PREFACE.

It is with some hesitation that the Reporter has determined to add another volume of Reports to the numberless law books which already solicit the attention of the profession. The first impression of many would doubtless be, that the Reports of a subordinate circuit, embracing within its jurisdiction only one-eighth of the state, would not furnish a very valuable or useful addition to the already accumulated mass of judicial decisions. It must be remembered, however, that though the Eighth Judicial Circuit is supposed to embrace but one-eighth part of the population of the state of New-York, yet, in point of fact, that Eighth Judicial Circuit alone contains a population of nearly 325,000 inhabitants-a population greater than that of Connecticut, Vermont, and many other states of this Union, who have their system of courts, and regular reports of their decisions. It is to be remembered, too, that the enterprise which has swelled the population and developed the resources of this circuit with such wonderful and astonishing rapidity, has at the same time crowded the courts with business, and the legal profession with employment. This is a common result of enterprise in a young and flourishing country, where there is a rapid influx of population from different quarters, who universally pass through a certain degree of effervescence, before they assimilate into one quiescent mass. The large commercial transactions, and the rapid and frequently loose methods of transferring real estate, almost necessarily lead to considerable litigation. The amount of business for the courts from the Eighth Circuit, is doubtless much larger than that from any other circuit in the state, except the first.

The contrast in the Chancery business of this circuit, from what it was in its infancy, at the establishment of the first Equity Court, in 1823, to what it presents now in 1841, is very great. It is much greater than the contrast furnished by the business and population of the circuit between those two periods. Previous to May, 1839, the Circuit Judge of the Eighth Circuit discharged the duties both of a law and equity judge; and held, at different times and places, courts proper to his different functions. From 1823 to 1830, the Circuit Judge was, ex officio, judge of a separate Equity Court; and from 1830 to May, 1839, he was, ex officio, Vice Chancellor. For some time pre

iv

vious to 1839, it became perfectly apparent that the duties of these two courts were greatly too arduous and important to be discharged by any one man. Indeed, when separate, each of them requires a judge of strong and clear intellect and quick perceptions, business habits and great industry, to keep pace with the business which will necessarily come before him, and prevent its burdensome accumulation.

The Legislature, becoming aware of the crowded state of the courts in this circuit, provided for separating the law from the equity jurisdiction, by passing an act, March 27, 1839,* for the appointment of a Vice Chancellor of this circuit. This act took away Chancery jurisdiction from the Circuit Judge, and vested it in the Vice Chancellor to be appointed under it. There was a mistake in engrossing this act, which was rectified by a supplemental act passed April 9, 1839. Under this act the present Vice Chancellor was appointed, April 16, 1839, and entered upon the duties of his office the 1st of May following, according to the provisions of the act. The volume now offered to the public, contains a report of his decisions. It is intended principally for the benefit of the profession in this circuit. The Reporter conceived that in a circuit where so much professional business was transacted, it would be a great aid to the members of the bar, to have within their reach the means of ascertaining what principles had been settled by that court before which they so often had occasion to appear. It may be the means of avoiding many mistakes and preventing many useless applications. It is with this view, principally, that this volume of reports is offered to the profession, and under the belief that they will find it useful and profitable in their current

business.

The Reporter has hardly done justice to the counsel who actually argued most of the cases here reported. The names of the solicitors, alone, in most cases, appear in these reports; whereas, a great majority of the cases were argued by counsel other than the solicitors in the cause. This defect arises from the fact, that it was late before it was determined to make an attempt at publication; and when it was determined upon, there were no materials for making it, except the Vice Chancellor's books and his opinions on file, which contained only the names of the solicitors. This defect will be remedied in another volume, if the appearance of another volume shall be justified by the success of this.

If the experi

The publication of this volume is made as an experiment. ment is reasonably successful, it is probable that it will be followed, in due time, by another upon a similar plan.

Rochester, May, 1841.

Session Laws of 1839, Class 100. page 83. i Session Laws of 1839, Class 134, page 112.