survive, but some third person becomes vested with his interest, or subject to his liabilities, the complainant may elect to proceed, without reviving the suit against the representatives of the deceased party, provided a perfect decree can be made between the survivors, without bringing such representatives before the court. Leggett v. Dubois, 2 Paige, 211.

2. If it appears that the complainant had no right to revive the suit, the defendant may avail himself of the objection at the hearing. Douglass v. Sherman, 2 Paige, 358.

SALE.

1. It is the duty of the sheriff to sell lands in parcels, where the property is so situated that it will probably produce more by that mode of selling, or where a part only is required to satisfy the execution. The Mohawk Bank v. Atwater, 2 Paige, 54. 2. But a sale of several parcels together does not render the sale void, but only voidable; and after a great lapse of time, the sale will not be disturbed.

SET OFF.

Ib.

1. Where there is no set off at law, there must be special circumstances of equity to authorize a set off in chancery. Mead v. Merritt, 2 Paige, 403.

2. And in a case not within the statute of set off, chancery will permit an equitable set off, if, from the nature of the claim, or the situation of the parties, justice cannot be obtained by a cross action. Lindsay v. Jackson, 2 Paige, 581.

3. The insolvency of one of the parties is a sufficient ground for the court to exercise its equitable jurisdiction in allowing an equitable set off. Ib.

4 And a set off will be allowed, where the defendant is insolvent, although the debt of the complainant to the defendant is not due.

lb.

5. Otherwise, if the debt of the defendant to the complainant was payable at a future day. 1b. SHERIFF.

If the sheriff improperly returns an execution unsatisfied, when there is property of the defendant in his bailiwick sufficient to pay the judgment, either wholly or in part, the proper remedy of the defendant is by an application to the court out of which the execution issued, to set aside the return; or by a suit against the sheriff. Stoors v. Kelsey, 2 Paige, 418. SOLICITOR AND COUNSEL.

It is the duty of counsel to peruse and examine the pleadings before they sign them; and they are personally liable, if such

pleadings contain scandalous or impertinent matter. Green, 2 Paige, 347.

SPECIFIC PERFORMANCE.

Doe v.

1. Where a person contracts with the members of a religious community to convey land, as the site of a church, and the society are afterwards regularly incorporated under the act, and the church is built on the premises, the court will decree a conveyance of the property to the corporation, according to the agreement previously entered into with the individual members of the society. The Canajoharie and Palatine Church v. Leiber, 2 Paige, 43.

3. But where the person holding the legal estate has expended his

own money in building the church previous to the incorporation of the society, the court will not compel him to give up his legal claim to the estate, until his equitable claim is satisfied. lb.

STALE DEMANDS.

Where a bill was filed to settle the accounts of a joint adventure,

more than twenty years after the whole subject of the controversy had arisen, and where the justice of the claim had not been admitted during that time, the staleness of the demand was considered a good reason for refusing any relief to the complainant. Kingsland v. Roberts, 2 Paige, 193. STATUTES.

1. Exclusive privileges contained in a private act of incorporation, which are in derogation of the common law rights of the citizens at large, ought not to be extended by implication. Cayuga Bridge Co. v. Magee, 2 Paige, 116.

2. They must be construed strictly against the company,
ing to the principles of the common law. 1b.
TAXES.

The

accord

Where there is a remedy given both against real and personal estate, for the satisfaction of taxes and assessments, as a general rule, the remedy against the personal estate should be first exhausted, unless there is some specific and controlling equity to make it proper to proceed against the real estate in the first instance. Gouverneur and wife v. The Mayor, Alderman and Commonalty of the City of New York, 2 Paige, 434. TRUST AND TRUSTEE.

1. A bona fide purchaser of trust property from a trustee, without notice of the trust, is not bound to see that the purchase money is applied to the objects of the trust. White v. Carpenter, 2 Paige, 217.

2. Where an insolvent trustee assigned a mortgage, purporting on its face to be given to him as trustee, partly in payment of his own debt to the assignee, and partly for cash, which he applied to his own private use, the assignee was held to be chargeable with notice of the misapplication of the trust fund. Pendleton v. Fay, 2 Paige, 202.

3. Where a party takes a conveyance of trust property to enable the trustee to raise money thereon for his own private purposes, he is chargeable with the costs of a suit brought by the cestui que trust to set aside such conveyance. lb. VENDER AND PURCHASER.

1. Where L., on the 24th of August, 1826, sold to M., who was then in good credit, and supposed himself solvent, a quantity of goods, for which M. was to give his own notes without security, payable in six, seven, eight, nine, and ten months; and the goods were delivered to M., and shipped by him for the West Indies on the 26th of August, 1826, and on the 4th of September thereafter, and before he had executed the notes, M. stopped payment; and on the 9th of the same month, M. assigned the goods to V. to secure him for a large some of money, for which he was responsible as endorser for M.; and on the 5th September, L. applied to M. for a re-delivery of the goods, and also, afterwards, in the same month, claimed the goods from V., and both M. and V. refused to re-deliver the goods to L., and M. and V. denied all fraud in the transaction, and V. denied all knowledge at the time of his purchase, of the conditions of the sale by L. to M., and also of the nonpayment for the goods on the part of M.; it was held, that the sale and delivery of the goods to M. was unconditional and valid, and was sufficient in law to change the property; that the assignment by M. to V. was also valid, and that L. had no lien on the goods for the purchase money due him from M. Lupin v. Marie and Varet, 2 Paige, 169.

2 If goods, upon a sale thereof, are unconditionally delivered by the vender to the vendee, without any fraud on the part of the latter, the vender can only look to the personal security of the vendee for the payment of the purchase money; he has no equitable lien for the same on the goods. Ib.

WILL.

1. Where L. S., by his will, gave to his wife the one third of the residue of his personal estate, after his debts and legacies were paid, and also the use of all the residue of the personal estate, and the occupation and enjoyment of the farm on which he,

the testator, lived, so long as she remained his widow; and in case of her marriage, he gave to her during life, the use and occupation of one third of his real estate; and in that event, directed that the income of the remaining two thirds, should be applied to the education and maintenance of his children; and after the youngest child became of age, he directed his executors to divide all his real and personal estate equally among his children, to have and to hold to them and their heirs forever, and declared that he intended the bequest and devise to his wife should be in lieu of dower; the wife elected to take under the provisions in the will; it was held, that the widow was entitled to the use of the whole estate during her widowhood; that one third of the personal estate was her's absolutely, and in case she married, that she would have the use of one third of the real estate for life in lieu of dower. Covenhoven v. Shuler, 2 Paige, 122.

2. It was also held, that the children of the testator, could compel the widow to account for all the personal estate, and that their share of the same should be invested, and the income paid to the widow during her life or widowhood, and that the principal after her death or marriage, should be divided among them, according to the provisions in the will. Ib.

3. The words of the will may be transposed, in order to make a limitation sensible, or to effectuate the general intent of the testator. lb.

4. Where the testator lived and cohabited with M. S. in a house, provided and furnished by him, and while so living with her, had by her four natural children, one son called John, and three daughters, who were, with his knowledge and consent, baptized by his name, and were educated and acknowledged by him, as his children, and who were the only persons ever recognised by him, as his children; and by his will the testator gave to his son John $10,000, payable when he arrived at 24, and to each of his daughters $3,000, payable at 21; and directed his executors to pay to M. S., $65 quarter yearly during her life, if she remained unmarried and had no more children; and appointed his executors, guardians of his children during their minority; it was held, that this was a sufficient description of the testator's natural children by M. S. as the legatees intended by him. Gardiner v. Hayer, 2 Paige, 11.

RECENT ENGLISH CASES.

COMMON LAW.

Digest of cases selected from 1 Barnewall & Adolphus, Parts 3 and 4; 7 Bingham, Parts 3 and 4; Moore & Payne; 1 Tyrwhitt, Part 3; 1 Crompton & Jervis ; 2 Dow & Clark, Parts 1 and 2; 4 Manning & Ryland, Part 2; 1 Moody & Malkin, Part 4; 4 Carrington and Payne, Part 4; 10 Barnewall & Creswell, Part 3.

ACTION ON THE CASE.

A party who is bitten by a dog in consequence of being on the owner's land without a justifiable cause, or of his own negligence of the danger, can maintain no action for the injury. But if he had no knowledge of the danger, and was not otherwise in fault, he may recover, although the owner has attempted to give notice. It is therefore no defence to his action that the owner put up a printed notice, if the plaintiff could not read. Larch v. Blackburn, 1 M. & M. 505.

ASSUMPSIT-CONSIDERATION.

An undertaking to pay the plaintiff's attorney in an action still pending, his costs, in consideraton that the plaintiff will, with the attorney's consent, authorize the defendant to pay over the debt sued for to a creditor of the plaintiff, is not binding; for there is no sufficient consideration moving from the attorney. Taylor v. Watron, 4 M. & R. 259.

AUCTIONEER.

An auctioneer receiving a deposit to be paid over on the completion of the purchase, is to be regarded as a stakeholder; and as such is not liable for interest, even though he may have derived a profit from the use of the money. On the other hand, if the money be lost by his mode of employing it, he will be liable. The fact that the auctioneer had been required, on the part of the vender, to invest the money, the vendee not having joined in such requisition, nor consented to the investment, was held not to vary the case. The cases of agent and stakeholder were particularly distinguished by the court. (Rogers v. Boehm, 2 Esp. 702; De Bernales v. Wood, 3 Camp. 258; Calton v. Bragg, 15 East, 225; Farquhar v. Farley, 7 Taunt. 592. And see 8 Ves. Jun. 48; 3 Brown, C. C. 44, 107.) Harington v. Hogart, 1 B. & Adol. 577.