The plaintiff further says, that at or about the time last aforesaid, one Robert O. Walker, who was the tenant of the plaintiff, and occupied the said premises as such tenant, quit and surrendered up the same to the said Eliza Clarke, Thomas L. Clarke, George B. Clarke and Eliza Thayer, at their request and by their direction, and without the knowledge or consent of the plaintiff'; and the last named defendants thereupon delivered the said premises to the defendants, Hathorne and Ainsworth, who since then have had and still have the possession thereof, and have received the rents, issues and profits thereof, and refuse to deliver or surrender the same to the plaintiff. And, further complaining, the plaintiff says, that the said defendants, Eliza Clarke, Thomas L. Clarke, George B. Clarke and Eliza Thayer, did each and every of the acts and things above alleged to have been done by them; and the said defendants, Hathorne and Ainsworth, did each and every of the acts and things above alleged to have been done by them, all with full notice and knowledge of the facts hereinabove set forth. And, further complaining, the plaintiff says, that the said defendants have torn down and carried away the house of the plaintiff standing upon the said lot, whereby the plaintiff has been greatly damaged. Whereupon the plaintiff demands the judgment of this court, that the said defendants execute to him a good and sufficient conveyance of the said premises; and deliver up to him the possession thereof, and account to him for the rents, issues and profits thereof, since he was dispossessed of the same, as aforesaid; and pay to him $1,000 damages for the injuries done to and the waste committed upon the said premises by the said defendants; and that the plaintiff may have such further or other relief in the premises as the nature of the case requires, and as shall be agreeable to equity and good conscience. JAMES B. McKEAN, Plaintiff's Attorney. (No. 80.) By several legatees, in behalf of themselves and other legatees and devisees, against the personal representative of the testator and the residuary legatees and devisees, for an account of the personal estate, and of the debts, legacies, &c., and to have the real estate sold, and the proceeds, together with the personal estate, applied in payment of the debts and legacies.1 SUPREME COURT-COUNTY OF ALBANY. Isabella McKenzie, Roderick McKenzie and Barbara his wife, Elizabeth Ferguson, widow of George Ferguson, deceased, and James Ferguson, Elizabeth Ferguson and George Ferguson, children of Jane Ferguson, deceased, agt. James L'Amoureux, administrator, with the The plaintiffs in this action, as well on their own account as on the account of the other legatees and 'The complaint is from the reported case of McKenzie and others v. L'Amoureux and others (11 Barb., 516). It was held, by the General Term of the third district, that such an action might be devisees of Mary McKay, deceased, complain of the abovenamed defendants; that, on the 19th day of January, 1846, at Albany, in the State of New-York, one Mary McKay died, being at the time of her death a resident of the county of Albany, having in her lifetime duly made and published her last will and testament in writing, bearing date on or about the said 19th day of January, 1846, which was executed and attested as by law is required to pass real and personal estate, a copy of which is hereto annexed and forms part of this complaint. That the said testatrix departed this life on or about the 19th day of January, 1846, without having altered or revoked her said will. That Archibald Campbell, the executor named in the said will, renounced and refused to act as such executor. That afterwards, and, as the plaintiffs are informed and believe, in or about the month of August, 1846, the said will was admitted to probate by Anthony Blanchard, Esq., then the surrogate of the county of Albany, as a will of personal and real estate, and was thereupon duly recorded as such in the office of said surrogate, as by the record brought by one or more, on behalf of themselves and others, and that all might avail themselves of the decree; and that the rule has not been changed by the Code of Procedure. When the question involved is one of "common or general interest" (Code, § 119), the action may be brought by one or more, for the benefit of all who have such common or general interest, without showing that the parties are very numerous, or that it would be impracticable to bring them all before the court. The provision of the Code, declaring that, when the parties are very numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole, applies indiscriminately to all actions, whether they involve questions of common interest or not. Per HARRIS, J., ibid. of the said will and the said probate thereof, in the office of the said surrogate, will more fully appear, and to which the plaintiffs for greater certainty refer. That after the said probate of the said will, and on or about the day of August, 1846, letters of administration, with the will annexed, were issued by the said surrogate to the abovementioned James L'Amoreux, who duly qualified and entered upon the duties of such administration, and by virtue thereof possessed himself of the personal estate of the said testatrix, and thereupon became liable to pay the debts and legacies of the said Mary McKay, deceased, in the manner therein directed. That the abovenamed plaintiffs, Isabella McKenzie, Barbara McKenzie, wife of Roderick McKenzie, Elizabeth Ferguson, widow of George Ferguson, deceased, and James Ferguson, Elizabeth Ferguson and George Ferguson, children of Jane Ferguson, deceased, are the legatees provided for in said will, and are entitled to the payment of the legacies therein bequeathed to them respectively.1 And the plaintiffs further state, that they are informed and believe that the said L'Amoreux alleges, and, as they believe, truly, that the said testatrix has left personal property to a small amount, but not to an amount sufficient to discharge the funeral expenses and just debts of the said testatrix, and to pay the legacies provided for in said will; but that said testatrix has left certain real estate in the city of Albany, of the value of at least $4,000, and which is described as follows: [Describing the premises.] And the plaintiffs aver, that they have not received the said legacies due to them as aforesaid, nor has either of them received the same, or any part or portion thereof. These passages in italics are merely allegations of conclusions of law, and are superfluous. And the plaintiffs further state, that they have repeatedly applied to the said defendant, James L'Amoreux, and requested him to come to a just and true account of his administration of the said estate, and to pay and discharge the debts and legacies to the persons entitled thereto respectively, and to cause the said real estate, or so much thereof as might be necessary for that purpose, to be sold and the proceeds applied to the payment of the same; but the said L'Amoreux, as such administrator, refused and still refuses to comply with such application of the plaintiffs, alleging and claiming that said legacies are not a charge on said real estate, and are not entitled to payment out of the same, whereas the plaintiffs expressly charge the contrary thereof to be true. And the plaintiffs further state, that after the making of the said will by the said Mary McKay, deceased, and after the death of the said Mary McKay, the said Elizabeth Stewart, who is described in said will as a niece of the late Lachlan Stewart, and is one of the residuary legatees named therein, intermarried with one Solon H. Lathrop, now of the city of Buffalo, in this state, and that the said Solon H. Lathrop and Elizabeth his wife, and also the said Caroline Jane Stewart and Hallowell Matilda Stewart, who are the residuary legatees named in said will, refuse to consent to such sale of said real estate, and the payment of the debts and legacies provided for in said will out of the proceeds of such sale, claiming and maintaining that the said legacies are not a charge on such estate; whereas the plaintiffs aver and claim that, by the terms of said will, the said legacies are a charge on such real estate, and that they are entitled to payment out of the same. Whereupon the plaintiff's demand judgment against the defendants, and that the will of the said testatrix may be established, and the trusts thereof performed and carried |