EDMONDS' SELECT CASES. NEW YORK SPECIAL TERM. 1848. Before EDMONDS, Justice. In the matter of JONES, trustee, etc. Where trustees, without permission of the court, and against the remonstrance of the cestui que trust, diminish her income some fourteen per cent, and claim the right to do so at their pleasure, and without cause, one remedy is to remove them. Edmonds, J.: Two petitions are presented, one by Mrs. Alston for the removal of Isaac and George Jones as trustees, and that they be directed to pay her the arrears of interest; and the other by the trustees for the passing of their accounts. The petition asking the removal of the trustees ought to be granted. Without her consent, and against her remonstrance, they reduced the rate of interest on the investment of her estate one per cent, and they demand commissions at the rate of sixty dollars a year, for acting as trustees, when, as she states, the trustees of her own appointment consent to act without compensation. Thus the trustees, at their own option, and without her consent, reduce her income $260 a year. This is an expense to which she ought not to be subjected. And as those trust2-vol. 2. The People v. Michael Burke. ees claim the right to do so, and will not allow the other trustees to save Mrs. A. this expense, there is but one way in which she can have relief, and that is by removing them and allowing her to have trustees who will not unnecessarily subject her to such a diminution of her income. An order will therefore be entered removing them, and of course it will be proper to order the accounting they petition for. It will therefore be referred to Lucius Robinson to take and state their account as trustees, and in doing so he will inquire into the propriety of charging them with the one per cent interest which they have omitted to pay, and the propriety of allowing them commissions on the amounts received and paid out by them, taking into consideration, on the one hand, Mrs. A.'s drafts and receipts for her income at the reduced rate of interest, and, on the other, the fact of the trustees having made their payments without charging commissions, and how far those acts ought to estop the present claims of the parties; and taking testimony, if he shall deem it necessary, and reporting the same, with his opinion, to the court. ERIE COUNTY OYER AND TERMINER. JULY, 1848. Before EDMONDS, Justice, and the county judges. THE PEOPLE V. MICHAEL BURKE, What is removing property out of a county by a debtor that will constitute the offense a misdemeanor under section twenty-six of the act to abolish imprisonment for debt, passed in 1831. THE defendant was indicted for a misdemeanor. He had been sued in an action of trover before a justice of The People v. Michael Burke. the peace, in Buffalo, and, after a trial, judgment had been rendered against him. On the rendition of the judgment, the immediate issuing of execution was demanded. He requested time to obtain security to stay execution, which was granted to him, and he left the office of the justice. Instead of using the time for that purpose, he proceeded at once to take a horse that he owned, across the Niagara river, into Canada, so that when, a few hours afterward, an execution was issued, the horse was beyond its reach; and to the constable, who had the process, he claimed that the property being his, he had a right to do with it what he pleased, and he so claimed on this trial. The Judge charged the jury that the rule that a man had a right to do what he pleased with his property, was subject to many qualifications, and one of those was contained in the 26th section of the act of 1831, to abolish imprisonment for debt, which enacted that any person who should remove off of his property out of any county, with intent to prevent the same from being levied on by an execution, should, be deemed guilty of a misdemeanor. It being undisputed that the horse had been removed out of the county of Erie, by the defendant, if the jury should be convinced that that had been done for the purpose of preventing its being levied on by any execution, they would find him guilty. He was convicted, and when brought up for sentence he pleaded, as his excuse, that he did not know there was such a law; he had thought it was a free country when he came to it, but he didn't think there was much freedom in it with such laws. Jackson v. Sanders and Dole. ERIE CIRCUIT. JULY, 1848. Before EDMONDS, Justice. JACKSON V. SANDERS AND DOLE. A plaintiff having counted on two promissory notes, which had not become absolute, under a special agreement, and his remedy being on the agree ment, and not on the notes, he was allowed to amend at the trial, by counting on the agreement. THIS was an action of assumpsit on two promissory notes, payable to plaintiffs, for $150 each. Plaintiffs were merchants in Ohio, and goods bought by them in New York, for their trade, were seized on their transit through Buffalo, on an attachment against them as nonresident debtors. To relieve their goods from the attachment they gave a bond under the statute, which the defendants signed as their sureties. To indemnify them, plaintiff's deposited with them $300, in money, taking back the notes in this suit as a memorandum thereof, and it was agreed that the plaintiffs should satisfactorily secure the defendants by a mortgage on real estate in the State of New York, when the money should be returned, and the notes be given up. A mortgage was accordingly executed and tendered to the defendants, who refused to receive it, on the ground of the insufficiency of the security, whereupon this suit was brought on the notes. Edmonds, J., held that the plaintiffs could not recover on the notes, because their right to them had never become absolute; that their only remedy was on the special agreement of the defendants to accept the mortgage as substituted security. Williams, for plaintiffs, then moved to amend by substi |