not occurred within the knowledge or experience of the Council. And innovations upon the old and established principles of law ought never to be made for the sake of theoretical improvements, but ought always to be preceded by inconveniences or evils actually experienced. As the law now stands, testimony can be very conveniently perpetuated, provided the necessity for it be first made to appear, and it must then be taken under those checks and safeguards which justice dictates. Testimony may be perpetuated by a bill in Chancery, but in such case the bill must state that the party is in danger of losing the testimony by delay, or that his right rests entirely upon the evidence of the witness sought to be examined. The bill must, likewise, particularly describe the nature of the right or demand to which the testimony is to be applied, so that the opposite party may know to what subject to point his inquiries. The courts of law will also allow testimony to be taken de bene esse in any cause pending before them, but no order would be obtained for such a premature examination, unless it was first shown to the satisfaction of the judge or commissioner, that there was a necessity for it by reason that the witness was old and infirm, or in danger of life or about to depart the State, and the judge would no doubt exercise a sound discretion in respect to the previous disclosure of the nature of the action or defense, and the fitness and pertinency of the proof. Under the present bill, a party may apply to a master in Chancery who has no judicial authority, and without showing any necessity, and without disclosing his case, may have any witness examined on any subject and may require anything he says to be taken down. The bill seems, therefore, to be destitute of all reasonable and customary check against surprise and imposition, and may prove extremely injurious to the pure and correct administration of justice.

The above objections were referred to a select committee of the Senate, who made a report through the chairman, Mr. Livingston, controverting the objections of the Council. The Senate, however, refused to pass the bill; consequently it did not become a law.

ALBANY, January 2, 1822. Present-Governor Clinton; Kent, Chancellor; Spencer, Chief Justice; Woodworth, Justice.

A bill entitled "An act in addition to 'An act relative to the common lands of the freeholders and inhabitants of Harlaem,' passed March 28th, 1820," was before the Council, which adopted the following objections, reported by Chief Justice Spencer, viz.:

Because, by the act to which the bill is an amendment, the trustees therein named were authorized to sell the said common lands, and to execute conveyances therefor, and after deducting their expenses, with five per cent commissions, and after paying the assessments on said lands, and reimbursing the freeholders and inhabitants, they were required to pay, out of the residue of the moneys, certain specific sums, to the trustees of Harlaem library; to the trustees of the Hamilton school; to the trustees of such schools as may be established in the village of Harlaem and the village of Manhattanville, and to the trustees of such school as may be established on the said common lands. The surplus moneys in the hands of the trustees, after payment of these appropriations, were directed, by the said act, to be distributed by them among the several religious congregations of the said freeholders and inhabitants, in proportion to the number of church members. in each; the respective proportions to be paid to their respective trustees, to be placed out at interest, and the yearly interest to be applied to the benefit of their respective religious establishments.

The bill provides, that in addition to the specific appropriations of the moneys arising from the sales of the said lands, mentioned in the act, the trustees shall be authorized to distribute and pay as follows: The sum of $5,000 into the hands of the consistory of the Reformed Low Dutch Church, at Harlaem, to be invested by them in stock or bond and mortgage, and the yearly interest thereof to be applied to the support of the gospel in said place; the sum of $1,000 to the first Episcopal church to be erected within the bounds of the township of Harlaem; and the sum of $1,000 to be paid to, and equally divided between the respective trustees of the other religious congregations within the bounds of the said township at Harlaem.

The said last mentioned appropriations being, by the bill, declared to be in lieu and stead of the surplus mentioned in the third

section of said act; and that, if the proceeds of the land shall be insufficient to pay off all the appropriations made by the bill, a ratable deduction is directed to be made; and if there shall be a surplus beyond the appropriations, then a ratable addition is to be made to each appropriation.

The bill thus entirely alters and changes the distribution of the surplus moneys provided by the act, to the manifest prejudice of some portion of the inhabitants and freeholders of Harlaem. The bill contains no evidence, by recital or otherwise, either that the freeholders and inhabitants of Harlaem have assented to its enactment, or that they have had any notice of the intended application to the Legislature, to modify or change the provisions of the existing act.

A petition has been presented to the Legislature, purporting to be signed by the said trustees, and to which certain of the freeholders and inhabitants of Harlaem have signified their assent, for the enactment of a law, similar in its provisions to the present bill; but it does not appear by that petition that the freeholders and inhabitants of Harlaem have assented to the prayer of the petition, nor does the petition represent the fact to be so.

The act, to which the bill is an amendment, shows evidently, from its recitals, that it was passed conformably to the general sense and wishes of the freeholders and inhabitants of Harlaem. To subvert and destroy the provisions of an act thus passed, upon the application of a portion of the freeholders and inhabitants of Harlaem in conjunction with the trustees, appears to the Council to be unconstitutional, inasmuch as it impairs and destroys the obligation of a contract created by the act, and inasmuch as it violates a solemn compact, under which vested rights have been acquired, and is of dangerous tendency.

The Senate refused to pass the bill; consequently it did not become a law.

ALBANY, March 29, 1822. Present-Governor Clinton; Spencer, Chief Justice; Yates, Platt and Woodworth, Justices.

A bill entitled "An act to authorize the trustees of Farmers' Hall Academy to be trustees of a common school district, and for other pur

poses," was before the Council, which adopted the following objections, viz.:

Because, by the ninth section of the seventh article of the amended Constitution of this State, and which section took effect from the last day of February last, it is provided that "the assent of two-thirds of the members elected to each branch of the Legislature, shall be requisite to every bill appropriating the public moneys or property for local or private purposes, or creating, continuing, altering or renewing any body politic or corporate." The bill alters and enlarges, in several particulars, the corporate rights and powers of the Farmers' Hall Academy, and yet it does not appear by the said bill that two-thirds of the members elected to each branch of the Legislature have assented to the passage thereof.

The Assembly refused to pass the bill; consequently it did not become a law.

ALBANY, March 29, 1822. Present-Governor Clinton; Spencer, Chief Justice; Yates, Platt and Woodworth, Justices.

A bill entitled "An act relative to the city of Schenectady," was before the Council, which adopted the following objections, viz.:

Because, by the ninth section of the seventh article of the amended Constitution of this State, and which section took effect from the last day of February last, it is provided that "the assent of two-thirds of the members elected to each branch of the Legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes, or creating, continuing, altering or renewing any body politic or corporate." The bill alters in several particulars the corporate power and rights of the city of Schenectady, and yet it does not appear by the said bill that two-thirds of the members elected to each branch of the Legislature have assented to the passage thereof.

The Assembly refused to pass the bill; consequently it did not become a law.

ALBANY, March 29, 1822. Present-Governor Clinton; Spencer, Chief Justice; Yates, Platt and Woodworth, Justices.

A bill entitled "An act for rebuilding a bridge in the town of Minisink," was before the Council, which adopted the following objections, viz.:

Because, by the ninth section of the seventh article of the amended Constitution of this State, and which section took effect from the last day of February last, it is provided that "the assent of two-thirds of the members elected to each branch of the Legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes, or creating, continuing, altering or renewing any body politic or corporate." The bill creates a body politic and corporate, and yet it does not appear by the said bill that two-thirds of the members elected to each branch of the Legislature have assented to the passage thereof.

The Assembly refused to pass the bill; consequently it did not become a law.

The Constitution of the State of New York, formed by the Convention of 1821, went into operation on the 1st day of January, 1823. It abolished the Council of Revision, and devolved the powers and duties vested in the Council by the Constitution of 1777, upon the Governor of the above State.

January 26, 1817, Alexander Clinton was appointed Clerk of the Council.

Lieutenant-Governor John Tayler acted as Governor from the 24th February 1817 (at which time Daniel D. Tompkins resigned his office of Governor, having been elected to the Vice-Presidency of the United States), to the first of July following, when De Witt Clinton was sworn into office as Governor.

Lieutenant-Governor Tayler became, consequently, a member of the Council, but as no vetoes were issued or objections offered, and not sanctioned by the Council, during the above period, his name does not appear in this work as being present at the meetings.