And where such a bequest leaves the sum not exceeding a certain limit, in the discretion of executors, and the executors have renounced, the gift cannot be sustained as a pecuniary legacy by disregarding the void directions to convert it into land, and then to re-convert it into money. The amount being unascertained, the bequest wholly fails: Id.

A bequest of money, to be laid out in lands for the benefit of aliens, who are to have the possession and enjoyment, contravenes the statute of wills, and is void: Id.

Vendor and Vendee-Title to Chattels derived through a Fraud-Husband and Wife-Ambiguous Possession-Purchaser without NoticeMortgage for Future Advances.-The definition in the 2d Revised Statutes, page 702, section 30, of the term " 'felony" when used in a statute, has not so changed the common law as to prevent a purchaser in good faith and for value, obtaining title to goods, which the original vendee procured by false pretences: Fussett vs. Smith.

The case of Andrew vs. Dieterich (14 Wend., 36), in this respect overruled.

The possession by a husband of his wife's real estate is to be taken as her possession, so as not to put a purchaser upon inquiry as to the rights of a third person of whom the husband, to cover his own fraud, took a lease unknown to the purchaser: Id.

A creditor, who took from his debtor a mortgage declared to be a continuing security for an amount less than the debt, held, to have made subsequent advances on the faith of the mortgage, although the original indebtedness was never reduced, but was continually increasing: Id.

Municipal Corporation Tax-Payer or Loan Holder no right, as such, to Maintain an Action to Restrain Acts of Corporate Officers.-There is no distinction between a municipal corporation and towns or counties, which enables a taxable inhabitant of the former to maintain an action to restrain or avoid a corporate act not affecting his private interest, as distinct from that of other inhabitants: Roosevelt vs. Draper.

Nor can such a suit be maintained by an inhabitant who is also a creditor, holding the public stock of the corporation, to avoid an alienation of its property upon which he has no specific or general lien, and which is not shown to be essential to the security of the corporate creditors: Id.

A Governor of the Almshouse is one of the heads of departments, and an officer of the city of New York, prohibited, by chapter 187 of 1849,

section 19, from being interested in the purchase of any real estate belong. ing to the corporation: Id.

Will-Where Widow a Witness against Probate.-An order of the Supreme Court, reversing a Surrogate's decree, admitting a will to probate for error in law, and remitting the proceedings to the Surrogate, is a final determination in the Supreme Court, and is appealable to this court: Talbot vs. Talbot.

A widow, cited, but who does not appear or contest the probate of her husband's will, is a competent witness for the contestants, as against the objection that she is a party to the proceeding; and no formal order, dismissing her as a party, or otherwise providing for her examination, is necessary: Id.

Where, on the hearing before the Surrogate, there is general evidence of the execution by the husband of a previous will, under which the widow would take the same provision as under the will offered for probate, the validity of the first will is to be assumed in support of the competency of the widow as against the objection of interest: Id.


Agreement Statute of Frauds.-The plaintiff was employed by G. to build for one S. a machine for crushing ore; S. having previously arranged with D. & Co., to pay for the same, and the plaintiff looking to D. & Co. for payment, and commencing work upon the machine. Subsequently, D. & Co. refused to pay for the machine, and the plaintiff, on being informed of such refusal, declined proceeding under his contract; whereupon the defendant promised, verbally, that if the plaintiff would go on and complete the machinery, he, the defendant, would pay for it. Held, that this was not an agreement to pay the debt of another, nor within the statute of frauds. The first contract was rescinded, and the agreement of the defendant was not collateral, but was an independent and original agreement, and, as such, valid and binding: Quintard vs. De Wolf.

Powers and Jurisdiction of Supreme Court-Construction of Wills— Infants-Determination of Claims to Real Estate.-The Supreme Court possesses all the powers and exercises all the functions, both of the Supreme

1 From Hon. O. L. Barbour, Reporter of the Court.

Court and the former Court of Chancery; but it has not acquired, by the blending of the two tribunals, any right or authority which did not belong to one or the other of their formerly separate jurisdictions: Onderdonk vs. Mott and Others.

The action and administration of the Court is perfectly distinct in affording legal or equitable remedies: Id.

Where there is no trust, and there is no personal estate in the distribution of which any trust can arise, devisees who claim merely legal estates in the real property, cannot bring a suit in equity to obtain a judicial construction of the will of the testator: Id.

If the question to be determined is a purely legal question concerning the nature of the estates created by a will in the lands devised, it seems the proper remedy is in court of law by an action of ejectment : Id.

The whole power of the court to order a sale of the lands of infants is derived from the statute. There is no such original jurisdiction in a Court

of Equity: Id.

If such statutory jurisdiction can be exercised upon bill or complaint, as well as in the ordinary mode by petition, still there is no authority for uniting in such a suit parties who claim a legal title adverse to the infant, and compelling them to litigate that claim and have it passed upon; and there are insuperable objections to such a course: ld.

To authorize a proceeding under the statute for the determination of claims to real estate, the claim of the defendant must be adverse to the party in possession: Id.

Proceedings cannot be instituted by one having a life estate in premises under a will, against the devisees in remainder. Nor by one who is not in possession: Id.


Revocation of Will.-The intention of a testator to cancel or revoke a clause in his will, however strongly declared, is of no consequence unless it be carried out by some act amounting, in judgment of law, to an actual cancellation or revocation: Clark vs. Smith.

A testator having an only son, James W. Smith, devised certain real estate to his "son, James W. Smith." After the execution of the will, he, with a pen, erased from the clauses of the will containing the devise,

the name

"James W. Smith," leaving the word " "son" uncancelled. Held, that neither the will nor the devises to James W. Smith were revoked by the erasures: Id.

GENERAL TERM, SEVENTH DISTRICT, December, 1860, and March, 1861.

Partnership.-The interest of a partner in the partnership property consists in his rateable proportion of the assets after the payment of all the debts of the partnership. In a suit in equity for a settlement of the copartnership affairs, no decree can rightfully be made for the payment by one partner of any sum to another except upon this basis: Hayes vs. Reese.

If the partner against whom a decree is obtained upon a final accounting between him and his copartners for the payment by him of an ascertained balance to another, is subsequently compelled by legal process to pay partnership debts to an amount equal to the sum remaining unpaid upon the judgment, this will not entitle him to maintain an action against his former copartners to have the amount of such partnership debts so paid by him ascertained, and for a decree directing that such amount be allowed to him as payment upon the decree: Id.

Usury. When promissory notes of equal amounts are exchanged, one is equal in value to the other, and there is no usury in the transaction; but when either party makes an advantage in the arrangement, over and above seven per cent., then the case is one of usury, if the transaction was designed as, or was connected with, a loan of money: Thomas vs. Murray et al.

Money is equal to money in such a transaction, but nothing else is equivalent to money. Where, upon a loan of money, anything else is claimed to be equivalent to money, the lender must show the equality; and if any other thing than money is put upon a borrower in an exchange of notes, in connection with, and as a condition of, a loan of money, the transaction is presumptively usurious in law: Id.

The defendant applied to W. for the loan of $200. W. said he had a note made by M. for $150, payable in hemlock lumber, and if the defendant would take that note he, W., would let him have the $200, and take the defendant's note for $350. The defendant replied that he did not want the M. note, and did not consider it good. Subsequently the defendant told W. that if he would let him have the $200 that day he would take the M. note, provided W. would guarantee it. This W. agreed to do, and thereupon advanced $200 in cash to the defendant, and delivered the M

note with a guaranty endorsed, guaranteeing the collection thereof, but without any consideration expressed, and took from the defendant a note for $356.97, which embraced the $200 and interest, and the $150 note and interest. Held, that even upon the assumption that W. was liable upon his guaranty of the M. note, and that he could not elect to avoid it, the transaction was usurious upon its face within the case of Cleveland vs Loder (7 Paige, 559); but that the guaranty was of no validity for want of a consideration being expressed therein; and that the note for $150 being turned out by the lender, upon a void agreement of guaranty, as part of the consideration for a loan, the transaction presented a bold case of usury: Id.

Held, also, that the fact that the agreement of W. to guarantee the note meant a valid guaranty, did not alter the case. That the contract being executed, at the time, must be held to express the agreement between the parties, and to furnish, upon its face, the only evidence of the contract actually made: ld.

Held, further, that in an action upon the note given by the defendant to W., the judge should have left it to the jury to say whether it was part and parcel of the bargain, and the intention of the parties that the borrower should take the $150 note at his own risk in regard to the solvency of the parties thereto : Id.

One who makes a contract which the law declares usurious cannot escape the penalty of the offence upon the plea of ignorance of the law, or of the absence of an intention to evade the statute: Id.


Gift from Husband to Wife-Evidence.-A husband, acting as the agent of his wife in making settlement of demand in her favor, took a deed of certain lands in satisfaction, which was made to him instead of to her. After her death, the heir at law (who was also the administrator) of the wife, sought in equity an account with respect to these lands, and the husband defended, claiming them as a gift from the wife. Held, that the burden of proof was upon the husband to establish the gift; and that the fact that the deed was made to him, in the absence of proof that it was so made by the wife's direction, consent, or knowledge, was no evi dence of the gift, and authorized no presumption against the wife's inte rest: Wales vs. Newbold.

1 From T. W. Cooley, Esq., State Reporter.

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