Will. create an excitement unfavorable to that repose and equanimity, and absence of bias, with which all jurors should be summoned and courts of justice held. (Id.) 4. Place of trial changed from the county of Lewis to the county of Herkimer. (Id.) WILL. 1. Construction of will as to an indefinite failure of issue; and when devise over should take effect upon the death of the first taker, &c. (Wilson agt. Wilson, Ante, 41.) 2. Where by the terms of a will, three executors are appointed, who are vested with the title of the whole property, real and personal, upon trust; and are qualified, on the resignation of one of the executors and his proper discharge from his office, the remaining executors are vested with the entire estate. (Matter of Crossman, Ante, 350.) 3. Held in this case, that none of the provisions of the will for the accumulation of the rents and profits, were within the terms of the statute relative to accumulations; and that the whole devise to the executors, in trust, was void; and that the estate vested in the children of the testator in fee. (Bean agt. Hock man, 32 Barb., 78.) 4. Held in this case, that the trust was not void as unlawfully suspending the power of alienation; but that both the trust and devise were valid. (Hunter agt. Hunter, 32 Barb., 334.) 5. Held in this case, that the provisions of the will, in behalf of the testator's children, demonstrated that it was not his intention to give the widow both dower and the annuity; and that she was bound to elect between the annuity and her dower. (Dodge agt. Dodge, 22 Barb., 413.) 5. Held, that the sale of the property to the executors, under the decree in the foreclosure suit, effected no change in the nature of the property, so far as the executors, distributees, and cestuis que trust, were concerned; and that although the title was absolute in the executors, they held it precisely as they held the mortgage security. (Schoonmaker agt. Van Wyck, 32 Barb., 457.) See EXECUTORS AND ADMINISTRATORS. (Terry agt. Dayton, 32 Barb., 519.) 6. All the contingencies upon which an estate created by will, is Witnesses. to depend, must be contained in the will; and the courts cannot change the estate by incorporating any other contingency or condition. In this case, held, that the estate attempted to be devised to the Theological Seminary was not an executory devise, but was a contingent remainder, and would have been such at common law; and inasmuch as the Theological Seminary had no power to take at the time of the testator's death, the devise was void. (Leslie agt. Marshall, 32 Barb., 560.) See SURROGATE. (Bumstead agt. Read, 32 Barb., 661) WITNESSES. 1. Where a party duly subpoenas his witnesses to attend the trial of a cause, and pays them their legal fees for travel and one day's attendance, he is entitled, where he succeeds in the action, to have such fees taxed in the costs, although the witnesses, after going a part of the distance, were informed (as the fact was) that the court would not be held, and returned home. (Roth agt. Meads, Ante, 287.) 2. Where a party attends the trial of a cause, and is sworn as a witness in his own behalf, he is entitled to witnesses' fees, for travel and attendance, on producing his own affidavit that he attended the trial only as a witness, and not in any respect as a party. (The several conflicting decisions on this question adverted to.) (Bronner agt. Frauenthal, Ante, 355.) 3. Where, on a question of fact, the plaintiff swears one way, and the defendant directly adverse, (as authorized by §397 of the Code,) and defendant introduces a letter of plaintiff in evidence, written before the action, flatly contradicting his oath, the jury are bound to disregard his oath. (Boyd agt. Colt, Ante, 384.) 4. No party can be compelled to give evidence tending to prove either of the three facts essential to constitute the offence prohibited by chapter 123, §3 of the session laws of 1850, to wit: 1st. The selling of goods, &c., having thereon any counterfeited labels purporting to be those of any mechanic or manufacturer. 2d. Knowing the same to be counterfeited, and purporting to be imitations of such labels. 3d. Without disclosing the fact to the purchaser; making it a misdemeanor. (Byass agt. Smith, 4 Bosw., 679.) Witnesses. 5. Where, on proceedings supplementary to execution, with a view of eliciting evidence tending to show that the transfers of property made by the judgment debtor, were made with intent to defraud creditors, neither a witness, nor a person alleged to have property belonging to the judgment debtor can be required to answer questions put with such view. (Town agt. Safeguard Ins. Co., 4 Bosw., 683.) 6. Where in an action on a promissory note, the defence of usury is interposed by the answer, and the lender of the money is called upon as a witness to prove the usury, who refuses to testify on the ground that his answer might criminate himself, he cannot be compelled to answer, unless the evidence already out, establishes that no usury was taken. If the witness refuses to answer the question as to whether there was an agreement for usurious interest, (which is not criminal,) it will be considered equivalent to his testifying that a usurious premium was taken. (Fellows agt. Wilson, 32 Barb., 162.) 7. The 399th section of the Code, does not exclude a party from being a witness, when the opposite party is a corporation. (Johnson agt. McIntosh, 32 Barb., 267.) 8. A husband is a competent witness on his own behalf, in an action brought by him and his wife to cancel a bond and mortgage, to prove usury in the consideration. (Babbett agt. Thomas, 32 Barb., 277.) 9. A party to the record in proceedings before a surrogate upon a final accounting of an administrator, is not a competent witness. The Code authorizing parties to be examined on their own behalf, has no reference to proceedings before a surrogate. (Terry agt. Dayton, 32 Barb., 519.) 10. The natural and most obvious meaning of the words, "representatives of a deceased person," as they are used in § 399 of the Code, is, executors and administrators, and they must be held to have that meaning. (See Evans agt. Charles, 1 Anst., 128; Price agt. Strange, 6 Mad., 104; Anon., 1 Dyer, 6; 2 Comst., 87; Bridge agt. Abbott, 3 Bro. C. C., 221; 3 Ves., Jr., 48, 146, 184, 486; 5 id., 401; 20 Wend., 561-2; 7 Hill, 408; 1 Kern., 601-2; 3 id., 360.) When the plaintiff was properly allowed to testify in his own behalf, in respect to any transaction had personally between him and the deceased. (McCray agt. McCray, 12 Abb., 1.) INDEX. PAGE. ABATEMENT. An action of ejectment abates absolutely on the death of a sole defendant..... ADMIRALTY-as to a lien in rem for supplies furnished a vessel owned by non- 369 residents 447 In reference to license where steam tugs carry passengers.. 517 AMENDMENT-of complaint, of course, when proper, although an amendment of the 323 Of a summons for publication, when allowed by inserting the name of a party... 222 ANSWER-may contain specific admissions and general denials... APPEAL-allowed, of course from a judgment at the circuit, containing questions of 159 503 law only directly to the general term, how appeals in other cases brought... 257 19 Lies from an order denying an application for admission as an attorney at law.. 1 236 Weight of evidence necessary to vacate order of arrest.... 265 311 366 478 ASSIGNMENT-for the benefit of creditors; their rights in equity, and when equity will reform an assignment...... 121 Under act of 1860, not void, where inventory not delivered to county judge as ATTACHMENT-the amount of the claim must be specified to authorize it.......... 93 ATTORNEY-how far his lien for costs extends.... VOL. XX. 43 39 Index. BAIL-when and how may surrender their principal...................... PAGE. 18 BOARD OF HEALTH, N. Y. Certiorari will not be allowed to review their proceed- BREACH OF WARRANTY-of personal property, when the contract may be 458 rescinded................ 327 CERTIORARI-to remove pending proceedings, not allowed....... 167 CHAMBERLAIN-of the city of New York, how may be removed, &c.............. 167 COMMUNICATION from Hon. HENRY HILTON.. 216 96 COMPLAINT—when specific demand for relief, concludes granting any other relief.. 347 plaintiff as such creditor, and as trustee for other similar creditors.......... 338 1 29 76 The act of 1360. authorizing a Broadway parallel railroad N. Y. city, held 130 The statute relative to the taxation of bank capital, not unconstitutional as autho- 182 CONTEMPT-a corporation may be punished for........ 358 CONTRACT-made and entered into for work to be done under an ordinance of the 237 For public printing for the corporation of N. Y. city, when void... CORPORATION-when a sale by its directors void as against stockholders......... 199 COSTS-when executors and administrators entitled to on a reference.... 59 Judgment for costs entered without taxation is regular if retaxed on notice..... 215 Witnesses' fees, when taxable, although they traveled but part way and no court |