New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1851-01-06
THE COURT OF APPEALS.
Comstock's Reports, Vol. lid.

The volume above mentioned, has not yet APP
peared 1t may be interesting to the public to
know that it is to be published by Gould, Banks
4 Co. at the low price Of 81 50, there being no
copyright The Constitution provides that all
laws and judicial decisions shall be free to all 70
publish. An Act was passed in 1919, authorising
the publication Of the Decisions OF the Court oil
Appeals by Contract, without obtaining a copy
right. An amendment was made last Winter
providing for copyright Of any notes or refer
ences made by the State Reporter. What the
value Of the notes or references may be, remains
to be seen. 1t would seemlikely, from some indi.
cations, that there will be traditional or IN
written law, that is to say, unreported decisions
which the reporter may have confidential custody
Of and which may be occasionally referred to in
notes.
Some cases may be omitted as being Of no great
Importance in principle; but sometimes such
omission may occur for the contrary reason, that
is, of being too important to be made to depend
upon any written opinions.
The great case Of the Dry Dock Bank decided
a year since, has not yet been reported. The
opinion delivered by Justice Csdy which was, at
the time considered TO be the opinion OF the
Court, appears to have been repudiated or thrown
aside 1t has been given out that other opinions
were to be written, but it will be found difficult
after this lapse of time to extricate the case from
the doubts in which it appears to have been IN
volved and we shall, probably, not see it in the
forthcoming volume Of reports. The Dry Dock
case will, therefore, 1t is to be expected, be one
of those ominous decisions which occasionally
loom up in the arguments Of lawyers, or the
recollections Of Judges.
The case ofSelden VS.. Vermilys, which will be
reported, will be worthy Of some notice by the
Reporter that may, perhaps, deserve copy
right | shall volunteer & few remarks which it
shall be free to all to publish.
The question involved in this case, was wheth-
er a sale should be made Of large property,
consisting in part OF real estate and ia part
of personal The property was held, or, at
least, copy thereof had been made with the
intention OF vesting the title in trustees. By
an agreement of all the parties in interest under
their hands and seals it was covenanted, in conside-
ration of the REIMBURSEMENT of certain prior rights
belonging to some Of the parties, that the proper
ty should be sold by the trustees, upon due notice.
by advertisement, and the proceeds divided pro
rata, according to the respective rights ofthe par
ties. Mr.. Seden, one of the parties to this agree
ment, commenced a suit to prevent the sale and
have partition made, instead of the sale. A long
litigation ensued, in which repeated decisions
were made by the Supreme Court, both at Special
and General Terms, against MIR. Selden, and by
brought to a hearing.
The Court of Appeals have decided that there
was defective trust, and that the trustees could
not give a title therefore there must be parti-
ton. The opinion only was delivered, in which
the single point was discussed as to the validity
of the trust in regard TO real estate.
Admitting the soundness of tho opinion "a TO
the trust, it might have been questioned whether
the conclusion would follow that partition should
be made contrary to the express agreement OF the
parties, as the defective title could have been
made good by cOnfrmatory deed, which the par
ties could have been compelled to execute. But
this, at all events, related only to real estate.
There was no suggestion in the opinion Of any
difficulty in regard to the personal property, which
was in the actual possession Of the trustees, and
which, of course, they had the power to sell.
The decree, however which was entered upon
the decision, includes the whole property real
and personal it also directs the payment back
of ali costs which Mr. SelGen had paid under the
various orders above mentioned, and allows him
full costs and counsel fees. and that partition
shosld be made for which purpose a referee is ap.
pointed, with power to inquire into the interests
of the respective parties, and TO make partition
among such as shall be found to be entitled.
One is struck with astonishment at the aggre-
cation of anomalies in this decree, and hardly
tell which calls most for comment.
Here is a decree for partition where the right OF
some of the parties is to be litgated before the
referee, thing unheard OF in chancery practice,
the rule being well settled that partition can be
made only where the rights Of all parties are adj.
rnitted, and that adverse title cannot be tried IN
that form of proceeding. The payment back Of
interlocutory costs it is believed, is also without
precedent
Then also as TO final costs. if this is to be re.
garded as suit in partition, all parties should be
allowed their costs alike or il the general rule is
not to be followed, and the merits of this parteu-
lar case are to be regarded, why should costs be
allowed TO g plaintiff, who by technical obec-
ton has succeeded in getting rid Of his agree.
mentl Costs, being discretionary, could have
been denied by the Court. Was it case calling
for an allowance by way of indemnity for the very
conscientious proceeding of this party
But as to council fees the allowance is without
precedent and, | venture 10 say, without author
ity by statute.
Lastly, partition is here made Of personal
property, held by trustees which the parties had
agreed should be sold, and against which there
was no legal impediment. If covenant under
seal has no more worth than this, it is well that
it should be understood.
The report, perhaps, will not show the decree
in full. This short note Of the case, it is to be
hoped, may be of service to some publisher who
has not the benefit Of a copyright.
JURISCONSULTUS DEDOCTUS