Heard agt. Case. from the case of Thackeray agt. Hampson, (2 Sim. & Stu., 214,) which was also cited by the plaintiffs counsel, anything material to the present question. Upon the whole I am of opinion that the bequest of vested legacies to the grand children, with express time of payment, and the direction to apply the interest in the meantime, must control the general gift of a life estate and constitute an exception to it. So that these legatees are entitled to the interest on their legacies, during their minority, and to the principal when they become twentyone, although the widow may still be living. The legacy given to Nancy Case, now Nancy Knight, presents a different question. The testator directs no time of payment of this legacy. The law makes such a legacy payable at the expiration of a year, when there is no intention manifested to fix a different time. The general bequest of the income of all the estate to the widow however in this will, imports a design to make legacies which are to come out of the fund, payable at the termination of the life estate. In the case of the grand children this is controlled by the manifest design to give them the income of the moneys set apart for their use immediately, and by the express direction to pay them the principal at their majority. The legacies must either be treated as exceptions out of the bulk of the estate given to the widow, or these evident intentions of the testator be altogether defeated. But in the legacy of two hundred and fifty dollars there is nothing to control the time of payment fixed by the bequest to the widow. That may stand and the other be literally observed. I am of opinion that this legacy is not payable until the determination of the life estate. A judgment will be entered in accordance with these principles. All parties will have their costs from the fund. DIGEST OF THE POINTS OF PRACTICE AND OTHER IMPORTANT QUESTIONS, CONTAINED IN THE FOLLOWING REPORTS: 23 Howard's Pr. R.; 35 Barbour's R.; and from No. 4, Vol. 13, to and including No. 1, Vol. 14 of Abbott's R. ABATEMENT. 1. The death of a sole plaintiff suspends all further proceedings until there is a revival of the action by the personal representatives of the deceased, so that no step can be taken until the action has been continued by the order of the court. And a dismissal of the complaint, taken by default, after the death of such plaintiff, without notice of his death, is irregular and will be set aside. (Jarvis agt. Felch, 14 Abb., 46.) ADMIRALTY. 1. Where a vessel is contemplated to be used about the harbor of New York as a tug boat, the lien of a material man for supplies cannot be defeated under the statute of New York (2d R. S., p. -, 5th ed.,) by the owners departing with her while lying at the dock out of the State, secretly or without the knowledge of the material man, and not in the way of her busi 2. ness. The material man had the right to suppose the vessel would not so depart. (Van Winkle agt. Steamboat Henry Morrison, ante, 371.) Where the owner of the rem, who has purchased the supplies himself, sets up the departure to avoid the lien, the court rigidly scrutinizes the circumstances of the alleged departure, and is not inclined to uphold such an inequitable defence. (Id.) 3. The act of March 29, 1855, laws 78th session, chapter 10, p. 174, is a reenactment with amendments of the act of 1830. (2 R. S., 493, 494, §§ 1 and 2, O. P.) (Elmore agt. Steamboat Alida, ante, 373.) Digest. privilege against the vessel when the notice of lien is not filed within that period. Each credit for supplies is separately the debt contracted, and to that the limitation applies. (Id.) 6. The filing of the lien is the only means of giving life to the lien, and previous to such filing the privilege is merely inchoate and permissive. A claimant in admiralty may take advantage of the non-existence of the lien without expressly pleading it. (Id.) 7. A mortgagee in possession is a competent party to intervene and contest the validity of the libellant's lien. (Id.) 8. The lien act relative to ships and vessels (2 R. S., 405, §§ 1 and 2,) embraces wharfage under whatever title it is used, unless the vessel is placed there in wrong of the owner. She is in pawn to the wharfinger for the wharfage, and the statute preserves the effect of the pledge for ten days after her removal, until a lien is filed. But wharfage can only be collected under the statute for the period the vessel actually occupied the wharf. It mus be allowed as if the case was without bargain as to terms and duration. But the parties may agree as to the rate of wharfage to be charged, and their agreement will be so far upheld. (Earle agt. Steamboat Alida, ante, 376.) 9. It is not necessary that the claimants should plead in bar of the lien. The onus is on the libellant to make out in the first instance the facts constituting it. (Id.) 10. In order to effect a lien under the statute against ships and vessels, (2 R. S., 493, 494, O. P.,) the debt must be created at the port where the vessel lies, and a specification of lien must be filed under the statute in that particular county. The lien debt is created, not by mere stipulation between the parties, but by applying to the benefit of the vessel those things which give existence to the lien. The lien debt comes into existence alone at the port where the constituents of it have been used or enjoyed by the vessel. Where the lien debt consisted of various items of work done on the vessel, partly while she lay in New York, and partly while traveling on her route to, and also at Kingston, on the Hudson river, and it appeared that the specification of lien had been only filed in the county of New York, the court rejected all those items of work not done in the county of New York, even though the libellant proved that the agreement to do the work was made in New York. (Brown agt. Steamboat Alida, ante, 378.) AFFIDAVIT. 1. On motion to vacate an attachment, issued under the Code, founded on defendant's affidavit, the plaintiff will be allowed to sustain the attachment by supplemental affidavits. (Gashiere agt. Apple, 14 Abb., 64.) See MOTION, 1. 2. See ARREST, 1. 2. 3. 5. 6. AGREEMENT. 1. An agreement as follows: "For value received, I hereby guaranty to Messrs. J. Howard & Son, that the bond of the Newfoundland Electric Telegraph Co., No. 17, for £200 sterling, shall be of the value of $960 on the 7th of March, 1855, at which price and at which date I will purchase the same, if offered to me. March 8, 1853. D. B. Holbrook." (Howard agt. Holbrook, ante, 64.) 2. Held, to be good as an original undertaking or agreement; and as an agreement within the statute of frauds, it was good on its face, according to the case of Miller agt. Cook, (22 How. Pr. R., 66.) (Id.) 3. Where it was proved by a witness, not discredited, that he presented the bond (No. 17) on the 7th of March, 1855, at the testator's (D. B. Holbrook) place of business, he not being there and being represented to be out of town; that he, subsequently called and found there a person who answered to that name, who acknowledged the guaranty to be his, but said that he could not redeem it, and who on being told that the witness had been there twice before, said that he had been out of town. (Id.) 4. Held, that as the testator did not refuse to pay, on the ground that no tender had been made to him personally on the 7th of March, and as he admitted that he had been out of town and did not suggest that he had not nevertheless been out of the state, the Digest. evidence was prima facie sufficient to show that his absence was conceded to be such as made a tender to him personally, excusable. (ROBERTSON, J., dissenting.) (Id.) 5. An action being brought upon the following agreement in writing, to wit: "For value received, I hereby guaranty to H. & W. Delafield, that the bond of the Newfoundland Electric Telegraph Company, No. 19, for £200 sterling, shall be of the value of $960 on the 7th day of March, 1855, at which price and at which date I will purchase the same, if offered to me. New York, March 8, 1853. D. B. Holbrook." Held, that the agreement contained two separate and distinct contracts-a contract of guaranty, and a contract of purchase. That is, after the statement of guaranty expressing a good consideration, the latter clause, at which price and at which date I will purchase the same if offered to me," did not change the whole contract to one merely of purchase upon condition of a tender. (BARBOUR, J., dissenting.) (Delafield agt. Holbrook, ante, 402.) 6. Where parties are in pari delicto, in the commission of an offence not only malum prohibitum but malum in se, if they have fraudulently or illegally contracted to do anything the law refuses to enforce the execution, or to award damages for the non-execution of such contract, and whatever the parties have executed, it refuses to lend its aid to either party to disturb. (Sharpe agt. Wright, 35 Barb., 236.) 7. Where an agreement is made by the principal beneficiary under a will with the heirs of the testator who threaten to oppose the probate of the will, that in case they will sign an admission of service of the citation, and will not contest the proof of the will, he will pay each of them $200, is upon a good consideration, and is valid and binding. (Palmer agt. North, 35 Barb., 282.) 8. The statute of frauds does not apply to an agreement which appears from its terms to be capable of performance within a year; nor to cases in which the performance of the agreement depends upon a contingency which may or may not happen within the year. It only applies to agreements which are, by express stipulation, not to be 9. 10. performed within a year. (Dresser agt. Dresser, 35 Barb., 573.) The court will not, on motion, allow parol evidence to enlarge the operation of a written agreement between the parties to an action, so as to discharge the lien of a judgment upon real estate belonging to the defendant in the judgment. (Peet agt. Cowenhoven, 14 Abb., 56.) An agreement for an exchange of horses, with a right to rescind the bargain within a certain time, vests the title to the horses in the respective parties on the exchange, and the title remains in them until the agreement is fully rescinded. If the party who has a right to rescind, exercises that right properly and in time, and restores or offers to restore what he received, the title revests in the other party, and the party offering to rescind may recover back what he gave in exchange. (Stoddard agt. Graham, ante, 518.) 11. But where, as in this case, the de 12. fendant took from the bailee of the plaintiff, the horse he had exchanged with the plaintiff, in the absence of and without the knowledge of the plaintiff, and subsequently, on the same day, returned the horse and note received of the plaintiff to the residence of the plaintiff, and leaving them in care of the family of plaintiff's father, in the absence of the plaintiff, Held, it not appearing that the plaintiff had in any way accepted the returned horse and note, that these ex parte acts of the defendant were insufficient to divest the plaintiff of his title to the horse, which he acquired by the exchange, although the defendant claimed that under the agreement the plaintiff's warranty of his horse had failed, and he had previously given the plaintiff notice that he should rescind the bargain on that ground. (Id.) Besides, the plaintiff having paid a debt of the defendant, due to a third person, as boot-money on the exchange of the horses, as agreed between them, a tender of that amount by the defendant to the plaintiff was necessary before suit brought. (Id.) See INSURANCE COMPANIES, 1. 2. ALIMONY. Digest. 1. An order of the special term denying a defendant alimony or an allowance for expenses of suit, in an action of divorce for adultery, is in the discretion of the court at special term, and 6. is not reviewable. (Griffin agt. Griffin, ante, 189.) 2. Where, on such application by the wife, the defendant, it is shown that she is then and had been for a year past, living in open and notorious adultery with a person named, her application for alimony and expenses will be denied, although she has put in a defence of a general denial of the allegations of the complaint. (Id.) AMENDMENT. See REFEREES AND REPORTS, 4. 5. 6. See ANSWER, 7. ANSWER. 1. It seems, that the old common law rule prevails in regard to matters of substance in a pleading: that the pleading is to be construed most strongly against the pleader. (Bales agt. Rosekrans, ante, 98.) 2. Where, in an action on contract, the answer is susceptible of being construed to contain two defences, one of payment, and the other requiring an account-one requiring a reply, and the other not, the answer should be construed as setting up only the defence of payment, and not considered as containing a counter-claim requiring a reply. (Id.) 3. Especially should this construction be given to the answer, where all the alleged counter-claims are liable to the objection that they are not apparently set up as such, but are set up by way of defence, and do not claim affirmative relief. (Id.) ted to volunteer, by plea or answer, the protection of the claims of a third party with whom he has had no dealings, to defeat his liability for the performance of his contracts. (Id.) And the law forbids the defendant (the debtor) to interplead, where this third party is not in privity with the depositor, but claims by a hostile and superior title. (Id.) 7. If the judge has authority to permit 1. an amendment of the answer on the trial, to enable the defendant to plead a former recovery, it is discretionary with him whether he will do so or not. His refusal to allow the amendment so as to set up a new defence, is not reviewable on a motion for a new trial. (Hendricks agt. Decker, 35 Barb., 298.) See STATUTE OF LIMITATIONS, 1. 2. See JUDGMENT, 4. APPEAL. An order of a judge in supplementary proceedings discharging a defendant from an order to show cause why he should not be punished for contempt, is appealable. (Livingston agt. Swift, ante, 1.) 2. An order of the special term denying a defendant alimony or an allowance for expenses of suit, in an action of divorce for adultery, is in the discretion of the court at special term, and is not reviewable. (Griffin agt. Griffin, ante, 189.) 3. 4. A simple denial of the allegations of 5. A debtor for goods deposited, or a A county court have authority on appeal, to reverse in part and affirm in part a judgment of a justice's court, for entire damages, where it clearly appears that there are two or more independent causes of action, and the judgment is right as to one and erroneous as to the others. (This comes pretty near a collision with the case of Kasson agt. Mills, 8 How., 377.) (Staats agt. Hudson River R. R. Co., ante, 463.) A defect in a decision at the trial, in omitting to find any question of fact involved, is not the subject of review on appeal, but must be brought before a judge on motion to correct the decision, before the omission can be considered at general term. (Sharp agt. Wright, 35 Barb., 236.) |