Smith v. Durkee.

to exercise the authority for enforcing a discovery "in such cases as shall be deemed proper." § 21. I am satisfied that if the question contemplated by this application is ever reached in the course of the litigation, the only practicable remedy for the defendant will be found in a resort to a court of equity. There the mortgagee may be called to an account, and the sums received or lots appropriated to his own use or for his benefit, valued; and the whole subject deliberately examined and settled. The circuits ought not to be thus encumbered, and the ordinary business interrupted. We should therefore be justified in refusing the application for the above considerations.

It appears, however, from the affidavit of the agent (Mr. Seymour) confirmed by that of the Messrs. Bowne, that, in 1835, and before this litigation commenced, Mr. Seymour rendered an authentic account of moneys received on sales, and outstanding on contract, at the request, and for the executors of the elder Bowne. This statement may, possibly, aid the defendant, if not answer the purpose for which the discovery is sought. Beyond this I cannot extend it. The correspondence sought for is sufficiently denied in the affidavit of the Messrs. Bowne.

Where an attorney has not an agent at the places required by the rules for the receipt of papers, and a paper is put into the post-office directed to him, the day the paper is mailed, and not when it is received, is the day of service.

ON a motion to set aside a default for not pleading, as irregularly entered, it was held, that putting a plea into the post-office, directed to the plaintiff's attorney at his place of residence, when the attorney has not an agent at either of the places required by the rules of the court, was equivalent to the service of a paper upon an agent; and the service was deemed to have been made on the day the plea was mailed, and not when, according to the course of the mail, the plea was received by the plaintiff's attorney.

In the matter of Carlton-street.

In the matter of CARLTON-STREET, in the city of Brooklyn. In street cases, it is a matter of course to grant a certiorari, after confirmation oft report of the commissioners of estimate and assessment, where the object of t party is to remove the proceedings into the court for the correction of errors.

J. L. Wendell moved for the allowance of a certiorari, to be directed to this court, acting as commissioners on the motion to confirm the report of the commissioners of estimate and assessment in the above entitled matter, as preparatory to the suing out of a writ of error, to remove the proceedings into the court for the correction of errors.

M. T. Reynolds was proceeding to oppose the motion, on the ground, that there were no errors to be corrected, but was stopped by

Mr. Justice CowEN, who observed, that on a motion of this kind, the decision of the court on the confirmation of the report would not be reviewed; that the certiorari being asked for the purpose avowed, it was a matter of course to grant it, the proceeding being in substance the same as drawing up a case in a subordinate court for the purpose of enabling a party to prosecute a writ of error, which this court would require to be done.

Motion granted.

In the matter of ART-STREET, in the city of New-York. In street cases, where money is awarded to the estate of a person deceased, it is not necessary on an application to the court by the persons entitled to such estate for an order that the money be paid over, to show a publication of notice of such application in a public newspaper; it is otherwise, however, where the money is awarded to owners unknown.

In the latter case, also, security for refunding the money on the happening of certain events, will be required; but not in the former.

In the improving of this street, a piece of ground was taken, which the commissioners of estimate and assessment in their re

In the matter of Art-street.

port, stated to belong to the estate of John Vark deceased, and that in consequence of the taking of such ground, they had allowed as damage, the sum of $8,600 to the estate of John Vark deceased; which sum has since been paid into court. A petition is now presented by the children of John Vark deceased, stating that they are the heirs and devisees of their father; which petition is verified by their affidavits and by a certified copy of the last will and testament of John Vark, and is accompanied by a map on which is delineated the premises taken; and application is now made for a rule directing the clerk to pay over the moneys thus deposited to the petitioners or their attorney. Notice of the application was given to the counsel of the corporation, but was not published in any of the newspapers of the city.

Mr. Justice COWEN granted the application, observing that this case differed from the cases where moneys are awarded to owners unknown, in which in addition to what had been done by the petitioners here, the court required the publication in a newspaper of a notice of the intended application. In those cases also, the court had latterly required security to be given by the petitioners for the return of the money when required so to do; but in this case neither the publication of a notice or security were necessary. The papers would be referred to the clerk, and if found to be right, a rule for paying over the moneys would be entered.

AN

INDEX

TO

THE PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

A

ABSCONDING, CONCEALED AND
NON-RESIDENT DEBTORS.

ACTIONS IN GENERAL.
The mere making out of a writ and ob-
taining a special deputation from the
sheriff, is not the commencement of a
suit; until delivery to the special de-
Boughton v. Bruce,
puty, the suit is not commenced.
234

AGENCY,

1. In a proceeding by attachment against
a non-resident debtor, who is sought
to be charged as a debtor of a foreign
bank, the president and directors of
which are by its charter declared to
be individually liable for all notes,
&c. issued by the bank, it is not 1. Where a naturalized citizen died in

necessary for the purpose of showing
personal liability, that the charter
should be produced as part of the pre-
liminary proofs, on the application
for process. Ex parte Van Riper. 614

See PRINCIPAL AND AGENT.

ALIENS.

1833, seized of real estate, the title
to which he acquired in 1824, under
a contract of purchase made in 1810,
of which real estate he had been in
possession ever since, and an action
of ejectment was brought by a bro-
ther and two sisters of the deceased
who were aliens at the time of his
death, and who had not complied with
the requirements of the act relative
to aliens passed in 1825: IT WAS
HELD that the plaintiffs by reason of
their alienage were incapable of in-
heriting the estate of their deceased
brother, although they had been
residents of this state since 1805.
Kennedy v. Wood,

230

3. It is no objection to the remedy by
attachment, that the act of incorpora-
tion gives an action in the ordinary
mode, in which the plaintiff may 2. It was further held, that the plain-
declare, &c. A party to whom an
action is thus given, is not confined
thereto, but may resort to any form
of remedy known to the law, and he
may do so in any place where the
debtor or his property can be found. id

tiffs could not claim any thing under
the equitable estate in the premises
existing in the deceased previous to
his obtaining the legal title; the acts
on this subject recognizing only legal
estates.

id

3. Whatever rights the plaintiffs had husband, a natural born citizen, was
(if any) under the acts of 1802 and seized before her marriage, because: 1.
1808, were destroyed by the act of title by dower is by act or operation of
1825, which applies as well to aliens law and not by purchase; and 2, because
who had before its passage come to the word purchase, as found in the
reside here, as to those who should enabling statutes, is not used in its
subsequently arrive.
id technical sense as indicating one of the
two modes in which only it is said that
4. The widow of a natural born citizen title to real property can be acquired, i.
who was an alien when the act pass- e. by descent or purchase, but that it is
ed in 1802, enabling aliens to purchase used in its ordinary and generally re-
and hold real estate, is not entitled to ceived sense, signifying the buying of
dower under the provisions of that land.

act, where the lands in which dower In respect to the effect of the natural-
is claimed were acquired by the hus-ization of the plaintiff, Senator VER-
band, and the marriage took place PLANK concurs with the chancellor in
previous to the passage of the act. the conclusion at which he arrived, as
Priest v. Cummings,
338 stated above-he holds that from the
phraseology of the naturalization laws
5. A feme covert who is an alien may themselves, as well as from other con-
be naturalized; but her naturaliza- siderations, the effect of a naturaliza-
tion has not, under the general acts of tion here is the same as that of a deni-
congress, a retroactive operation, so zation in England, i. e. that it is not
as to entitle her to dower in lands of retroactive but prospective; that the
which her husband was seized during feme becomes entitled to dower out of
coverture, and which he had aliened all the lands whereof her husband was
previous to her naturalization.* id seized at the time of her naturaliza-

tion, but not out of lands whereof her
husband had been previously seized,
and which before her naturalization, he
had aliened. Upon this point the Chan-
cellor, in the opinion delivered by him,
exhibits the same view of the question.

AMENDMENTS.

The Chancellor, in commenting
upon the case of Sutliff v. Forgey, 1
Cowen, 89, and 5 id. 715, S. C. in
error, where the alien widow of a
naturalized citizen was permitted to
recover dower in lands purchased by
Senator WAGER delivered an opinion
the husband, and conveyed to him dur- for an affirmance of the judgments in
ing the coverture, expresses the opin- the courts below, upon the principal of
ion that the decision in that case was stare decisis; he considering the deci-
made upon the ground that the widow sion in the case of Sutliff v. Forgey as
was at the time of the purchase by the controlling this case.
husband capable under the enabling act
of 1802, of purchasing and holding real
estate, and that by the same conveyance
under which her husband took and at
the same moment when he became seized
she became a purchaser, within the
meaning of the act, of an inchoate right
of dower; and that had the lands in
the principal case been acquired subse-
quent to the act of 1802, whilst the
plaintiff was an alien, and had she pos-
sessed at the time a legal capacity under
the enabling act to purchase and hold
real estate, that she would by the pur-"
chase of her husband have acquired an
inchoate right of dower, which on the
decease of her husband would have

become absolute.

1. In an action of assumpsit for money
had and received, brought by executors
counting upon promises to the testator,
an amendment was allowed after a
report of referees, by permitting the
plaintiff's to allege the promises to have
been made to them as executors; it
appearing on the hearing, that the
moneys were received by the defend-
ant subsequent to the death of the
testator, though upon a retainer ante-
rior to that time. Flower's ex'rs v.
Garr,
668

2.

Senator VERPLANCK concurs with the
chancellor in his view of the case of
Sutliff v. Forgey; and upon the princi-
pal question, holds that a woman, an 3.
alien at the time of her marriage, is
not entitled, under the act enabling
aliens to purchase and hold real estate,
to claim dower in lands whereof her

The only costs allowed the defend-
ant, were those of preparing to set
aside the report, and of opposing the
motion.

id

It was held no objection to the mo-
tion that the cause was brought into
this court by certiorari from a court
of common pleas; the same power
being exercised in such cases over the