $2500. A bill for a partition between the heirs, was filed by her husband and herself, before the vice chancellor of the first circuit.

<p>A devise to executors to pay the testator’s widow as she should request it money to maintain his family, consisting of more than two persons, until a certain day when his estate was to he divided, and if she should die before that day that the executors should apply the money for the maintenance of the family, is a valid trust until the appointed day, if the widow lives so long, but upon her death before the day it ceases. The provision over to the executors is void, as it renders the estate inalienable for a term not determinable at the expiration of not more than two lives in being at the testator’s death.</p> <p>Where an estate is devised to trustees upon successive trusts, some of which are lawful and some contrary to law, the lawful trusts will not be defeated by those contrary to law, but will be upheld as far as practicable to effectuate the intent of the testator.</p> <p>Where technical terms are employed in a will, in such a manner that to give them their strict meaning would defeat the intention of the testator apparent from the will, a liberal or popular interpretation will be given them in order to carry into effect his intention. Thus the term “ inherit” will be held applicable to lands devised or conveyed by a parent or ancestor to a child or descendant.</p>

<p>On appeal from chancery. The cause was commenced before the assistant vice chancellor of the 1st circuit, where a decree was made in favor of the complainant, which was affirmed by the chancellor on appeal. The facts of the case, with the opinion of the assistant vice chancellor, will be found in 1 Hoffman’s Ch. Rep. 282, and the opinion of the chancellor in 11 Paige, 290. They also sufficiently appear in the opinion of Justice Beardsley. The cause was argued in this court by</p>