« ForrigeFortsett »
ble of holding property, are invalid. When any real estateshall be devised by will, any executor or devisee may prove it before a surrogate. It must be signed and sealed with proper witnesses; and if it shall appear that the will is duly executed, the will and testament must be recorded in a book to be provided by the surrogate, and the record thereof shall be signed and certified by him. Every such will must have a certificate of such proof endorsed thereon, signed by the surrogate and attested by his seal of office, and may be read in evidence without further proof thereof. The exemplification of the record of any last will and testament proved before the judge of the former court of probate, and recorded in his office before the first day of January, 1785, under the seal of the officer in whose custody such record is, shall be received in evidence in all cases after it shall have been made to appear that diligent and fruitless search has been made for the original will. All male persons of the age of eighteen years, and of sound mind, may make their will of personal estate in writing; and every female who is not married, and is of the age of sixteen years, may also make their will. No nuncupative or unwritten will bequeathing personal estate shall be valid, unless made by a soldier in actual service, or by a mariner at sea. It is required that a will shall be subscribed by the testator at the end of the will, and in the presence of two attesting witnesses, each of whom is required to sign his name as a witness at the end of the will, and at the request of the testator, the instruments being always subject to revocation.
STATUTE OF LIMITATIONS.
Actions founded in contract under seal, excepting those which are brought upon the judgment or decree of some court of record of the United States, or of a court of one of the states, all actions upon judgment rendered in any C0.-.1 not being a court of record, actions of debt for rent, not reserved by some instrument under seal, actions of account, assumpsit, or on the case, founded on any contract or liability expressed or implied, actions for trespass upon land, actions for taking, injuring, or detaining any goods or chattels, including the action of replevin, actions for trespass upon land, all special actions on the case for criminal conversation, for libels, or for any other injury to the person or rights of any, except such as are specified in the two next sections, must be commenced within six years after the cause of such action accrued. Actions for slandering the character or title of any person, or for words spoken by which special damage is sustained, must be brought within two years after the cause of such action accrued; and all actions for false imprisonment, and for assault and battery, must be commenced within four years after the cause of action accrued. In all actions of debt, account, or assumpsit, brought to recover any balance due upon a mutual, open, and current account, the cause of action shall be deemed to have accrued from the time of the last item proved in such account; and if any person entitled to bring an action as aforesaid, shall be of unsound mind, of nonage, imprisoned on a criminal charge, or in execution under the sentence of a criminal court, for a term less than his natural life, or if a feme covert, these persons shall have the liberty to bring such actions within the respective times in this article limited, after such disability is removed.
Whenever a person, not being an inhabitant of the state, shall secretly depart therefrom, with intent to defraud his creditors, or to avoid the service of civil process, or shall keep himself concealed with the like intent, application for an attachment may be made to the circuit judges, supreme court commissioners, first judges of county courts, and to any other judge of said court of the degree of counsellor at law in the Supreme Court; and, if made in the city of Schenectady, the mayor thereof. Such application may be made by any creditor within this state or out of it, or by his personal representatives, having a demand against such debtor personally, or upon a judgment or decree rendered in this state, amounting to one hundred dollars or upwards, or by any two such creditors having such demands to the amount of one hundred and fifty dollars, or by any three or more creditors whose demands amount to two hundred dollars or upwards; and upon such application, the goods of the said creditor, real and personal, may be attached, and all his books and accounts, vouchers and papers, relating to the property, debts, credits, and effects of such creditor, and may hold them to respond to the judgment.
All justices of the peace, elected in any town in the state, or appointed for any city in which special courts are not established by law, are possessed of necessary powers that are possessed by courts of record. Their original jurisdiction extends to actions of debt, covenant, and assumpsit, wherein the debt or demand due, or the damages claimed, does not exceed fifty dollars; to actions of trespass, and trespass on the case, not exceeding the same amount; actions for penalties under the statute, not exceeding fifty dollars; all actions commenced by attachment, wherein the debt or damages claimed do not exceed one hundred dollars; and to take and enter judgment on the confession of a defendant, to an amount not exceeding two hundred and fifty dollars: but they have no jurisdiction in cases where the title to land shall in any wise come in question, nor in matters of account where the sum total of the accounts of both parties shall exceed four hundred dollars. Actions before justices must be brought in the town or the next town, where the plaintiff or defendant resides, excepting in cases of absconding debtors, when the action may be brought where the property of such absconding debtor lies; and all actions before justices are commenced by summons, warrant, or attachment.
Courts of Common Pleas.—It is provided that a court of common pleas shall be established in every county of the state, which shall possess the power to hear, try, and determine, according to law, all local actions arising within the county for which such court shall be held, and all transitory actions, although the same may not have arisen within such county; to grant new trials; to hear and determine appeals from justices' courts in cases and in the manner prescribed by law to exercise the power and jurisdiction conferred upon them by the laws of the state. The judges of the county courts of each of the counties of this state, (the city and county of New York excepted,) or any three of them, shall have the power to hold the courts of common pleas in their respective counties, and any three of the judges of the county courts of each of the counties of this state, except the county of New York, shall have the power to hold courts of general sessions in their respective counties. The courts of common pleas possess jurisdiction in all controversies relating to lands in their respective counties, and in personal actions, to an unlimited amount. They may stay executions on judgments of justices of the peace, and set them aside.
Circuit Courts.—The state of New York is divided into eight circuits, corresponding with the eight senatorial districts in the extent of their territory, and the numbers by which they are designated. In each of these circuits a circuit court is established, and they have the power to try all such issues, and to take all such inquests, by default or otherwise, as are to be tried or taken in the said circuit courts respectively; to record all nonsuits and defaults before them; and to return all proceedings had before them into the Supreme Court, or the court directing the same. Each of the circuit judges has the power of a justice of the Supreme Court at chambers, and in the trial of issues joined in the Supreme Court, and in courts of oyer and terminer and general jail delivery.
Supreme Court.—This court possesses the powers and exercises the jurisdiction which was formerly exercised by the Supreme Court of the Colony of New York, with the exceptions, additions, and limitations created and imposed by the constitution of this state. There are four several terms of this court annually, namely, on the first Monday of January, May, and July, and third Monday of October. Its jurisdiction extends to all legal claims and demands exceeding twenty-five dollars.
BILLS OF EXCHANGE.
The common damages to be allowed and paid upon the usual protests for non-payment of bills of exchange, drawn and negotiated in this state, are as follows:—if such bill shall have been drawn upon any person or persons in the states of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Pennsylvania, Ohio, and Delaware, Maryland, or Virginia, or in the District of Columbia, three dollars upon the hundred upon the principal sum specified in such bill. If such bill shall have been drawn upon any person or persons at any place in either of the states of North Carolina, South Carolina, Georgia, Kentucky, or Tennessee, five dollars upon the hundred upon the principal sum specified in the bill. If any such bill be drawn upon any person in any other state or territory of the United States, or at any other place on this continent north of the equator, or in any British or other foreign possessions in the West Indies, or elsewhere in the western Atlantic ocean, ten dollars upon a hundred upon the principal sum specified in the bill. Such damages are in lieu of interest, charges of protest, and all other charges incurred, previous to and at the time of giving notice of non-payment. When bills of exchange are protested for non-acceptance, the same amount of damages is allowed.
Insolvent debtors may be discharged from their debts, on executing an assignment of all their estate, for the benefit of their creditors. The petition for his discharge must be signed by him, and by as many of his creditors residing within the United States as have debts, in good faith, owing to them by such debtor, and amounting, at least, to two-thirds of all debts owing by him to creditors residing within the United States. This petition must be accompanied by an affidavit stating the sum specified therein, and annexed to the name of the petitioner subscribed to such petition, is justly due to him or will become due to him at some future time, to be specified therein; and also the nature of the demand, and that he nor any person to his use, has received payment of any part of the said sum; and also, by a schedule containing a particular account of the condition of his property: and upon such insolvent's producing a certificate, under the hands and seals of the assignees, that such assignment has been made and duly recorded, he shall be granted a discharge from his debts and from imprisonment.
There are certain prescribed proceedings in order to compel assign' ments by debtors imprisoned in civil cases, as well as voluntary assignments to exonerate from imprisonment, and certain general rules for the regulation of trustees and assignees, a particular knowledge of which may be obtained from the statutes.
MORTGAGES AND ASSIGNMENTS.
It is established that no sale or assignment of goods and chattels, as mortgage or security, or upon any condition whatever, is valid, unless such assignment is accompanied by an immediate delivery, with an actual and continued change of possession, or unless the mortgage or a true copy thereof is filed in the following manner:—if the mortgagor is a resident of the city of New York, the mortgage or copy must be filed in the register's office; if in any other city or town, where the county clerk's office is kept, then at such office; and in other towns, at the office of the town clerk. Such mortgages of personal property become void unless they are renewed within thirty days before the expiration of a year from the filing thereof. All assignments of property to trustees, for benefit of creditors, must be recorded in the office of the clerk of the county where the assignment has been made.
JUDGMENT AND EXECUTION.
All judgments that are rendered in any court of record, bind the real estate of the debtor from the time the judgment is docketed, and all that he may acquire at any time thereafter, which real estate may be taken in execution and sold at auction. But unless the execution be levied within ten years, the lien thus created ceases. The record of the judgment must be entered up by the clerk of the court, who is required to note the day and hour of entering the docket, as well as other necessary particulars and these records, are kept open for inspection. All personal property of a debtor within the jurisdiction of an officer, is bound from the moment the officer receives the writ of execution, and priority is determined by the time of the delivery of the execution to the officer; and when goods or chattels are taken in execution, notice of the sale must be given six days successively previous to the time of sale, by fastening up printed or>written advertisements in three public places in the town where such public sale is had. In cases where the debt or damages do not exceed two hundred and fifty dollars, justices of the peace may enter a judgment by confession of the debtor. In such cases, the debtor must be present and sign the confession; and if the judgment be over fifty dollars, the confession must be accompanied by the affidavit, both of the creditor and debtor, that the sum confessed by the debtor is justly and honestly due the creditor, and that the confession is not made with a view to defraud any creditor, and execution may be stayed for such time as the partics may agree. When the judgment exceeds twenty-five dollars, the justice is required to send up a transcript of the judgment that is filed in the office of the county clerk. This judgment is docketed and entered in a book kept for that purpose; and from the time of the entry, the judgment becomes a lien upon all the real estate of the debtor in the county, in the same manner as if it had been rendered in the Court of Common Pleas.
MERCANTILE LAW DEPARTMENT.
REPORTS, DECISIONS, &c.
L ACTION ON A GUARANTEE 2. ACTION FOR FREIGHT 3. ILLEGALITY OF FACTORS
FLEDGING NOTES RECEIVED FOR GOODS SOLD BY THEM 4. FACTORS SELLING
GOODS TO REFUND THEMSELVES FOR THE DUTIES THEY PAID—5. COMMON CAR-
ACTION ON A GUARANTEE.
1. In the United States Circuit Court, December 12th, Judge Thompson and Betts presiding, an action on a guarantee was brought by Bell & Grant vs. Matthias Bruen. The amount claimed, 26,650 dollars.
It appeared that in the year 1831, W. II. Thom, of New York, wrote to Bell & Grant, of London, to open a credit for him with the house of Archisus & Co., of Marseilles, and that Bell & Grant acceded to his request Thorn was atthis time connected with the house of G. W. & H. Bruen, of this city; and shortly after he and Bell & Grant agreed to open the credit for him as above stated, the defendant wrote to Bell & Grant the following letter:
"New York, 23d April, 1831.
"Messrs. Bell & Grant, London:
"Dear Sirs:—Our mutual friend, Mr. W. H. Thorn, has informed me that he has credit for £2000, given by you in his favor, with Messrs. Archisus &. Co, to give facilities to his business in Marseilles. In expressing my obligations to you for the continuance of your friendship to this gentlemen, I take occasion to state that you may consider that, as well as any and every other credit you may open in his favor, as being under my guarantee.
"I am, dear Sir, your friend and servant, Matthias Bruen."
In reply to this, Messrs. Bell & Grant wrote a letter to Mr. Bruen, of which the following is an extract:
"London, 14th June, 1831.
"Matthias Bruen, Esq., New York:
"We are in receipt of your favor of the 23d of April, guarantying the credit opened in behalf of Mr. VV. H. Thorn, with Messrs. Archisus & Co., of Marseilles, for £2000, for the purpose of facilitating his business in that place, and moreover desiring us to consider, as under your guarantee also, all credits existing, or that we hereafter open for said friend, of which we take due note; and we trust that Mr. Thorn, as well as your good self, will have every reason to be satisfied with the confidence which we feel a pleasure in assigning to both of you."
After the receipt of the defendant's letter, Bell & Grant, under the supposition that the defendant intended by his letter to guaranty all credits which they should open for Thorn, did open credits for him with houses at Gibraltar, Smyrna, and other places, by which they became responsible for him to the amount of 26,650 dollars, which amount they now claimed of the defendant
The defence rested mainly on the ground that the defendant's guarantee re
VOL. IV.—NO* L 11