Volume 7 — Johnson's New York Chancery Reports

THE bill (filed January 18, 1819,) stated, that in 1803, John JYeafa, lately deceased, father of the plaintiff, made a verbal agreement for the purchase of a farm in Orange county, containing 518 acres, for 8500 dollars, and told the plaintiff that he intended to have the contract in the plaintiff’s name, having promised to purchase a 'farm for him ; that a written contract for the purchase was executed accordingly on the 17th of March, 1803, between the plaintiff’ and S.…

ON a rehearing : The bill was filed October 30th, 1821, for the foreclosure of a mortgage, dated July, 1818, for securing the payment of a bond conditioned to pay 10,000 dollars, on the first day of May, 1825, with lawful interest, payable quarterly. The interest was regularly paid to the 1st of August, 1820.

THE defendant, T., on the 1st oí May, 1815, purchased 94 acres of land, in Richmond county, subject to three several leases, each for 21 years, on three several parcels of the said land, and which parcels amounted in the whole to 46 acres.

ISRAEL TOTTEN, by his will, dated March 9,1811, after certain bequests, devised the residue of his estate to the plaintiffs, (who are infants, suing by their next friend,) and appointed the defendants, Palmer and Crosby, his ex- ' , ecutors.

AN order was granted, in this case, on the 13th of March, 1821, that no waste be committed by the wife or children, or any of the family of the lunatic, or by any other person, by their order, on the real estate of the lunatic, by cutting and selling the timber growing thereon, or by destroying the fences, buildings, &sc.; and that the committee report, from time to time, any breach of the order; and that a copy of the order be served on the wife and family.

THE bill, which was filed by the children and heirs at law of William Wilson, deceased, stated, that W. Wilson, some time previous to the 6th of October, 1796, contracted with Charles Williamson for the purchase of 6000 acres of land ; that W. W., on the 6th of October, 1796, executed a power of attorney to Daniel Faulkner, for and in the name of W. W., to ask, demand and receive of C. W., deeds for the 6000 acres of land, (describing it,) and “ to sign, seal, deliver and…

THE bill stated, that the defendant, Z)., executed to the plaintiff, on the 8th of February, 1809, a bond and mortgage, to secure the payment of 1065 dollars and 3 cents, on the 1st of June, 1821, with interest. That on the 16th of February, 1820, the plaintiff, being indebted to the defendant C., in 225 dollars, assigned over the bond and mortgage, by way of pledge or security for the payment of the last sum, to the defendant, C., on the 1st of October, 1820.

THE plaintiff, who lived in Hampton, in the county of Washington, in this state, being indebted to S. Hotchkiss, an inhabitant of Rutland county, in the state of Vermont, gave a mortgage of land in Washington county, for securing the payment of 517 dollars and 83 cents, with interest.

THE bill, filed September 10th, 1819, by the representatives of Samuel Dexter, deceased, stated, that S. D. being seised of certain lots of land in the military tract, which were described, on the 4th of' September, 1813, entered into a contract, by deed, with the defendant, Gilbert Stewart, for the sale and conveyance of the lots, being thirty-nine, at the time, and upon the terms mentioned in the contract, which was set forth in the bill.

THE bill stated, that the plaintiff was the widow of Hazel Shepard, deceased.

THE bill, filed March 4th, 1819, stated, that the plaintiffs were in possession of a farm in the county of Genesee, containing 157 acres, under a contract for the purchase thereof, in October, 1816, when they sold the farm to the defendant, Isaac Palmer, at ten dollars per acre.

THE bill stated, that the defendants, being stock and exchange brokers, in the city of New-York, on the 23d of June, 1817, purchased for the plaintiff, and by his order, fifty shares of United States… Held: and had the absolute control of a large number of shares; partly on their own account, and partly in trust for others.

ON a rehearing. The bill, filed July 5th, 1821, stated, that an act was passed, March 30th, 1797, incorporating the Hamilton Manufacturing Society; and that, by an act of the 28th of March, 1809, its duration was extended to the 1st of March, 1821.

MOTION, on the part of the defendants, to vacate an order, confirming the Master’s report; and that the defendants be permitted to except to the report.

BILL to set aside acts done by the lunatic while incoin- ApnZ ilk. petent. General demurrer, for that the lunatic was not a party plaintiff, and because the bill contained no ground for a decree.

BILL for a partition, stating, that George Copeland died seised of three houses and lots in the city of NetoYork, and left five heirs, of whom the wife of the plaintiff, Wotten, was one, .and the first four defendants were the other heirs. The bill stated, that all the lots were incumbered by mortgages and judgments; and the mortgage and judgment creditors were made defendants.

BILL to foreclose a mortgage upon two separate parcels of land in Scoharie county. Each parcel was described by metes and bounds, and then followed this exception : “ Excepting out of the said parcels such village lots as have been, or may be, laid out by the said mortgagor within half a mile of his toll bridge on the said premises across the Scoharie creek, so that the whole of the said lots shall not exceed 50 acres.” The mortgage was registered the 13th of October, 1817.

BILL, filed August 3,1822, stated that the defendant, on the 20th of December, 1816, executed a bond and mortgage to Ezekiel Crocker, to secure the payment of 3000 dollars, the one half on the 1st of October, 1818, and the other half on the 1st of October following.

<p>A guardian, having the legal power to sell or dispose of the personal estate of his ward, in any manner he may think most conducive to the purposes of his trust, a purchaser who deals fairly, has a right to presume that he acts for the benefit of his ward, and is not bound to inquire into the state of the trust; nor is he responsible for the faithful application of the money, unless he knew, or had sufficient information at the time, that the guardian contemplated a breach of trust, and intended to misapply the money ; or was, in fact, by the very transaction, applying it to his own private purpose.</p> <p>A Chancery guardian may, in his discretion, sell the personal property of his ward, for the purposes of his trust, without any previous direction of the Court.</p> <p>So he may lease the real estate; but cannot convey ,it absolutely without the authority of this Court.</p> <p>A stranger ox bona jidt purchaser is not answerable for the faithful application of the money by the guardian.</p> <p>j!1® position or sale property‘^'by XiMorl .</p> <p>, . It is only in cases of fraud Sat th^cóm't ™ould foll°."" th6 hands of a puiLliasei"</p> <p>The mere uíe°Wpurchaser that the property was assets and that there not sufficient responsibiehim</p> <p>Butifaperson knowingly buys or takes tiio assets ítí extinguish-o/ liie executor, it seems, that he will not be “anthem 'a-"e^a" tees.</p> <p>Upon a sale executor,by/or money fairly time, the venmadure({¡e^misappiication of the mone>°</p>

<p>Where a party is in the actual possession of an exclusive privilege, under claim and colour of title, an injunction will not be granted to restrain him from the exercise of his privilege, or the use of the means provided by law for its protection; especially in favour of a party who sets up no particular right of his own, but merely denies the privilege of the other party.</p>

IN June, 1821, the plaintiffs filed a bill against the defendants, for an account. The defendants pleaded the statute of limitations, with an accompanying answer, in which they denied that they had made any offer, tender, promise, or agreement to pay, within six years, 8zc. On the 11th of December, a decretal order was made, overruling the plea, with the answer, and ordering the defendant to put in a full and perfect answer to the bill.

THREE several judgments were recovered on suits at law, in August, 1817, by different sets of creditors, against John C. Cuyler, for debts accrued before the 22d of February, 1817, and the sum total of the judgments amounted to 3837 dollars and 94 cents.

THE plaintiff and defendant were jointly concerned in six different voyages and adventures between New-York and St. Domingo, the active management of which was undertaken by the defendant, who went to St. Domingo, and who was to have one third of the profits. The bill stated the different adventures, the accounts of which remained unsettled.

BILL, filed February 16, 1821, stated, that the defendant, Bronson, on the 11th of June, 1818, executed a , bond and mortgage to the plaintiff, to secure the payment of 500 dollars and 76 cents, with interest, on the 1st of December, 1819. The mortgage was of a farm of 175 acres, in Amsterdam, in Montgomery county, and was recorded on the day of its date.

THE bill stated, that the plaintiff sued for himself and for such other creditors of Henry Mactier, deceased, as should come in and contribute to the expenses of the suit. That H. M., at the time of his death, was indebted to the plaintiff in 4000 dollars, for money lent. That he died intestate, the 10th of April last, and had been largely enga-* ged in commercial business, and was indebted to several persons, in and out of the United States.

THE bill stated, that the defendant, P., is a merchant in Albany, and being indebted to the plaintiffs, on the 8th of August, 1822, executed a bond to the plaintiffs, conditioned to pay 1438 dollars and 23 cents, with interest, being the balance then due, with a warrant of attorney to confess judgment; that judgment was entered thereon the 9th of August last; that a fi. fa. was issued, and returned nulla bona, except as to 212 dollars and 3 cents ; that of that sum the…

THE bill stated, that on the 26th of May, 1813, the defendants conveyed, in fee, 170 acres of land (or the north part of lot No. 94.) in the township of Ulysses, being all their interest therein, to Phineas Bennett. That the plaintiff, W., is now seised of the undivided third part, and the plaintiff, A., of the undivided sixth part of the land.

<p>Two distinct pleas in bar, different in their nature, as, a plea of the statute of limitations, and a discharge under the insolvent act, cannot be pleaded together, without the previous leave of the Court. The defendant cannot plead double, but must reduce his defence to a single point; for he may put all the facts on which his defence rests together in his answer.</p>

THE bill, filed February 19th, 1821, stated, that on the 19th of September, 1815, six of the defendants, named, associated for the purpose of manufacturing cotton goods, and, in pursuance of the act of the 22d of March, 1811, (sess. 34, ch. 67.) filed a certificate in the office of the Secretary of State, on the 2d of October, 1815, declaring that they had formed themselves into a company, in pursuance of the act, under the name of “ The Genesee Manufacturing Company.” That…

THE plaintiff is the widow and executrix of William R. Stewart, deceased. The testator, on the 13th of February, 1809, married Catharine, the widow of Joseph Hopkins, and after her death married the plaintiff.

<p>A cross bill cannot be filed after publication passed in the original suit.</p> <p>And, if filed after publication, testimony taken in the cross cause cannot be used.</p> <p>The Cdurt may, sometimes, at a hearing, direct a cross bill, when it appears that the first suit is insufficient to bring before the Court the rights of the parties, and the matters necessary to a full and just determination of the cause.</p> <p>A cross bill beforebCpubiledgin' the*ori" ginai cause, plaintiff, ‘in wmCg°oSStobila liearing on the published.</p> <p>Rules of evidence should be stable, and not yield to convenience or hardship, in a particular case</p>

GERARD WALTON, by his last will, dated August goth, 1795, devised, among other things, as follows: “I give and devise my house, at present occupied by me, on the south side of Pearl-street,… Held: and which were the only shares held by the testator in the company. That the testator, at the time of his death, owned two shares in the Northern Inland Lock Navigation Company, which the defendant believed to be of little value, and which he was willing to assign to the plaintiff.

THE bill stated, that the plaintiffs, though not general partners in trade, had made several shipments of goods, on joint account, to Charleston, (S. C.) consigned to Henry Cowing Co. for sale, and returns in cotton. The plaintiff, S'., is a merchant of Paris, and the plaintiff, H, formerly of that city, but now residing in JYew-York.

THE bill was filed, the 27 th of January last, by the plaintiffs, William Holmes, George Caines, and Andrew S. Garr, as trustees for the creditors of Frederick Mullett, an absent debtor, against the executors of Isaac Clason, deceased, and others. The bill detailed the previous history of the case. The material facts will be found in the report of the case in this Court; (4 Johns. Ch. Rep. 460—490.) and of the suit at law, afterwards brought in the Supreme Court. (20 Johns.

WILLIAM HENDERSON, by his last will, dated January 16, 1812, among other legacies to individuals and -for charitable purposes, bequeathed as follows : “ I give and bequeath unto the town of New-Rochelle 1200 dollars, for the express purpose of building or erecting a town house in said town, for transacting town business, which sum I direct my executors to pay unto such persons as said town shall appoint to receive it, at a legal town meeting 5 they first giving my executors…

MOTION by J. A. Spencer, on behalf of the defendant, for leave to proceed at law, notwithstanding the appeal filed in this cause.

ON a re-hearing. The bill stated, thatHesékiah $. Beach, of Connecticut, now of the West Indies, on the 2Sth of October, 1816, assigned to the plaintiff all the debt and sum or sums of money, whatsoever, due and owing to him from the firm of W. S. Sy S. Hotchkiss, (defendants,) of JSTew-Haven, in the state of Connecticut, and from the defendants, Goodrich Sy Deforest, partners, of the same place, in trust, &C», giving the plaintiff a full power to demand and receive the…

THIS cause came before the Court, on appeal from an interlocutory decree of the honourable William A. Duer, Judge of the Circuit Court of the third circuit, under the act passed April 17, 1823,… Held: in opposition to the judgment of the Supreme Court, (20 Johns.