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 for

mer 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 defendant 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 refused to be enjoined. The opinion of the majority as to the validity of the consideration 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 contra. 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

Lynch and Stoughton ads. De Viar.

maintain an action for them if the state do not interfere, or he is not divested by a descent, in which case, as he can have no heirs, they cannot take.

3d. An assignment or transfer of a debt secured by mortgage, draws after it the benefit of that security.

4th. The person having the legal estate by mortgage must be a party to a suit for the recovery of the debt secured by it.

5th. All persons whose interest is to be affected by the decree, must be parties. The rule on this subject referred to. Decree unanimously reversed.

FEBRUARY TERM, 1802.

LYNCH & STOUGHTON ads. IGNATIUS DE VIAR, Administrator.

1st. An account rendered by one party and not assented to by the other, is not an account stated or settled so as to carry interest.

2d. Money received by one party, the proceeds of a joint enterprise with another, which was terminated, carries interest from the time the enterprise was ended and when it was in the power of the party to pay over the proceeds.

3d. An accountable receipt or promise to do this not being delivered up, is no reason for not paying the money, and a condition that an indemnity should be given against it, as ordered by the chancellor, was directed to be dispensed with. I gave the only written opinion in the case, and the court adopted it unanimously.

Hikok v. Scribner.-Leavenworth v. Bowne.

HIKOK against SCRIBNER.

A decree reversed because all parties in interest were not before the court, and because in its operation it must affect the rights of others, and compel the appellant to obtain the performance of certain acts from them which he had no power to oblige them to do. It was a decree morally impossible to be executed. The rules on the subject of parties to a suit generally stated.

FEBRUARY TERM, 1804.

LEAVENWORTH against BowNE, and in three other suits by the same plaintiff against other insurers.

ORDERED that the mariners' wages and provisions from the time of the vessel's capture to the day of her leaving Ramsgate be added to the expenses of reclaiming the property, and that the aggregate sum be paid ratably by the several underwriters on the vessel, cargo and freight; that the cargo be valued at its first costs and charges at the port of departure, the vessel at four-fifths of her actual value at the same place, exclusive of outfits, and without regard to any valuation in the policy; and the freight at one-half of what was agreed to be paid at Havre; that the underwriter on freight pay eight-ninths of the same, which on this calculation shall fall on the freight, and those on the ship the whole of the contribution, which shall belong to her, and also one-ninth of that which is to be borne by the freight.