defendant, he must purchase them as defendant had purchased, as containing more or less, and as they were described in said deed. That defendant left with said Adams the said deed for his examination. That the said Hermann C. Adams agreed to buy the said premises as described in said deed of the defendant, by the quantity greater or less, at the price or sum of $13,000. That shortly afterwards, and on or about the 22d day of February, 1851, the said Hermann C. Adams called on the defendant and paid to him the sum of $1,000 on account of said purchase, and then requested the defendant to give a receipt in the name of the said plaintiff for said sum of $1,000. And that he gave the receipt to the said Hermann C. Adams, in the name of said plaintiff, solely at the request of said Adams, and that at his request he mentioned the price to be paid for said land to be $14,000. And the said defendant says, that he has no knowledge or information sufficient to form a belief what quantity of acres or perches said premises contain. And he denies the allegations in said complaint as to the quantity therein stated. And he denies that he falsely or fraudulently deceived or defrauded the said plaintiff in the said sale, or that he made any representations whatever to the said plaintiff. And the said defendant says, that he has always been ready to complete the bargain so made by him with the said Adams; and in pursuance of his request, made as aforesaid, made out a deed conveying the said premises to the said plaintiff, which deed, duly executed by himself and wife, he did on the 10th day of March, 1851, tender to the said plaintiff. WETMORE & BOWNE, (No. 48.) Answer in an equitable action for specific performance of an agreement to convey lands, setting up excuse for non-performance that defendant held the land, and contracted as trustee of another person, whose consent was necessary to the plaintiff's knowledge, and who refused to consent.1 SUPREME COURT-COUNTY OF ALBANY. Elizabeth Brinckerhoff agt. Philip Phelps. The defendant, Philip Phelps, answers the complaint of the plaintiff, Elizabeth Brinckerhoff, in the above action, and says: That he, this defendant, made and executed the agreement, mentioned in said complaint, as the trustee of Catharine W. Van Rensselaer, wife of Cornelius G. Van Rensselaer, and not otherwise, and that he, this defendant, never was, individually, the owner of the lands and premises described or referred to in such agreement, or interested therein, except as the trustee of the said Catharine, under and by virtue of the trust deed and order of the Court of Chancery, hereinafter mentioned. And this defendant, further answering the said plaintiff's complaint, says, that he was appointed such trustee as aforesaid, in the place and stead of Julius Rhoades, resigned, by virtue of an order of the late Court of Chancery, made before the Chancellor upon the petition of the said Julius Rhoades, on the 17th day of November, A. D. 1841, and of a certain trust deed, in said order referred to, 1 To Complaint No. 9, Part II., ante, p. 71. as by the said order and trust deed therein mentioned, to which reference is hereby made, will more fully appear. And this defendant further says, that the said trust deed provides and declares, among other things, in substance, that the trustee under the same, and his successor or successors, should have no power or authority to sell, grant or convey any part or parts of the lands held or that might be held by any such trustee of the said Catharine W. Van Rensselaer, without the consent in writing of the said Catharine to such sale, grant or conveyance. And this defendant further says, that the said agreement, set forth in the said complaint of said plaintiff, was made by him with one Edward Brinckerhoff, the agent of the said plaintiff, for that purpose, and that said Edward well knew at the time that this defendant held the said lands as trustee as aforesaid, and not in his own right, and that the consent of said Catharine W. Van Rensselaer was necessary to a valid and effectual conveyance thereof; and which matters this defendant believes (and avers) were also well known to the said plaintiff herself. And this defendant further says, that he has at all times, between the 15th day of July, 1849, and the commencement of this suit, been ready and willing to execute and deliver a deed for said premises to the said plaintiff, but that he has never been able (although he has repeatedly endeavored to do so) to procure the required consent to such conveyance from the said Catharine W. Van Rensselaer, or to obtain her sanction in any manner to any conveyance of said lands to the said plaintiff upon any terms whatever. And this defendant, further answering the said plaintiff's complaint, says, that since the said 15th day of July, 1849, and before the commencement of this suit, he, this defendant, did execute, acknowledge and tender to the said plaintiff a deed of the lands and premises described in the said agreement, which the said plaintiff refused to accept. W. A. YOUNG, Defendant's Attorney. (No. 49.) Answer in an action by judgment creditors, against assignors and assignees to set aside an assignment as fraudulent.1 SUPREME COURT. The Bank of Silver Creek agt. Sebastian V. Talcott, Henry H. Hale, George Talcott and Andrew T. Hale. [After admitting the recovery of judgment, execution, &c., and making of assignment from S. V. Talcott and H. H. Hale to the other two defendants, the answer sets forth as follows:] And these defendants, further answering, say, that the said Sebastian V. Talcott and Henry H. Hale, at the time of the execution and delivery of said assignment, were the owners of a large quantity of staves and shooks, worth 1 For complaints to set aside assignments as fraudulent, see, ante, pp. 147, 164, 171. In an action on a judgment, under the Code, the defendant may set up in defence that it was obtained by fraud. (Dobson v. Pearce, 2 Kernan, 156.) 2 The admission of an allegation in the complaint is unnecessary. The defendant, by not answering it at all, admits the allegation. (See note, ante, p. 29.) about the sum of $14,313.63, and that the total amount of all their property and assets, including all debts due or to become due to them, including good, doubtful and bad, amounted to the sum of $50,567.34, and that the total amount of the debts and liabilities of the said firm of Talcott & Hale, at the time of the execution and delivery of their assignment, amounted to the sum of $90,272.62. That the total value of the individual property and assets of Sebastian V. Talcott did not exceed in value the sum of $850, and that his individual indebtedness amounted to the sum of $5,807.39. That the defendant, Henry H. Hale, had no individual property or assets, except some articles of household furniture, which were, by law, exempt from levy and sale on execution. And these defendants, further answering, expressly deny that the said Sebastian V. Talcott and Henry H. Hale have been, or that they have continued, in the possession and control of their copartnership and joint property, or in the possession and control of their respective individual property, so assigned as aforesaid, since the execution and delivery of said assignment as before, with the exception, however, of the aforesaid articles of household furniture, belonging to the defendant, Henry H. Hale; on the contrary, these defendants aver, that immediately after the execution and delivery of said assignment, the defendants, George Talcott and Andrew T. Hale, proceeded to and did take into their possession all the copartnership and joint property of the said firm of Talcott & Hale, and the. individual property of the said Sebastian V. Talcott, and have ever since continued in the possession thereof, except such parts thereof as they have sold and disposed of under the said assignment. And these defendants, further answering, deny the allegation in said complaint, that no such inventory of the |