er it is the fulfilment of a contract or the performance of an obligation, which they were legally bound to perform.

In the first place, this act authorises this conveyance, on condition that the heirs of Guthrie, to whom this conveyance is to be made, release all "their estate and interest in lot No. 90, Milton, to this state." Now these heirs either have, or have not, an interest in that lot. If they have an interest, (and it would seem from a release being required, that they have,) then it is but passing a law, authorising the exchange of lands in Stirling for lands in Milton. A law to effect this cannot be within this clause of the constitution. It is no more an appropriation to private purposes, than the payment of money for the purchase of land on which the capitol is erected, or for the materials or labor for the state penitentiaries. But admitting that they never had any title to lot No. 90, it would be very questionable, in the minds of your committee, whether an agreement on the part of the state to convey, if these heirs would procure these releases to be executed, would not be an agreement founded on a sufficient consideration to be enforced in a court of law against an individual standing in the same situation.

It is never considered essential to the sufficiency of a consideration in law, to render a contract binding, that the act to be performed should be beneficial to the contractor; it is sufficient that it occasions some damage or expense to the party performing it. The procuring of these releases must put these heirs to some expense and inconvenience, and though the procuring them to be executed, should result in no benefit to the State, yet your committee can see no reason why it is not a fair and obligatory contract on the part of the State, to convey these 200 acres of land, if these releases are procured for lot No. 90, in Milton. It will be recollected that the amount of the consideration cannot vary the principle, as to the validity of the contract, or the vote that it will require to pass the bill. It can hardly, however, be conceived that the State would require these releases unless they expected to derive some advantage from them. It is not to be presumed that they would wantonly impose this burthen upon the heirs of this object of their bounty, merely for the purpose of injuring them without benefitting the state. But without giving a definite opinion, whether these considerations would render the bill a majority bill or not, your committee deem it necessary to take a view of the original obligation, on the part of the State, to Guthrie, and inquire whether that bas ever been discharg

ed. If it has not, then this is but the performance of an obligation too long delayed; if it has, then this bill is but to dispense the charities of the State, and will require a vote of two-thirds to pass it.

That there was a legal and just obligation on the part of the State, to give to the heirs of Guthrie, 500 acres of land, is fully established by the reports of several committees, and is further evidenced by an attempt, on the part of the State, to peform that obligation. But did they ever perform it? They patented 500 acres of land to Christian Gutrick. They were under obligation to convey it to Guthrie. This was most clearly not a performance of that obligation. Neither Guthrie nor his heirs could make out a title to this land under that patent, without resorting to other proof than such as was contained in the patent. It might be questionable whether he would even have been permitted to prove by parol, that Gutrick in the patent, was intended for Guthrie. The effect of this evidence, if admitted, would again depend on other circumstances. For, by a decision of the Supreme Court, if there was in fact a person by the name of Gutrick, who was capable of taking this land, they would not hear evidence to show that Guthrie, and not Gutrick, was the man intended.

In a case decided in the 12th Johnson's Reports, where a patent for military bounty lands was issued to a man by the name of Houseman, when it ought to have issued to Hosmer, and persons claiming under Hosmer offered to shew that he was the person intended, and that Houseman was never entitled to any bounty lands, the court refused to hear the evidence. But without attempting to decide how far this patent to Gutrick was capable of explanation by other proof, or what effect such proof might have in a court of justice on the question as to the title to said lot, your committee are decidedly of opinion, that as between Guthrie and the State, the State had not discharged its obligation to him, by conveying his quota of land to Gutrick. That he had a right to insist on a conveyance that should vest in him and his heirs the title, without the risk and expense of proving by parol testimony, that a patent in which Christian Gutrick was named as grantee, was in fact intended for Christian Guthrie. That he has done no act, waiving this right to insist on the State's performing its contract according to the spirit and meaning of that contract; and as it is not pretended that this contract has been subsequently discharged, it therefore follows

that the passage of the bill in question would be but another attempt to perform that same contract, and could only require the vote of a majority of this House to pass said bill.

It is not without some diffidence that your committee have come to this conclusion, after hearing the opinion of so able a committee as the committee on claims, expressed to the contrary. But it is believed by your committee, that the committee on claims would probably have come to the same conclusion, had they reasoned from the same facts.

Your committee, however, are confirmed in the conclusion at which they have arrived, by observing that the act of 1829 underwent a discussion on this subject, and was decided to be a majority bill only, and passed this House as such. (See Assembly Journals, 1829, p. 301.)

Your committee therefore beg leave to recommend the adoption of the following resolution :

Resolved, That the assent of two-thirds of all the members elected to each Branch of the Legislature is not necessary for the passage of the bill entitled "An act amendatory of the 'Act for the relief of the heirs of Christian Guthrie." "

IN ASSEMBLY,

February 8, 1831.

REPORT

Of the committee of claims, on the bill entitled "An act amendatory of the Act for the relief of the heirs of Christian Guthrie,' "" with the amendments of the Senate thereto.

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which was referred the bill entitled

The committee on claims, to "An act amendatory of the Act for the relief of the heirs of Christian Guthrie," with the amendments of the Senate thereto,

REPORTED:

The Senate propose to strike out the first and only section of the bill, as it passed this House, and to substitute two sections, the first of which adopts the principle sanctioned by this house, and applies it to three of the persons claiming to be heirs, instead of all the heirs. Your committee prefer the provision made by this House, as more general in its terms, and in their view more clear and explicit, and better calculated to make a final disposition of this claim. The second section proposed by the Senate, provides that Abel Guthrie, one of the claimants, shall receive a patent for the residue of the land not granted, pursuant to the first section, and shall hold the same in trust for the heirs not yet discovered. This question was considered by your committee, when this claim was originally referto them, and they could not then perceive, nor have they been able since to discover any reason, why the State of New-York would not be as safe a trustee for the unknown heirs, as Abel Guthrie or any other individual. Whether he would have a right to dispose of the property so held in trust, and if he should do so, whether the persons interested in the execution of the trust, would have a claim upon the State for the consequences of an abuse of the authority [A. No 146.]

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