Clason ads. Mulligan.-La Green ads. Eushreaud-&c.

CLASON ads. MULLIGAN, Assignee, &c.

A motion to add a new plea, denied, on the ground that the defence stated applied to a partnership transaction, inadmissible, as against this suit.

LA GREEN ads. BUSHREAUD.

AN application for a second commission to suspend the proceedings denied, the plaintiff having issued one which was returned not executed, as to his principal witness who refused to be regularly examined. A commission not to suspend the suit was allowed.

WOLCOTT & VAN ORDEN ads. ABEEL.

A sheriff's inquisition was set aside on the ground that he refused to admit testimony which was proper on the part of the defendant, under a written agreement.

Administrators of SCOTT against MORGAN.

A motion for a commission was denied on the ground that the notice was served in the office of the defendant's attorney, and it did not appear at what time of the day. It ought to have been within office hours, which the court defined to be from 9 A. M. to 5 P. M.

Le Roy and others v. Stout, Executor.-&c.

In the following cases opinions were prepared but never delivered.

APRIL TERM, 1802.

LE ROY and others against STOUT, Executrix.

In a suit on recognizance of bail, the defendant pleaded nul tiel record, and relied on a mistake in the bail piece, which was capped of a wrong term. This being the act of the defendant, it ought to be amended, although the present defendant be an executrix.

AUGUST TERM, 1803.

JACKSON ex dem. LEWIS and wife against SISSONS.

A covenant in a lease or deed not to sell or underlet without leave in writing of the landlord, is collateral, and does not run with the land, so that an assignee of the reversion can take advantage of it.

2nd. An assignee of a reversion in fee is not within the stat. of 32 H. 8, (adopted here) which applies only to estates for life or years. This opinion was agreed to by all the judges except the chief justice, who was a party, but the motion on which it was to be delivered was withdrawn, and therefore never given. (Vide Ex'rs of Platner ads. Ex'rs of Rensselaer, Same ads. Devisees of Van Rensselaer, ante.)

PRENDERGAST and others ads. PRIOR.

VIDE in this case the authorities and points deduced by Judge Benson on the question of traversing the return of a

rescue.

Jackson, ex dem. Verder and others v. Gourlay.-&c.

The following cases were submitted to Judge Kent and myself, and the parties acquiesced in our opinions.

FEBRUARY TERM, 1802.

JACKSON er dem. VERDER and others against GOURLAY.

A power in a will respecting real property, not being pursued according to the intent of the will, its execution is void and cannot help the party claiming under it.

NOVEMBER TERM, 1801.

ROGERS against Coon.

WHEN one party has performed his part of an executory contract, it is not in the power of the opposite party to rescind it.

2nd. Where it may be rescinded, a mere neglect of performance for a short time is not sufficient to show it to be rescinded, it remains then still open. The party intending to rescind must do some act to determine his election, as tender and notice.

3d. The action for money had and received cannot be maintained except where there be evidence of money having actually passed. (Vide Walker ads. Ballard, ante.)

DOLE against PRENDERGAST, who, &c.

IN replevin. 1st. The bond to be taken by the sheriff at common law was to prosecute the action with effect. By the statute he is also to take pledges for the return of the goods.

Holebrook v Bartlett.-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.

2d. 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 opinion 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 which 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.

9th. In certain specific cases, it is the common course in chancery, to order an issue to be tried at law, but in all cases