The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-24
Supreme court--spccial Term


Nov. 23.-Thompson, dc Executors of John
James Moran and others john Moran made his
gave the income OF his real estate in this city Il
for life, and after har decease to his brother .
life, except one fifth, which he gave to his ME
rine Kinney: and after the cecease of his broth
to The children of my brother James and the CT
said sister. to be sold within three years after
death, and the proceeds thereof to be equal
between them.D The widow died after the test,
James died. leaving five children. The niece
penter, died before the ,estator, leaving seven
10 the devise or bequest to her lapsed She
children ard the children of James. being all a
the testator leaving no naturalized heirs, an
passed in 1852 authorizing the executors 10 80
estate and to divide the net proceeds eq 1ally be
children OF James Moran and of Mary Csrpent
manner as they would have been entitled under
had both survived anc been citizens of the Uni
Although the act directs the division to be mad
1t limits that direction to the proportions intent
will. The question the n arises, how did the vii
make the divisions The children of the ME
was to take half, and James, children the
The claim OF the children Of the niece Is contr
intent of the tes tator, who gave life estates to
the riece-not In equal parts, but to James I
and the niece one fifth 1t is not likely, unless
tor clearly so EXPIRE ssec it, that he would have
the i'm quality on the death Of James to give t.
alone as much as he gave to all the children of
&c her. The grant is to the chi dren of James
child of satharlne Thus giving to his niece
share rs he would have given to a nj phew. 7
correspond with our laws as to real and person
which makes the distribution equal where tin
are OF equal degree. His Honor. after quite a
ceci. ions made by the Courts of Chancery, ic
AND is the United States, in support of this
equity of the distribute n, ided, the divs
accordingly be ade in six equal parts, aud d
of the niece will take toge her but one OF these
7inney, Us The NeU York and Kontgom7y All
pdny, and otters-ln this case the plaintiff RI
Qpf I'M ha 6Sf a 1dop fu nd
and ia to the Sheriff OF this county, where TIL
has its Office. The Sheriff returned that the co.
no property here. The complainant sho W Il
and that the company has lately deposited
about $50 600 to the credit Of Thomas Gree
who are directors of the company. The pla,
asks for receiver for the property, and that
ants be restrained from paying out the $50 90,
the property of the company be disposed of al
law.
The revised statutes allows these proces din
ton against any company, when Judgment hs
tanned and returned unsatisfed Here his
Morgan VS.. the New York and Albany railroad
10 page, $50. II was objected that an e1ecut
returned, that had been issued in az other O.
section of the statute is6ed II one exec
sued and returned upsatisfed. That is the
II there was any reason to believe that this
was con menced in bad faith, and that thu
COT Id be levied on the other execution, the q
refuse to appoint receiver in this action;
dence shows that nothing can be collected on til,
which is still out, and that an Injunction wal
prevent its being collected from the property
had been levied The real point. of the con
whether the Injunction already gran ted sho
tDueo on the $40 600. That money was ra
following ~ay:-Various stockholders of tn,
one ollar per share on the stock held BY th
suance of an act of the Legislature passed
1883, provided that $4,000 shares are con
by the sharebol ers. A; some subsequent
the paper does not few), Thomas Green 4 Ps y
" to refund to the sub cribers" the am ,unt 81
10 case the whole sum Of $40 900 shall not
coreiDg to the terms of said subscription "A
ment would indicate t. that the amount pal,
paid before it was signed The Judge concl,t
that the motion for Injunction and recei,
granted, with SO costs to abide the event.
Jones Us. Butler and Btsler.-TDe action is Il
pose OF setting aside conveyance ma de at II 4
the hus band 70 his wife by third party. TIL
among other things alleges that the hush, nt
indebted at the time Of the conveyance to
sons, whose names, and the amount of thsii
plaintiff 10 ignorant of. The defendant asks III
II is allegation, or that 1t be made more cel
hLite. The allee alton may be very mater
Fl aud; 1t IL not there'cre to be struck out II
or immaterial. Under the old equity syste
bill was to answer the couble purpose of pleJ
seeking discovery, the form Of alleging
would be sufficient the very Ignorance of
q, the supposed knowledge o the defend
the ground for species If lief sought.
relief is not allowed by action, (Code, sec. SO.
lions which are put in complaint merely
dence fr I'm the opposite party may be strict
are redundant, ~ the pl-adiDg is to conts
mere evidence OF facts. II, in this case, the
not know who the creditors II the defend
cannot obtain that knowledge in the answ
PENDANT; he must III he can DO no better)
defe ndant AZ n witness in the eau Q. IL the
material, 1t is all important that 1t be sta
as o ena BILE the defendant to
and that his attention shoulj be-
ma tier In such q way that Re will Know wi
the persons ~ho (it Ia supposedly we're his 81
Is due To him that he may not, for want
ledge answer enormously, when, with the
IT. ight answer orrsctly, and also that whef8N
the trial he may not be surprised by the pif n
against IN. as to which he might have ii
dant proofs that they we're paid. or that he
for But the defendant allowei more thai
to expire after the complaint was served tif
this n otion. and has had his time to answ
consents and orders. Strictly he Is too lat
motion under the fortieth rule OF the couI
court coulo still allow spe cial melton foi
this motion made, although the time TO
PRED, the present motion was also argued
ADD II has been so examined also A the
default, 80 muth only of his motion SHOULD
the plaintiff, ten days before the trial,
PENDANT with list Of the names and res
alleged creditors, verified by his oath tina
to be correct, and that the plaintiff canno
in the trial from aovng any ether perst
tors Of h. defendant at the time OF the
the plaintiff does not consent to this, u
ID at he anne nd the allegation by specifyir
the CT editort. The defendant must also
in ms kir the application, pay ten della
pfe ny The n otion The time to answer
ten dsy q from the amendment OF the c tE