New-York, May, 1840.-Dias v. Brunell's ex'r.

ecuted, some by Castro jointly with Brunell and others by Castro jointly with Brunell and some other person; or if the bonds should be paid by Branell or by any other person, then to repay to Brunell or such other person, the amount of the bonds. The plainriff then averred that Brunell accepted the trust and 'promised to perform the same; that he took into possession the assigned property and converted it into money to the amount of $100,000, which was sufficient to satisfy all the trusts; that two of the bonds referred to in the conveyance in trust were executed by Castro jointly with Brunell and the plaintiff, upon one of which bonds was due the sum of $2968, and on the other the sum of $2969; that after the death of Brunell, to wit, on, &c at, &c. the plaintiff paid to the United States $1000, on account of two judgments recovered against him upon the bonds before specified. By means whereof, and of the acceptance of the trust and of the receipt of the property and moneys by Brunell, in his life time, the defendant as executor became liable to pay to the plaintiff the money so paid by him; and being so liable, promised to pay, &c. Nevertheless, &c. There was a second count substantially like the first, except that it alleged in addition that the defendant, as executor, had also received divers other large sums of money, amounting to $50,000, the proceeds of the assigned property. The defendant put in separate demurrers to the two counts.

L. H. Sandford, for the defendant, insisted: 1. That there was no privity of contract between the testator in his life time and the plaintiff in respect to the assignment; the plaintiff had no legal interest in the contract, and could not have maintained an action at law against the testator. 1 R. S. 723, § 60, 2nd ed. Hammond on Parties, 4, 6, 7. 7 T. R. 664. Co. Litt. 272, b. § 464. Cruise, tit. 11, ch. 2, § 2. Comyn's Dig. tit. Accompt D. 3 Bos. & Pull. 162. 2. The conveyance being in trust, an action at law would not lie against the trustee, 18 Wendell, 236. Lewellin on Trusts, 20, 103, 573. Law Library, vol. 24. 4 Kent's Comm.

[ *11 ] *288.

3. The trust being express, was not assignable, and did not pass to the defendant, as executor, under the last will and testament of the trustee. 1 R. S. 724, § 68, 65. 1 Cruise's Dig. 488, tit. 12 ch. 1, § 69; ch. 4, § 53 to 58. 1 Vesey, 468. Ambl. 552. 4. The assigned property and effects were not assets in the hands of the executor. Story's Equity, 241. 5. The promises of the defendant are not laid as express promises, but as promises arising by implication of law from the facts stated.

J. Greenwood, for the plaintiff, insisted that under the circumstances detailed in the declaration, the trustee was liable at law, and that such liability passed to his executor. The trust fund passed by the express terms of the

New-York, May, 1840-Dias v. Brunell's ex'r.

conveyance to the trustee, his executors, &c. The second count alleges that the defendant, as executor, received $50,000, the proceeds of the property, and that he promised to pay. The property received was a good consideration for the promise, and on proof at the trial of an express promise, the plaintiff will be entitled to recover. His character as executor, as described in the declaration, may be rejected as surplusage. The counsel cited in support of these several propositions, Weston v. Barker, 12 Johns. R. 276; 3 id. 72; 1 Johns. Cas. 205; 1 Caines, 363; 10 Mod 254; Cowper, 289; Toller's Law of Exr's. 429, 460.

By the Court, NELSON, Ch. J. This action was probably brought upon the strength of the case of Weston v. Barker, 12 Johns. R. 276, but it is distinguishable from it in two very important particulars.

1. The judgment there was manifestly placed upon the ground, that the facts disclosed amounted to an express promise on the part of the trustee to pay the plaintiff's demand. He had agreed in terms to hold the balance in his hands subject to the order of the assignors, and which was made in favour of the plaintiff, and notice communicated before the money was received. Af ter this, the court regarded the money, when received, as the money of the plaintiff, and held for his use.

No case can be found, I think, where an action at law has been *sustained against a trustee for the benefit of creditors, upon an [*12 ] implied promise arising merely out of the acceptance of the trust

to pay the demands of the particular creditors. Their interests are equitable, and belong to another forum.

There are cases of a simple trust, where courts have frequently seized upon slight circumstances, for the purpose of creating a privity of contract between the trustee and a third person, and thereby save the expense and delay of a resort to a court of equity. Several of these are referred to by Chief Justice Thompson in Weston v. Barker. In Winch v. Keely, 1 T. R. 619, Ashurst, J. said, that courts of law did not formerly take notice of a trust, for trusts are within the original jurisdiction of a court of equity; but of late years, he observes, "it has been found productive of great expense to send the parties, there, and wherever this court has seen the justice of the case clearly with the plaintiff, it has not turned him round on this objection."

In Williams v. Everitt, 14 East, 582, one K. sent bills to the defendant, his banker, with directions to pay part of the proceeds of them to the plaintiff, and though he received the bills and the money upon them, it was held an action could not be maintained for money had and received, because as between the plaintiff and him there was no privity, either express or implied. This case comes nearly up in principle to the one before us, though the trust was a very simple one.

New-York, May, 1840.-Diasv.Brunell's ex'r.

II. But the case under consideration differs also from West on v. Barker, inasmuch as it presents a complication of trusts wholly beyond the jurisdiction of a court of law to execute. Even if we could get over the objection that the plaintiff, in whose favour the trust is created, among others, is not a party to the deed, and that therefore there is a want of privity, it would still be impossible to sustain the action without involving in the course of the proceedings a settlement of the whole trust estate; and if the fund should fall short, of making an equitable apportionment as the case might be. It is true, the declaration avers a sufficiency of funds, and which must be taken as admitted here; but we cannot fail to see, if the demurrer should [13] be overruled, and "the cause go to issue, the consequences I have stated must necessarily follow.

It cannot be necessary for courts of law, at this day, to repudiate any such jurisdiction; they never possessed it, and are sufficiently burthened with their own legitimate duties, if no other considerations influenced them, not to desire a most inconvenient enlargement by usurping the peculiar province of another forum. 5 vesey, 581. Willis on Trusts, 7, 8, and note k. and 16. Lewellin on Trust, 20. 2 Hall's R. 130.

If an express promise had been made by the trustee in the cestui que trust, then no examination into the condition and state of the trust would have been necessary; the trustee would have assumed the responsibility of assets, and made himself personably liable.

III. The defendant took the trust estate under the will of Brunell, not as executor, but as a trustee, subject to the same stipulations and conditions under which it was held by the testator. The fund is not assets. Willis on

Trusts, 53, n. 111. Math. on Ex. 100, 119, 215. 10 Johns. R. 63. 1 Johns. Ch. R. 119. The defendant therefore stands in the position of Brunell, (the testator,) provided he had been alive and the suit brought against him. The fund is not assets, to be applied to the benefit of the general creditors of his estate, but to those for whose use it has been assigned. 1 Johns. Ch. R. 119.

I admit, if it had appeared that the testator had made himself 'personally liable at law to the plaintiff by means of an express promise, the executor might be charged, provided sufficient assets came to his hands; the plaintiff would then stand on the footing of a general creditor of the estate. An implied promise arising out of the acceptance of the trust, and undertaking to perform it, we have already seen, is not sufficient to charge the trustee individually at law, and of course devolves no obligation upon his personal rep

resentative.

In any point of view I have been able to take of the case, I am unable to perceive the ground upon which the action can be sustained.

Judgment for defendant.

New-York, May, 1840.-Hart v. Coltrain.

*HART and others vs. COLTRAIN.

On a motion for a new trial on a case made, the court will receive documentar y evidence, which could not have been controverted had it been produced at the trial, to defeat the motion; but this rule does not apply where the motion for a new trial is founded on a bill of excep

tions.

IN October, 1835, the plaintiffs in this cause obtained a verdict, which was set aside, and a new trial granted in May term, 1838. See 19 Wendell, 378. The cause was again tried, and a verdict found for the defendant. The plaintiffs, on a bill of exceptions, now move for a new trial. The action was ejectment, and the plaintiffs claimed to recover as the heirs at law of Jacob Hart. The defendant claimed under a sale by virtue of an order of the judge of the court of probutes of this state, made in 1814, on the petition of the administrator of the estate of Jacob Hart. The plaintiffs objected, among other things, that the judge of the court of probates had not jurisdiction in the matter, because it did not appear that the administrator had made and presented to the judge an account of the personal estate of the intestate. The jury, under the charge of the judge, notwithstanding, found a verdict for the defendant; and now on the argument of the cause, the counsel for the defendant presents an exemplification of an affidavit made by the administrator on the 4th August, 1814, before the judge of the court of probates, which he insists, with the matters proved on the trial, is sufficient to show that the judge had jurisdiction.

B. Davis Noxon, for the plaintiffs.

M. T. Reynolds, for the defendant.

By the Court, BRONSON, J. On a second trial of this action, see 19 Wendell, 378, the defendant obtained a verdict, and the plaintiffs took exceptions. The plaintiffs, among other things, objected that the judge of the court of probates "had no jurisdiction to order a sale [ 15 ] of the real estate, because it did not appear that the administrator made and presented to the judge an account of the personal estate and debts of the intestate. 15 Wend. 450. 19 id. 334. 20 id. 241. By way of answer to this objection, the defendant has, since the trial, produced an exemplified copy of an affidavit made by the administrator before the judge of the court of probates, on the day the sale was ordered; and he insists, that this affidavit, in connection with the matters proved on the trial, shows that such an account was presented as would give the judge jurisdiction to order a sale.

New-York, May, 1840.-McPherson v. Cheadell.

A motion for a new trial, on a case made, is addressed to the sound discretion of the court; and where the party relies on some defect in the proofs, which is afterwards supplied by evidence which could not have been controverted had it been produced at the proper time, and the court see that a new trial could be of no use, the motion will be denied. Burt v. Place, 4 Wendell, 597, and cases cited. But this rule does not apply to a bill of exceptions, and we cannot look into the affidavit.

New trial granted.

MCPHERSON vs. CHEADELL.

A physician may maintain an action for services rendered by him in his profession. Whether he can maintain such action without producing a diploma, or a license granted by a medical society, after a compliance with the first act of the legislature upon the subject, quere.

The effect of the several acts of the legislature regulating the practice of physic and surgery upon the rights of physicians, considered and commented upon.

The supreme court, on writ of error removing a record from the common pleas, will not look into a special report made by references to the common pleas containing only the evidence of the facts transpiring upon the hearing, and the decisions made in the admission and rejection of testimony, and upon questions of law arising in the course of the hearing.

On the refusal of a court of common pleas to set aside a report of referees for alleged errors in the hearing of the cause, if the loosing party desires to review in the supreme court the decision of the common pleas, he must procure a statement of facts, not the evidence of the facts, to be drawn up under the direction of the common pleas and placed upon the re[ 16 ] cord *in the form of a special report in the nature of a special verdict or bill of excep

tions.

ERROR from the Montgomery common pleas. Cheadell sued McPherson in 1837, in an action of assumpsit, for services rendered as a physician, and for medicines furnished from 1803 until 1836. The defendant pleaded the general issue and the statute of limitations. The cause was heard by reference, and in the record brought up to this court there was incorporated a special report of the referees made to the court below, in which the referees certify that "The following is a statement of the proofs and objections, &c." They then proceed and state the names of the witnesses called by the plaintiff below, with the particular matters to which they testified, as nearly, probably, as might be in the language of the witnesses.

To show the plaintiff's right to practice as a physician, his counsel produced the following instruments: "State of New-York, Montgomery County Medical Society, [L. S.] This may certify that Elijah Cheadell is a le