Volume 5 — Johnson's New York Chancery Reports

THE original bill, filed February 21st, 1818, stated, among other things, that Stephen Steere, father of the plaintiffs, Timothy, Smith, and T. Steere, was seised in fee, prior to the 18th of October, 1802, of various parcels of land in the county of Chenango, and which were particularly described, amounting in ihe whole to 739 acres,' and all of which, except 47 acres, was situate in the town of Morwich.

THE bill was filed by the plaintiffs, as executors of Samuel Gillespie, the brother and residuary legatee of William Gillespie, deceased, against the defendant, as the surviving executor of William Gillespie, for an account of the personal estate, 8zc.

THE bill, dated March 13, 1820, stated, that on the 16th of June, 1819, Frederick Jenkins and Matthew Jenkins became insolvent. That the plaintiffs were their confidential creditors to a large amount, which was specified; that the defendants also claimed to be confidential creditors.

BILL, filed October 12th, 1819, stated, that on the 2d of July, 1817, the defendants, for the consideration of 3,000 dollars paid to them, leased to the plaintiff a house and lot. in the City of New-York, for the terra of nine years, from the 1st of May, 1817. The lease contained a covenant on the part of the defendants, for quiet enjoyment during the term.

THE bill, filed 13th of January, 1813, by Robert B. Bur-net, Samuel Finley, John M‘Lean, and John M‘Cloughry, stated, that John M- Cloughry, one of the plaintiffs, being seized in fee of a remainder in fee of a lot of land, of which/ his father was tenant for life, at Little Briton, in Nezo-WincL sor, containing 70 acres, on the 15th of March, 1796, executed a mortgage to George Denniston, to, secure the payment of 187 dollars and 50 cents, and on the 15 th of July, 1801,…

THE bill was filed October 8, 1818, by Richard D. Arden, Daniel Sullivan, and Isaac F. Roe, against John W. Patterson and Jacob De Hart, for the purpose of having a certain assignment by S. and F. to J). for the benefit of P., of a right of action against A. declared void and cancelled; and for a perpetual injunction to stay all proceedings under a judgment obtained by P. in the names of S. and F. against A., &c. The material facts in the case are so fully stated in the…

THE plaintiff being owner of a vessel, employed Randolph §r Savage, defendants, who were carpenters, to sell *,er on a credit, and take good notes in payment, and transmit the same to him, with an account of their charges, which he would pay.

THE plaintiff, on the 10th of February, 1808, filed his bill against John B. Murray, John Innes Clark, and others, which, in consequence of the death of Clark, was after-wards amended by making his executors parties.

THE defendant, Elmendorf, gave a bond, on the 1st October, 1802, to the testator, N. (?., in his lifetime, for the payment of 5,000… Held: or obtained by virtue of the said warrants, or any or each of them,” &cc.; with covenants of warranty against the heirs and assigns of Samuel Beall, John May, R. I. Brands, and I. N. Gouverneur; subject only to the claims of the said John May and Humphrey Marshall, for making the entries, locations, and surveys, &c., to the extent of…

<p>An incumbrancer, pendente liie, need not be made a party to a suit for the foreclosure of a mortgage; and he is not entitled to redeem, unless under special circumstances: as where he became a judgment creditor after the commencement of the suit, but before the decree, and the purchaser at the master’s sale had previous notice of the judgment, and by a previous engagement with the mortgagor, obtained from him an order for the surplus moneys, which was accepted by the master.</p> <p>The Court does not take notice of a purchaser of the subject matter, pending the suit.</p> <p>Where a trustee, and his cestui que trust, as plaintiffs, file their bill, and pending the suit, the cestui que trust assigns his interest to another, it is no objection at the hearing, that the latter was not made a party.</p> <p>An incumb Tancer pendente lite, need not be made a party; and be is siot entitled to redeem, unless under special circumstances; as where the plaintiff became a judgment creditor after the commencement of the suit to foreclose the mortgage, and prior to the decree of foreclosure and sale, and the purchaser had notice of the judgment, and of the ¿ten of the plaintiff on the surplus moneys»</p> <p>Whether a naked trustee, who is plaintiff, can he made a witness, though liable for costs ?</p> <p>Where a trustee and his ce$tuy que trust are plaintiffs, and pending the suit the cestuy que trust as signs his interest to another, it is no objec tion atthe hearing, that such assignee is not a party.</p> <p>The Court does not take notice of the purchase of the subject matter, penden* te Hie.</p> <p>A person who has obtained a judgment a* gainst a mortgagor, pending the suit by the mortgagee for foreclosure,and prior to the decree, was allowed to' redeem,as against the purchaser at the master’s sale,{ictmgwith 3iqtice ofthe lien of the judgment creditor, and under the circumstances of the case.</p>

<p>THE bill, which was filed September 2d, 2818, stated, that by an act of the legislature, passed the 20th of March, 1801, entitled, “ An act to establish a turnpike corporation, for improving and making a road from the village of New-burgh, on the Hudson river, to Cochecton, on the Delaware river;’"’ the plaintiffs were incorporated, and were authorized to enter on any land where they should deem it proper to construct a road, and to lay out and survey such tracts or routes as should be deemed most practicable for making a good and sufficient road ; and that as soon as they should 'have completed the bridge over the Wallkill, where the said road should pass the same, it should be lawful for the plaintiffs to erect a gate and turnpike upon and across said bridge, and to demand and receive, &c. one half of the toll as granted in the said act, for every ten miles, &c.; provided the inhabitants who reside within five miles of the bridge on either side, shall be allowed to compound with the plaintiffs, by the year, for passing and using the said bridge. That the plaintiffs entered upon the lands required, and surveyed and laid out the route of the road, and had it viewed apd inspected; erected toll-gates thereon, according to the said act, and the act amending the same, passed February 28, 1806. That • . « ^ ^ the plaintiffs, in 1808 and 1809, erected and completed a good and sufficient bridge across the Wallkill, and erected a gate and turnpike upon and across the same, and collected toll, he. That the said bridge was built, and is maintained at great expense and hazard ; that the Wallkill, at the bridge, is a deep and broad stream; a map of which bridge, he. was annexed to the bill. The bill further stated, that Francis Fowler and Johannis Miller, in conjunction with others, with intent to injure the plaintiffs, and deprive them of the enjoyment of the bridge, and the emoluments thereof, and to avoid the gate thereon, did, in 1818, erect another bridge over the said river, distant only eighty rods, by the road, from the bridge of the plaintiffs. That F. F. procured from the trustees of the Reformed German church in Montgomery town, in the county of Orange, (defendants) an instrument under their corporate and private seals, conveying to him, F. F., a strip of land, three rods wide, from the bridge erected by F. F., to the turnpike road of the plaintiffs. That the said church and the defendants, trustees of the church, with intent to injure the plaintiffs, in the enjoyment of their bridge, did, on the 2d of February, 1818, by their corporate and individual seals, grant to F. F, in fee, such strip of land, being part of the real estate of the said church, to be used as a public highway, and for no other purpose. That the said grant is void, being made to F. F. absolutely; the lands not appearing to be leased or improved for the use of the church, or conveyed for any pious use. That the conveyance purports to have been made for the consideration of thirty dollars; but no consideration was ever paid or required. That the defendants, in order to injure the plaintiffs, procured the said strip of land and bridge to be laid out by the commissioners of highways, as a public highway ; and the order of the commissioners was recorded on the 23d of May, 1818. That the act of the eommissioners of highways being appealed from, three of the judges of the Court of Common Pleas of the county of Orange, on the 5th of August, 1818, declared the act of the commissioners useless, and annulled the same; and their order of reversal was recorded the 6th of August, 1818, of which appeal and reversal the defendants had due notice. That on the 6th of August, 1818, the plaintiffs closed up the said road by a fence within the bounds of their turnpike. That on the 22d of August, 1818, the defendants removed the fence, by which means the travelling has been diverted to that road, to the loss of the plaintiffs, of 500 dollars. That the said by-road and bridge are unnecessary and useless, as the turnpike furnishes a better way, and the by-road is only about two chains nearer than the other, from the point where it leaves the turnpike to the point where it strikes it again. That the compact part of the village of Montgomery, is designated on the map annexed to the bill, and the land lying between that part and the new bridge, lies partly in common and partly improved, but has no cross streets or roads, nor are there any houses or inhabitants to be accommodated by the new bridge. That the defendants, since the order of the Judges of the Court of C. P. annulling the by-road as a public highway* have refused to shut up and discontinue such by-road and bridge, and have procured money to be raised by a vote of the town of M. for keeping open the road and defraying the expenses of the defendants, in resisting the rights of the plaintiffs. The plaintiffs prayed that the conveyance to F. F., or any other relative, to the road and bridge, may be produced, and that the defendants may be restrained by injunction from supporting the by-road and bridge, or diverting the travelling from the bridge of the plaintiffs, and that the said by-road and bridge may be shut up and discontinued ; and for general relief, 8zc.</p> <p>The defendants, in their answer, stated, that Montgomery was a flourishing village, containing 600 souls, and was incorporated the 17th of February, 1810. That the inhabir ... , tants wished the plaintiffs to continue their road on to where Fowler’s bridge is, and that it should cost them no additional expense; that it would have been 14 chains shorter than the other road. That for fifty years, a free bridge had been erected and kept up by the town of M., across the Wallkill, near where the New- Y orle and Albany state road now crosses the river. That in 1809, the plaintiffs, with a view to intercept the travel on the state road, erected their bridge close to the old bridge. That in 1814, Benjamin Sears applied to the trustees of the German church, for a right of way over their ground, from the place where Fowler’s bridge is, to the turnpike, with intention to erect the bridge. That the church and the congregation agreed to make the grant, of such right of way, as much more convenient for the church and the public; but S. died before the grant was made, or the bridge built. That J. Fowler renewed the application, and the grant was made to him on the 2d of February, 1818, for the consideration of thirty dollars. That Fowler afterwards erected the bridge. The trustees denied that the grant was made with a view to injure the plaintiffs, or to divert the travelling from their road and bridge, or to evade the toll; but that the grant was made to benefit the land of the church, and for the accommodation of persons attending public worship in their church. That on the 16th of May, 1818, the road was duly declared a public highway, by the commissioners and recorded $ but the order being appealed from, was annulled, as charged in the bill. That the road was beneficial to the village, and to the church land; and if shut up, ^he value of the lots in Harmony-street would be diminished one half. They admitted, that the plaintiffs put up the fence, on the 6th of August, 1818, but they denied that they removed it, or aided in its removal. They admitted, that when Fowler’s bridge was opened, there was some travelling over it, by which the plaintiffs lost some toll; but they averred that F., and the persons interested in the adjacent lands, had a right to keep open the road, as a private way, and that it is necessary to the convenience and extension of the village. That it is a shorter way by at least 10 chains and an half, and much better for travelling. They admitted, that the inhabitants of M., at a regular town meeting, by a large majority, voted 200 dollars to be employed in defending their common rights, and that a committee of the inhabitants attended before the judges on the appeal, and offered evidence of the greater benefit of the road by Fowler’s bridge to the village. That the inhabitants would have removed the proceedings in that suit, into the Supreme Court, bad they not been prevented by the injunction issued by this Court. That on the 17th of March, 1815, an act was passed, on the application of the plaintiffs, authorizing them to remove the toll gate from their bridge, and to receive from the first toll-gate west of the bridge, the same rate of toll as for twelve and a half miles ; and the additional toll for passing their bridge is laid on the next gate, which is all the compensation they ought to receive; and they ought, pursuant to the act, to remove their gate from the bridge. That the defendants supposed that it was the intention of the plaintiffs to remove the gate from the bridge, and they, therefore, contributed money to build Fowler’s bridge, and make the new road; but the plaintiffs are suffering the bridge to go to decay, and it will soon fall, unless repaired. That the Wallkill, at the bridge, is a sluggish stream, about three feet deep, with a gravelly bottom, and never rises above six feet. The defendants prayed that the injunction might be dissolved.</p> <p>Many witnesses were examined upon both sides; but it is not necessary to detail their evidence.</p>

BILL by the plaintiffs, as a committee of the person and estate of Thomas Hallock, a lunatic, stating that H. was duly found to be a lunatic, by a commission of lunacy, executed in June, 1818; and that he had been so, from the 30th of March preceding ; and praying that a purchase of land which he had made of the defendants on the 14th of April, 1818, might be rescinded.

THE bill, filed August 2, 1813, stated, that on the 26th October, 1811, the plaintiff and defendant, who had dealings together in the exchange of promissory notes, &cc. entered into a written agreement, which recited that the defendant had advanced to the plaintiff, at sundry times, his promissory notes in exchange, amounting to 188,464 dollars and 88 cents, and for which the defendant was entitled to a commission of two and an half per cent.; and a further advance of 20,000…

THE plaintiffs, Abraham Van Alst and twenty others, being heirs at law of Jacob Bennet, deceased, filed their bill on the 4th of November, 1818, against the defendants, George Hunter, and Anne his wife, and David C. Van Alst, to set aside the will of Bennet, on the ground of the incompetency of the testator. The testator died on the 22d of April, 1817, leaving the plaintiffs, and the defendants Anne Hunter and D. C. V. A. his heirs at law.

MARYM'CREA, a widow, by her last will, dated March 8th, 1817, devised and bequeathed to her executors, therein named, in trust, for the sole benefit and use of her daughter Catharine, now the wife of the plaintiff Hedges, the whole income, rents, issues, and profits of all her estate, real and ■personal, whatsoever and wheresoever, subject to the payment of the legacies, and dispositions, in her said will after-wards mentioned.

THE bill stated! that the plaintiff had a deed in fee for the premises mentioned, under a declaration of trust, in favour of Samuel S. Haight, to be executed on payment of 1,668 dollars and 36 cents; to secure which payment, the fee of the land was vested in the plaintiff.

THE plaintiffs, as executors of Robert Fulton, filed their bill, the 18th of November, 1817, for relief against an agreement entered into between the testator, in his life time, and the defendant. The agreement, which was under seal, was dated September 16th, 1813.

<p>Where there is a general demurrer to the whole hill,, and it is bad in part, the whole will be overruled-</p> <p>If a bill be for discovery only, and not for relief, a demurrer to the whole bill is bad.</p> <p>Where the bill is for discovery and relief, the defendants should answer as to the discovery sought, and demur as to the relief.</p> <p>E., a soldier, entitled to a lot of land, as a military bounty, in 1785, before the patent issued, by an agreement, sold the lot to S., and bound himself to execute a deed of conveyance. S. sold and assigned the lot, bond, &c. in 1789, to V., who, in 1790, by endorsement, sold and assigned the same, and all his right, title, and interest in the land, &c. to C., to whom he delivered the original bond, agreement, and discharge of the soldier, and the patent for the lot: Held, thatalthough, for want of words of inheritance, the assignment, in law, transferred only an estate for life ; yet as it was clearly the intention of the parties to convey the whole estate, a trust estate in fee was to be considered as created and conveyed; and this Court would, therefore, decree an adequate legal conveyance in fee, according to the intention of the parties, notwithstanding the want of words of inheritance.</p> <p>That V; in such case, having stood by, for thirteen years, after the death of C., and seen his heirs claiming to be owners in fee, under C., and dealing with the land as absolute owners, and making very great and valuable improvements upon the property, without disclosing any claim to the reversion, or any pretension of right or title, he,, and all persons claiming under him, were estopped, by his silence, from asserting his legal title.</p>

MOTION, on the part of the defendants, to enlarge publication, and for leave to examine witnesses, on affidavit of the solicitor for the defendants, and of one of the defendants, that interrogatories on the part of the defendants, with the names of the witnesses, &c., and the time and place of examination were served on the solicitor for the plaintiffs, on the 8th inst.; and that on the 9th inst. he first received notice, that the rule that publication pass had been entered…

MOTION on the part of theplaintifi, to suppress certain depositions taken on the part of the defendants, for irregularity, on an affidavit of the plaintiff’s solicitor, stating, that the interrogatories were left at his office, on the 11th day of May, 1820, with notice, that the witnesses would be examined before commissioners, on the 13th of May. That the solicitor was absent from home, when the notice was served, and did not return until after the day.

THE bill stated that the defendant, being seized of a lot of land and mill seat, the plaintiff, in January, 1815, entered into articles of agreement with him for the purchase thereof ; and the defendant, in consideration of five hundred dollars, covenanted to convey in fee, to the plaintiff, on the lst#of May, 1816, the lot of land, &tc.

<p>if a husband appoints an attorney to recover a debt, legacy, &c., due to his wife, and the attorney receives the money; or if the husband mortgages his wife’s interest, or assigns it absolutely, for a valuable consideration, or if he recovers it by a suit at law, in his own name, or releases the debt, the right of survivorship in the wife, in these cases, ceases.</p> <p>In a suit by the husband for the wife’s legacy or distributive share, the wife must he made a party.</p> <p>Where the husband and wife, and others, heirs of F. deceased, intestate in England, made a joint power of attorney to V., authorizing him to take out letters of administration there on the estate of F., to collect the property, &c., and pay over to the parties their distributive shares, respectively, &c.; and after V. had taken out administration, and obtained possession of the property, hut before he had paid over the entire share, the husband died: Held, that the wife was entitled, in her own right, as survivor, to that portion of her distributive share, which had not been actually paid over to her husband.</p> <p>if a husband hisSwife’sepror covers, the proEfmf sefas to wuVsSrigít of butVif°theipsu¡t names,h<the°mt :ur£?lipr°J mams.</p> <p>If the husband Court,1"for his orfed1stributív’e bímáde'a'par<5ourtwiil make hun provide for</p>

<p>M., in 1807, to secure a debt, executed a mortgage of laud,-of which he was seized in fee, to H. In March, 1808, M. executed a conveyance of the same land, in fee, to H., by an absolute deed, with full covenants, which was duly recorded in Apri l following. II. gave M. a bond, dated June 7, 1808, conditioned that if M. paid H. 400 dollars, on the 1st of December, 1809, he would reconvey the land to M„ subject to the mortgage; but this bond or defeasance was never recorded ; and the conveyance of the equity of redemption from M. to if., appeared on record as an absolute deed. On the 1st of May, 1809, if. sold and assigned over the bond and mortgage to the de* fendant. On the 11th of October, 1816, if. sold and conveyed the premises, by a deed in fee, with full covenants and warranty, to the plaintiff, who was a bona fide purchaser, for a valuable consideration, without notice of the bond or defeasance from if. to M., or of the assignment of the bond and mortgage from if. to the defendant: Held, that the bond or defeasance from if. to Jlf. not having been registered, the conveyance of the equity of redemption by M. to if. was to be deemed, in regard to third persons, as an absolute deed; and the legal and equitable title being united in if., the latter was merged in the former: and that the bond or defeasance from if. to M., and the assignment of the bond and mortgage from if. to the defendant, were fraudulent and void, as against the plaintiff.</p>

THE bill, (filed May 29th, 1817,) stated that John Thomas was a soldier in the Second New-Yorlc Regiment, during the revolutionary war, and entitled to a grant from the state of 600 acres of land. That letters patent were issued to him on the 9th of July, 1790, for No. 11 in the township of Solon.

THE bill charged, that at a meeting of the supervisors and overseers of the poor of the towns of Sand Lake and Berlin on the 13th of May, 1813, for the purpose of apportioning the money and the poor belonging to the town of B., between the two towns of B. and S., pursuantto the second section of the “ Act to divide the towns of Greenbush and Berlin in the county of Rensselaer into three towns,” passed June 19th, 1812, (sess. 35 ch. 204.) the overseers of the poor of Berlin,…

<p>The plaintiff purchased two lots of land of V., against whom there was an existing judgment. All the real estate of V- (the residue of which was more than sufficient to satisfy the judgment^ was sold, subject to all incumbrances, under a subsequent judgment, to the defendant, who, afterwards, took an assignment of the prior judgment, and issued execution thereon, under which the tiro-lots of the plaintiff were sold, and purchased by the defendantiyroo made improvements, and sold one of the lots: Held, that thop^li the Court would have interposed and prevented the sale of theplaintiffs’ lots, if he had applied in due season, for that purpose r"yet, as he knew of the sale, at the time, and delayed four years, before he filed a bill for relief, the Court refused to disturb the sale, or to direct a reconveyance of the lots to him; but the defendant was ordered to pay the plaintiff, as an equitable indemnity, under the circumstances of the case, the sum for which the lots were sold, with interest from the time.</p> <p>A judgment creditor is not entitled, in equity, to enforce the payment of the judgment against the land of a subsequent purchaser, as long as there is sufficient property of the debtor remaining unsold, to satisfy the judgment. And the creditor, in such case, is entitled to resort to the land of the purchaser, to the extent only of his debt, which may remain unpaid after the estate of the debtor has been exhausted.</p> <p>So, if A. against whom there is a judgment, being seized pf lands, sells a part of them, and dies seized of the residue, his heirs are bound to satisfy the judgment, as far as the assets descended to them are sufficient for that purpose: and they are not entitled to any contribution from the purchaser of a part of the lands of A., for they stand in the place of their ancestor, and there is no equality of right between them and the purchaser, in respect to the judgment.</p> <p>If there are several heirs, and the judgment creditor collects the debt from a part of the inheritance allotted to one of them, such heir is entitled to contribution from his co-heirs. It seems, that between purchasers in succession, at different times, of difie ;nt parts of the estate of the judgment debtor, there is no contribution, for there is no equality of right between them.</p> <p>A judgment enforce his gaflst the land jiurchaser, as other hud of the fnlvsnffidentto mentí ^¿“cañ land sold” only mains^unpaid of the dhev estate °f the debtor is exhausted.</p> <p>Heirs who pay offthejudgment debt of their aneestor, are not entitled to demand contnbu.. tion of a^purland, subject to the judgment.</p> <p>But if the portion of one heirhas been taken of the ancestor, contribution from his cohoirs.</p> <p>It seems that there is no contribution between purchasers in succession at different times, of different parts of the estate of a judgment debtor.</p> <p>If a judgment creditor proceeds to sell land sold to a subsequentpurehaser, when there is other land of the deb* tor, sufficient to satisfy the judgment, the court will interfere and stop the bale.</p> <p>But if the subsequent purchaser knows of the sale of his land, and neglects to apply to the Court, jn due season, the sale under the execution will not be disturbed ; but the judgment creditor must, by way of indemnity, pay him, at least, the amoünt for which his land was sold.</p> <p>Re-hearing «5 tothe damages.</p>

FIVE exceptions were taken to the answer, for insufiiciency, which were referred to the master, who reported that tlie first, second, third, and fifth exceptions were not well taken. The plaintiff excepted to the master’s report.

PETITION of the plaintiff, stating, that on the 3d of May, 1819, he filed his bill, setting forth, among other things, an assignment from JR. R. Livingston and Fulton to him, of their right, under the several acts of the Legislature, fee., to navigate with Steam Boats, from any place within the city of New-York, south of the State Prison, to the Jersey shore and Staten-Island, to the south of Powles’ Hook ferry, and to the north of Sandy Hook, to wit, to Staten-Island,…

PETITION by Youle, for the specific performance of a contract entered into with the ancestor of the infants, for a purchase of certain lots in the city of Nezo- York, for which the ancestor was to give a deed with full covenants.

BILL to correct a mistake in a deed. An answer was put in by the defendants JY. and JY. / and a cross bill filed by them for discovery. The plaintiff in the original suit entered an order, as of course, and without notice, for the dismissal of the original bill, with costs. The question raised was, whether the defendants JY. and JY. were not, also, entitled to the costs of their cross bill, as being a necessary part of their defencé.

THIS cause came to a hearing on exceptions to the master’s report, which was in favour of the competency of the plaintiff to give a good title, and such as a purchaser might safely take. The report stated, that Alexander Ogilvie was seized in fee, of the lot in question, and by his- will, dated 21st of •January, 1748, he gave all his estate, real and personal, to his wife for life, and then to his children, Alexander, Thomas, Jane, John and Catharine, as joint heirs.

BILL of revivor, filed September 1, 1820, by the plainniffs, as children and heirs at law of Melancthon L. Woolsey, deceased, and by the plaintiff M. T. W., as administrator of the said M. L. W. It stated, that the ancestor filed his bill, on the 11th of June, 1819, against the defendants, as assignees of Matthew Van Benschoten, deceased, and in which he stated, that on the 1st of July, 1800, he executed a bond to M. V, B., conditioned for the payment of 500 dollars, with…

THE bill stated, that the defendant Porter, being indebted to Nathan Underwood, on the 31st of December, 1814, in the sum of 600 dollars,… Held: against B. for relief against the mortgage, it was decreed that no relief could be afforded againt it; and in pursuance of that decree, the said mortgage to U., (who was assignee of the other mortgage to B.,) was executed, to secure a rateable proportion of the mortgage to B., which included the whole cf great lot No. 28, and which…

BILL for two years interest, due on a legacy of 200 dollars, payable when the infant came of age, which interest the testator directed, by his will, to be applied to her education. The infant was of the age of nine years, and sued by her guardian. The defendants admitted assets, and that the interest being 28 dollars, was due, which they were ready to pay, as the Court should direct.

BILL for an account of the rents and profits of two acres of land, devised to the infant by his grandfather, with directions in the will, that “ the rents and profits be appropriated, with such other moneys as may be thought necessary by my executors, for the expense of his education, until he arrives to the age of sixteen years; and then to be at the election of my executors whether to give him education to get a living, or learn him a useful trade; and when he arrives to…

<p>A judgment creditor, who has issued an execution, which has been returned nulla bona, acquires a priority of right to the property of his debtor, in the hands of a trustee, and any payments made by the trustee to the debtor, after a bill filed by such judgment creditor, or after notice of such right, are in his own wrong, and of no avail against such creditor.</p>

THE bill, filed by five of the children of James Monell, three of whom were infants, stated, that their father died January 3d, 1814, intestate, and seized of a large real and personal estate, and that they and their three brothers and three sisters, whom they named, were his heirs at law. That on the 4th of February, 1814, letters of administration on their father’s estate, were g anted by the surrogate of Orange, county, to the defendant, George Monell, and .to John IV.

BILL filed by the plaintiffs, for an injunction to stop the running of the steam boat, called the United States, on the waters of Hudson river. The bill stated the several statutes of the Legislature of this State of 1798, 1803, 1807, 1808, 1811, and 1820, by virtue of which the plaintiffs claimed to be entitled to the exclusive right and privilege, for the time therein limited, of employing and using boats propelled by fire or steam, upon the navigable waters of this State.

THE original bill, filed 10th of June, 1799, by John Bay and Abraham Bachman, stated, that on the 24th of September, 1795, the defendant, pretending to have title to lands in Pennsylvania, under the Connecticut claim, sold the same to Henry Plainer, and took his bond, for the consideration money, being 1100 pounds.

THE bill, filed 28th of March, 1821, stated, that in July 1819, J. and Z. Taylor, of Saratoga, being largely indebted to the plaintiffs, for goods sold to them, executed a bond to the plaintiffs, for the amount due, with a warrant of attorney to confess judgment thereon.

THE bill, filed May 22, 1821, stated, that on the 22d day of September, 1820, J. and Z. Taylor executed and delivered to the plaintiffs, a deed which recited that they were indebted to several-persons in a large -sum of money, which they were unable to pay, “ by reason of the unsaleableness of their real estate, at present, without a very great sacrifice,” and that they were willing to do equal justice to all their creditors, as far as might be in their power ; they,…

THE bill of revivor and supplement in this cause, was rr filed by John Westcott and Susannah his wife, (late S. Wood,) and James Westcott and Mary his wife, (late M. Wood,) administrators1 of Charles Chinn, deceased, (the said Susannah and Mary being next of kin to C. C., the intestate, and, as children of Sarah Wood, deceased, devisees under the will of Edward Chinn, deceased,) against Daniel Cady •and John Willard, as executors of the last will and testament of Margaret…

THE original bill, filed the 28th of September, 1816, by the plaintiff, against John White, Marvin White, Rudolph Taylor, Abraham Dayton, Reuben Wheeler, William Raymond, jun., Nathan H. Raymond, Abner P. Hitchcock, and Nathan Doane, stated that the plaintiff, and Dayton, Wheeler, W. Raymond, jun. N. H. Raymond, Hitchcock, Doane, and Ira Hall, on the 10th of April, 1815, by articles of agreement subscribed by them, called the constitution, formed an association together, for…

<p>A corporation is not dissolved by an omission to elect trustees under its charter, for more than two years, while the members, constituting an integral part of the corporation, remain in esse; but the old trustees continue in office, until others are elected in their stead.</p> <p>Though a corporation may forfeit its charter by an abuse or neglect of its franchises, yet such forfeiture must be ascertained and declared by regular process and judgment of law, before its powers can be taken away, or the corporation be considered as dissolved.</p> <p>The remedy against a corporation, for a misuser or non-user of its privileges, so as to work a forfeiture, is not in equity, but at law, by scirefacias, prosecuted at the instance and behalf of the government, not on the application of an individual.</p> <p>The Dutchess Cotton Manufacturing Company were incorporated for twenty years, under the act of March 22, 1811, sess. 34. ch. 67. (1 N. R. Tj. 245.) by the seventh section of which, it is declared, “ for all debts of the company, at the time of its dissolution, the persons then composing such company, shall be individually responsible, to the extent of their respective shares of stock in the company.”</p> <p>At a meeting of the trustees óf the company, on the 18 th of August, 1817, at which the plaintiff, (a judgment creditor of the company, and one of the trustees,) was present, it was resolved, that' any of the stockholders who had paid the sums called for on their shares, then amounting to 50 per cent., should not be proceeded against for any further calls, except by way of forfeiture of the stock. By another resolution of the trustees, of the 3d of November, 1817, the stockholders were to have the privilege of forfeiting their stock, on paying 30 per cent, on the amount subscribed by them: Held, that even if the corporation were dissolved by lapse of time, the plaintiff, as a creditor, could not enforce his claim against the individuals, beyond the extent of the resolution of the trustees, to which, as one of the trustees, he had assented: and that the stockholders who complied with the terms of the resolution of the 3d of November, ceased to be members of the company, or owners of shares, and were, therefore, not individually responsible.</p> <p>A corporation is not cli^soWed by omitting to elect trustees, under its charter, if an integral part re nriins : The trustees continue in office, until others are elected in their stead.</p> <p>a corporation od^presmbod by the deathof bers,orih™d"sI integra" part of remiel omÍ¡ íhThamkofíiíe s^o.wnis user BuUnThe'latfehuro^nua/ie ¿evta¡«e5 declared-</p> <p>A corporation may be dissolved fora breach of trust; but not until it has been called upon to answer.</p> <p>The proper remedy against a corporation for non-user or mis-user of its franchises, is by scirefarias, prosecuted at the instance and in behalf of the government</p>

<p>Where a person, named as executor in a will, but who never qualified ■as such, took possession and disposed of part of the personal estate of the testator, and paid some of his debts: Held, that these acts were proof of his election to act as executor, and .that he w$ls chargeable as executor.</p> <p>An executor or trustee cannot buy in mortgages, judgments, or other debts of the testator, for his own benefit, nor can he, in any way, deal or traffick with the estate, for his own emolument.</p> <p>Admitting that one tenant in common may, in a particular case, purchase in an outstanding title, for his own benefit; yet where two devisees are in possession of land, under an imperfect title, devised to them by their common ancestor, one of them cannot buy up an outstanding, or an adverse title, to disseise or expel his co-tenant, but such purchase will enure to their common benefit, subject to an equal contribution to the expense.</p> <p>An executor named in a win, qualified as such possession of some part of the personal propertyof the tes« iator*and paid some of his debts; was held, by these acts> t0 have. elected to act as an executor, chargeable as exetlUu‘‘</p> <p>Admitting that one tenant in common may, in some cases, purchase in an outstanding title, for his own benefit; yet where two de» visees are in fiossession of and, under an imperfect title, devised to them, by their com* mon ancestor, one of them cannot buy in an outstanding dabt, so as disseise or oust his co-tenant $ but such purl-chase will enure to their common bene* fit, subject to an equal contribution to the ex*1 pense»</p> <p>An executor or teustee cannot buy in a mortgage judgments, or other debts of the testator, or cestuique trust, for his own benefit; nor can be deal or traffic with the estate for his own emolument.</p>

3Oth BILL, filed February 5th, 1820. tt stated, that the plaintiff, Vincente Rodriguez, formerly of the province of Carracas, being in the city of Nem-Yotk, in 1813, he, at the request of AT., became jointly interested with him, in an ad- venture from JYew-York to Laguira, by the schooner Louisa.

THE bill, filed March 28th, 1818, stated that William, Hen-Her son, the testator, died the 12th of January, 1812, having appointed the plaintiffs, his executors* That on the 5th of December, 1808, William Houston, to secure the payment of three thousand dollars, borrowed by him of John Hunter, executed his bond for that sum, payable in one year, and a mortgage to J. H., on eight lots of ground in the city of Nezo-York.

THE bill, filed November 28, 1818, stated, that the plain-7 . -rrtiff Catharine, who married the plaintiff John Ahnuse, was the only daughter of Alexander Fink, deceased.

THE petition oí Catherine J eiison was presented, claiming dower out of the proceeds of the sale of an equity of redemption, in certain mortgaged premises. ít appeared from the petition, that her husband William Neilson, during the coverture, executed a mortgage to the plaintiff, William Titus, in fee, to secure the payment of 40,000 dollars, and that she joined in the mortgage, and duly executed and acknowledged it.

THE bill stated, that the plaintiff was the widow of W. Cooper, deceased, and daughter of Isaac Clason, deceased. That on the 26th of September, 1810, I. C. made his will, to which lie added a codicil, dated February 14, 181.5, a short time before his death, by which he appointed two additional executors. The defendants, Remsen, Dickinson, and Delaplaine, were .the executors.

The plaintiff, the wife of the defendant Edward M. ■ r . L, Kenny, being an infaant, and permitted to sue in forma pauperis, by E. Elmendorf, her next friend, filed her bill the 11th of November, 1820, against the defendants. She was the daughter of Thomas Hewilt, late of Cheshire, in England, deceased, who removed to New-Yor/c about the year 1810, and died here, the 12th of October, 1814, possessed of considerable property.

The plaintiff, Dorothy Swaine, on the 1st of October, 1819, filed her bill, stating, that she is the widow of Simon Swaine, who died, seised and possessed of a dwelling =house, farm, &c. on the 31st of March, 1816, intestate, leaving the defendant, Catharine Perine, his only child and heir at law.

Peter Tappen, grandfather of the plaintiffs, John R. Evertson and Cornelia Evertson, infants, by his last will, da-ted February 12th, 1776, devised the use and possession of all his estate, real and personal, to his wife, the defendant, during life, or widowhood; and after his death, to his three children, equally, in fee: He appointed the defendant Elizabeth T., and his brother-in-law, George Clinton, his executors, whom be.empowered to sell and dispose of all his real…

THE bill stated, that James Thompson, deceased, a brother of the plaintiff, came to the United Stales, an alien, in 1798, and wan naturalized in 1813. That Alexander Thompson, deceased, a brother of the plaintiff^ came to the United States, a?i alien, in 1803, and was naturalized in 1810. That the plaintiff coxae to the United Stales in 1804, an alien, and still remains an alien.

The bill, (filed' June 23d, 1821,) stated, that the plaintiffs; were assignees of the Columbian Insurance Lompany> which company, on the 2d of April, 18 i 0, insured for the house of T. S. Clarkson 4’ Co. 10,000 dollars, on sugars, ou board of the ship Egeria-j belonging to the defendants, on a voyage from JYew-York to Russia.

THIS was a rehearing on the petition, in the matter of the heirs of Samuel Kicoll, deceased, to be let in to prove their debts against the estate of C. C. Roosevelt, deceased, on taking the account before the masler, in the above cause, on exceptions taken to the master’s report.

The bill, (filed April 28th, 1815,) stated, that on the 1st of March, 1775, Nicholas Belavergne, of Charlotte, in the county of Dutchess, executed a bond and mortgage to William Axtell, of the city of New- York, for £282 8s. 8(1., (706 dollars and 8 cents,) payable on the first day of May, following, with interest. The land mortgaged consisted of a moiety of 2,400 acres, and another parcel of 206 acres.

THE bill was filed January 31st, 1820. Dink Ten- ^ ’ broeck and his wife, by deed of the 20th of December, 1813, for the consideration of 5,100 dollars, conveyed to James Kane, in fee, all his interest in a tract of land called Elizabethfield, at the Jiorman Kill, in Albany county, containing 1044 and an half acres. On the 20th of March, 1813, D. Tenbroeck and his wife, for the consideration of 7,305 acres, conveyed to James Kane, in fee, 487 acres of land at Elizabeth field.

Bill, to forclose a mortgage executed to the plaintiff, by the defendants Bill and J. D. Crane, on the 26th of August, 1818, upon a house and lot in the fifth ward; and also upon a house and lot in Vandewater street, in the city of New-York.