One partner cannot make an assignment of the partnership property to a trustee for the benfit of creditors without the assent of his copartners, the latter being present and capable of acting. Hayes v. Heyer and o'rs, 86 The widow and administratrix of a deceased partner and co-lessee of collieries, has sufficient interest to support a suit to realize the partnership assets. Clegg v. Fishwick, 201 Where A. and B. were in partnership as solicitors, and B. had quitted the town at which they practised and never returned, on the ground, as he alleged, of A.'s having spread false reports respecting him, but for which an indictment, although preferred by B., was not prosecuted: Held, that the allegation was answered by the non-prosecution of the indictment, and a dissolution decreed from the time of B.'s leaving the town, with costs. Parsons v. Benn, 202 A special partnership is dissolved by the death of the special partner. In the matter of the final accounting of the Ex'rs of Downing, 317

PATENT.

73

Injunction-supplemental bill-parties. Parkhurst v. Kinsman and an'r, The grant to the complainant was a patentable matter, and the patent was valid. The discovery of Sargent, at Lowell, was never perfected, and put to particular use, and did not interfere with the right of the complainant under his patent.

Principle of invention-Partnership-Restraint in trade, &c., &c. Parkhurst v. Kinsman and o'rs, 146 Jurisdiction in equity case. Blunt impleaded with Symes ads. Allen,

PIOUS USES.

105

A gift by will of a sum of money at the death of four annuitants, to an incorporated religious society is a contingent legacy, and lapsed by the expiration of the charter of the society before the death of the last annuitant.

Had the legacy been vested, still the assignment of it would have been void, as it was clothed with a trust which from its uature could not be delegated.

Courts of equity have no power to decree the execution of pious or charitable uses, when there is neither a trustee nor a cestui que trust, the English cy pres doctrine in relation to such uses never having been adopted in this state.

Pious uses inconsistent with the general rules of law were not recognized by the law of this this state even before the adoption of the Revised Statutes.

A bequest of a sum of money to the General Theological Society of the Protestant Episcopal Church, in trust, to apply the income to certain specified uses, is void, the seminary having no power by its charter to accept and execute a trust of any description. The trust was an entire limitation, and as some of the uses were plainly illegal, it was void upon that ground also. The New-York

Bible and Common Prayer Book Society v. Andrews,

361

The words "pious uses," in the 4th section of the act" To provide for the incorporation of religious societies," must be restricted to such uses as are comprehended within the general objects for which such society is incorporated. The support of its minister for the time being is such a use; and a conveyance of lands to a society in trust to make this application of the rents and profits is, therefore valid. The powers and privileges of religious societies incorporated under the general act are not affected by the new provisions in the R. S. in relation to trusts and perpetuities. Tucker and others v. The Rector, Church Wardens and Vestrymen of St. Clement's Church and Edward N. Mead, 257

Whenever a power is given in a will to executors to sell lands without expressly naming a donee of the power, and the proceeds of the sale are directed to go to pay debts or legacies, or to be distributed, the power vests by implication in, and may be executed by the executors, unless a contrary intent can be collected from the will.

The execution of a power by one executor is valid where it appears that a co-executor has not qualified. Meakings v. Cromwell & o'rs, 140 Held, that a power to give certain real estate by deed or will to any of the male descendants of the family of the testator bearing the name of Dominick, was imperative, and created a trust in favor of the class of descendants so designated.

The word "family," construed upon the authority and upon the intention to mean the children of the testator. They were the stock of descent, and their male descendants bearing the surname of Dominick, the objects of the trust.

Sections 25 and 100, in the article of Powers, in the Revised Statutes, did not introduce any new rules, but were declaratory of the doctrine which prior decisions in equity had established.

A power is always imperative, when its subject, i. e. the property given, aud its object, e., the persons to whom it is given are certain.

i.

The power is not to be construed as discretionary because the terms used are those of mere authority and not of direction, recommendation or request. Nor is it rendered discretionary by a right of selection given to the donee. It is still in equity a gift to all who are the objects of the power, liable to be altered and restricted by a partial execution.

168

Points of Practice-Personal arrest under United States process. Gaines v. Travis, 45 Appeal from judgment of Special Term on verdict. Benedict against New-York and Harlem Railroad Co., The 111th section of the amended Code, which requires that "every action must be prose cuted in the name of the real party in interest," is an adoption of a long established rule of courts of equity, and it should be applied, as far as may be, according to the principles and practice of those courts. A defendant will not be allowed, after judgment, to have the cause opened in order to set up that the suit had not been brought by the real party in interest, if the parties plaintiff before the court had the right to receive the moneys recovered and can give a valid discharge for the same. Grinnell and o'rs against Schmidt & an'r, (See Trustee,) 197 An order will not be made for the production of documents, &c., in a suit impeaching a deed for fraud, unless specific fraud is alleged, and that a general allegation of fraud is insufficient. Follett v. Jeffreys and o'rs, 201

PRIVITY OF CONTRACT. Plaintiffs brought the action to recover the amount of their bill as proprietors of a newspaper, for publishing an advertisement of the sale of real estate, under an execution issued upon a judgment in favor of defendants. The advertisement was published weekly, for nearly eighteen months, and the amount of the bill was $510.

Held, that as the plaintiffs were not employed directly by the defendants, nor under any special directions given by them or by their attorney, there was not such a privity between the parties as could entitle the plaintiffs to maintain the action. Weed and o'rs ads. Raney and an'r,

182

PRODUCTION OF BOOKS. In a suit to establish a custom at a particular place that all corn should be ground at the plaintiff's mill and seeking an account against the defendant, a corn dealer, of an alleged infringement thereof, an order was made for the production of his trade books, with leave to file affidavits in order to seal up such parts as were immaterial to the question in issue. Ord v. Fawcett, 299

PROMISSORY NOTE. A notice of presentment and dishonor of a promissory note by a clerk of the plaintiff's attorney to defendant is sufficient. Chard v. Fox, 103 The payment of an antecedent debt is a valuable consideration within the rule which pro

A report of a referee upon the whole issue may be brought before the Special Term on a motion for a re-hearing, when such order may be made granting or denying the application as to the judge may seem just. The ruling of Campbell, J. in Haight v. Prince, approved of.

It is in the discretion of the court at Special term to look into the matters of law as well as of fact, arising upon the report of the referee, and to direct a re-hearing in respect of erroneous rulings of the law. When the report is complained of as being contrary to evidence, an examination of the legal points involved, will be convenient and proper, in connection with the argument on the evidence; but where the report is assailed in respect to its legal conclusions alone, the judge will be inclined to refuse a stay of proceedings with a view to a motion for a re-hearing, and will leave the party to his remedy by appeal from the judgment. Leggett v. Mott, 236

RESTRAINT OF PRACTICE.

Held, that where the plaintiff, a surgeon, employed the defendant as his assistant, under an agreement that the defendant was not to practice as a surgeon in the town or within seven miles thereof, under a penalty of £500 and the plaintiff recovered £500 as liquidated damages by such verdict at law, the contract between the parties was at an end, and an injunction restraining such practice was dissolved. Sainter v. Ferguson, 37 Held, that a covenant by a surgeon not to practice within two-and-a-half miles of the place of business, the good will of which

A

WRIT OF ERROR.

92

bond given to prosecute a writ of error issuing out of a court of the Supreme Court to a Court of Common Pleas, when by law such writ can only issue out of the Court of Appeals, is absolutely void, and no action can be maintained upon it. Ward and Goadby 95 The powers and jurisdiction of the Supreme v. Syme and others, Court, as formerly organized, were the same as those of the Supreme Court of the colony, which were identica! with those of the King's Bench in England. In England, the law is fully settled that error lies upon any and every final judgment in a court of record, including judgments by default, and writs of error upon such judgments, have always been entertained in the King's Bench.

The doctrine that error will not lie upon judgments by default, to the Court of Errors, was founded upon the provisions of the constitution. This doctrine was never adopted in the Supreme Court, and was not applicable to that court. Kanouse v. Martin, 159