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Holebrook væBartlett.—Corporation of Albany v. Van Rensselaer.
2nd. It being added that the party shall keep him harinless, &c., does not vitiate the bond. The sheriff may take such bond for a lawful act, but not for what he has no right to do.
3d. The plaint or writ by our act, is made returnable process, and the party may compel a return, and it is therefore no defence to say that it was not returned, or that it was returned improperly.
4th. If an improper return were a defence it ought to state wherein it was improper.
HOLDBROOK against BARTLET.
This case was also submitted to judges Kent and Radcliff, and they differed, and of course there was no decision. The points in question, were, whether the condition of the points in the case required an attempt to sell lands at auction or in any other mode.
20. Whether, if there was a precedent condition expressed in the condition of the bond, the plaintiff had not a right to declare on the penalty merely, and leave the defendant to discharge himself by pleading the condition.
On both points, Radcliff was for the plaintiff, and had not the least doubt of the correctness of the opinion. Vide the opinion in writing
CORPORATION of Albany against RENSSELAER.
SUBMITTED to Judges Kent and Radcliff, as arbitrators. It related to the rights of ferry accross Hudson's river. Vide note of our opiuion and the questions there stated, and determined. We awarded accordingly. The time will there also appear.
Le Guen v. Gouverneur.
The following cases were decided in the court of errors, where decisions are generally made by a silent vote, and I can therefore only state my own reasons in each case.
FEBRUARY TERM, 1800.
Le Guen against GOUVERNEUR and KEMBLE.
On an appeal from chancery.
1st. The decision of a court of competent jurisdiction is final on the subject matter before it.
2d. Courts of law and equity have a concurrent jurisdiction on the question of fraud, in all cases where the forms of proceeding at law, will enable the court to decide. Vide also, the case in error, from the supreme court, reported in print. I was not then on the bench.
3d. A discovery of new and material evidence whiclı could not before be obtained, is a good ground to open a former judgment or decree.
4th. So also a surprise, as to a matter of evidence, or question of fact, but not an ignorance or pretended surprsie, as to a question of law.
5th. The same rules prevail in a court of equity as to bills of review, to re-examine its own decrees.
6th. The magnitude of the property in question, in case of doubt and difficulty, is a ground of opening, a judgment or decree, but magnitude alone is not enough.
7th. An appeal from an interlocutory or final decree, brings up all the antecedent proceedings, which are of course open for decision here.
8th. On an appeal from an interlocutory order or decree, this court may proceed to a final decree, if all the merits appear before them.
9ih. In certain specific cases, it is the common course in chancery, to order an issue to be tried at law, but in all cases
Astor v. Cooper.-Murrays v. Gouverneur.—&c.
it is in the sound discretion of that court. If the case do not require the trial of an issue, the chancellor ought to decide.
10th. A question upon evidence.
11th. No costs or damages given in this court in case of a reversal against the party coming to support the judgment or decree of the court below.
Astor against Cooper.
A judgment of the supreme court was reversed of course, no party appearing to defend it.
MURRAYS against GOUVERNEUR and Kemble.
1st. A bill of exchange drawn by one of the plaintiffs on another of their house in London, and protested, is not a payment of a former debt, or deemed an execution of a former contract.
2d. The assignee of a chose in action, takes it subject to all equity as in the hands of the assignor.
3d. The action for mesne profits is an equitable action in which all proper allowances for repairs, &c., may be made.
Cooper against KERR.
A promissory note negotiable and endorsed in blank, coming to the hands of an administrator, as such may be sued by him in his proper name, as if it were indorsed to him individually.
Deane v. Sicord.--Armstrong & Barnewall v. Gilchrist —&c.
DEANE against SICORD.
JUDGMENT on certiorari was reversed, which had been affirmed of course in the surpreme court; and this court also decided, that notwithstanding our statute, a judgment in pounds instead of dollars was amendable, and might be overlooked. But it being strictly an error they ordered the costs in error to be paid by the plaintiff here, and the costs in the courts below by the defendant.
ARMSTRONG and BARNEWALL against GILCHRIST.
1st. A person acting as agent, and having guaranteed the payment of a note of his principal, is entitled to retain the money of his principal to refund to himself.
2d. The answer of a desendant in chancery, is received as true unless disproved, and he swearing to a compromise with the assent of the plaintiffs, his principals, it must prevail.
3d. The whole case being before the chancellor although a specific and not general relief was prayed, he ought, and may decide on the whole merits.
MARCH TERM, 1800.
DOLE & JUDSON ads. WOODWORTH & RATHBUN.
A bill to be relieved against a judgment in the supreme court, on a note given for Susquehanna lands, was dismissed in chancery, and the decree affirmed here by some, on the ground of pari delicto, and neither party to be relieved in Macomb v. Corp.-Ray and others v. Bogert and others -&c. equity; and by others that the consideration was good. On the latter point, Justices Benson, Kent and myself were contra, and we went on the first, that of an illegal consideration. An outstanding note for the same consideration was resused to be enjoined. The opinion of the majority as to the validity of the consideralion could not be ascertained.
MACOMB against CORP.
Notice alleged in the declaration to be given on the same day after a demand from the maker, and his default, is good.
Ray and others against BOGERT and others.
An account which accrued before the war, during which the parties were scattered, &c., and notwithstanding several circumstances accounting for the delay, was denied, to be opened on the principle that the demand was old and stale, not as barred by the statute of limitations which was not pleaded. Justices Benson and Kent and a few others con
I should also have been contra, but was absent at the March circuit in New York.
Johnson, Appellant, against Hart.
1st. Trusts in equity are generally governed by the same rules as legal estates.
2d. An alien may purchase and hold lands, and even