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BE IT REMEIMBEITIRD, IfcU en 4e im d^f of iAe^ tflFftM^fifth mroftlie In- 
d^pf^ndf-neeortbe United StLiii-<t of America, WinUAH JI|(Hinoii, of Uie Mid district, iMthdt* 
poBited ill tbta orfkc the tiOe of a bouk, the light whereof he clahM M author, in tM words 
tuid figures fonovrio^f tojwit I . j e tiL ' 

" ft parti of Case I ft^udted in the Coart of Cb*iceiy of New- York. ^ Williftn^J^iitoa, 
*" Coun^rl lor at Law. V oL I \\ contaipitig ihe Caica froai Jamiaiyy 1819rabeceiiiber, 1820, in- ' 

^ « ClUMVt," , ^ . i 

In cgnformily (o th*- net of ih« Cnngroii of ihc Utiited States, entitled, «*^io act for the en- 
coura^neni of kiiming. hy iti:urin^ th« coj^iei of mapt, chiirtt, and books, to the aathon 
tf and prop rir tors of »uth c^pie^ dmifig the limi'fl tbereia|flienti«Md ;*** and also t* nnact.* 

^ J^ 4;ntitlf'd> -'Ar act idpplementiirv (13 an »ct. f'nlitled,'^[^ act for the encoarageownt of 

• Ji^minj^, hy wrfunnjr in« ropiftji of maps, cbaHs, ^k1 bookl/to die authors u' prdprtetors of 

fiucb ctjuit*!, dtirinf; thf ifinc ther^iji menUom d.dbd eztenditr the bevefltl tbsrsof to.^ the 
jt U arid of a£iigaing. en^mtmgf aad etcbing butoricArHod other pcMts.** 

^ W^ wi V - -. * G.BWHOMPSON, "r 

- ^r Clerk of the SoalWriU>itfrict of New-lTorfc. 

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Ktpontt]) nr Tm rouRTB tohvuw* 

%* The letter v fellows the aaiQ* of the plauitiff. ^ 


AttfttY. Thorp, 


Baker, Howell v, 
Barrere 9. Barreie, f^ 
Bayard v, Hofftnan, "^ 
Befison V. Le K07, 
Berger v. Duff, 

-ij^tw ick, ^MatQ^of, 
Bowen V, Cjoa^^ t< 
JbWT'j/rWTlMf,'* " 
Bradford, Myers t>. 
Bregaw V. Claw, - 
Jjriggs V. Imt^ 
BriDckerhon v. Lansiog, 

? J , .-^ y^ Brown, 

Blower V. Fisher, ^ 

. 6{pwiie_v. Rickets,*? 
Biown,%risckerfaoff v. 

, Williams fu 

■' % .Thompson v. 
Brush V. Wilkins, .. 
MjCpet V. Sanders, 
Burrouffhs, Miller v, 
Bushiiell V. Harford, 







' m 





Campbell v. Macomb, .^ 534 

■ V Messier, ' ' 334 

Cantillon, De Reimer «. 85 

ChampliiH';FoDdav. 62 

Claw, Bregaw 9. fe 116 

Cobb, Hatcfaki;!^ %- 559 

Cooke, Dale ^. U 

V, Mancius, ,i 166 

Cornel), Lawrence v. 542. *546' 

— — , Luptonv. 562 
Coiicht^ UlsterMd Orange Tum- 

^.'pa^e Company, 26 

Coxe'v. Smith, 271 

CroM, Bowien v. ^^ 376 

Daler.J^jloke, .^n 

Daroue v. Fannioi^. * ^ 199 

Demarest,. Van Bergen v. 37 

De Reimer v, Cantillon, % 85 

Dorr V, Shaw, 17 

Duff, Berger v. ' * 368 

DuaR>nd V. Mhgee 318 

Dunham^ Fannijig v. ^35 

Dunn, Ferine pi 140 



Elinehdorf v. Lansing, 

■ " f Gouverneurr. 
Enswocth V. Lambert, 


^^ Keifltelbratk v. LiYingBtoB, 
357 Kershaw i>. ThompsQn, - 
606 Kaiskeni, Smith v. " 


Fanning v. 0unhttin> 36 

, Davoue v. 199 

Farmers* Bank v^ Washington 

and Warren Bank, 
Fellows V. Fellows, 
Fisher, Brewer v. 
Folgar, Matter of, 
Folion, Rockwell v. 
Fonda v. Champlin, 
French v. Shotwell, 


Germand, Thome v. 

GibboM, Livingston v. 48. 94, 

, Ogdenu. 160. 

Goodrich v. Pendleton, 
Gouverneur v. Elmendorf^ 
Graham, Luce v. 
Graj's Executor v. Murray, 
Green v, Slayter, ' 




Hallock V. Smith, 649 

Ham i>4 Schujler, 1 

Harford, Bushnel v, . 301 

Hatch V. Cobb, 559 

Hayes 17. Ward, 123 

Hazen v, Thurbur, * 604 
Henderson's Executors^. Ross, 388, 


Hickco^, Scribner v. 630 

HofTmaii, Bayard v, 450 

Holmes v. Remsen, 460 

Hood V. Inman, 437 

Howell V. Baker, 118 



Lambert, Ensworth 9. - ' ' 60$ 
Lansing, Brinckerhoff v. 66 

, Ten Broack v, 601 

, Elmendorf V. 662 

Law, Briggs V, ,2^ 

Lawrence v. Cornell, ^i^M6 

Le Roy v# Corporation of New 

York, 362 

Le Roy, Benson v,* 661 

Livingston f. Ogden aiiid Gibbons^ 4t 

v.GM»onBBndbgd«ii, 94 

— V. Livingston, 28T. 29i' 

' " V, Gibbons, 671 

V. Woolsey, 366 

— V, Lynch, ' 57^ 

, KefeselbiaK^v. 144 

■ V. Tompkins, 415 


Inman, Hood 9. 


Luce V, Grahao;!^ 
Lupton V. Cornell, 
Lynch, Livi^ston v, 
Lyttle, Moore V. 


M'Comb, Campbell v. 

r. Wright, : 

Magee, Dumond v, 1 

Hann, Storm «• 
Mancius, Cooke v. 
Harkle v. Markle, 
Martin, Penny r. • 
M^Evers, Shepherd tf. 
M*Dermutt v. Strong, 
Messier, Caj|ipbell v. 
Miller v. Burroughs, 
Mintuta V. Seymour,** '' 
Moore v, Lyttle, * 
Mumford, Nichols v, * 
Murray, Gray's ExeAitors v 
Myers V. Qiadford, 


* 669 

^ 21 



' 666 

173, 497 

* 183 





*■ .■ 






|Few-Toik Corporation, Varickv. 63 
^ — —: — , Lie Roy t7. 362 

Nichols 9. Wil8oa» 116 

J p. Mumfoni, 622 

^orthi Silver Lake Bank v. 370 

)i(«)iirse 9. Primifp 

l^en. {iivingston v. 


160. 175 

f arkei Vt-'lKDAbeatery 
iMdIieiNtn, Goodrich v. 
fionj V. Martin, 
Ferine v. Dunn, 

fhillips V, Prevooat, 
ftee, Noursid v. i^ 

Searl v- Scovell, 
Shaw, Dbrr v. 
Shaven^ Radley, 
Shepherd v. M'Evers, 
Shotwell, French o. «p 
Silver Lake Bank v. North, 
Slayter, Green v. 
Smith V. Smith, 28 K 

V. Kniskem, 

-^— , Haliock ». ^ 

— — , Coxe v. 

Stevens, Thomas v. 

Stewart, Strong v. 

Storm V. Mann, 

Strong p. Stewart, ^. 

— »— , M*Den|iutt v. 



Hawyi Shaver v* ^ 
Itemsen, Holmes v. 

tenwick, Watson v. 
ickAs, Brown^^fi. 
Rockwell V. Folson, 
IjIMhester, Parker ». 
MJl^rs D. Vo8|mrgh» 
f - jf, Ross, 


;, Rogers r. 
»t, Rosser. ]^^ 

^> • ■ s '^ 

idesSf Burnet v*^ ^^ 
lyler. Ham v,^ 
•m^veljSeafl v^ 
S€^|bner4r. HilWcock, 
Sonteur V, Seymour, 
^JBC.-, Minturn v, 

-^ '• -i ^ 






^ 503 



, ' 630 

^ * 409 

^. Its. 497 







441. 445 










Ten Broeck v. Lansing, 
Thorn v. Germand, 
Thorp, Allen v. 
Thomas V. Stevens, 
Thompson v. Brown, 

, Kershaw v. 

Thurbur, Hazen v, 
Tompkins, Livingiton v, 
Troup v> Wood, 

JJlster Turnpike Co., Couch v. 26 

Van Bergen v. ftemarest, 3*7 

Vanderbilt, Matter of, 57 

Van Veghten v. Van Veghte% 501 
Varick Vi Corporation of Is^- 
„ York, 53 

Vosburgh, Rogers v. 34 


"Ward, Hajes r. 123 

Washington and Warren Bank r. 
Farmet's Bank, ^^62 



WashburD, Matter of, 
Watif* V. Reowick, 
Whitaker, Matter of, 
Wkfatmaa v. Wightmaii, 
Wflber, Bouok v. 
WihoD, Nichols v, 
Williams v. Browoe, 


106 Wilkins, Brush v^ 506 

381 Wood, Troup v. 328 

378 Woodruff, Rose v. Ht 

343 Woolstonecraft, Matter of, 80 

405 Woolsej, Liyingstott v. 365 

115 Wrii^t, M'Comb^. 659: 







• =f 

u '* " 







JAHES KENT, Es^. Chaitcbllor. 

P. &c H. Ham against Schutler and others, 1819. 


Where a farm bad been occupied and cultiyated for abore eigbty years* ^ 

during whicb time the original tenant and his descendants uniform- ScBtrrLxs. 
ly paid rent to the landlord, built bouses, and made Taluable aftd 

permanent improrements oa the premises ; BeU, that a lease io fee, ^' .^8 

at the acknowMfl^ rent» was to be presumed to have been origk IBl^* 

aallj given, or, at least, that there was an offreement for such a 

lease, under which the tenant took possession, and upon the faith of, 

and in execution of whicb, he made his improvements. . Equity, as 

well as a court of law, or a jury, may make such presumption : 

l)eq^ed, accordingly, that the derisees, or those claiming under 

the origiaril landlord, execute such a leajse, with the usual core* 

nant4 contained in ancient leases in fee of lands in the same tract 

or manor of the lessor. ^ 

THE bill of the plamtifls stated, that in 1730, Casper 
Bamy the grandfather of the plaintiffs, with the consent of 
the proprietor oCthe manor of Renssdaer^ entered into pos- 
session on the east side of the Hudson river, of a part of the 
manor then being, a wilderness, except a few settlements near 
the river. That Casper Ham had the promise of a lease 

Vet. IV. 1. 


1819. from the proprietor, and paid ao annual rent That some 
time previous to (he year 1760, the land was transferred to 
Elizabeth TenBroeck; and between 1760 and 1780, Abraham 
Ten Broeckj her husband, became solely seised of the tract. 
That after the transfer, the proprietor of the manor assured 
Casper Ham that he should still hold the land, as his other te- 
nants, paying to Abraham Ten Broeck the rent. ' Casper Ham 
continued in possession, and paid rent until his death, about 
fifty years ago. He left P. Ham^ father of the plaintiffs, bis 
only son and heir at law, who continued in possession, made 
valuable and permanent improvements on the premises, and 
paid rent to Abraham Ten Broeck^ at the rate of twenty^five 
ftkipples of wheat, or five pounds in money, until 1786 or 
1787, when a general survey of the manor was made. From 
that time, until his death, in 1808, P. Ham paid rent, at the 
rate of one shilling per acre, two loads of wood, and four 
fowls, anoually. A survey of the farm, which included the 
premises iu question, was made between 1760 and 1770, by 
order of Abraham Ten Broeck^ and the survey contained 260 
acres. P. Hwn, about forty years since, built a large house 
on the premises, and made valuable improvements thereon. 
Casper Ham planted an orchard, more than sixty years ago, 
and cleared and inclosed more than fifty acres. In 1798 or 
1799, Ten Broeck directed P. Ham to pay some arrearages 
of rent, and to sell his improvements on fifty acres to 
one FUkin ; and he accordingly sold them to FUkin, for 
250 dollars, and Ten Broeck executed a lease for three lives 
to FUkin. At various times, afterwards, Ten Broeck pro- 
mised to give P. Ham a lease for lives of the farm, at 
the usual rent, before paid by the father of the plaintiffs. 
The bill further stated, that Ten Broeck afterwards refused to • 
execute a lease ; that P. Ham continued to work and im- 
prove the land, believing that he had a permanent interest 
in it, and that Ten Broeck or his heirs were bound to give 
him a lease for lives, if not a greater estate. That P. Ham 
made his will, devising seventy acres to his son, Casper Ham, 


and the residue to bis other sons, Andrew and J&hn^ and lElft 
the plaintiffs, equally, who divided the same between them, 
and have continiied to make valuable and permanent im- 
provements on the lots, believing that they had a valuable in- 
terest in the land, which would be protected in law or equity. 

That Ten Broeck died in 1810, and by his will, dated 
March 27, 1809, devised the premises to his daughter 
Margaret, who devised all her real estate in the county of 
Rensselaer, June 9, 1812, to her sister Elizabeth, wife of 
Rensselaer Schuyler, during life, and after her death, to lier 
children, living at the time of her death, in fee ; and if she 
died without leaving lawful isstie, at the time of her death, 
then to the children of her brother Dirck, equally, in 
fee. Rensselaer Schuyler, and Elizaibeth his wife, on the 
6th of January, 1813, sold to James Kane, 64^ acres, 
including the premises in possession of the plaintiffs, 
during the life of Elizabeth. The bill was filed against 
Rensselaer and Elizabeth Schuyler, James Kane, and the 
children of Dirck Ten Broeck, having an interest by way of 
contingent remainder. The devisees refused to execute the 
agreement for a lease, so stated to have been made by 
Mraham Ten Broeck, gave notice to quit, and brought an 
action of ejectment against the plaintiffs, to recover the lots 
in their possession. The bill prayed that a lease for three 
lives might be decreed to be executed by the devisees, ac- 
cording to the agreement made with Abraham Ten Broeck, 
and for an injunction, &c. 

The defendants, in their answers, denied their knowledge 
or belief of the material allegations in the bill. 

The material parts of the evidence are sufficiently stated 
in the opinion delivered by the Chancellor. 

The cause was argued by Woodworth and Fan Suren Abv. 13, isia. 
(Attorney-General) for the plaintiffs, and by Henry and 
Van Vechien for the defendants. 


ISlSl For Db jrf«t!il^, it WHS cooMided, 1. Tbtltbe f^ 

proved wert fufiewm to afford the preiuiaplion of w agre^ 
meot, in 1730, betweeo the proprietor pf the manor of jReiw- 
idaer and Cmsper Ham, for a perpetual lease, at a rent of 
one tenth, which was, afterwards, by agreement of the par* 
ties in uiterest, modified as to the rent, and convened, at 

.^^tx/" wipet, into an agreement for three lives. (12 Feaey, 239. 
S Femon, 616. Rob^rU on Frauds, 135*) S. That the 
proof of acta of part performance were sufficient to take the 
case out of the statute of frauds ; and that the improvements 
made at the instance of the respective proprietors, with a 
promise of security, entitle the plaintiffs to a lease for three 
lives, at least. {Roberts an FroMdSj 141. noie. Powell on 
CofUraets, 296. Heudand on Contracts, 183.) 3. That the 
plaintiffs, at all events, were entitled to be paid for their im- 
provements before the injooction was dissolved. 

For the defendants, it was contended, That antiquity of 
posscssioli was no gromod for this Court to presume an 
agreement for a lease, or to direct one to be given. There 
was BO satisftctory evidence of any communication from the 
proprietor of the manor, as to the particukr estate to be 
given Casper Ham. The piamtiffs are compelled to resort 
to the promise of Ten Broeek, Then the statute of frauds 
IS a defence which can oaly be avoided by showing fraud, 
or acts of part peffinmance, neither of which is alleged 
in the bill. Improvements made on the premises cannot be 
considered as acts of part performance. Besides, the per* 
manent improvements were all made before the promise of 
Ten Broetk, in 1803^ Tlie rent was merely nominal. 
There can be no equitable claim for improvements. 

J0^ ^, 1819. The cause having stood over for consideration, the ibl^ 
lowing opinion was now delivered by Ae Court. 


Tsx CfiAircBLLOR. Tkifl case affords a aeeteafjr pvt^ i8lt. 
somption, either of a lease ia fee to Catper Bam^ the aor 
castor of the plaintiffs^ from Van Rensnlaer^ the proprie- 
tor of the manor, or of an agreement for such a lease. 

The premises are incladed in the manor of Rensidaer ; 
and Cuiper Hotm took poMessioo, soHie time in the fonser 
part ctf the last cenmry, of aboat 300 acres of land, of 
wbkli thie premises ^re a part The precise time cannot 
be ascertained, though the family tradition is, that he en- 
tered io or about the year 1730. His daughter Mariijt^ 
who was eigbty*five years of age at the time of her exami- 
natioa, fixes upon that period, and speaks from information 
and belief derived from ber early life. There is no doobt, 
that Catper Ham took possession under the proprietor of . 
the manor, at some distant period of time beyond the me- 
nory of man, and that be continued in possession, making 
valoahle improvements, and exercising various acts of 
oaroersbip^ doirn to his death, in the year 1777. The rent 
that Ca$f€r Ham paid is ascertaiQed, not merely by the 
faint recoUectiona or traditional inforvaatiop of bis fiunily, 
but by authentic written testimony. In the books otJlbra^ 
hun Ten Broeck^ there is a charge, in 1766, against Ca$per 
Ham, for three years rent, at twenty «five skipples of wheat, 
four ibwb^ and two loads of wood a year; and there 
are several other entries to the same e&ct. As to the 
length of time in which Casper Ham occupied the land, we 
find in the same books^ of the date of Jaaiuary^ 1799, a 
charge of thirty years rent due fiom Quper Ham^ and this 
carries his occupation back thirty years from 1777. These 
charges, also, show the nature and amount of the rent paid, 
or doe, to the proprietor of the manor, before the sale by 
the proprietor to 7bn Broeek and his wife, in 1764. 

It is in proof, that the adjoining manor lands are gene- 
rally held under leases in fte, subject to an annual rent. 

When Casper Ham died, in 1777, his son Peter was his 


heir at law, and be continued in possession of the iofaeri* 
tance derived from his father. We find bim 

Gaudeniem patriot findere tarcuh 

He made valuable improvements, and exercised varioas 
acts of ownership down to his death in 1807. He paid the 
same, rent that his father had paid to Ten Broeck^ viz. twen- 
ty-five skipples of wheat, two loads of wood, and foar 
fowls, until, by agreement, the payment in wheat was com- 
muted for a payment in money, at the rate of one shilling per 
acre. , Of the payment of the rent by Peter Ham there is 
abundant proof. He sold, in his life-time, fifty of the 300 
acres, descended to him from his father, to one FWdn^ with 
the assent and approbation of Ten Br oeckj (or 100 pounds ^ 
and Ten Broeck gave credit to Peter Ham for that sum, in 
October^ 1799, as so much money received from Filkinj to 
whom Peter Ham^ ^^ with bis consent," had given up fifty 
acres << of what be had under improvement.^' Ten Broeck 
afterwards gave Ftlkin a lease for three lives of those fifty 
acres, at the rate of one shilling an acre. 

Pet^ Hamj by will, devised his farm of 250 acres (de^ 
ducting the fifty acres sold to Filkin) to his five sons, in 
difierent proportions; and it is in proof that those devisees 
continued, after the death of their father, to pay, and Ten 
Broeck^ and after his death, his rq)resentatives, to receive, 
the same rent of one shilling per acre, and two loads of wood, 
and four fowls a year, down to a period as late as 1813. 

Here, then, we have the striking fact of a farm occn-* 
pied and cultivated, under a steady and uniform rent, for 
three generations, and including a period of upwards of 
eighty years ; and yet, according to the allegation on the 
part of tiie defendants, the plaintifiTs, and their ancestors, 
were nothing, during all this time, but mere tenants at will. 
The fact is utterly incredible. The ancestors of the plain- 
tifis claimed a permanent interest in the soil, and their va<* 


rioasj constant, and expensive improvements corresponded 1819. 
with such a claim* There is one fact which shows an une- 
quivocal recognition of the claim by Ten Broeck^ the 
owner of the rent. He consented that Peter Ham should 
sell fifty acres to FUkin, and he received from Fiikin 100 
pounds, being the consideration of such sale, and gave 
Peter Ham credit for that sum, on his arrearages of 
rent. Can we reasonably suppose, that Teu Broeek 
considered Peter Ham as a mere tenant at will, when he 
allowed him to demand, and FUkin to give, 100 pounds for 
only fifty acres of the farm, and to receive himself from 
FUkin the fruits of the purchase ? If Fiikin bought only a 
possesion held at will, such a price, given twenty years ago, 
was the grossest imposition and extortion, under the sanc- 
tion of the landlord. I have too much respect for the me- 
mory of General Ten Broeek to believe that he then viewed 
the interest of Peter Ham in so trivial a light. 

We must presume, that a lease in fee, under the acknow- 
ledged rent, was originally given to Casper Ham^ and 
equity may make such presumption, as well as a Court of 
law and a jury. (Steward v. Bridger^ 2 Vem. 516. H%1» 
lory v. fFaUer, 12 Ves. 252. 269.) But if that presump- 
tion cannot be indulged, because the witnesses seem to have 
understood that neither of the Hams ever pretended that such 
a lease was actually executed, we must then conclude, that 
there was an original agreement for such a lease, and tliat 
the elder Ham took possession under that agreement, and 
made his improvements, from time to time, upon the faith of 
it, and in execution of it. The agreement was not a lease 
for lives. The facts afford no foundation for that in- 
ference. The land was occupied, and the rent paid, through 
successive generations } and if those facts are evidence of 
any original agreement, they must be of an agreement for 
a perpetual lease, according to the custom of the manor, 
upon the reservation of the rent afterwards, and constantly, 
paid. The delivery of possession may amount to part 


1819. fetformmnct; and the fraud ciMiftUts in permitling tbis po»- 
setiion to take f>lacei and in leading on Cofper Ham and 
Ut son, through a period of fifty years, to expend money 
and labour in the melioration of the estate, and then to 
witlidraw from the performance of the agreement. *^ Pos- 
sessiod is so Btrong a tide," said Lord NortkingUm, ^ that 
a judge may have emphatically said^ he would presume an 
act of Parliament to support and confirm it." (1 Eden^s 

It is protred that Tin Broeck and Peier Ham did agree 
to a lease for lives ; but that agreement, which was a sub- 
stitute for tlie original one which I have presumed, was by 
parol, and never carried into efiect, and cannot be enforced. 
The lives are not ascertained, and we are obliged to jrecur 
back, and to eiact if performance of the original agreement 
for a lease in fee, subject to the variation in the rent of the 
one shilling an acre, for the skipples of wheat, and whidk 
was for many years executed and acted upon by both 

I shall accordingly decree, that the defendants execute to 
the plaintiffs a lease in fee, for the two pieces of land de* 
scribed by metes and bounds, in the depositions of the wit*- 
nesses, the one containing eighty-two, and the other ten and 
a half acres ; that. the annual reut to be reserved thereon be 
eleven dollars and fifty-six cents, together with two loads of 
wood, and four fat fowls } and that the lease contain the 
tisual stipulauons and covenants, in the ancient leases in fee 
of lands in that part of the manor of Remsdaer^ lying east 
of HudionU river ; and that it be referred to a Master to 
ascertain and settle the form of such lease, and report the 
same ; and that the question of costs, and all other ques* 
tions, be, in the mean time, reserved. 

Decree accordingly. 


Smith and another against Kniskcrn and others. 

A testator possessed of a larST^ real and personal estate, bequeathed Jamimy 9tk. 
to his wifei bis bousehold furniture, &c. and ** her covrforiable aup-' 
port €tnd maintenance out of hie eetate, to be, from time to timet ren^ 
dered and paid to her by hie executors^ and tbe use of one room in 
his dWelling-bouse, during all such time as sbe sbonld oontinue to 
be his widow, and no long^er :" And after a legacy to a grand- 
daughter, he devised the rest of his estate equally between his two 
daughters : Heid, that though tbe charge of a ** comfortable sup- 
port and maintenance/' might fall upon tbe real as well as the per^ 
aonal estate, it did not afiect the widow's right of dower ; there 
being no express declaration on tbe subject by the testator, nor 
any thing inconsistent in the two claims, and that, therefore, the 
widow was not to be put to her election. 

BILL i[or a partition. Jacob Kniskem died possessed of 
a large real and personal estate in Sehohariey mad by his 
last will, dated the 23d of February, 1818, be gave to his 
wife, '' all his beds and bedding, together with all his house* 
hold farnitare, his negro wench S. and negro boy J^ and 
her comfortable support and maintenance out of his estate, :; 

to be, from time to time, rendered and paid to her by his 
executors, and tbe privilege and use of one room in his 
dweUing-honse during all such time as she should continue 
to be his widow, * and no longer." He next directed his 
executors to sell so much of his personal estate as to raise 
330 dollars, including his outstanding debts, and to pay 
300 dollars of the sum to his granddaughter C, and the 
30 dollars to be laid out in furniture for her, kc. Tbe tes- 
tator then gave a moiety of all the residue of his estate, 
real and personal, to his daughter JEJve, and the other moiety 
to his daughter Elizabeth. The bill prayed for a partition, 
and that the widow might be decreed to elect whether to 
take the provision under the will, or to claim her dowen 

Vol. IV. 2 


181t)^ The widow, id her answer, insisted, that she was not 

bound to make an election, but if she was bound^ she elect- 
ed to take the provision under the will. 

B, Chamberlain^ for the plaintiffs. 1 Term Rep. 411. 
2 Term Rep. 656. 3 Term Rep. 359. 4 Term Rep. 93. 
Co. IaU. 36. 6. . Cruise's Dig. tit. Dower^ c. 5. s. 33. 35. 

I. HamtUonj contra. He cited Cruise^ tit. Dawery c. S. 
s. 22. 29. Adsit v. Adsit^ 2 Johns. Ch. Rep. 448. 

The Chancelllor. The charge of a " comfortable 
support and maintenance," falls, probably, upon the real 
estate as well as the personal. But the latter ought to be 
first applied ; and as the executors were directed to render 
the maintenance from time to time, and as no authority is 
given to them over the real estate, it would seem that the 
testator had a particular reference to the personal estate, in 
making that provision for his wife. I do not perceive, 
however, that the provision destroys the right to dower. 
There is no inconsistency between the two claims, even 
supposing the charge for maintenance to rest upon the real 
estate. From the large and valuable real estate set forth in 
the pleadings, and admitted, it is quite app$irent that the 
real estate is much more than adequate to furnish the sup- 
port and the dower. There is nothing repugnant in the 
operation of the two claims ; and the assertion of the right 
of dower, will not disturb or defeat any provision in the 
will. A comfortable maintenance is a provision of a very 
modest pretension, and it can easily be supposed to have 
been intended to aid the right of dower, and to secure, in 
every event, comfort and competence to the wife. But 
whether the testator had any thought, at the time, of the 
claim of dower, cannot be certainly known. It is sufficient 
that he has not made any declaration of his will on the 
subject, and, therefore, the doctrine iu Adsit v. Adsit will 


apply, and must govern the case. The role is, that the 1819. 
widow takes both provisions, unless the estate is insufficient 
to support both, or such an inconsistency appears between- 
the provisions in the will, and the dower, as to make the in- 
tention clear and indubitable, that both provisions were not 
to be taken. 

I shall accordingly declare, that the widow is not to be 
pnt to her election. 

Decree accordingly. 

Dale and others, Executors of Fulton, against Cooxe. 

Joint and separate debts cannot be set eff against each other in equity, Jtmuwry Uth. 

stny more than at laiF. 
To anthorize a set off, the debts must be mutual, and due to and from 

the same persons, in the same capacity. 
Therefore, a debt arising;' on a contract made with an executor^ cannot 

be set off against a debt due from tbe testator. 

THE bill stated that ihe plaintiffs, together with Robert 
L. Livingston and Edward P. Livingston, on the 29th of 
AprU, 1817, leased to the defendant, certain lands in the 
city of Jersey^ for one year, paying to the lessors the yearly 
rent of 100 dollars, in half yearly payments, with liberty to 
the defendant to extend the term for four years after the ex- 
piration of tbe first year, which he elected to do, subject to 
the same rent. That the defendant entered, and is now in 
possession, and hath paid no rent; so that, on the 1st day of 
November last, there was due 1,500 dollars* That the de- 
fendant has sued the plaintiffs, as executors of JPu^ton, and in 
December last, recovered 1,166 dollars and 66 cents; and 
the plaintiffs could not, at law, set off the rent so due to 
them, and the said Robert L. Livingston, and Edward P^ 


JUvingtton. That the defendant refused to allow the set-off, 
though the plaintiffs are in possession of the lease, and have 
authority to gi?e receipts and discharges for the rent. That 
the defendant is in insolvent circumstances, and unless the 
set*off be allowed, the rent due will be lost, by reason of 
the insolvency of the defendant. Prayer for an injunc* 
tion, &c. 

Henrtfj (or the plaintiffs, moved for an injunction, and 
cited Montagu on S^^ff^ 1 . 9. 65. 

The Chancellor. There is no sufficient ground for a 
set-off stated in this bill. The defendant has recovered a 
judgment at law against the plaintiffs, as executors of jRo&er^ 
Fidton, deceased, and now they ask for the interference of 
this court to enable them to set off against that judgment, 
rent due to them and the Livingstons^ upon a lease of 
lands made by them and the Limngstons^ to the defen- 
dant, since the death of Fulton. It does not appear from 
the bill, that the lands, so leased, belonged to their testator, 
or that they executed the lease in their representative cha- 
racter, as executors, or that they had any concern as execu- 
tors, with the real estate of Fulton^ or in tvhat proportions 
the Livingstons and they were interested in that rent* 
There is no mutuality or privity appearing between the two 
debts, and it would be equally unprecedented and danger- 
ous to interfere in the case. Before I could deal with that 
rent by way of set-off, the two Livingstons ought to be 
brought into court, and it would be necessary to take an 
account between them and the plaintiffs, or, in some other 
way, to ascertmn what part of the rent belonged to the pre- 
sent plaintiffs ; and 1 ought equally to know whether this 
rent was assets in their hands, as executors. I can scarcely 
conceive of a bill more defective in all the material allega- 
tions to support the claim now set up. 


Jo Duncan ▼. l^m, (3 Johm. Ch. Rep. 351.) I took 1619» 
occasion to look into the doctrine of set-ofl^ and though the 
point there was not precisely upon a joint and separate de- 
mand, yet it was assumed as a general rule of law and equity, 
that ay^tn^aod a separate debt, could not be set off against 
each other. The debts, or the credits, for they were consi- 
dered as subject of set-off, must be mutual, and due to and 
from the same persons in the same capacity. If there 
be any exception to this general rule, it must arise, as Lord 
ISdcn said, (3 Merwde^ 618.) under particular, dreua^ 
ttancesy as where there is a clear series of transactions in 
which joint credit has b^n given. In respect to credits, it 
is well understood, {James y. Kynnier^ 6 Ves. 108.) that to 
constitute an equitable set-off, there need not be strictly 
ipntaal debts ; and it is sufficient that there are mutual cre- 
dits. Such is also the language of our set-off act* 

It is an established rule in the courts of law, that if exe* 
cutors sue for a debt created to them since the testator's 
death, the defendant cannot set-off a debt due to him from 
the testator. This would be altering the course of distribu- 
tion. {Shipman v. Thompson, WiUes' Rep. 103. Teg^- 
meyer v. Lundey^ WiUes^ Rep. 264. note.) 1 see no rea- 
son why the same rule should not prevail in equity. The 
genera] doctrine on the subject is the same in both courts, 
as was shown in Duncan v. Lyon ; and if the defendanf 
could not set off in such a case, neither could the executor 
if he was the defendant, for the rule must be mutual. The 
cases in which there has been more relaxation of the rule of 
law, which forbids a set-off between joint and separate 
debts, are ^opBHrta^ cases in bankruptcy ; and it is said that 
the Chancellor's jurisdiction in bankruptcy relative to set- 
off, is derived from the statutes of 13 EUz. and 5 Geo. IL 
and is wholly unconnected with the general set-off act of 
Gfeo. II. (2 Maddock^s TVeatise on the Principles and 
Practice of Chancery, 5i2r~^5l5.) £ven in these bank- 
rupt cases, the depiirture from the general rule seems to be 


1819. questioned, and, at last, prohibited, notwithstanding the 
statutes of bankrupt embrace mutual credits as well as mu- 
tual debts. 

In the case, ex parte Edwards^ (1 Atk. 100.) which came 
before Lord Hardwitke^ by petition in bankruptcy, a credi- 
tor to A. and a debtor to B, (both of whom were declared 
bankrupts,) petitioned that the suit by the assignees o{A. and 
B. might be stayed, and his debt from A. be set off. The 
Chancellor treated it as a doubtful case, and by way of ex- 
periment, directed an inquiry to see how much he owed the 
joint estate, and how much the separate estate owed him. 
It does not appear what became of the case afterwards, or 
that any decision was ever made. On the strength of this 
case, Lord Rosslyn^ in ex parte Qulntiny (3 Ves.,24S,) al- 
lowed a party to set-off the share of a bankrupt partner in 
a joint debt, due from him to the partnership, against the 
debt due from the bankrupt individually, to him. But in ex 
parte Twogood^ (11 Ves* 517.) Lord Eldon examined and 
disapproved of this decision. He said, that he did not under- 
stand the reason or principle of it, for the partnership debts 
were all actually paid. If there be debts, he observed, which 
could not be set off at law, must all the affairs of the bank-^ 
mptcy be suspended, until all the accounts are cleared, in 
order to see what rights of set-off there may be in the result .^ 
The consequence would be, that where there are joint and 
separate debts, which cannot be set off at law, in every 
bankruptcy, the proceedings must be suspended until the ac- 
counts are taken, and it is seen what the joint estate, and 
what the separate estate will pay. The counsel, in that 
case, declared that there was no instance of a bill to relieve 
the hardship at law, in not setting off these demands. 
The Chancellor though-: there was a good deal of natural 
equity in the proposition, upon which the petition stood, 
yet he denied the relief sought in the nature of a set-ofl^ 
against a separate creditor of the bankrupt, indebted to the 
partnership to a greater amount. 


The case, ex parte Hanson, (12 Ves. 346.) was before 1819. 
Lord Erskine. H. &; fV. were indebted on a joint bond, (H. 
as principal and fV. as^uretyO to C. &£ P., who werebank- 
mpts, and who owed H. The assignees sued H. on his 
bond| and he applied by petition to be allowed to set off. 
It was admitted upon the argument, that there could be no 
set-off at law between joint and separate debts, and the pe- 
titioner relied on ex parte Stephens, (11 Ves. 24.) which 
the other side said was decided upon equitable grounds ad- 
ministered in bankruptcy, viz. the fraud. The Chancellor 
allowed the set-off on account of the joint bond being that 
of principal and surety \ and he said, that his jurisdiction in 
bankruptcy was equitable as well as legal. When this 
case carae again before the Court on the Master's Report, 
(18 Ves, 232.) Lord Eldan observed, that the joint debt 
there was nothing more than a security for a separate debt. 

Here, then, is the result even of these set-off cases in 
bankruptcy. They leave the general rule very much as it 
had existed before; and in the recent case of Addis v. 
Knight^ (2 Meriv. 121.) the Master of the Rolls said, that 
'' It is quite clear, that as at law a joint cannot be set off 
against a separate debt, the same rule prevails in equity, 
and mnst continue to prevail, so long as the present system, 
io regard to joint and separate estates, subsists. The case, 
ex parte ^intin^ may be considered as an exception ; but 
in ex parte Twogood, Lord Eldon expresses bis dbappro- 
bation of that decilsion." 

My conclusion is, that joint and separate debts cannot be 
set off in equity any more than at law ; and if the bill was 
free from the other fatal imperfections which I have men« 
tioned, and the case was reduced to this single point, I 
should be obliged to deny the motion. 

Motion denied. 


1S19. The motion was renewed apon an amended bill, stating 

that the plaintil&, as executors of Robert Fulton^ deceased, 
together with R. L. Livingston and Edward P. Limngstonj 
made the lease to the defendant, and that the two Livings'- 

February 10. tons had, by deed, and for a valuable consideration, assign- 
ed to the plaintifis, as such executors, their right and interest 
in the rent reserved by the lease. 

fienry, for the motion. 

The Cham CELLon observed, that one objection to the in- 
junction had been removed ; for it would seem here was no 
longer the case of an attempt to set off a joint against a 
separate debt. But another difficulty still remained. Here 
was an application to set off a debt arising on a contract 
with an executor, against a debt arising on a contract with 
the testator. They are not debts due to and from the same 
persons, in the same capacity, and there is no mutuality. 
It would be confounding the contracts of testators with tfae 
contracts of executors. 

To remove this objection, it ought at least to have ap- 
peared, that the lands so leased belonged to the testator, at 
the time of his death, and that the executors had authority 
to lease the same, and that the rent was made assets for the 
payment of debts. The will ought to have been set forth, 
or so much of it as wa^ requisite to satisfy the Court in 
those particulars ; the ownership of the lands leased ought, 
also, to have been stated. 

Motion denied. 



DoBR agcintt Shaw. 

If one jndgiDMit eredilor has a ri|(fat to i^o npon tfro fnodf , and a ••- 
Good judgement creditor upon one of them, beloogiii|^ to the sasie 
debtor, the former may be compelled to applj fint to the fund not 
reached by the Becond judgment, so that both judgments may be 

But if the first creditor has a jndgmeot against A. and B.y and the se- 
cond against B. only, the latter cannot compel the former to take 
the land of A> ooif ; it not appearing whelfaer A* or B. ought to 
pay the debt due the first creditor ; nor any equitable right shown 
ID jB. to haTe the debt charged on A. alone. 

THE InU staled, that in JlprU, 1813, Dmfid Skffind was Jwnmry^Ui. 
seised of seventy-two acres of land, and his son P. S. of 
tbirty acres of land adjoioiiig. Id Aprils 1813, they eze* 
coted a judgment bond to the defendant, for the payment of 
437 dollars, with interest. On this bond, judgment was 
soon afier entered up in the Comt of C. P. of WaMngtcn 
county. On the Ist of October^ 1813, JD. jS. executed a judg<" 
nieot bond to Wortheif Waten, for 1,600 dollars, on which a 
jadgineot was on the same day entered up. In Jlfny, 1817, 
the seventy-two acres of land of which D. S. was seised, 
were sold under an execution issued on this judgment. Pre* 
vioas to this sale, tV. W. assigned the judgment to the plaio^ 
tifl^ to whom he was indebted in the sum of 2,000 dollars. 
The plaintiff purchased the seventy-two acres of land at 
the sheriff's sale, and took possession thereof, and still re- 
mains in possession. The sheriff's deed was dated the 
22d of July, 1618. The defendant had caused an execu- 
tion to be issued on the judgment first above mentioned, and 
the sheriff had advertised for sale the lands of D. S. and 
P. S., in lot 20, of Cambridge PaterUf except thirty acres soM 
by P. S. to Reuben Park. This lot, No. 20, contained 

Vol. IV. 3 


1819. the seventy-two acres, and the thirty acres, above .aiention* 
ed. The bill further stated, that the thirty acres were worth 
more than the judgment debt in favour of the defendant ; 
that the plaintiff was willing, and had offered to pay the 
judgment to the defendant, if it had not been abeady paid, 
on condition that be would assign the judgment to the 
plaintiff, which he had refused to do. The plaintiff prayed 
that the defendant might be decreed to cease all proceedings 
on his judgment and execution, or be compelled to assign 
the same to the plaintiff, on being paid the debt, interest, 
and costs; 

The ansf0er of the defendant admitted the judgments, 
Sic. as stated in the bill ; that D. S. had made him three 
several payments, amounting in the whole to 245 dollars, 
which was all that had been received, and that .the residue 
atill remained due on the judgment. That when the judg- 
ment was entered up, i>. S. was seised of seventy-two acres, 
'ond P. S. of thirty acres adjoining, in lot No. 20. That 
on the 25th of OcttAer^ 1814, Reuben Park^ who had pur- 
chased the seventy*two acres^and the thirty acres, mortgaged 
the same to D. S* to secure the payment eC 1,000 dollars, 
part of the purchase money; and on tlie 5th of June, 1815, 
D. iS. assigned the bond and mortgage of Park to the de- 
fendant, for 818 dollars. That on the 27ih of Januajy^ 
1817, P. jS., in con^deration of 500 dollars, eoliveyed the 
thirty acres to the defendant. That on the 18th of Septem- 
ber ^ 1817, the defendant caused an execution to be issued 
on the judgment first above mentioned, and on wliicb the 
seventy-two acres were advertised for sale, and the plaintiff 
became the purchaser, as stated in the bill. That before 
the bid, the plaintiff /' had notice that the judgment in 
favour of /r. W. was without consideration, and fraudulent ; 
that the defendant had an older judgment, on which above 
500 dollars was due, and that the tliirty acres were owned 
by the defendant." The defendant admitted the other facts 


u charged in the bill, hat alleged that the assignment of 1819. 
the jndgment by fV. W. was fraodulent. 

The cause was subcBitted to the Coart on the bill and 
answer ; and it was agreed that the answer was to be taken 
as true, except as to the allegations of fraud as to the 
judgment in favour of W^ W.j and iu assignment. 

Shepkerdj for the plaintiff. 

Crmn/f for the defendant 

The Chancbllor* This case presents complicated re- 
lations I but it may be illustrated in an easy manner. The 
defendant holds a judgment against A* and B. binding 
upon seventy-two acres of land owned by .^.^and thirty acres 
of land owned by JB. It does not appear whether A. and Bm 
were both principal debtors. They were father and son, and 
the pleadings are silent as to the origin of the judgment 
debt. The plaintiff is assignee of a younger judgment 
against wi. only, and binding on the seventy-4wo acres, k 
does not appear when the plaintiff became such assignee. The 
bill only states, that he took an assignmentof the judgment 
before a sale upon eiecvtion under it, and which sale is 
smied to have been in Jifoy, 1817. The instrument of as^ 
sigament bears date in Odaber^ 1816, but the timeof eiecu- 
tion is not proved. The defendant purcliased the thirty 
acres from a person who had purchased from jB., and his 
parcbase is stated to have been in Jltmuary, 1817 ; and it 
is further stated, that at the sale, the plaintiff was informed 
of tfaat^ purchase by the defendant, and tha€ the plaintiff, 
nevertheless, purchased in the seventy-^two acres, upon the 
judgment and execution which he then owned. 

It appears, then, that the defendant, as owner of die eider 
judgment, has purchased in the thirty acres on which his 
judgment originally attached, and the plaintiff, as owner of 
the junior judgment, has purchased in the seventy-two acres 


1819. boond by bis judgiaeot, towards satisfiM:tion of Us ^ 

The defisodaat is now pursaing an execnlioi^ nader his 
dder jadgintnt, against the s«vettty-two acres, in. order to 
satisfy the balance due thereon ; and the plaintii' seaks t9 
prevent it, by requiring that the defendant should satisfy his 
execution out of the thirty acres, and which amounts to the 
same thing as to require the defendant to abandon his exe- 

Is this one of the cases in which the court will compel the 
elder creditor to apply first to the thirty acres, or the fund 
not reached by the younger judgment ? I am of opinion that 
it is not. 

If both judgments had been against David Stafford only, 
the rule that the prior creditor must be thrown first on the 
fond not reached by the second judgment, might have ap- 
plied. But here we have no means of knowing wbelber d. 
or B. ought to pay the debt ', and it might be very unjust, 
as between those two original debtors, if the court should in- 
terfere, and cbai>ge the debt -upon one of them^ inslead of 
die othen They are not before the coon, and we<hsve no- 
thing in the case to guide us in making a selection betweei^ 
them. The consequenoe' is, that we cannot tnterfim ti> 
the case. 

The doctrine in a case of this kind was very clearly laid^ 
dtdwn by Lord JBMen, in eiv parie Kendal. (17 Vea. 539.) 
'< We have gone this length/' says the Lord QMiicellor, 
*< if Am has a right to go upon two funds, and B. upon -one, 
having both the same debtor,' and the fiinds are the proper^ 
ty of the same person, «^. shall take paymmtfrom thalftind 
to which he oatt resort exdunveiy, so that both nay be paid* 
But it was never said, that if I have a demand against td^ 
and £., that a creditor of J3. shall compel me to go against . 
•^•9 without flsore. If I have a deaiaad against both, the 
creditors of jB. have no right to compel me to seek payment 
from ^*., if not founded in some equity, gwing B. far Ass 


i joie, 88 if be wm nrcty, See., a right to compel me to 
seek payment of j1. It most be established, that it is just 
and eqoiiable that A m^hi t9poy^ m Ike fint tngtanuy or 
there is no equity to eompel a man to go against A.^ who 
has reaort fo^bolh fonds." 

Bitt disimissed, witboal costa. 

Stobm against Mann. 

An injanctioo to stay toof/e will oot be granted, when the rigbt is 
doubtful, or where the defendant is in posaessioo, claiming adverse- 
ly, and tiiie ptaiSiitiff has brought an action of ejectment against him 
ta lacarer the pesaeisieD, and the vui at law is aadetenaaned. 

THE bill stated that John Toung was the original paten- Jatuwy^M. 
tee tS lot No. 55, in Hanmhai^ in the county of Otwego. 
That the plaintiff porchased the lot of Taung^ on the 5th of 
JVVwettier, 1810. That the plaintiff is in possession of the 
sontb half of the lot ; and the defendant, not having any law- 
fal title to the possession of the same, has been for a hng 
/tne, and is noio, inposseBiion of the north half of the lot, 
f. e* of 300 acres. That to recover possession, the plaiotiff 
has brought an ejectment at law against the defendant, 
whicb was oommenced in Augnst term, 1817, and. in 
which issue has been didy joined, and the action is sttU 
peadiag undetermined* The bill.aneged that the defendant 
wias coomiitting waste, and prayed for an iignoction to re- 
strain iL 

D. «iMbt, for the plainli^ now moved for an injonetion^ 


1819. The Chancellob. The title appears to be disputed ; for 

the defendant 1ms been in possession for a l6ng time, and 
has joined issue with the plaintiff at law, on the questioa of 
title, and the action is still pending undetermined. Under 
these circumstances, I do not feel myself authorized to grant 
the injunction. 

In Field v. Jackson^ {Dickens^ 599.) the Lord Chancellor 
held it to be a general rule, that when the right was doubt- 
ful, the court would not grant an injunction. So, in a case 
before Lord Eldon^ {PilUtvorth v. Hopton^ 6 Ves, 51.) an 
injunction to restrain waste was not granted against a de- 
fendant in possession, claiming by an adverse tide. If the 
plaintifi^ in his bill, states such a claim on the part of the 
defendant, he states himsdif out of court, as to the injunction. 
In the present case, the bill does state to that effect, when it 
states that the defendant has been a long time in possession, 
and has joined issue with die plaintiff in ejectment I must 
know the result of that issue at law before I can interfere. 

Motion denied. 

Briggs against Law and others. 

An agreement on the part of a creditor to collect money raieably, of 
tlie several parties to a note, &c. on their giving a judgment bond 
for the amwut, enforced by injonotion. 

Fthruary 9th. THE bill Stated, among Other things, that on the 25th of 
October^ 1817, the agent of the Lansingburgh bank applied 
to the plaintiff, and Mosherj atid WUliam Fan t^irk and 
Joseph Smithy the endorsers of two notes given to the bank, 
for the balance due on them, amounting to 2,230 dollars. 


lor ttciuity, by judgment* Tbe plaintifi^ Mother^ Fan 1819. 
Eirkj and Smithy refused to give a judgment bond, unless 
ibe agent of tUe bank would agree, in behalf of tbe bank, 
to obtain a judgment with all reasonable diligence against 
John jishUm and JViUiam Briggs^ two other of tbe makers 
of the notes, for tbe amount of the notes, and would obtain 
the money, in the first instance, if practicable, from Henry 
JBriggs, (whoy being indebted to the company, bad assumed 
to pay the debt due to the bank, and one of the persons 
who had signed the notes,) and agree to coUect such por* 
tions of the money, as could not be obtained from Henry 
BriggSf from the several other persons who bad signed or 
endorsed the notes, equaUyy as far as their property would 
admit That the agent of the bank accordingly agreed so 
to do, and the plcuntiff, and Mother^ Van Kirk and Smitk, 
gave a judgment bond to tbe bank, for the amount of tbe two 
notes, and tbe expenses of the arrangement ; and a judgment 
was thereupon entered up, for 4,600 dollars, on tbe 30th 
of October J 1817. That the bank, on the 12th of August^ 
1618, issued execution on the judgment, for 3,344 dollars 
and 92 cents, with directions to levy the amount of the 
plaintifis only, without having instituted any suit, or obtain- 
ed any judgment against Henry Briggs^ or against fVUUam 
Richards^ who was also a maker of one of tbe notes. That 
the other parties above named have property sufficient to 
pay the debt. That the bank, on the 2d of S^tember^ 1 818, 
assigned the judgments to the defendant LaWj and refused 
to interfere to collect the debt equally of the other parties. 
Tbe bill prayed, that the bank and Lavj might be enjoined 
from all further proceeding, on the execution,, and that M. 
A., W. B., Van JiT., S., and /{., might be decreed to con* 
tribute each one seventh of the first note, and one eighth of the 
second note ; and that Jlf., Van K^ and S., might be decreed 
to contribute each one fifth of tbe costs and sherifi^s fees on 
the execution, &c. An injunction was accordingly issued. 
Tbe answer of four of the defendants, L., Jtf., A.f and 


1819. Van K., did not deny the agreementi in mbsiuioCy m tlis 
part of tbe faadK, as stated in the bill, and one of tbem, JK, 
jiAnitted it, in all its essential parts; but the answer set np 
matters anteoedeDt to the judgment bond, to show that tbe 
plaintiflEs, or one of tbem, ought to pay the debt, instead of 
4fae dtiendaats, or any of them* 

FOmBBry Wi. J. L. WendeU^ for tbe defendants, now moved to dissolve 
<be tignnclioQ. , 

L. MUckell, contra* 

Thb Chanckli^or, without goii^ into the connderation 
ctf die antecedent transactions, which were complicated, and 
the equity arising therefrom obscure and doubtful, coneidov 
ed that the agreement of October, 1817, as admitted in the 
answer, was binding in equity and conscienoef. On the 
fiM:t of that agreement only, the interference of this Coort 
was to be supported. He, therefore, ordered, that on the ' 
plaintifik paying to tbe sheriff, or in Court, |n twenty days, 
two sevenths of the debt and interest, and two fifths of tbe 
costs of the judgment and execution, that the injunction 
should be continued, to the end that the owner of the 
judgment, whether it be the bank of Landnburgh or their 
assignee, might be compelled to collect the debt rateably 
from the defendants, Masher, Van Kirk, Smith, Athtan, and 
WHUam Briggs, in pursaanoe of the agreement. 

Order accordingly. 

O40i». flfCHANABHY. S» 

Ad iojanctiim b nerer graoted tg^ios^penons wha u« att^orCMt to 

the suit. 

UPON the coming in of the defendant's answer. Foot, Mmh 9MA. 
for the defencj^nt, moved to dissolve the injanction which 
had been issued in this cause, on the ground, that the an- 
swer denied the equity of the bill, and especially, that the , 
ii^onctioD ought to be dissolved as against Martin Adsity 
RaymtmdAdaUi and Jesse AdtU, who were no parties to the 
billy and wbq were eigQiiied from the p^iyment of certain . 
nolas givan by ibetn to the deie»dMt» He cited 7 Vet. 
S67. hemm ¥» Ham$. 

Huwtingtonj contra. 

Thb CHAKcvifMi^ The docuiae in the ca«e cited, is 
•omal mod appli«aMe. ^^I find,'' said Lord EUIm^ ''the 
Court has adhered very closely to the principle, that yo^ 
cannot have an injanction, except against a party to the 
snit. Upon a review of all the cases, I think the practice 
4>f graoting an injunction against a creditor, who is not a 
pariyt 19 winang* Tb^ Cmrt \^% mq rigfit to grant an in- 
jonctioB against a person whom they have not brought, or 
attempted to bring, before the Coart, by mjpcena. I have 
no conception, that it is competent to this Court to bold a 
man bound by an injunction, who is not a party in the 
cause, for the purpose of the cause." I shall, accordingly, 
dissolre Hbe injunction as fgaipst ^ose pers(M9§ wl^o w«re 
fllpt Wide p«Mties to tftfe spiti A purchaser was restrained, 
J0 ihe ^ijitf of Qrs^ v, LowfSf (3 Bro. 217.) from payings 


1819; the purchase money, on a bill by the creditors of the vendor^ 

^'^^"^^"^^^ bat the purchaser was made a party. 

'''SSor 0«I««cordlDgly. 



Couch and others against The President and Directors 
of the Ulster and Orange Branch Turnpike Com- 

AccordiDg^ to the true construction of the act to amend the a4:t, entitled j 
an act to incorporate the Ulster and Orange 'Branch Tump&te 
Company^ (seas. 40. c 213.. 8. 2.) the owners of landtaaseHedare 
entitled to make the roid through their own lands, ander the iiM|iio- 
tion of the company, by the Isi day of.«AiifUf(, next 4^4^ the of- 
testmetU it made and compieted. The commissioners haWng pro- 
ceeded to sell lands for the payment of sums assessed after (be 1st 
ofAugustf 1817, an injunction was g-ranted to restrain the proceed- 
ings, so as to give the owners of lands an opportunity to commence 
and complete the road througlt their lands, within the time given 
by the second section of the act, accordiog to the coMtrofrtion 4o 
given to the act. 
Bat the answer of the defendants, being afterwards put in, from which 
it appeared that tha.'c tiad been no unreasonable delay on the part 
of the defendants ; that tbej completed their assessment list on the 
8th of Aprily 1818, when notice tfiereof was gii^en; &o. ; thirt tm th^ 
' lOtfa of Jti^, written notice W^ pikt up along the i«M, ftr lhe4>#M^ 
« of l^mds to mtfke iiroposab for iriakiog the road, &c. untii' tbo.6lh 
ofiJhigtuif whe^ the commissioners were to meet and review the as- 
sessment; and that the plaintiiFs did not, before that time, nor at 
any time allcrwards, offer to make the road, the injunction was dis- 
solved. ■ ' «j 

Jan. 19 and THE bifJ Stated, that by the *• «^ to amend tkk aa^ 
26,and^fln* ^fi^ed, an act to incorporate the Uhter and Orang^ B^anek 

Turnpike Company'^ passed the litb dprU^ im.7^ (^m. 

40. c. 213. s. 1.) the Governor was authorised fd «{)p6int 


dteve frteholdars, be. whose duty it sboald be, as soon as 1819. 
a»y be after the acceptance of their appoiDtmeut, to make ^^^^^^^^' 
a. jait, eqaitable, and proportionate assessment on all the v. 

lands lying adjoining or contiguous to the said turnpike orangb 
loady &c. That the commissioners (sec. 2.) were to make c^^^' 
the assessment for each town separately, &c. : *' Provided^ ■ 

that IB lieu of the payments, &c. it should be lawful for any 
of the persons assessed, to make such road through his or 
her lands,; or within the town in which his or their lands lie, 
under the inspection of the P. and D, of the company^ so that 
the same be commenced by the 1st day of August nex^, and be 
completed within three years thereafter; for which such 
persons shall be allowed in his or their assessaient, and ia 
saiisfttctioa thereof, at and aft^r the rate of 800 dollars the 
laile, or soch other sura as the said commissioners shall de- 
termine," &c. That on the 1 5th of ^prU, 1 S 2 7, three free- 
holders, &c. were duly appointed commissioners to make 
assessment, &c. according to the directions of the act ; but 
that they did not make their assessments until the 7th of 
Jiygustf 1818 ; and by such delay deprived the plaintiffs, and 
the others, on whose behalf they sue, of the advantages 
secured to them by the proviso of the second section of the 
act. That the plaintiffs^ were advised, that they were not 
entitled to those advantages, unless they commenced to 
make the road through their lauds, &;c. by the 1st of Au- 
gustf 1817. That many of the perscms in whose behalf th/e 
plaintiffs sue, are unable to pay the sums assessed. That 
in making the assessments, tlte commissioners have, in se* 
veral instances, acted contrary to the net, and not made just 
and proportionate assessments. That the commissionera 
are required to make a map and an assessment list, and set 
down the lots and owners, &c. as to which several omissions 
Imd taken place. That part of the township of Bethel had 
been assessed as part of the town of Thomson. That on 
the 3d of September^ 181 S, the conunissioners gave notice 
of the assessment list ^ and that the sums assessed would be 


1819. due on the Ist of December^ lilS, (nceorcHii^ to the ritth 

^*^^^^ sectiofi of the net,) and In case of default die hmds #oiiM 

V. be 4old on the 14th of December^ at ffetcbuirgh. That ttie 

oakiTtifc plaintiflb, and others^ named, and* whose lands are asseftsedi 

^^^J^]^ bad bbt paid the sums assessed, tec. That they are advised 

•^■■■"■■^ that the assessnient is invalid, because it was dot made witl^• 

in the time to enable them to avail themselvH of tfa» priifi* 

leges in the second section bf the act, and that th^ assess* 

nent ought to have been made by the first day of Amgmi^ 

1817, &c. 

The plaintiHi j>f(xye^ for an injunction to restrain the^d^ 
ftndants from proceeding to compel the paymimt of the m» 
sessments, and from seiUng, &c. 

On the 10th of Decem6er, 1818, an injunction was griftiit- 
ed, restraining the defendants from' selling untH th^ Second 
Monday of January, to the end that the merits of the bHI 
inight, in the mean time, be discussed. 

JimuarylSfih. Betis^ for the defendants, now moved, before answer, ti6 
dissoUie the injnnction, for want of eqnSty in the bitU Wt 
coptended, tliat according to the just and reasonaMe eoa^ 
struction of the act, the words in the setond section, ^^Bm 
day of ^uguit nexiy^^ did not necessarily mean next after 
passing of the act. No time was limited by the act for 
making the assessment ; and from the difierent sections, it 
was evident that it was never supposed that the aasessmevts 
tiiyold be completed before the 1st of .iuguH, 1817. The 
third section requires six weeks notice of the assesMneiil 
list, which is to remain, for the inspection of all persona in* 
terested, four weeks, so that the assessment list mu^t be com- 
pleted by (he 1 5th of June, which would be altogether im* 
practicable. So, by the sixth section, it is requited that sit 
weeks notice, after tite assessments shall have been completed, 
and the maps and assessments filed, &c. should be given by 
(he treasurer of the company, of the thne (he assessments 
are due, and the place where they are to be puid. l*be 


Ad tmUOk Mctiotai, aka, Ibow ikaA dw ael is tiot i819. 
t6 k M lioc^y mod iMntnriy cMitmed a< to eonfioe the 
tMK to die Itl of Aigmi, 1817. (13 JbArn. JRgp. 497. 
2 Jftm. ilg». 475. 1 Crmek, S99. S Cnmdk^ 23. 62, ^^"^i"^ 
286. aw. jD»^. 30. 2lUu^l36.) T^mirmft 

The y t a ip tift do not allega that tbej have beeo mis- ' 

led iijr anjr oMtanirelMOUOD, or that ihey have ever applied 
toibe comauesiooers foe leave to make the road. They do 
iM «how any aclaaligrievaMe aofftred by them ; bat rely 
oil a tecbnieal construction of the act. If the cooMussiooees 
areiiel resttictod to apy pfeeise time, but have a disci^tion 
to«ab» the attesamtont after the lit of Angutt^ 1617, there 
it'ekearly no jnriedicdon in this court to interfere^ 

Van VMhkn^ and H. Ehedcer, €oatra« relied on the ease 
of BelJbiop V. BeUbuy, (2 JeAm. Ch. lUp. 463.) as esta- 
Uisbiog the jorisdiction of the coart in such a case as the 
present. There is no ade^aate remedy at law. The plaia- 
tift wKNddhe oondoded by a sale; and if they coald bring 
actfdna, there mast be a nwUpUcity of suits. If the plain- 
liA aire to be deprived of the privilege of making the road 
thmigh their ovni lands, it is manifestly a greiu grievance 

Tns CflAKOKiiE^oa. The persons assessed were entitled 
to make the road thfoagh their town, instead of paying the 
assessment, so that the same be commenced '' by the 1st of 
Ag[M ne^tt," and CMipleted m three years. The act 
meaatlognmta privilege for a pretty heavy harden, and it 
oaght not to be in the power of the company to dq)rive 
then of it, by dekQ^og the assessment until after the Itt of 
Jhgwi ensof ng the passing of the act. it appeared by the' 
btt Ani the assessment was not made until after the m 
^jhtgMtif 1B17 ; and taking the act together, and compar- 
itig one part with another, the true constraetion must be, 
imi the road was to be commenced by the Ist of August^ 


1819. next after the auessment made. Oo bo odier oowtftactioii i 
^-^^^1^^ can the privilege granted lo the pkintiA be preserved, md* 
V. the act kept in force. It must, ibeeefore, te d0eined:tlie ae^ 

UlstEB AMD J ^ 

Orahqs cessary and true construcUon. 
CoMp"" '^'^^ following decretal order was, tfaereupon, entered : 

• " Ii appearing to the court, from the discnssioos apon die 

bill only, that those persons mentioned therein, are jusdy; 
entided, according to the true intent and meaning of the act > 
in the said bill mendoned, in lien of payment of the sums at 
which they are respectively assessed, to make the road 
according to the provisions in the second section of the act, : 
by commencing the same by the first day of August nnct, 
(which means the first day of Ati^usty necct after theaueemmni . 
mode,) and completing the same within three years there- 
after, it is thereopoo ordered that die motion be denied, and 
the injunction continued until farther order," &c 

The defendants, afterwards, put in their onscosr, stating, 
that three commissioners were appointed under the act, on 
the 15th of Aprilj 1317, who reeeived immediale notice of 
their appointment. Two of the commissioners met on the 
ISch of Moff following, for the performance of their duty, 
but declined proceeding without the other commisstoner, 
Kiersted^ who was a swrveyoTy and well acquainted with the 
lands through which the road was to run. That Kiented. 
having been previously appointed a commissioner under 
another turnpike act, was engaged in the summer, and au- 
tumn of 1817, in the discharge of that trust, and though, 
repeatedly requested^ was unable to attend during that time, 
with the other two commissioners under this act, and who 
could not well execute their trusf without a competent sur- 
veyor. That the commissioners did not reoiew and fimUiji 
•etdt their assessment, until the 7thof«/ft^gfii^, 1818,buihad 
copipleted their oMseesment roU on the 8th of ^Ipril^ 1818, 
at which time, and on the 20tb of June^ 1818, they caused 
notice of the assessment list to be published according^ the 


act Thai on the iMi of /«iy last, the defendantB caused 1819. 
awtitltD mitice to be affizsd up along the whole extent of ^"^"^'^^^ 
tbe road^ giviiig nodoe to the ownera of lands assessed, that y. 
tfaey sboflid receive proposals for making sveh pwrts of the ^^^,01"^ 
said foflid as are not onder contract, nntil the 6th ot^ugust^ TcmrracB 
vfasn thr conmissioners wonM meet, for the purpose of re- , 

lowing tlKir assi^ssment : that tbe defendants have been, at 
all times liefore and after 4he- 1st of ^i^t»^, 1817, until they 
entered ittto contracts for making the road, ready to permit 
the pbtoaiffs and others to make the road within their lands, 
bc^aosovding'to the act That the pkiotiffis did not com- 
menoe working the road before the let of Aigusty 1817, nor 
aAarwards ; mnr did they, at any time, oSer or prt^se to 
make tbe road. That on the 4th of September last, the de- 
fendants entered into contracts with two persons for making 
part of the road; and on tbe 7th, 8th, and lOdiof Oetob^, . 
Aej' entered into other contracts with other persons, for 
makiiiff the other parts of tbe road, and that the persons 
widi #bom they have contracted were assessed, and have 
contracted to make the road through thar hmds, be. 

On tbe ground that tfaeonnoer denied all tbe equity of MarOiSiti. 
the 1^, Betis again moved lo^dissolve the injunction. 

Fa» VeAUn, and iL Bleeehct^ contra. 

ToB -CaAiiOBu.oak When tbe matioo was made in Jon- 
iNfry last, to dissolve the injunction, tbe answer of tbe de«» 
fendanta had not ccswin, and the conclusion from the staie>* 
meat ia the Mil was, that the defendants, by the postpone- 
ment of the assessments, hud been deprived of the o|>porto« 
rA$y of making the road through tbeir lands^ or town, ac* 
casdiog to the provision in the second section of the act. 
The hill c^irged, that the commissioners did not make the 
aisaMOiems until the 7thiof August, 1818, and that tlie delay 
had deprived the piainttftcof. the privilege of making Ae 



1819. rMd, ami that ibe der^ndMte wen fam^mMmg tm.enU tbeir 

"^^^^^ laodfl, for deflraU «f paymtpt of the 8«upft aiMiMd-ltoMoo^ 

T. The coottnictiMi pot upoo the ool by ibe bill W)i», thut tbe 

^aItob^'^ assessraenn were to be conpleted so a^ to beve fmblff4 tbr 

Coju^Avv!' pl^i>>^ff^ ^^^ i^ve coameocod oialu»g die rpad by tbe Ist 

■■ day of i^f^tif^, neoet afUw ih^p^mng ^th$> mt, w4 vbieb 

was, of course, tbe irst day of AvguMt IBUt «s tb# aioC 

passed on tbe Uth ^JprU^ 1&17. 

By tbe aoswer of tbe Presideat and Directpvs of the 
Turnpike Conpaoy, it appears thai tbe delay in naUsf tbe 
assessments, in 1817, was noavoidable, and was the apl of 
tbe comoiissionere, and not of tbe company. Tliat the asr 
sessmem roll was made and completed on the 8tb of J^^nl, 
1818, and notice thereof immediately given aecoidiiig la the 
requisitions of the act. That on the 10th of Ju/y, 1818, 
notice was affixed op, on tbe part of the company, at snitiiblf 
places, on t|ie whole extent of the road, giving inforeaMloa 
to the owners of lands assessed, that they would receive pre^ 
posals for making such parts of the road as were not uodcr^ 
contract That they have at all limes been ready* unlil 
the road was put out by contract, in September and Oeto^ 
ber, 1318, to permit the plaintiffs and others^ to make the 
road within their town, or through their lands, acconUng to 
the act. That no such offer or proposal was ever made to 
them. Indeed, the bill does not stale that the plaiiitifis 
ever intended or offered to make tbe road. 

It would be too strict a construction of tbe ant to hdd» Ihet 
if the assessment was not made and completed before the 
1st day of Atiguitj 1817, the whole oJ;j|ect of tim mii WMt 
be defeated and destroyed. The facu in this ^ase ^b^w lb»f 
it could not have been dooe by that day, though (h^ T^r^r 
pike Company were guilty of no laches. Some tiine wa# 
requisite to appoint, and notice, and assemble the eommisT 
sioners. An aecoraie survey and assessment upon 90 gteat 
a tract of new and uncultivated country, also le^nsd omh- 
siderable time. When tbe assessments were^ fn»d^ tb^ cpi^r 


\ wtre to gife fix irceks nodce id two pap^ of 1819; 
MridiOiiewiBtolyeioO^mig^coiiiitjr, and the other in tbe 
eh J e£Jfe»*Y^fk^ and the parties coacemed were to have 
•M awnfht to exanine the aesessmmts, aad to make obyeo* 
tioo8, if they conceived tlieinsehres aggriered. The eominis* 
tibneri were to review and correct the assessments, ifsuffieient 
caase was shown, and have the maps and Ksts filed, and 
tlien, and n€»t before, the assessment became a Uen on the 
lands assessed. 

Upon the constmctioo given to the act, by the coansd on 
the part o( the plaintiffs, they were not to begin to make 
die road until aH this was done ; and they contend that 
all this bosiness must have been done, and the lien on 
the lands created, before the 1st day of Augusty 1817. I 
tUnk tUs to unreasonable construction, for there was not 
sufficient time for the performance of so great a doty, and for 
the allowance of tbe six weeks, and of the one month there- 
after, and of the necessary intermediate times, between tbe 
passing of the act and the Ist of AvgusL We ought to 
adopt a construction that would enable the parties to carry 
the act into operation, with convenience and safety, and at 
the same time, secure to the plaintiffs their privilege of work- 
ing tbe road. This can be done by construing tlie words, 
" by the first day of August next," in the second section of 
the act, to mean the 1st day ofAngtuty next after the asiest^ 
ment skoB kave been made. That this is the true con« 
stroction of the act, appears not only from the reason and 
necessity of such a construction, in order to give the act 
due and just operation, but from the provision in the sixth 
section, declaring that the sums to be assessed should he* 
come due on the first day of December next ** afier the as- 
sessment hereby authorized shall have been completed." 
If the assessment was to be completed, at all events, by the 
1st of Augusty 1817, according to the construction given by 
the plaintiffs' counsel to the second section, the words above 

Vol. IV. ^ 


1819. quoted would foe useless and without meaning. Bat we tre 
to presume tfae lawgiver uses no words without use and 
meaning, and these words plainly imply that the assessment 
was not limited to the first ofAugwt next eAer the pasang 
of the act. 

' If this be the true constmction, die inquiry is, whether the 
plaintiffs have not had an opportunity to make the road, 
and whether they have not lost it, hy not commencing the 
same by the first day of AnguH^ next n^ier the oBiesimeni 
madck It appears, by the answer, that the assessment was 
made and completed by the 8th of April j 18f^, and notice 
thereof given. The tfefendants also gave notice on the lOdi 
etJuly following, tba4 they were ready to receive proposals 
for makjng part of the road. These notices, we mnst con* 
cludoi duly came to the knowledge of the piaiotifls, and yet 
they do not pretend that they ever made proposals, or even 
intended to work the road under the inspection of the com*- 
pany. The proposals on the part of those persons who 
wished to avail themselves of the privilege of the second 
section of the act, were to be made before the assessments 
were reviewed and finally settled, and filed, and bad become 
liens on the lands. I infer this from the provision in the 
second section, by which they were to be allowed in satis- 
faction of their assessment, at the rate of such a fium for 
each mile, as ike commimoners skotdd determine ; and the 
commissioners were fundi officiOf after the maps and lists 
were deposited* The plaintifis had not made any efibrt, nor 
taken a single step towards electing to make the road, or 
tcommeocing the same, even down to Septewber last, when 
the company began to enter into contracts willi difierent in- 
dividuals to make the road« 

It has been said, that though the assessments were made 
and completed on the Sth of Afril^ yet that they were not 
teviewed, and finally settled, until the 7th of Augustj 1818, 
and, therefore, the plaintifis have lo the 1st ofAvgustj ISIO, 
to commence their work. This would be a very uareasona* 


Ue CMStnictioii in tfab cage. The plaiiiti& had doe oppor- 1819. 
tonity before the Ist of Augu$t, to elect to work the road, 
and to object to the rate or amount of assessment They 
did neither ; and it is evident, from their own showing, that 
they did not intend to do it, for they neglected every mani- 
festation of such an intendon. They laid by sHentty, and 
sttfl^ered the' Ist of August to arrive, and contracts to be 
made by the company, in September and October following, 
for making the road, and even their lands to be advertised, 
in coBseqoence of their default, either to work or pay, be- 
fore they complain. It appears to me that they have no 
eqmty to support their complaint. Their objection to the 
proceedings w'ould seem, by the bill itself, to be the after 
criticism of counsel, and if admitted, would be oppressive 
upon the company, and defeat all the beneficial public par- 
poses for which the act of incoiporation was granted. 

injunction dissolved. 

Fanning against Dunham. 

f • ' 

Thougb an order maj be di8cbai|[ed by motion or petition, on proper 

grounds, yet the most regular course is to discuss tbe merits of tbe 
order upon a rehearing. 
"Wbere new facts are stated in a tuppiemental bill, a fresb injunc- 
tion may be awarded, though the former injunotion was disiol?ed on 
the merits. ' 

J. T. IRVD^Gy for the plauntiff, moved for leave to file April 2d, 
a supplemental 6tS, and for an injunction to stay the sale of 
mortgaged premises, founded on the matter therein contain- 
ed, or to set aside an order of the 7th of December^ 1813, 

CASES nr CHAHcmr. 

diisolvisg the ii^ction fouded on the origiMl UU, oil 
ttnnsy or for a rehearuig thereon. 

Henry f oontm. 

The Cbakccixob whs stronglj indioed to tUok iliet 
order of the 7th of December^ 1813, eironeooi ; !• Becasae 
it dissolved the injunction as to the Wiortgage anly^ whfMi 
that, and all the other securities held by the defendanti 
stood on the sawie fitting, aod involved the saxfffi equify i 
and, 8L Because it iaiposed on the plainliff as % oooditiPV 
of staying the dissolution, that he should bring int^ Cgpirt 
the money due on the mortgage, when tfie mortgage being 
given as a collateral security, widi other securities, for many 
complicated deaKngs^ the plaintiff could not weU ascertais 
the sum. But under the circumstances of the case, he 
said, that the more regular and advisable course would be 
•to discuss the merits of that order upon a rehearing, espe- 
cially as it was granted in the time of his predecessor, 
though, perhaps, such an order nUght be discharged upon 
motion or petition merely, {^ewland^s Pr. 68, 69.) 

But upon the new facts stated in the supplemental bill, he 
was of opinion, that a fresh injunction might be awarded, 
even though the former injunction had been dissolved upon 
the merits. {Traven v. Stafford^ 2 Ves. 19. Amb. 104. 
lAngham v. TouUj I Ami. 189.) 

Injunction granted. 



Van Bebgen againit Dim arkst h Thompsov. 

IVUiB » MMid iiiDitc«g»e wu pwMMdwg ta «eU the morlgsged 
jprefliMM iiii4er » ^aio^ ^ m^, oooUuied in the moitga«e» the 
Court, as the rights of an infant^ beir of the mortgagor, were con* 
cemed, and it appearing to be for the interest of all parties, ordered 
the sale to be stayed, and that it should be made under the direc- 
tion of a Master, associated with the mortgagee, on giring a further 
■otiiM frf* sale, fer ax weeks; aoi thai ne More #f the piMnisesahinkl. 
be aold thee wosld be soAoieiit to pay the emooiil dee on the 
BMV^g^ge, to be computed by the Master ; provided a sale of a part 
could be made without prejudice, 

TH£ bill of the plaintiS; who was of the age of five ji^rU im. 
years, filed by ber oezjt friendi stated that the mother of the 
pbinti^ in ber life time, bejog seized of real estate, at the 
nquett of J?., ber brother, who preleoded that her husband, 
at his deoease, was io4ebted to hiiD, executed a bond and 
moitgage to the defendant !>., with a power of sale, to se- 
cure the debt. That D. assigned the bond and mortgage 
to T., the other defendant, who was proceeding to sell the 
mortgaged premises, under the power. That the sum 
claimed to be doe on the mortgage, was about 1,000 dol- 
lars, and that the mortgaged premises were worth 5,000 
dollars. The bill prayed for an accoant, and an injunction 
to stay the sale, which was granted. 

The defendant !>., in his answer, stated, that the accounts 
were exhibit^ to tlie plaintiff's mother before she executed 
the bond and mortgage; that the debt was jusdy due from 
her tusbaod, and so admitted by ber ; that the balance due 
was 1,SO0 dollars, and the premises mortgaged were aot 
worth more than 3,000 dollars, and that there was a prior 
mortgage for 710 dollars. » 


Van Veekenf for the defendwrta, moved to diMoIve the 

Ostr^mdeTf contra. 

The Chancblllor comideved that the answer of the 
defendant Demarettj denied all the equity of the UUy but 
that it woald be proper and expedient, and for the interest 
of all parties, and especially as the rights of an infant plain- 
tiff were concerned, that the sale in this case, under the poller 
•contained in the mortgage, should be subject to some re- 
strictions. The counsel for the deiendaots consenting thereto, 
it was thereupon arderedj that it be referred to a Master to 
compute the amount due on the mortgage, and that upon the 
coming in of the report, the sale under the power be made 
under the direction of a Master, to be associated with the 
mortgagee for that purpose, and that a further six weeks no- 
tice of such sale be given ; and that no more of the pre- 
mises be sold than the Master shall deem sufficient, provided 
part of the premises can be sold separately, consistently widi 
the interest of all parties concerned ; and that the injuncdon 
be deemed to be modified conformably to this order. 

Order accordingly. 

Gkbbn and others against Slatter and others. 

A bill was filed, id Jtme^ 1809, against a irustte for an aecoutUi and 
also that he shoukl' convey to the plaintiff, the eesti^ que trtut^ ao 
much of the tniBt estate aa remained in his hands, &c., describing 
Uie same to be " divert landi in Catby^t JUanor^ in the patent of 
Springfield^ and certain tracts or parcels of land in Oritkany pa- 
rent;" and a wpj^imenkd bill was filed in OcMer, 1809, praying 


fB iajimotioft againit tb« trtMtoe fvondMpoBoir oC th« tniit proper- 1819. 
tji and that a rac CT Pcr be appointed, &c. In 1 808, preriens to filiiy 
the bills, the trustee, in his own individual name, sold and conveyed 
two lots of land in CotbyU Manor, to S., who gave to him a bond and 
taoTigi^ for the purchase money, without any knowledge of the —««»«_ 
tiHst. In June, 1811, S. paid off the bond and mortgage to H,^ to 
whom the trustee bed iM^^ftetf th« aMse, kkJT^i^lBii^ and Without 
any actual notioeof thepeBdeacyof tbdmil agaiiwi the trii»tee8,or 
that the lots so purohased by him were part of the trust estate: 
Held^ that S, was chaigeable with notice of the pendency of the 
suit, and of all the facts stated in the bills filed against the trustee ; 
and that the descripfien of the trust lands, though general, was suf- 
ficient to pot him on inquiry, and, therefore, good notice to him tliat 
tiw lots which be had eo pnrofaased, werepeit of the trait estate 
■MUtumed in the bills. 
Bat althpagh S,, as a debtor to the trust estate, was chargeable with 
such notice of the contents of the bills filed against the trustee ; 
yet, as the trustee, by any thing contained in those bills, was not 
deprived of the power of receiving payment from and discharging 
tibe debtors, 8. was no| aileoted by tiie biiiit andhad a viglit tftpay 
the uDonnt doe on the bond and mortgage, to the (m«tee» or to H., 
the assignee, and Isigal owner of them » no receioer having then 
been appointed. Nothing but notice in faxAy will, in such a case, 
prevent the debtor from paying the debt to the legal owner of the 

THE bill stated^ that in Juw^ 1809, the plaintifis filed Apra 2«Ak 
their InH against Joseph Winter^ wbtcb bill, among otber 
things, stated, that the defendant held in irmi^ for the plain- 
tiff, T. O., ^* divers lands in Cosby^s Manor," and in the pa- 
tent of Springfidd, and '* certain parts or parcels of land in 
the Oriskany patent." That the defendant, /• ^., bad pro- 
ceeded to sell ^^ various parts and parcels of the land lying 
in CoAy^s Manor,** &c. That he had in his hands contracts 
for lands sold ; and had in bis possession bonds and mort- 
gages belonging to the trnst estate, &c. That the bill pray* 
ed for a fair account, &;c. of the trust estate ; that so much 
of the trost estate as bad not been sold, might be conveyed 
to the plaintiff T. 6. ; and that a receiver might be appoint- 
ed to dbpose of the trust estate, tec* Tbirt a tuppkmmUal 


IBIO. bill hetmem the smae pardes, Aed O«ioi«r 14*, 1800^ after 
stating the facts set forth in the Mginal bill, charged the 
defendant, /• JV.^ with a fraudulent breach of his trust, in the 
sale and purchase of the Omiony, ttc. That the plaintiff, 
T. 6*, was apprehensive that he night sell other parts of 
the trust estate, and assign the seemi^s held bj him in 
trust, unless restrained by an lojiinetioD. That lot No. 50, 
in Cosby^j Manor, belonged to the trust estate, and that the 
defendant, /. fT,, meditated purchasing it, under an execu- 
tion issued at bis instance, be. That the plaintiffs prayed, 
that an injunction be issued, enjoining the defeadant, /• )^., 
from selling or disposing of any of the lands and securities 
held by him in trust, and he be deemed to account, and that 
he be removed as a trustee, and a receiver be appointed ; 
that an injunction was accordingly issued* That snumend^ 
td tugphmaOary biU was filed the 31st of /mmry, 1810, 
oootaifl&iig sottie addidoind charges against the defendant, 
J« W.f praying an injunction (or an account, and that a re- 
ceiver be appointed, 8ic. {Vide S. C. vol. I. p. 26—44.) 

The bill in this suit further stated, that, in 1814, a de« 
cree was obtained in the suit above-mentioned, that /. fF. 
should be removed from bis trust« and the trust, estates, with 
the securities, be* should be conveyed and assigded to the 
plaintiffs, Henry G. aad Abry <?., to be by them hAd for 
Teug^wee O., be. That this decree has been carried into 
effect, and^ except as to the amount decreed to be due from 
/« W. to T. G^ exceeding 30,000 dollars, for moneys re* 
ceived by Wm, as tirustee, and which he has not paid over, 
and represented himself as ins<rfvent. That before die 3d of 
JVbaeinjper, 1810, J. IF., pretending to act as trustee, sold to 
JDai^id SZayler, the defendant, small lots, No. 16 and No. 21, 
in Coshy^s Manor, for 1,500 dollars, etecuted a deed, dated 
^prU 18, 1808, and received a mortgage to secure the sum 
of 1,130 ddlars, paynAle in four andual instalments, with 
interest. That J. W.^ frauduleDdy to appropriate the trust 
funds, on theSd ef Aovemiier, 1810, sold and assigned the 


mortgage, for 600 dollars, to the defendant, Hunt^ who, as l8ia 
well as the defendant, 5., had notice of the claims of T. 6. to 
the lands, and of the trust, and that J. W. had violated the 
sane, and that T. G. had instituted the suit above mentioned 
against him. That the other defendants pretended some 
claim of interest in the mortgaged premises derived under the 
title of 5. or his lessors ; but that their interests, if any, were 
acquired with knowledge of the trust, kc. Prayer^ that the 
defendant, &, may be decreed to pay to the plaintiffs the 
money due on the mortgage, in Jtftie, 1809, with in- 

The defendant, 5.,^ in his answer, denied all knowledge 
of the trust in /. ^•, until J^Tovember^ ISU, before which 
time he had made full payment of the purchase money, 
and paid off the mortgage ; that the money was paid at dif- 
ferent times, the last payment being io Jwie, 1811; that 
until JVoMNifter, 1811, be understood and believed that /• 
fV» bad purchased the premises, and heU the same in Uft 
own right, &c. 

That until AVwetn&er, 1811, he never heard of a suit ia 
chancery, or injunction against /• ^•, in behalf of 71 fif« ; 
that he has been informed by counsel, and believes, that 
from -the examination of the bill filed in that suit, it does not 
appear that the premises were a part of the trust estate, or 
that any complaint was made in relation to the premises, or 
any relief prayed as to them, or any complaint made of any 
abuse or misapplication of any bond or mortgage, &£., takea 
by J. W. for any of the trust estate sold by Urn, &e€. Nor 
is there, in the biU, any prayer for relief, or for any; injunc- 
tion against the sale, coUectioa, or assessment of any bonds 
or mortgages, but the whole scope and purpose of the bill is 
to prevent any further alienation of the real estate; and that 
J. W. might be decreed to account and to convey such of 
the landi as had not been sold, upon bis receiving the ba- 
lance, if any, due to him« That the defendant,. S. contract* 

Vol. IV. e , 


1819. «di with J. W. in S^fkmb&r, 1807, for tbe jiifws^. Tjbfl« 
Mie deed, daled Wlprtf 18, 1808, was jexecoted by /. W.^ in 
tus priv«|e oapacity, jtod contaiiied fnli C9veii«|its of w«r* 
faoty* Thai be paid the two firat inatabneots qq the aiATtr 
gage, before 4fae 18tb iAAprSL^ 1809; tbat he paid the eeii* 
doe to Umd^ (to whooci /. W. had assigned the bond and 
BMMrtgage,) on the 21st of Jboie, 1811, when the same weae 
cancelled. Tbat be believes 4hat die said sam of 1,34^ dol« 
Ian was allowed 4o 7. £f., in 4he report of the referees, 
against #^6r. 

6oU, for the plaiatiffs. 

£. aorjk, for t^e defoadanis. 

The CHikACELLOR. The qaastian is, whether the de^ 
fondant, iSbyter, be chatgeable with notice 4>f the bill, and 
supplementary bill, fled ki 1800, by Ttrnferuinu Qrtm ami 
olAers agamst Joseph Winter, and of the deeds referred to 
in those bills $ and whether socfa notice, if any, rendered 
any payments made by him after tiiat time, upon tfae bond 
and mortgage which be gave to Wimikr in 1808, void as 
against the plaintiis. 

There are two ol^ections made to the application of the 
doctrine of the Uspeniem to this case. 

1. That it does not appear by those bills, in 1809, whe- 
ther the lands sold to the defendant, and for which he gave 
his- bond and mortgage, were part of the property held by 
Winter in trust. 

2. Nor does it appear, that it was any part of the object 
or subject-matter of the suit, to obstruct or divert die pay- 
ment of that bond. 

1. The defendant has denied notice in fact of the suit in 
1809, or that Winter acted as a trustee, or held, as trustee, 
the lands which he sold to him. He says, that the first ac- 
tual notice which be had of the trust, or of the snit, was 


after the payment and satisfaction of the bond and* mort^ idlO* 
gage whkb he geive to Winter. If he made any payment^ 
in his own wrong, subsequent to the suit of 1800, it must be 
in consequence of notice inlaw, atfsing from the &ct of die 
iiiDg of the bills in that suit Parties have, in several in« 
stances, been made chargeable in this Court with nodee of 
die iastitotion of that very suit, and with all thecoma* 
quenees of such notice. Thus, in* the case of Mwray v. 
BaOoUf (1 Johns. ChJItep. 566.) it appeared, that Winter 
had sold laddv held by him in trust, to the defendant^ in 1810, 
and the defendant was held chargeable with constructive 
notice of the suit in 1809, by Ten^enmce Ghreen against Win^ 
ler, for a breach of trust, and to be responsible to the cestui 
que trust for the land or its value. ' The object of the bill 
in 1B09, was to recall out of the hands of Winter^ the lands 
then held in trust and unsold ; and under the supplementary 
bill he was enjoined from seillag any more of those lands* 
It was assumed, in that case, as a conceded fiu:t, that the 
land* sold' to Ballau were part of the property held by 
Winter in trust, and that those lands fiMrmed part of the 
snbjecrt matter of the bill. On this point, there was no ques* 
don raised or doubt suggested, and the decision rested on 
broad and plain grounds of law and fact So, in Mmrraf 
V. Ftfifter, (2 Jokns. Ch. Aep. 15&.) the sale by Wisster to 
the defendant was after the filing ci the biH in 1809,' and 
the payment by the defendant to Winter^ wa^ after notice in 
ftcC of the suit. This was a case of responsibility, fooikl* 
edon the doctrine of the lis pendens, which was clear of all 
^flkult}'. The same thing may be said of the case of 
Hsadeif V. Finsier, (2 Johns. Ch. Rep. 158.) In Mtrray 
V. Lj^bum, (2 Johns. Ch: Aep. 441.) the land was sold by 
Winter, in 1810, to Spre^ue, and the bond and mortgi^i 
which were taken for the purchase money, were afterwards 
assigned by- Winter to LyJImm. Here the doctrine was 
applied not merely to the purchase of the land, but to the 
puitbaser of the securities taken upon such sale, and the 


1819. ce$Hd que tfiut bad bis election given bim to take either. 
The suit of 1809, by the supplementary billi made all the 
securities arising from, or relating tOi the trusti one of the 
subject matters in litigatiooi and Winter was enjoined not 
only from selling any more of the trust estate, but from sell- 
ing or assigning any of the securities held in trust. 

In none of tho^e suits was it ever suggested, that the lands 
thereby affected did not appear, by the bills of 1809, to be 
trust property, or part of the matter in controversy. As 
the land in these cases was known and admitted to be trust 
property, and within the intention of the suit of 1809, the 
original bilb were never made a subject of criticism, with a 
view to question or disturb that matter of fact. But the 
counsel have now raised a point not raised or discussed in 
the former suits ; and it is contended, that it does not appear 
by the original bill in 1809, or the supplementary, or 
amended supplementary bill, that the lots sold by Winter 
in . 1808, to the defendant Slayier^ or the bond and mort- 
gage taken for the purdiase money, were trust property, or 
any part of the subject matter of that suit. The defendant 
says in his answer, that when he purchased of Winter, he 
supposed be purchased of him in his own right. The pur- 
chase being prior to the suit of 1809, cannot be affected by 
it; nor do the ^ plaintiffs question the payments which were 
made by the defendant to Winter himself, prior to the suit 
of 1809. There is no colour of equity to question either 
the sale or those payments. The object of this suit, is only 
to recover so much of the purchase money as the defendant 
paid to Winter^s assignee, q^er the commencement of the 
suit in 1809. 

The lands sold to the defendant, were lots 16 and 31, in 
the sttbdivisiou of great lots No. 83, 84, and 85, in CosbyU 
Manor, and the bill . of 1809 alludes, or refers, to several 
tracts of land in difiierent places and counties, apd among 
other parcels, it mentions " divers lands in CoubyU Afamor," 
which had beea purchased by fVUtiam Gr^en, and mortga- 


ged to Heady, and that the mortgage was registered in the 1819. 
coooties where the lands lay. The biU then states, that all 
tiiose lands were conveyed by Qreen to fVinier, io tmsl, 
and that Winter had proceeded to sell '^ varioas parts and 
parcels of the land lying in Cosby's Manor,^' as well as 
lands lying elsewhere. The sopplemeatary bill goes fortbefi 
aod mentions lot No. 50 in Coiby's Manor as belonging tn 
the trust estate ; and this is all the specification of the tmst 
lands in CatbyU Manor given by the bill. If we examine 
the registry of the mortgage given to HeaUy^ and which re* 
gistry was referred to in the bill, we find that it only mentions 
** certain tracts, parcels, or lots of land in Coiby^s Manor 
containing 7,200 acres f and it refers, for the particular de- 
scription and bonndaries of that land, to a deed from the 
execQtors of John M. Scott, of the 25th of December, 179flL 
This mortgage left the lands intended in as much aocer- 
tainty as they were left by the biU, and the question recurs, 
whether -by a bill so |;eneral in its reference to the lands in 
trust, the defendant ought to be charged with notice, at the 
tiflOM he paid off the bond and mortgage, that the lots he 
bought of Winter were part of the lands in CoAy^s Manor 
held in trust by Winter. 

The argument in favour of the defendant is, that the doc- 
trine of notice arising from the filing of the bill, is sufficient- 
^ severe, and it is reasonable that a plaintiff who means to 
affect all persons with notice of the subject matter in con- 
troversy, and to prevent them from intermeddling with his 
right, should be obliged to state that subject or right with 
a certainty and precision not to be mistaken. That in this ' 
case the absolute certainty required and pointed out by the 
references in the bill, was to be found only in private con- 
veyances not averred to be upon record, and to which a 
stranger had no legal right to demand access. On the 
other hand, it may be observed that when the defendant dis- 
charged his bond and mortgage in the hands of Wimtex^M 
^gQeCf be was told by the bill, that ^^ divers lands in 



1819. Cb$hy'9 manor/' w«re h«M in ti«i8t by VIK/iUer, sod ifrtiich 
Had lMBeii<pQroba8ed \ff bim of fifreen; and that he had be^etr 
Tr" Mlling *^v«4oas parti and parcels of those Itods.'*' It' iir 
flrue that there might have been- ^* differs land» id' Cosfty's* ma** 
norv" held iii' trust by Winter, and yet' the lots' he sold to'the 
d^ftndant have been held by bim in his own absohHe rigUt. 
Blit dioogh this wa« a possible, it was an improbable fact; 
and^if ever a 'bill contained a sufficient matter tb bave^pnt a* 
^mety upon inquiiy, tbe bill, in 1809, answered that perpotwv 
The doctrine of the lis'penient i& indispensable to right and' 
justice, in the cases and under the limitations in which it hM 
beeti applied ; and, according to the observation of Liol^ 
Chancellor Jthnnerw^ we must not suffer the rule to befritt^'^ 
ed away By exceptions. Was it too much to have required 
of a purchaser charged with notice of all the facts intlie^ 
bill of tS09, to have called upon Winter to disclose the 
source of his title? The general rule of this court is, that 
what is sufficient to put the party upon inquiry, is good no- 
tice in equity. (Lord Hardwicke^ in Smith v. Low^ 1 ^ik. 
489.) The least inquiry, even of Winter Himself, would 
have satisfied' the purchaser, that the lot^ he purchased weref 
parcel of the trust lands mentioned in the bill. That such 
was' the fact, is admitted by the answer ; and the retfl objec- 
tion of the party is not to the application of the rule to this 
particular case, but to the justice and equity of the' rule 
itself. li is, therefbre, entirely inadmissible. 

2. Bhtadmitting thed^iftfudant to be charged; at<tbetime 
he paid tbe bond, with notice, as a debtor to the trust estate, 
of the contents of the original and ' supplementary, bills^ the* 
next question is, did that notice create any just obstacle to^ 
bis payment of the bond.^ The object of the original bill 
was to compel Winter- to accounftj and to recall out of' his 
h«nds the trust lauds remaining unsold. The supplementlt-- 
ry bill went further, and prayed that Winter might be re- 
strained from assigning the securities held in trust, and'thttt* 
they aright be delivered up to the receiver who should- be 


arfopot^ If 4ie p^jfnaffnt of 4be ^kmuI to HuUt 4be af- 181& 
slgnee, was made ky 4|ie .de&odaiit, io bk own wroogi k 
mast haire beeu in coasefaeoce of tbe notice contaioed ia 
this fiiipplemealaigrUtt; l»iil it appears to me tbat tbe4k* 
feadaoi mm^ not affected by either of these biUs. Thoii^ 
^tii^er wasjwohibited Aom tmgmag ihe seoorities, be was 
aety amil tbe fappoaotmoalof a peceiyei^preliibited from col* 
ketftagtbedebUaod seats doe tbe iritftt estate; ai>d great in- 
eottveoienae aad ouacbief aMgbit ensue, from denying bim 
that power, by mej« infereaoe from ibe biU, and before tbe 
SfipoiDtPieot ^a receiver. I am not for carrying tbe doc- 
trine of the Us pendera to the kogtb of not only raising a 
notice fay coostmctioa snfficient to change a party, bat of 
also extending the objects of the bUl by constroctioni in 
order to support the notice. The validity of the sale, or of 
the payments to Winter^ in this case, was not a point raised 
by the bill for litigation, and tbe case does not fall within 
the reason and equity of the rule. His inability to receive 
payment, and discharge the debtor, must have been the con- 
sequence of some subsequent and direct act of the court, or 
of the appointment of a receiver duly made known to the 
dd)tor8. Nothing of this kind appears in tbe case, and tbe 
defendant was not, therefore, tn the mean time, deprived of 
his right to pay to the legal owner of the bond. 

If a payment to Winter would have been good, when no- 
thmg more existed to prevent it than the filing of these bills, 
a payment to his order or assignee, most have been equally 
so. The debtor bad nothing to do with the breach of the 
injaQctioa by fVinierf by the assignment of his bond and 
mortgage to Hunt^ nor with the effect of the suit upon the 
right of Hunt to take such an assignment. The latter might 
be responsible to the plaintiffs for the money so received, 
and yet the payment on the part of the defendant be good ; 
because the constructive notice, arising upon the sopfde- 
nMDtary bill, was addressed to tbe assignee, not to the 
dfbtor. If the mle was extended further, the debtors would 


1819. be deprived of the oppottnnity of disehargiag tlieir debts, 
Biid reiieviag themselves and the land from that incum-^ 
brance. There would be no person to whom they could 
pay. When a receiver was appointed, then the powers of 
the trustee were completely suspended ; and when notice of 
that appointment was duly given, tlien any subsequent pay- 
ment by the debtor to the trustee would be at his peril ; but 
until that event, the debtor had a right to resort to the legal 
owner of bis bond, and discharge it The debtor, in a case 
like this, ought to have bad notice in fact. 

I am, accordingly, of opinion, that the plaintiffs have no 
right, in equity, to compel the defendant, Slayter^ to the re- 
payment of any part of the bond, and that the UU, as to hiniy 
be dismissed, with costs. 

Bill dismissed. 

LiviKGSTOK against Ogden and Gibbons. 

By the declaration of the statute, passed April 6th, 1806, (1 JV*. R, 
L, 23a. sess. 31. c. 185.) as well as by immemorial usage, the 
whole of the Hudmm rirer, aoatbvard of the Dorthein boundary ol 
the city of JVew-York^ and the whole of the ba^ between SUUen 
Island and Long or Jfcusau-Island^ are within the jurisdiction of this 
state : Therefore, where the leg^islature had granied to L. and F, the 
exdusire privilege of navigating ateam boatty '* in all creeks, rivers, 
hays, and waters whatsoever, within the territory or jurisdiction of 
this state,*' all the waten l^fing beliween Siaten-Itland and P<noU$ 
Mook oimI (he Jersey shore^ were held to be within the jurisdiction 
of the state, either as part of the Hudson river or the bay ; and an 
injunction was issued to restrain persons from navigating Chose 
waters with ateam boats ^ in violation of such exclusive privilege 
granted to L, and F. 

May 3d. THE bill Stated, that the legidature, by an act of the 

^th of Marehj 1796, granted an exclusive privilege to i^ 


A* IMngtmrit of mmfi sicwboali ^ u aH ciwks, lifers^ 1819. 

tttyt, and vatersi vrhaKoever, witUs tbe icrrkory or)oris«* 

diciioo of dM Mle,^' for fooKeeft yMirs, &c. Tbftt by tbe 

a€t of Uie fith of 4tpri{« 1903, the privilege w«f gmated to , 

A. /i. Limfigiiau and iio&er^ F«ibMi, for twcniy yean. 

Tbat itiey caiiipliad with die termi spoa which that privi- 

1«^ was giiaQUd. Thai by an act of the Och of MprU, 1800, 

tbe privilege was extended for thirty yean, and itaa€ if any 

person violated tbat privilege, by navigliting any steam 

boat, wkbout their Kceose, ^ opoD the waters of this state, 

or within tbe jurisdiction thereof," they should forfeit such 

boat. Tbat by an act pf tbe 9tb of ^frUj 1811, iojenctions 

were to be awarded to protect the privilege, lie. That on 

tbe 20tb of AiguMi^ 1808, LMngsUm and fUlM, by deed, 

granted to tbe plaintiff the right they possessed to navigate 

s\e9m boats^ ^^ from any place within the eiiy cfJftw^Tork 

lying to the aeuih of the State Prison, to the ismy sjlore 

at^ Statm Jslandf vis. S/atm hUmd^ EKz^AeihUKm P^mi, 

Afnbay, aod the Rariimi sp to finmsiradk, bat to no point 

or p)«ce norik ^ PotOes Hook ferry:' That on the Ml of 

M^^ 1815, the. plaintiff granted to the defendant Ogien. 

p^oiissioo to mn a steam boat bektem EligabiAiown Pomi 

onsi JWk^ Fori, for tea years-, and tbe deA^deot <^dm 

agiced thai he woidd not, directly or indirectly, be concern^ 

ed, dnring the term, with any steam boat, to run to or from 

any other place within the grant of the plaintiff. That the 

dffopdatit Oibbom is the owner of a steam boat, called 

tbe BdUma, aod without license^ and contrary to the i ght 

of tbe plaintiff, ero{doys it to ron is<isee» Eiixobeihimm^ 

Pwmt B9^ i{€9i9-Bmmokk$ and bae lately navigated tho 

waters of this stati^ between EUauMhUnm Point and 

Potol^ Uotokf and between Fotslef Hook and Jfeao^York. 

Tbat the defendant O. bath combioed with the defeodeal 

6. 10 iViolate the right of the phtindff. Tbat the defendant 

Q«.is the omner of a steam boat ealied the Atalam^^ and 

tb^.twodefe•)dnl|tsJhave agreed to employ diese two- faMts- 

Vol. IV. 7 


1819. 10 cooveying passengers between New^York tmd BnuM-- 
wickf to wit, the Atalanta navigating between ^euhTork and 
EiycabeAtQum Pointy and the Bellona between that place and 
Brunnoick; and that the defendanu have agreed to exchange 
passengers at EUzabethtoum Pointy and have appointed one 
William B. Jaques^ their common agent i^JVet^- Fori, to 
receive the passage money for the whole route, and he has 
given notice of such an arrangement. Prayer for ah in- 
jiinction, to restrain the defendants from navigating the said 
two boats, except from JVew-Tork to Eliaabethiown Point 

The answer of Aaron Ogden sts^ted, that ilie ports and 
harbours of ElizcAethtoim Paint and Brumwick^ are within- 
the jurisdiction of New-Jersey. That the waters lying be- 
tween those points are equally so ; and he denied that such 
navigation is in contravention of any law of New^York. 
That the grant to Ldpingston and Fulton was only as to 
waters exdusivdy within the state of JSTew-York, That 
neither the grant to them, nor to the plaintiff, ever gave any 
exclusive right to navigate steam boats between one port in - 
JSTeuhJeraey and another port in AeuK/erfey. He denied all 
agreement and combination with the defendant Cf., or thai 
Ja9t4ef is his agent, or the joint agent of him and the de^ 
fendant 6. The defendant admitted, that ^passengers are 
conveyed on board his boat, when running in her usual 
course from J^ew-York to ElizabetAtoum Pointy and are 
then and there received on board the BdlonUj and conveyed 
to JVeto Brunswick; but he denied that this was any viola- 
tion of bis agreement with the plaintiff. That he had no 
concern with, or interest in, the boat of the defendant G. 

The defendant, Gibbons^ in bis answer, admitted the sta- 
tales, and the derivative right of the plaintiff, but denied 
thai be itcqiured any exclusive right to navigate by steam 
boau to the Jer$^ shore^ at Powles Hook^ EUzabethtoum^ 
Amboy^ kc He admitted, that the plaintiff runs a steam 
boat, called the OUve Branchy from J^^UhYork to Bruns- 


tPfct, bat denied tfant the plaintiff has any exclusive right so 1810. 
to do. He admitted, that he owned a steam boat called the 
BeUonOy and that she runs between Brunsudek and Elizas 
he/hiown Pointy and that she has occasionally been continued 
to Pawles Hookf and returned again, withont navigating 
«ny waters eocdumely within the state of Aetcr-ForA^ That 
the boat runs from one port in New- Jersey to another port 
in New-Jersey. That he has a coasting license under the 
United States. That on the llth day oi Aprily iost his 
boat ran ones from Pinnies Hook to the city of New-York^ 
vnder a license from the Jersey steam boat company, since 
expired, and that the boat has not run on the exclusive 
wafers of New-York on any other occasion. He denied 
all agreement or combination with the defendant Ogden^ or 
that Jaques is their common- agent or the agent of this de» 
fendant) to collect money from passengers, inc. He denied 
that the notioiw^ ever published by his authority. 

A motion was made In behalf of the plaintiff, for an in^ 
junction to restrain the defendants from using their steam 
boats, &c* 

T. Sedgmdcy and H. Bleecker^ for the plaintifil 

J. V. Henry^ for the defendant Ogden. 

Scndder^ (of New- Jersey ,) for the defendant Gibbons. 

The Chancellor. This case brings up the question of 
territorial jurisdiction. 

By the act of the legislature of this state, passed the 6tb 
of April J 1308, entitled/ ** an act relative to the jurisdiction 
of this state, over the territory therein mentioned,'' the ju- 
risdiction of this state is declared and asserted over ^ the 
whole of the river Hudson^ southward of tlie northern 
boundary of the city of New-York^ and the whole of the 
bay between Staten Island and Long or Nassau Island.^* 


181& All tbe wgter that Het Miireeii Statw hland^ mod P^mki 
Hook^ md tb€ Jart cy shorei woald Mem to be cofliprdienA- 
€d in the above limits, as being either a part of Huit0n 
river, or or the bay. It beloogg either to the one or' tbe 
other, and to far, therefore, at the iteam boat BdUma hafe 
navigated between Staien UUmd and P&wlet Hook^ she has 
navigated upon tbe waters -wMm ibe jurisdictbn of this 
state, and in violation o( the exclasive right granted to 
lAvingston and JFW^on, and by them, in respect to those 
waters, to the plaintiff. The act referred lo, declares it t# 
be ** tbe duty of «U officers, according to tlieir respective 
powers, authorities, and functions, to preserve, maintain^ 
and defend the jorisdicdon of this state, in and over the said 
territory, until this state shall be evicted thereof by due 
course of law.^' But the exclusive jurisdiction of this stale 
does not appear to be asserted and declared to the water 
of the sound that lies between StaUn Lland apd tbe state of 
A*ettHjerfey. And 1 do not think that I aos warranted, and it 
certainly is not my inclination, to extend tbe exclusive pre 
vilege of navigating boats by steam, granted by tbe Iegisl»* 
ture of this state, beyond the injunctions of the law, or so 
far as to interdict the defendant Oibbam from navigating a 
steam boat through that sound, between EUzabethioum Point 
and Ambay. But as to the waters between Powles H»ok 
and Staten Island^ and which are clearly a part of the 
waters of Hud$an river, or of the bay otJVew-York^ the ju- 
risdiction of the state must be as entire and perfect as to 
any part of the waters on Hudion river. The jurisdiction 
must be absolute and exclusive, if any jurisdiction exists ; 
and the declaration of the statute, as well as immemorial 
usage, have left no discretion in our Courts on that point. 

I shall, therefore, deny the motion as against the defend* 
ant Ogdeiij who navigates his boat under authority from 
the plaintiff, and who does not appe^, in any instance, lo. 
have exceeded that authority ; and I shall grtwii the motion 
as against the defendant Oibbons^ so far only as to eajoia 

CASEi nr CHikNCEltf. S3 

hhD (Mm fitvigattng Uie itHett in the bay of JO»-Tor% i^ll 

or aOaiti river, t»rtv*iMD SkiUn tJUmd vtA Pouht Bbok. 

(Me, ucordiDgly. 'i^S" w! 



YkttcK 4^ai$Ui TftB Mator, AL]>CBiit:ii, Md ComiON- 
Ai/rr o( the Cm aF Nc«r*Yo]iK.. 

Whtite Ite fMMid; aad thoM utidBt irhom W dftims, bate be«ii in the 
quiet tui ttimiteirupM pMMMloe oC% lot oflAud* for twehijf'JU^ 
y$t»^t end upwards^ the CoffwraHflfi ^ IM €% ^ ^eW'Terk 
caoDOt, ander pretenoe thai the buiUingi or fenoo oo toch Jot, 
iteiid ckT eocroach oo a part of the public street or bighiraj, enter 
updD, or dittorb the plaintiff In 'the enjojrroent thereof t and aa ta- 
jufution Iwoed to reicraia the Corp^rdtian froia entering upon, 
digging ,lftro«riogdoiro, of dettrOjing, the groOod so poMOftaed by the 
ptuattfT) wti ooatiatiedi and anade perpetual^ or antit the Corpmitkm 
•hooKd have eMabliihod» bj dae ceorM of la#, their Hghi ta the 
gfoond in question. 

Such an iojuoctioo, howerer, does not interfere with anjr right which 
the defendants may hare to dig down the public street, close to the 
line poesessed bj the plttiattfl; though such digging miy, by necessa- 
ry eeaee^neMO» oaosethesollefthetdaiatlff to/kllinlotheetoa- 

THE bill Slated • ftgular sebin and posses^oR^ by tii« lime i9fA. 
pkiDtifi; and iboae wder wbom he <ihtiine4, to thp pre* 
niaeedttcribei^ and dtotied in tbe e^hih ward of the eUy 
otM'ew-Yinif and that the same had bero iiuA^nd md im* 
proved by kirn and tkem^ Vfitk buSding$^ %^ f^r npwards df 
tweniff-JUfe yean Icut poiU That among other improve- 
itaii, a MHiei And boald fenca, and gmfca4R>aMv bad^ for 
that length of time, been erected on the northerly side of 
tbe premises, and adjoining to St, David-street. That the 


1819. part of St David^itreel opposite the premises had never 

^^*^^*^^ beeo conveyed to the defendants, but the soil and freehold 

V. were in the original owner, and his heirs and assigns. That 

m^VoRi^ the defendants had recently commenced digging out that 

^ part of St David'Sireetj opposite the northerly end of the 

premises, and have extended the digging into the plaintifl^s 
premises, and threaten to continue it, for ten feet, into the 
ground of the plaintiff, which will destroy the stable and 
g^reen house, and fence, and land marks, &c. Prayer 
for a perpetual injunction, and an accooot of the damages 

The corporation, by their answer, insisted (hat St David-- 
street belonged to the people of the state, or to the corpora* 
don, and admitted the possession of the plaiotifi^ for some 
jrears past, and that his buildings and fences, on the north^«ast 
end of his block of land, were, as they allege, on the street, 
from two feet eight inches, to ten feet six inches. They de- 
nied that any possession will give the plaintiff a right against 
the people, or the defendants having a right to regulate 
and use the streets. The defendants did not allege any ex- 
press cession of the street to them, but insisted that certain 
acu of the former proprietors, in laying out the streets, 
amounted to a cession of them, in law, to the people, and 
through them, to the corporation. The defendants denied 
that they had dug within the inclosore of the plaintiff, but 
avowed their intention to pursue the regulation of an ordi- 
nance of July, 1807, in respect to Bleecker (formerly St. 
DaM) street^ and to dig *\wit the street opposite the inclo- 
fliire of the plaintiff; and t|||ft they believed it would sub- 
vert the stable, green-hoase, and fence of the plaintIC 
They insisted diat the plaintiff had encroached on St. Da* 
M-iireet^ as originally laid out. 

JuM IM. The cause wag brougbi to a faeariag on the pleadings and 


T.Jl.Emm^, Welby mi Riggs^ for the plvLiu^iL 1819. 

0. Edwardiy and P. jf. Jay^ for the defendants. v. 


or N. York. 

The Ch i^NOEUuoR. It appears to be admitted as a fact, 
that tbe plaintiff, and those under whom he claims, have had 
amuterrupied possession of ihe premises, claiming them as 
their own, up to the eitent of their possession north, fof up« 
wards of ^6 years, before the filing of the bill ; and that the 
liable, fence, &c., were, during all that period of time, stand- 
ing on the line on St. David^itreet^ U\. which he claims. 
After such a length of time, it is right and just that the plain- 
tiff should be protected in the enjoyment of bis property, 
and that be should not be disturbed by any act or entry of 
the corporation of the city, under the pretence or allegation 
that the fence and buildings stand or encroach on part of 
the pubUc highway. The defendants must first acquire 
possession of the ground in dispute, not by forcible entry^ 
bat by the regular process of law, before they can be per- 
mitted to use it as a street. The injunction which was grant- 
ed upon the filing of the bill, went no further than to re- 
strain the defendants from entering upon, and digging, and 
throwing down, and destroying, the land so possessed by ihe 
jiaintiff. The injunction was not intended to interfere with 
the defendants in digging down the street close up to the 
line possessed by the plaintifi^ though such digging might, 
by necessary consequence, cause the soil of the plaintiff, con- 
sisting of sand and gravel, to fall in upon the excavated 
8treet.(a) Whatever might be the righu of the parties, 

(a; In PmUon v. Holland, 07 Johns. Rep. 92.) the Supreme Coart 
^ided that a penoo about to erect a bouae contiguous to another, 
may latrfoJly ^ok tbe foundatioQ of it below that of his neighbour's 
koose, and is not liable for the damage which his neighbour may sas- 
Uu, in coQse^oenoe of it, prorided it was nninteniional, and he had 
ued rBasooable care and diligence in digging on his own ground, to 
prsTsat any injury to his neighbour. In Thurston f* Hancock^ 

5^ CAfi¥9 W CH^qBUV. 

181t^. growing out of sack a fact, H wi|f npt t|ip j^w^pMc of 0ie 

^^^'^^^^ injunction to interfere with such « case. The principle 

V. upon which the iqjunctipn, so fi^o4ifie4, Ulo be .uph)» 

^*lfVo^»x' that aAera claim of right, accompanied firith actual and 

■ constant pqs^essioni for twenty-five years, and upwardsi llle 

cforptoration ofliew^York cannot be permitted, witboaldiie 

process of law, to enter upon the pos^e8aon of the pbiotifi^ 

and puU down buildiogs, fences^ be under th^ sight ta 

r%vl(Mi^ highways. 

The ii^uoctioa inast be cootioiied aad oiade perpetual, or 
until the deftndiiiKs^ have estahiUked, at law, their right ta 
tb^ ground in que^ion. 

Order accordingly. 

(U Tyn^i J^ SKV) whers tb^ pkintiff had built a hooaa en Im awA 
ground, within two feet of the line, and ten years after, the Qw^er 
of the adjoinini^ land du|^ so deep into bii own land as to endanger 
the hoQse of the plaintiff, who was obliged to pull it down, the Su- 
piecae Court of Maasachusetts held, that the plaintiff could not 
maiataiB an action for the damage to his beuBe; and that a person 
who builds a houio adjoining bis Beigfaboar^s tend, ought to forSse e 
the prpbabJie use by his neifbhoor of bis own. land, and take eufe in 
building his house, to guard against any oonseqaeooe wbidi might 
arise. But, on the authority of RoUe, (2 AbridgmetU. 565, (I.) they 
held that the defendant was answerable lor the direct consequen- 
tial damage arising to the plaintiff from the falling of bis natural 
soil, into the pit dug by the defendant. (1 Sid. 167. 1 ComynU 
IVg» SJU. AOiim uptm iks ows, arndfrn^ a miiMMce, (C). Bat if 
no action will lie where the house of the plaintiff fisUs dosia» ia^aon- 
sequence of the defendant digging in his own ground, on whatptte* 
eiple can the plidntiff maintain an action, because some of his soil 
has fhllen into the pit dug by bis neighbour ? Must there not be, in 
either case, malice, negligenee, or misconduct on the part of the de* 
fendanC, in older toaostain anaetioa? If the defendant exercise 
his lawfhl right, without any fimlt on his part, the damage which 
the plaintiff may sustsin, in oonseqoenee, is not Justly imputable to 
the defendant, bat js to be oonsiderid a ttere cssnalty, or damnum 



AfAi-nR or 

In the Matter of Vandebbilt. " 

Ab mdarsanmU or MU, ipeeifjiog partumiarljr the euue-of 4ie at- 

tachmtnty U not necevsaiy, where the wiit ii issued for a comkmpt^ 
in disregarding an injunction; for the party attached is not to be 
bailed by the sheriff^ bat is to be brought forth irith before the Chan' 
eeOor^ to ansirer specific charges, who wili order him to be bailed to 
appettr, ffein tfay l« day, uatil the party complaining has prepared 
the tDUBTQgAtoriett oo whii^ h^ is to be esanMnad before a master. 
The waters between Staten Island and the WhUekaU Landmg, in tha 
city of JV«io- York^ are part of the Bay ofJfew- York; and using them 
with a steam boat is a violation of an injunction prohibiting the nv 
Tigating with such boat *' the waters of the Bay of JVetr- York, or in 
the Hudibn Rtcer^ between Stolen Uland and Powles Hook.** 

AN injunction was awarded in the case of John R. Livings June 90 anil 
tton V. Aartm Ogden and Tkanuu GibbonSy* prohtbitiag the if y J^ ^ 
said Gibbons f and his agents and servants, from ^ navigating p* 48. 
wkb any boat or vessel, propelled by steam or fire, the wa- 
ters in the Bay ofNtw^Y&rk^ or tn the Hudson rivers between 
Slaten Island and Bowles Hook.** 

The injunction was duly served on VdnderhxH, as master 
of the steam boat BeUona^ belonging to (ribbons^ . and on 
several of the persons employed in her. On the 21st of 
June^ Hojffh^f the connsel for J. R. Lhingshnj moved for 
an attachment against Vanderbilt, and against John Frosty 
and John Berbank, on the following affidavits : 

1. The affidavit of rViUiam Woodj stating, that the Bel-^ 
lona arrived on Sunday, the 20th of June, at the city of 
^^ew-Tork^ with passengers taken on board at NeuhBruns^ 
mek and ElizaibeAtown Pomt^ hi Ifew-Jersey^ and from the 
wharf of 1>. £>• Tompkins^ at Staten bland. That the pas« 
sengers were landed at the WhiiehaU wharf, near the 
battery, and that the said Gibbons came in the boat to J^euh- 

Vol, IV. 9 


1810. 2. The affidavit of John CarUtan, statingi tbat od the 

^j^^^^^ 20th of Junti, he saw the BeUona^ while on her passage from 
yiuammMOjf. New-Brunswiek^ stop at ElizabeAUnon Pointy and take in 
*"""~"~* passengers for JVeto-Fof*. Tbat she sailed in company 
with jthe Olive Branch* Tbat she stopped at the wharf of 
D. 1). TTompkins^ on Staten Island^ and there took in other 
|)9ssengers, and carried the same to, and landed them and the 
other passengers in, J^w- Xork. That the boat, on the same 
day, received passengers at«YeiP-ForA:, and transported diem 
ID Staten Mand, wd again, on the same day> took in other 
passciigeps from S$aten hhmdj and landed them in A*ell^- 
Yorkj and took in other passengers at JNew'Yorkf and trans- 
ported them to Staten Island and Elizabethtoum Pvint. 
That Corneiius VamderbUt was captain of the boat, and 
John Frofltf eogineer, and John Berbank^ pilot, during the 
period aforesaid. That Gibbons came in the boat, on that 
day, to NmihYork. 

The attachment was iasiie4> la the first instancei without 
a previous ral^ v> show cause* 

Junt mh. On this day, Comdius VanderbiH was brought before tba 
Chancellor, at his dwelling boose in Mlbany^ by the sherifl[ 
o£ Mem-York^ under the above process. 

Van Ve^hten and Henry ^ in behalf of the prisoner, moved 
for bis disch^q^e : 1. Because, the attachment being gene- 
i;al in the body of it, did not specify the nature or canse of 
the contempt, and had no endorttmmt or label in which the 
snit or cause of the attachment was particularly stated. 
The words of the attachment were, tbat the sheriff ^ attach^ 
&p. so a» to bdve the party before the court forthwith, to 
amswer touching a cert^p contempt alleged to ba;ve been 

% Because, the prohibition in the injunction ouly estead- 
ed to the watera between ^ftUn hhnd and Potpl^ Hooky 
and not to the navigation charged. 


Mkeeier abd S$igHfkky contra. 1S19. 

Thc Ghancellor. la die etie of or£iiaify «oDMinpU, VaroimiiiW 

where .an altackroent i« ased to enforce appearance, ac 
an answer, ifae body of die process is still general, as p 
dus case, bm die spfi and the caase of die attachaent an 
endorsed on dM writ, or appear in a label annexed, so that 
the party mi^ at once comply, widiout application to the 
Court (Hinde's Pr. 102, 103. 1 FowUrU Ex. Pr. 1880 
dot for extraordinary contempts, or wilftil and direct viola* 
dons of the process and powers of the court, where it is ne« 
cessary that tbe party should be brought forthwith before die 
toupt, and is not to be bailed, there is no need or use of a 
Mbd dedgnating the case. The sheriff is not reqinred td 
take bail upon attachment from Chancery. Tbe case is not 
within the statute. It is setded at law (Sir. 47(^. jStum. 
S Sannd. 59. b. note 8.) that the sheriff cannot take bail ob 
an attachment, though a judge ai chambers may. In 
Chancery there is still less necessity for bail^ as the court is 
ahfrays open, and the party may be brought in, at any timew 
The sheriff, on an attachment from Chancery, ought to bring 
die party into court without delay, and so it was understood 
in die case of SkM v. Ad^n, (1 H. Blade. Rep. 468.) 
where it was decided by the C. B., after argument upon de^ 
murrer, that the sheriff was not required to take bail under 
process of attachment from Chancery, though it had beenr 
the usage to take bail in forty shiHings. {Danby V. Lavncn^ 
1 Eq. Cos. Ahr. 3£1.) The old ruk in chancery wo«]4 
seem to have been conformable to this decision of the C. B., 
and to be, that the party was not bailable by the sheriff upoa 
attachment. (OUbert^s Eq. Rep, 84. Free, in Chancery^ 
331. S. P.) 

Of what possible use would a label be to the party i It 
might apprise him generally of the cause of complaint; but 
on his coming in, he may be bailed by the court to appear, 
<k die m dim, until the party complaining has prepared his 


1819. interrogatories ; and be is entitled, as soon as tie appeal)^ to 
^^p^"^^ know the specific grounds of complaint. 
Yjjiobbbilt. When an attacbmeot issues, aftsr a rule to show cause, 
"'"•'^■"^ (wUth is the usual and the safer course,) the party is duly 
apprised of the oSeoee charged. If it be peremptory 
and absolute in the first instance, the party must appear 
forthwith, and answer specified charges ', so that in any view 
of the case, the objection to the process appears to be 
groundless. It always rests in the discretion of the .court, 
whedier the rule for an attachment shall be absolute, or, nwi. 
If the contempt appears, as it did in this case, on the affidar 
vits, to be direct and palpable, wilful and extreme, the pro- 
cess frequendy issues in the first instance. The doctrine at 
law, on this point, was declared in the Supreme Court, in 
The MaUerofStofiey, (10 Johns. Rep. 323.) and the Eng-^ 
JUh authorities were referred to. The power of this Court 
is the same, and may be exercised more conveniently for 
the party, seeing that ttie court is always opeo^ 

Nor does there appear to be any weight in the second ob- 
jection taken to the process. The affidavits stated a clear 
violation of the injunction which extended to the waien in 
the Bay of Mew-York; and the waters between Siaten Island 
and Whitehall landing, ^t the city of MevhYork^ clearly 
ibrm part of the bay. 

These prehminary objections being overruled, the sheriff 
was directed to bail the party in 100 dollars, to appear, 
from day to day, and aot to depart without leave ; and the 
plaintiff' was directed to exhibit and file interrogatories in 
' four days, and the party to be examined thereon before a 

Mfy. Uu The case came on to be heard upon tLe answers to the 

interrogatories taken before a Master, and was argued by 
the same counsel who argued the preliminary motion. 

The party adciliited, that on the 4th of June, he was 
served with the injunction, and denied that he had violated 


ity or jaleaded to do bo, in asy mpect That be had as- 1819. 
mttd to navigate the steam boat BeUotui on Sondays only, ^^^^^^^^^^^^ 
(coannenciiig on the 13th of flOtb of Jwie,) from the wharf Vlvd^mmw. 
of D. D. TomfhiM^ on Statm Idand, to Aeia-Fori, and . 

back again, ^* in consequence of the said D. D. Tompkins 
baying hired the said boat BeUana to run, under his autho- 
rity, as bis boat, and on his ferry and steam boat right, 
under a charter party or written agreement made and deli- 
vered by him to the owner of the steam boat Bellona, in 
presence of the deponent, whereby the said D. D. Tamp^ 
kint hired her for Sundays only for one month.''— *^ That 
he understood and believes, that the said D, D. Tompkins 
owns the sole and exclusive right from the representatives 
of IL R. LmngsUm and R* Fvliim^ deceased, and from J. 
R. Uvingston, the above plaintiff, &c. to navigate with 
boats propelled by fire or steam from Siaten Liand to Am- 
York. That the owner of the BeBonOj after receiving the 
charter party or written agreement, instructed and directed 
the deponent to run the boat on that route, on Sundays as 
aforesaid, as the boat of the said D. D. Tompkins^ and sub* 
ject to his directions, as to hours, route, and passengers. 
That the deponent had, in no instance, otherwise navigated, 
or assisted to navigate, the BMonOj since the service of the 
iujundion, on the waters prohibited by it" 

Thb Chancellor considered that the defendant had 
sufficiendy cleared himself of the contempt, and that the 
boat BeBona was, oil the' day mentioned, the hired boat of 
D. D. Tompkins, and not in the employment of Oib- 
bons; and that the defendant was, pro hoc vicCf the agent or 
servant of I>. 2>. Tompkins^ and not of Gibbons^ against whom 
the injunction was awarded. That the rights of D. D. 
Tompkins were not now to be tried, and no fraud or collu- 
sion, on purpose to evade the injunction^ was averred or 


1819. QBDfcaiD^ that the defeodnrt be dkMtharged tnm the M« 

^^^"^"^^^ tacliineat» with cosis ; and thM as to tfaecuher paifODs naiadl 
Ain» WAftteir tkcran, aoi not jtl labcD, tiic atteohinant, aka^ ba 


^^^ *^^ accordinglj. 

Chahplin against Fonda and Lansing. 

Where a tolieitor filei a bill In propria permma^ a noOce serted on hit 
egeatyM a Mikilor of the Ceurt, it good aerriee* 

Jiihf ^' THE plaintiff in this casa was a solicitor of the Convl ; 

and a qoestion having arisen as to ibe serflca of a nefiee oa 
him, the CBANCcLLLom said, that where a solidtor ci the 
Goort files a bill in propria penana^ as plaintifl^ a noiioe 
served on his ageni^ as a idieUor of the Court, shoaU be 
deemed a good service on him %Mpla/m^^ 

Washington and Wabbbn Bank against The Fabxus' 
Bank and another. 

The defeDdaoU, a banking company, agreed with B. of JVoo- 
Torkf that they would, once in each week, assort and make np 
iirto a package, all the bills of the plaintiffi, a Banking Company, 
which should be in the possession of the defendants, and direct thetti 
to B., and hold the samenibject to his erder, or deposit the same ae 
he sboold designate; and B. agreed, that at the tine of making ay 
saoh package of bills, the defisadaata might draw on him ibr the 
amount* payable in Jfem-Tark^ at ten days sight, and promised to 
accept the drafts, at the same time directing the packages to bede« 
posited in the F. and M. Bank^ in Albawjf. The agreement con- 


tiwed to be perfonoed fay botk pMrtiegy mail the 22dof June, 181^ ; 1819. 
aid OD the 25th of Juncy the defeDdaots refuaed to take any more of K^^^^/^^y 
the bilb of the plaintiffs, hariflg in their poescsaion the bills of the WASHurcTOM 
plaintiffs to ihe amount of 10,150 ^Uan, which B, assigned to the Ba/vx 
piamtiffB^ and the defendants had notice of the assig^mDent, and for ▼- 

pttt t€ wbloh Mdtent* the defendanta h«d drawn on B. who accept- B^f' 
ed thw ^bmfta, but the payment of tbem waa not averred. On a ■ 

hiH ffledf stating the above facta, and praying that the defendanta 
might be compelled to deliver the billa to the plaintiffs, and for an 
injunction to prerent their potting them into circulation, or de- . 
manding' payment of them ; 
ft was heidy that there waa nogronnd for an injonctien, and that wiere 
Ibm rijgbt to demand payment ia aoapended by the pnxniae oif a ihiid 
persoD, the auapension ceaeea, when that third peraon ia in default ; 
and that the agreement aet forth did not diacharge the plaintiffii fron 
their obligation to pay, bat merely anapeoded the right to demand 
payment, until 10 days after the acceptance of their drafts by B. 

TH£ bill Stated, tbat m Jlugust last, an agreement was /u/jr iSf*. 
entered ibto b^tweett the d^fimdantg and Jacob Barker^ of 
ffew'Ydrkf by wb^ch Aey Agreed, tbat tbey would, once in 
eaeh week, assort and make up into a sealed package, all 
Ae bills of tbe plaintiffs which should, from time to time, be 
in the possession of the defendants, and direct tbe same to 
Barker^ and hold the same subject to bh order, or deposit 
die same, as be should designate, to the end tbat the same 
mi^ be speedify remitted to him ; in consideration where** 
of, he agreed tbat the defendants, at the time of making vp 
such packages, might draw on Irnn for tbe amount thereof, 
payable in the city of JVetx^ Fori at ten ttay^ sight, and 
wUcb drafts be promised to accept ; and be, at tbe same 
titxie, directed the packages to be deposited in the Farmers* 
and Mechamcs' Bank at Mbany. That tbe agreement was 
indefinite, and to be revoked by either party, on due notice. 
That the defendants complied with it weddy, until lately, 
and Barker paid the drafts wUd the 23d of June last. That 
the agreement has never been revoked ; but oo tbe 2SA of 
June last tte defendants decKned reeeivhig tbe bills of tbe 
plaintift, and bad, a!t ^bat time, a large quantity of those 


1819. bills, amounting to aboat 10,150 dollars. That tbe same 
v*^-v-^y liaci bt^n received between the 4th and 24th of June* That 

Washington , , ^ , , , .11 

AiTD Warreit the defendant&i by the agreement, were bound to have made 
t"' up tbe notes in packages, and deposited the same, &£c., and 
^^^^'' to have drawn, 8ic. as aforesaid, &g. That of the said som, 
■ 3,000 dollars were in the hands of tbe defendants, on or 
before the 1 1th of June last ; and on that day the defend- 
ants did make up that sum into a sealed package, directed 
to Barker^ and drew on him at ten days sight for that 
sum, which draft toas accqfted; and that the further sum of 
3,650 dollars, of the said sum of 10,150 dollars, was re« 
ceived by the defendants, between the 11th and 18th of 
June ; and that on the 18th of June, the defendants made the 
same up into a package, and drew on Barker for the same, 
toMch he accepted. That 3,500 dollars, being the residue of 
tbe 10,150 dollars, was received by tbe defendants after the 
18th, and before the 25th o^ June^ and whether they were 
. made up and drawn for, the plaintiiTs did not knpw. That 
tbe said packages were not deposited in tbe Farmers^ and 
Mechanics^ Bank at Albany. That on the 25th of June^ 
Barker assigned to tbe plaintiffs the bills of the plaintiffs, as 
aforesaid, to 10,150 dollars, being the biUs so in possession of 
tbe defendants^ of which assignment notice was given to the 
defendanu on tbe 29tb of June last. The bill charged, that 
the defendants refused to deposit the 10,150 dollars in JUba" 
nyt according to tbe agreement, or to deliver tbe same to 
tbe plaintiffs, and prayed that the defendants may deliver 
those bills to tbe plaiiitifis, and be enjoined from issuing the 
said bills, or putting them in circulation, or from demaad- 
ing payment of the plaintiffs. 

R. Skinner^ for the plaintifis. 

Per Curiam. Motion for an injunction denied : 1. The 
agreement with Barker had no consideration, to warrant 
the extraordinary powers of this Court. 2. The ten day& 


littFe elapsed since the acceptances charged were Made, 
and payment is not offered or averred, ir the right of the 
defendants to demand payment was suspended by the 
pramue €f a tkiri ptt$<m, it ceases when that person is in 
defimlt. The plaintifis, as his assignees, pray that the de- 
fendants tnay not demand payment No request coald be 
more unreasonable. The agreement with Barker did not 
discbarge the plaintifis from their obligation to pay their 
notes. At most, it only suspended the right of demand, lor 
ten days. , 



BaiNGKEBBon and others agaifut Lansiito and others. 

•J^There a prior ioouinbrancer witoesses a subsequent conreyaoce oc 
mortgage, knowiog its contents, and does not disclose his own in- 
cumbrance, but intentionally suffers the party dealing with his 
debtor to remain in ignorance, such prior incumbrancer will be 
postponed, or barred. 

This role, however, does not apply wh^re the prior incumbrance is 
duly registered^ for then the subsequent purchaser or mortgagee is 
chaiged with notice. 

To a£Eect the right of such prior incumbrancer, mere silence is not 
fiifficient ; there most be actual fraud chaiged and proved ; such as 
false representations or denial, upon inquiry, or artful assurance of 
good title, or deceptive silence when information is asked. And 
the burden of the charge and proof of fraud lies on the purchaser 
or subsequent mortgagee. 

B. executed a mortgage to £r., dated Sepiember 7th, 1802, with apns 
vUo for the payment of fifteen hundred dollars, with interest^ ao* 
oovding to the condition of a certain bond executed by B. to X. of 
the same date ; which bond was conditioned " to pay 1,500 dollars, 
with lawful interest, on or before the 7th of JIfarcA, 1803, or keep 
L. harmless, and pay up the note endorsed by L. for B. in the 
Farmen* Bank^ when the same should be called for.'* The note 
referred to in the bond was made payable In jj^ly^^ days, and dis- 
Vol. IV. 9 




GOuoted at the Farmers* Bank, for B, ; and at the end of (he fiflj« 
six days fras renewed by another note made and endorsed in the 
same manner, and bo was continued to be renewed, totict quoHes^ 
for above nine years, the calls of the bank being' from time to time 
paid by B., and the note reduced, at varioos times, to 900, 700, 600tt 
and 400 dollars, and again raised, on subsequent renewals, to 1,000 
dollars, and 1.300 dollars, until iQctoder 8th, 1811, when the last 
note so giyen in renewal, and endorsed by £., being 720 dollars, 
was protested for non-payment, B. having become insolvent, and 
X., as endorser, was compelled to pay Ihe note : Held^ that the 
bond of B. being intended as an indemnity a^inst the debt doe to 
the bank, originally created by the loan on the note for 1,500 dol- 
lars, so long as that note should continue, under the customary re- 
newals at the bank, the mortgage remained a valid security for 
such debt, so kept alive in the bank, in whole or in part, by these 
customary renewals, daring all that period, and for the sum of 7*20 
dollars, being the amount of the last note so made and endorsed by 
the parties, and discounted by the bank ; as the mortgage, with a 
reference to the bond, was sufficient to apprise a subsequent pur* 
chaser or mortgagor of the nature of the debt secured. 

On a bill to redeem, further time is not usually given for the payment 
of the money. 

And where a bill is filed by several persons, as owners of the equity of 
redemption in the property mortgaged, in different proportions, the 
proceedings of the mortgagee under a power of sale contained id 
the mortgage, will not be^uspended or delayed, until the plaintiffs 
have settled the question as to the rateable proportion which eacb 
of them is to contribute towards the redemption. 

But if the plaintiffs pay into Court the mortgage debt, with the inte* 
rest and costs, the suit may be retained, for a reasonable time, to 
enable them to proceed against one of the defendants, who had, 
also, an interest in the equity of redemption, to compel him to con« 
tribute his proportion of such debt and interest. 

/tf/jf 19th. THE bill, which was filed the 4th o( February, 1812, by 

John Brinckerhofff J^athan Morey, and Aaron fVilcox^ 
against Levintu Laming^ Otis Boies, and James Adams, 
stated, that Russd Forsyth obtained a judgment against the 
defendant, Bates, on the 5th of December, 1810; and that 
by virtue of a, JL fa. issued thereon, a bouse and lot in Lan- 
singburghf was sold to the plaintiff £• for 1,100 dollar^, and 



a deed accordiDgly executed to him by the sheriff, dated 
December 14, 1811. That the plaintiff B., and Q. H. Fan 
fFageneriy recovered a jadgment agaiost the defendaot 
BaieSf on the 38th6f Jantiary, 1811 5 and in order to secure 
this debt in part, the plaintiff B. made the j^rchase above 
mentioned, at the sheriff^s sale. That tbi defendant Batei^ 
pretending to be seised of the lot in £r., on the 20th of March^ 
1811, sold and conveyed the same, in fee, to Clarke Baiei^ 
who, oa the 2d of January^ 1812, sold and conveyed the 
same to the plaintiff Wilcox. That the defendant BatcM^ 
on the 5th of June, 1804, leased a lot in Lamiingbttrgh to 
John JIforey, for sixteen years, the execution of which lease 
was witnessed by the defendants Laming and Adams^ who 
were acquainted with its contents. That J. L. Laming, 
son of the defendant £r., on the 8th of June, 1804, leased 
the said lot to John Morey, for ever, and the execution of 
the lease was witnessed by the defendants L. and A,, who 
knew of its contents. That Charles Morey, David JIT., and 
the plaintiff A*. JU. obtained a jadgment on the 9th of Fe^ 
imary, 1810; and under an execution on that judgment, the 
sheriff sold the lot, last mentioned, to the plaintiff JV'. J\iorey. 
That ou the 3d of AprU, 1806, a judgment, by confession, 
was entered up against the defendant Bates, in favour of 
the defendant Laming, to indemnify him, as endorser of 
the notes of the defendant £•, and which notes were, after- 
wards, discharged. That on the 7th of September, 1802, 
the defendant Bates, executed a mortgage to the defendant 
Lansing, of two pieces of land, in Lansingburgh, to secure 
the payment of a bond of the same date, conditioned, as ap- 
peared from the evidence, '^to pay 1,500 dollars, with law- 
ful interest, on or Before the 7th of March, 1803, or keep 
the said L. harmless, and pay up the note endorsed by the 
said L,, for the said B,, in the Farmers^ Bank, when the same 
should be called for," and which mortgage, it appeared, was 
duly registered the 7th of September, 1802. That the lots 
purchased by the plaintiffs B, and M., as above mentioned, 





vere part of the mortgaged premises. That a ysAfpotu^ 
by confesstoD, was entered up on the lltfa of Jiily, 1811^ m 
favour of the defendant Xr., against the defendanl B«toy 
and by virtue of 9Lfi* fa, issued thereon, the personal estate 
of B. and tlie rMdue of the mortgaged premises, not owned 
by the plaintiffs, were purchased by tbe defendant IflAunt* 
That the defendant X., without reviving the judgment firat 
above mentioned, sued out a^.ya., which was levied on tbe 
lands so owned by the plaintiffs B, and W*^ and had aha 
advertised them for sale, under tbe mortgage, with intent 
to force the pbintiiSb £. and W.^ to satisfy the mortigaqge. 
That if any thii^ is due on the mortgage, it ought to be 
paid to the plaintiffs B. and M.y and to the defendant ^^ 
rateably. The bill sought a discovery of the notes for the 
indemnity against which the mortgage ^was given ; and 
prayed for general relief, and that the defendants be enjaimd 
from sellbg the premises under the Ji, fa.^ or under the 
jfower contained in the mortgage, &c. 

From the answer of the defendants B. and L., and the evi* 
4ence taken in the cause, it appeared that tbe note endorsed 
by the defendant X/., and as indemnity against which the 
bond and mortgage was given by A., was dated the 7th of 
September y 1802, payable in fifty^eix days, and discoooted 
"at tiie Farmeri^ Bank^ for the defendant B. When tbe noile 
fell due, it was taken up by a new note, drawo and endorsed 
by the same parties ; and the note was so renewed, at tbe end' 
of every 56 days, after having the calls of the bank paid by 
fi. until itie 24th of January^ 1804, when the note was re* 
dttoed to 770 dollars ; that the note was, afterwards, raised to 
990 dollars, and again renewed, from time to time, and the 
ealk paid, until the 24th of /une, 1806, when it was reduced 
to 400 dollars. It was then raised to 1,000 dollars, and re- 
gularly renewed, and the caHs paid, from time to time, until 
the I7th of October, 1805, when it was reduced to 900 dol- 
lars. It was then raised to 1,300 dollars, and, afterwards, 
regularly renewed, and the caSi paid, until the 8tb otJanu- 




ory, 1807, wbea it was reduced to 670 dollan. It was tb^ii igig. 
wsed to 1,000 dollars, and regularly renewed, and the calif 
paid, until December 8, 1807, wbeo it was reduced to 730 
dollars ; aad, io like OMDoer, was, fironi time to time, renew- 
ed, tbe amoiiot being, at one time, raised, but not above the 
original soa, and, at another, reduced, until the 8th of Oe^ 
ier, 1811, when, being then reduced to 720 dollars, it 
was protested for non-payment, the defendant £., having 
then become insolvent; and the note was taken up by the 
note of the defendant L«, endorsed by the defendant A^ 

Tbe cause was argued by Henry ^ for the plainUfis, and jyjy ojt. 
by Va^ VeckUn, and T. Sedgufick, for the defendants. 

Th^ cause stood over for conaderation until this day. j^ jp^j^ 

Thk Chancbllor. The claims of the three plaintifls are 
entirely separate from* each other, and rest on distinct 
groonds* > 

!• The plaintiff Wilcox, claims as a purchaser under the Permtniin* 
d^eodalit Aites, and seeks to be relieved from the operadon {"^^ ^j 
of a judgment of 1806, against Bates, in favour of die de- r^'^^^^t 
^mdant Lansing. The counsel for the defendant Lansing, b^ ntititef 
admitled, at the hearing, that the judgment complained 
of waa satisfied ; consequently, the plaintiff Wilcox, is 
entitled to the relief sought by the bill, and to have tbe de- 
fendant Xionfji^, perpetually enjoined fi*om any proceed- 
ing upon that judgment. The plaintiff Brinckerhoff also 
seeks tbe same relief, and is entided to the same remedy, in 
respect to that judgment. 

2. The plaintiff Morey, claims dtle to a lot in Lansing- 
im^ under a purchase upon execution against John Mo- 
rty, who held under a lease of the defendant Bates, given in 
1804, and he seeks to be relieved against tbe operation of 
a mortgage covering the same lot, and given by BcUes to 
tlie defendant Lansing in 1802. 


1819«'. The plaintiff Morey makes an objection to the mortgage 

which is peculiar to his case. When the defendant BaU9 

leased the lot to John Morey in 1804, the defendant Laming 

was a subscribing witness to the execution of the lease, and 

— — — with knowledge of its contents. The lease was for only a 

part of the lands covered by the mortgage then held by 

Lansing against BcUeSj and it was for the term of sixteen 

years, at the annual rent of 12 doUars and 50 cents. 

It is contended, that this fact brings the case within reach 

If a prior ^^ ^® principle, that if' a prior incumbrancer be a witness 

wScMTwab- *^ ^ subsequent conveyance or incumbrance, and knowing 

wmIc« oTIn- ^^ ^^ contents, does not disclose the fact of his own incum- 

kSowiW*^ iu ^^^^^9 ^^^ intentionally sufiers the party dealing with his 

dSelr'not S?^ ^^^^^ ^ remain in ignorance, he shall have his incum- 

cW ha own brance postponed or barred, because he is thereby auxilia- 

bnt iatenUon- ry to an act of fraud. (Hobbs v. J^ortan. 1 Vem. 136. 

the party to Huusdm v, CA«yncy, 2 Vem. 150. Mocatta v. Murgor 

ISSSe,"" *£ iroyd, 1 P. WvM. 393. Becket v. Oordley^ 1 Bro. 357.) 

shall be po«t- X^' , ..-,..,. 1. 

poRed, or bar- The Only qucstiou here is, whether the doctrine applies 
to the case. 

The mortgage from Bates to Lansing was, at the time, 

duly roistered ; and it is the settled rule of construction un- 

But if there (jer OUT registry act, that the registry is notice of the mort- 

pfainori^ag«s gage to all Subsequent purchasers and mortgagees, and they 

all subsequent are chargeable with all the consequences of such notice. 

purcbaseraaod ^ ,.»> -rt n w 

mortpigecs ; (Johnson v. Staff it^ 2 Johns. Rep, 510. Frost v. Beekman^ 

and there must ^ ^°°' -^ ' 

be proof of in- i Johns. Ch. Rep. 298.' Parkisi v. Alexander. 1 Johns. 

tentionai fraud _ 

to postpone or Ch. Rep. 389.) The law will, therefore, intend, that John 

bar the mort- -r / 7 » > 

gairee. J^orsy had notice of the prior registered mortgage when he 

took tlie lease from BateSy and that the plaintiff JHorey had 
the like notice when he purchased, upon execution, the title 
o(Jokn J\iorey ; and it would require direct and satisfactory 
proof of intentional deception and fraud, on the part of 
Lannng^ before he can be postponed to a subsequent pur- 


Tbe iact, that the lease whiob he attested, was tot a part 18l9« 
ioiy of tbe mortgaged premises, and for a term of years, 
does not afford a very strong inference of actual fraud, 
eiiber on the part of Boies or Laming. The remaining in- 
terest of Bates in tbe lot demised, ^nd the residue of the , 
mortgaged premises, may have been deemed by the parties 
a sufficient security for tbe mortgage debt. Intentional 
iiraud upon John Morey does not seem to be a necessary 
conclusion. If no inquiry was made, (and none is charged,) And if thetob- 
Loiistng' might have presumed, what the law presumed, that chaser, or 
bis mortgage was well known to Jlforsy, the lessee, by means ae«iu relief on 
of the registry. He had already made bis mortgage known actuaT^fmad, 
to the world, and if the purchaser did not choose to inquire deception, oa 
of him, or to search tbe records, he bad no just ground to &nt^ tncom. 

^ 1 . brancer, ha 

complain. must clearljr 

It appears to me to be a fatal objection to this charge of ekn-^ and 
fraud, that the bill itself does not contain any charge, that tZnaiconcSSi^ 
either John Morey, the lessee, or tbe plaintiff Morey, the 2S*ii'*e,^il: 
purchaser under him, were ignorant of the mortgage, at the knolSSgS of 
time of the purchase by them respectively ; nor does the bill Slhe^prbr'S^ 
even charge that Laming^ at the time of his attestation, <^"in^"^<:<i- 
withheld the knowledge of the subsisting mortgage. There 
is no fraud or intentional deception at the time charged ; 
and if the party sets up a title to relief in equity, on the 
ground of being a bona fide purchaser, he ought to deny 
notice in the most decided manner. If he will not aver, 
that he was a purchasefr without i^tual notice, we are not 
bound to presume it, especially, since the law had given him 
notice by the registry of the mortgage. Whether be comes 
for relief in his character of an innocent and injured pur- 
chaser, as a plaintiff, or sets up that defence by plea, tlie 
role requiring him to aver his claim fuUy and explicitly, 
and which rule has been often declared, (1 Johns. Ch. 
R^. S02. 3 Johns. Ch. Rep. 345. and the cases there 
cited,) will equally apply. Under the circumstances of this 
case^ a very explicit denial of notice was requisite on the 


isi^. part of the plainiift, and a man poialed eharge of inien" 
tional concealment on the part of the defendant Lanring^ if 
they meant to clothe themselves in their proper character as 
purchasers, and to succeed on the ground of actual fraud. 
— — : — We have a precedent of what such a bill ought to con- 
tain, in the case of Amott v. Biicoej (1 Ves. 95. Bdf$ 
Supp. 67.) The bill there charged, that the party did n«t 
disclose the incumbrance, but averred that there was iiO' in- 
cumbrance. The suit was to get rid of a purchase on the 
ground of a aoncealed incumbrance, and there was a charge 
of absolute fraud in the defendant. 
The men si- The mere silence of a mortgagee, when be is present at 
nwriifnget wIm the ezectttion of a subsequent purchase or incumbrance, is 
raUi^ucDt * not sufficient to affect his right, unless that silence was in- 
ETcuinbrancet'^ tentional, and for the purpose of deception. That inference 
to^^affi^'his is not to be drawn from silence alone, under the operation 
thlt^' sn«n<^ of oui* registry act There must be active fraud charged 
wM ^^'^^^^ and proved, such as false representations, or denial upon 
decc^kmT**for '"^flttiry, or artful assurances of good title, or deceptive si* 
.:I^lS?mbmKcc ^^^^9 ^^^ information is asked. The burden of the 
therTmusrb^ charge, and of the proof, lies upon the purchaser. He 
Jhowi mIZ\w "*•*** m^^e out the fraud, and the mortgagee is to be pre* 
tTns'^rdeniai ^^^^ inuoceut. Until provcd to be guilty. This is the 
upon inoQiry, ifue doctrine to be extracted from the cases, and it 

or artful as- 

■urances of applies with accumulated force in cases like thb, where the 

food titlef or 

deceptive si- party has put his mortgage upon record, and given notice 

lencef wneQ • ^ . 

information is tO the WOnd. » 

asked, in order _, i . . ■ • « /» » 

to postpone or The Same objections, as to the charge of Irauo, apply t» 
incumbrancer! another fact iu the bill, viz : That a few days after the date 
den of provipg of the leasc from Baieg to Marey^ a son of the defendant 
on the subse- Lofuing leased the same lot to Marey^ forever, and this 
quen pure a- ^^ ^^^ ^j^ witnessed by the defoidani Lansings with 
knowledge of its contents. 

Why this last lease was taken, is wholly unexplained. 
But whatever might have been the reasons operating upon 
the parties to that lease, the simple attestation of it by l#an- 


mg tSofiM M bitter iafefeace «r • firMdakiic dBtiga io )819, 
fhk, tbaxi IB Ibe olher case. 

3. This ease, theo, mms wboUy upon Ike qoetuon, whether 
the flwirtgage of 1803, ft om Halet to Lmuingf was, at the 
tine rf fiKfig the biH, to be deemed a valid sobsistiog mart- — — ^ 
gage for aoj part of the deb< originally secared by it. In p^^nlSJlSK 
tbit question the piiuntiflir Brindeerheff aad ^rey are acco^iior'^ 

eqaally interested, ibr they both hold, by pnrcbase under ^ ^^^tSt 
Batei^ pans of the land covered by Lansing's mortgage. aaiMdatB,aBd 
It does not appear to roe, that the claim under this mort- wM^^^tioi^ 
gage onght to be affected by other transactions totally mm,wttJm^ 
distinct from it; any fraodolent pretensions of Lansings "^^^^^ 
nnder either of his' jadgments, are not to destroy his rights ^^'^ ^9^ 
under the mortgage; it must stand and be investigated SStea^,*^ 

upon its own merits. i;1he'^.SJ 

There is no doubt of its having been a fiiir, valid mort- ««• "S^^.T: 

° ' counted at the 

gage in the beginning, and given to indemnify Lansingj as ^^iJ^J^ 

endorser of a note drawn by Bates, for 1,500 dollars. The t^oa of 

on}y })roper inquiry now is, has Lansing t)een injured, and will ooatmM 

is he entitted to any indemnity for the injury he received by andvaiidMcn* 

means of that note T mci noto^Lu 

The proviso in the mortage was, that Boies was to pay kept^i^ in 

to £«afMt»|f l,fiOO dollars, with interest, ^ according to the whole or ia 

condition of a certain hood, or writing obligatory, bearing Sewaii i^ieral 

even date therewith, executed by Bo^e^to Lansing, as a col- to ti^ ^ 

lateral security." The bond here referred to was, according SStoSinT ^ 

to the condition of it, « to pay 1,500 dollars, with lawful in- SSIIILy^S''* 

tereat, on or beforethe Tth of .ftforcA, 1803, or keep the de- Sct*^*SS![: 

fendaut Z#. harmless, and pay up the note endorsed by the ££wnJe^ to 

defendant Lj for die defendant B , in the Farmers' Bank, £j ^"^Sk^t 

when the same should be called for." wbi^jJU * 

The note referred to, in the condftton of the bond, was p^'S**'"*' ®r 

nonga^iee oi 

of the same date with the bond and mortgage, and was for J^« "Jg^ne of 
l,d00 dollars, payable in fifty-six days, and discounted at ^^ 
the Farmeri Bamkjin fevour of Bates. It appears, by the 
Vol. IV. 10 




teBthtnony of L. /. TiRmmij that the note was renewed aC 
the end of the fifty-six days, by a new note, made and en- 
dorsed in like manner, and so it continued to be renewed, 
toiies guoHes, for a ntnnber of years. The calls were all 
paid, from time to time, by BaUs, and the sum was reduced 
gradually, at times, to 900, dollars, to 700 dollars, to 600 
dollars, and, at one time, to 400 dollars, and then it was 
raised again, on the renewal, to 1,000 dollars, and at 
one time, to 1,300. The debt of 1802 was kept alive in 
the bank, by these constant renewals, and alternate varia- 
tions in the sum, until the Sth of October^ 1811, when the 
sum was reduced to 720 dollars, and the note then alive, 
and for that sum, was protested for non-payment. This ca- 
tastrophe put a stop, according to the usual mercantile 
phrase, to the running of the note in the bank, and the de- 
fendant Lansing, as endorser, was obliged to take up and 
pay the note, which he did, by a note of bis own, as drawer, - 
endorsed by the deiibndant Adams. 

I see no good reason why the bond and mortgage should 
not stand as an indemnity and security for the 720 dollars, 
which Lansing was thus obliged to pa^. 

The bond was intended as an indemnity against the bank 
debt, originally created by the loan upon the note for 1,500 
dollars, so long as that bank debt should continue, under 
the customary renewals and fluctuations in the amount The 
1,500 dollars were, by the bond, made payable in six 
months; this fact shows that the parties contemplated a 
continuation of the debt beyond the fiAy-six days, for which 
the original note was made payable. It was evidence of an 
expectation that the note was to be repeatedly renewed. 
The other part of the condition of the hood, that the defend- 
ant Bates was to pay the note in the bank '^when the same 
should be called for,'' shows, also, the like expectation. lo^ 
stead of fixing at the precise period when the first note was 
made payable, as would have been done in any other case, 
the parties adopt the loose commercial phrase apfdicable to 

(Jases in chanceey. 


a oote ruQ&iog in the bank, aod eyidently allude to the 
cdls for partial) and for fioal payii|ent, to be made on the 
part of the bank. There is do doalt that this construction 
of the insiraineal is according to itaitrue meaning ; and the 
mortgage comiooed a subsisting and valid security so long 
as the ikbt created in September^ 1802, was kept alive in 
the bank, either in whole or in part, by these customary re- 
aewak* The mortgage, with its accompanying bond, fairly 
dijBclosed the nature of this continuing security, and no Jm- 
{lesition was, or coald have been, practised upon any sab- 
seqaeat purchaser or mortgagee, who would be at the pains 
to esamioe into the state of the del|{t disclosed by the bond 
aad mortgage* The mortgage itself disclosed the nature of 
the debt secured by the bond, when it. stated that the bond 
was taken as a aollateral iecurUy. 

Such a security for such a debt might subsist indefinitely ; 
but what concern. has tb« purchaser, or subsequent incum- 
brancer, with the nature of the security,, provided there be no 
ftlae lights held out, aod he be, by the registry, thnely and 
dlaly informed of the character of the lien i 

The only objection of any force to the validity of the 
M^age, as a security for these renewed notes, is, that the 
aotes weve occasionally incremedj which might seem to be 
so far the creation of a new debt. But I apprehend such 
an occasional increase of the debt, on the periodical renew^, 
provided the debt woe kept tnthin Ua original limits, did not 
change the character of the debt, or affect the security. It 
is nol so understood in the commercial world, and was not 
so intended by the parties to the mortgage. ; and an increase 
of the sum, on a renewal, wqs no more than a return of 
someof the calls made on the forpiter renewals. The iden- 
tity of tlie debt remained, so as to preserve the relation be* 
Ufeen that aod the pledge. It would be dangerous and 
aiyast, as betvreen the parties, not to allow the whole note 
so renewed, ta come under the ^protection of the mortgage. 
There was- nothing here tike thenovatum of the civil law. 



1819. There was no new debt created, <iRflerifig in qnaAity 6r ch^ 
racter, or relation or secaritj. It was according to mer- 
cantile and bank ns^ge, (in reference to which 4ie boti4 
and mortgage were gih|P,) a renewal or comiooation of tfae 
' same debt, nnder the same ctrcamstances, and svlject tnfy 

to those flttctnations in amount, which are cnstomafry ki 
Soch bank operations. 

4. But if any part of ^ debt securod by the mortgage, 
be still due to Lansings k is then contended, that the plain- 
tifls are entitled to redeem, and that there ought to be a t«^ 
ference, to ascertain the rateable proportions of soek 4eb| to 
be paid by the plaintiffs B* and JIT, wid the ^eiendann A^^ 
who may be boond to contribatei, according to their respec- 
tive interests in the mortgaged premises. 

The plaintiffs, who are owners of the equity of re dewy 

tion, are, no denbt, entitled to redeem, bat they ape not en- 

Ob ft bill tore- titled to any delay. A motion to enlarge time for pajWSAt 

ti^of^'^y- upon a bin to redeem, is new, and snch a amotion was rts^ 

^ ^ '^^ fused by Loid Eldm, in J^avonOsidv. Wah^iM, (17 Vm, 

ftor will the 417.) where he observed^ that in a bill to redeem, thetp1aiii» 

K!?^^^^^e[ tiff professes that bis money is ready. He CMiea into 

rftSie^ff'SI Court, saying, «' here is die money : give me «By estaiiw'' 

m^^ % !<*> ^^y <be bill in the present casie be vievred as a bill i» 

^'^^^ntiffil! fedeem, the .plaintiffs roust redeem forthwith, i da na< 

rnVthLe^Ji- perceive that they are entitled to have the right of (he de- 

S^lLdSffbrert f^<i*i>^ I^ ^ proceed upon bis pledge $Uipmd%d^ until ifaii 

CSr^tUed question of contribution can be settled between the two 

A««teabie piaintiffi B. and M, and the defendant v4. It is a question 

to"*2i^*ij! "^^^ which he has i|o concern. It is stricdy re* inter oHoi. 

JEdpS^*"*" T'^ere might be much time^consumed, before the ratio and 

amount of contribution could be settled. It is suggested by 

the counsel for the defendants, that the defendant A, is dead, 

and the suit, in that case, would have to be revived against 

bis representatives, before the contribution could be ascertann- 

ed« His proportitm of the -contribution woaM, at Any rate, 

be small, for it appears by one of his answers, that be gave 


tMily 100 dolbnrtfcr Ut iaieffeil In the martgiged pwiwiii? 1619. 
and k was ody for part of an uoexpired lerm, whidi is lo 
fspiieiB 1820^ or a year beooe, aad it is aivarred to be 
worth BO aMre^tiuaillieanBaal rent of X doUsrs, which is 
charged tbere«i« 

As between the -two plaiotiflsy B. and JLf who aee 
ftot iitigaots before lae, or against eaeh other, it inigtithe 
£fficult to enlbrce the rate of contribotion when asciHtaiBi' 
ed. I aoi not aware that I «oald mahc any decree directly 
against eilber .of tbeao, in ftvoar wf die other, on that poial» 
tts the pleadings now stand befiire am. 

There is wo ease diet will wanrant soch an abeolute deh^ 
ef the Mghto of the awrtgagee, nnder hb mof^age, aris 
new sought, in order to have this qnestion of cooeribntioii 
previtMHly setded, in which he has no interest In €kU T. 
LyoBy (1 Jo&Mt. CI. Ap. 4470 to which I have been iw- 
tarred by the pkdntiff 's conasd, there was no delay of the 
mortgagee. He was aserely ordered to sdl one part of the 
inoil{piged premises first, and if not sufficient, then to seH 
the residnei aAer thirty days notice to the pntchasers of soch 
reiidae, to redeeni. So, in Stevem ▼. Cooper^ (1 /eAnt. 
CL lUf* 425.) a mortgagee who had rdeased part of the 
tDoiigaged premises, and deprived the owners of the re* 
mainhig part, of their racoorse to the^owners of the other 
part, te contribotion, was confined, bot not delayed in his 
remedy, lo the rateable proportion of the debt chargeable 
open the remmaieg part. I do not find a case, or a prin« 
ciple in the books, to justify a stay of a mortgagee's re« 
msdj, nwtil those who are entitled to redeem have settled 
among dMinsclves, or by the aid of this Court, their jost 
proportions of the debt But the plainttfis may slill be en- 
titled to retain the suit, and go on against the defendant 
Aiam, or Us representatives, to compel a contribution firom 
Km, to them, of his proportion (hewe««r small) of die 
mortgage debt It may be so smallv indeed, as not, in any 
evcttt, to eany costs, or be worth parsomg j hot still I am 






Various claims 
as to e^sts set- 

conMiC, that the tiiit confimie Cot that purpote, as againac 

I shall, th««fiire, decree : (1.) A perpetual injimctioD la 
iaviour of ihe plaintiffs, B. and fT., against any execation 
or other proceeding, on the judgment confessed by Botes to 
LantUig^ and docketed on the 3d of AprUy 1806, and that 
aatry of, satis&eiion of record of that judgment, be made 
by the defendant Lantit^. , 

, (S.) /That unless th^ plaintiffs B. and Jlf«, or one of them^ 
bring into Coortimd deposit aith the register, lor the nsc 
of the defendant Zi., within thirty days, the som of 790 
doUarsi. together with lawful interest thereon, boin the 8th 
day of October^ 18 11, unto the day of bringing in Ifae samei 
the injanction heretofore issued, in respect to any proceed- 
ing under the bond and mortgage in the pleadings meBtiott* 
ed, be thereafter dissolved, so far as -to allow ihe defendant 
IJ. to demand and collect under it, or by virtue of it, the 
sum of 720 dollars, with interest from the 8th day of Octo^ 
&er, 1811, uptil the money shall be paid, and the costs and 
charges of all necessary proceedings thereon. 

(3.) That the bill, as to the defendant J3., be dismissed, and 
that unless the, plaintiffs JS. and M, shall, within thirty dajrs, 
elect to proceed against the defendant A.^ to enforce bia 
proportion (if any) of contribution to the said debt and in* 
terest, so declared doe to the defendant IJ., and give notice 
of sudi election to the solicitor for the defendaiit Ad$m9^ 
that the^ the bill, as to him, shall stand dismissed. 

(4.) The qjuestion of cosis has become somewhat cbmpli* 
caled, owing to the distinct claims putforward by the plain- 
tiffs, and the various and onequal merits of the several 

The plaintiff W. is entitled to bis costs^ as against the 
defendant L. 

The plaintiff B. and the defendant X. are not entitled 
to costs against each other. The defendant L. set np a 
judgment which was satisfied, and cbimed more under the , 



mortgage than was due. He, therefore, has no right to any 
costs, though he succeeds in establishing a mortgage debt* 
The plaintiff B. is not entitled to costs against tbe defend- 
ant Lh ; ioT though he has successfally overthrown the un* 
jast pretentions of the defendant Xi», under his judgment, 
be has failed in his charge that the mortgage was satisfied 
and kept ou foot by fraud, a charge which he persevered 
in making, even down to the hearing of the cause. 

The plaintiff JIf. has also failed in his claim, which was, 
to defeat the mortgage absolutely, as being satisfied, and as 
being fraudulently set up, bnt he has so far succeeded as to 
reduce the mortgage to one half, and less of. the amount 
claimed under it, and, perhaps,' neither he nor the defendant 
£., ought to have costs, as against each other. The case is 
the same as between the plaintiff B. and the deiendant L., 
and the same conclusion ought to follow. 

As tbe defendant £., the original mortgagor, had no inte* 
rest remaining in the mortgaged premises, but it had all 
been sold on execution, and purchased in by tbe plaindfis B. 
and Jlf., and tbe defendant A.^ be had no Interest in tbe con* 
troversy, and was not a necessary party. And if be had 
conducted himself properly, be would have been entitled to 
his costs of tbe suit. But be united in his answer witJi 
Lanavi^^ in setting up the subsisting validity of the judg^* 
ment, and of the entire mortgage debt. The answer in this 
respect was not true, and the defendant J3., in a further an- 
swer, admitted that the judgment debt had been paid. I tiiink 
he may be considered as having forfeited his title to costs; 
but, certainly, the plaintiffs cannot claim costs against him, 
when they show, by their bill, that he had parted with all 
bis interest, and against him no decree could be prayed. 

Lastly ; If the plaintiffs should not elect to proceed by 
contribution, and the bill as to the defendant A., should be 
dismissed, it must be dismissed with costs. 


Decree accordingly. 



ICattsi^ or 


.1 Id the Matter of Jane N. Wollstonscraft, an Infimt. 

Where aa iafant is brouglit up on heibeat corput^ tfa« ooart will rnqnire 
wbetber be is under any illegal restraint, and if be is eerestraiaedy 
will set bim at liberty; but if Ibefais do inproper reslvaittt» the 
oourt will not, in this suinRiary way, daside upon the rtgfat of 
l^ardiansbip, or deliFer over the infant to the oastody of another. 

If the infant is competent to form a judgement, and declare bis election, 
the court wiU, after examination, allow htm to go where he pleases ; 
otherwise, the court will exercise its jt>dgment fiur bfan. 

Jiii^26A,aBd HEMtT moved fdr tbe allowance of a fuAem corpus to 
^«^ ^ bring up tbe body of the Infant, alleged to be detained, 
wrongfully by Henry Garrisan^ of Pkilipstown^ in- jPh^mn* 
county, or by SaUy WdUtonecrafi;, ibe mother of the said • 
infant, or by Joseph T. Jachon, of FishkiU, in DukJkem 
county, or by one of them. In support of the motion, he 
read the following papers : 

1. An affidavit of Richard HaU^ of Jfeuhlpswiehf in 
the state of New-Hampshire, stating, ^that on tbe 27tb 
of Jlfay, 1818, tbe infant was placed in his family, and 
under, bis care, by Nancy K. fFottstoneeraft, the widow 
of Major Charhs WoUstontcraft^ late of the city of Aeu^ 
Orleans^ deceased, father of the infant. That tbe infant 
was then in the twelfth year of her age, and was placed 
with him in pursuance of the instructions of Mfred 
Hernien^ of New-Orleans^ a counsellor at law. That 
the infant was a daughter of Charles WoUstonecraft, by 
SdUy OarrUon, bis former wife, and from whom, tUier the 
birth of the infant, be was legally divorced, by the compe- 
tent authority, in Lomsianiaj where they were domiciled, 
and lived, at the Ume of the birth of the infant, and until 
the time of tbe divqrce. That the divorce was on the 28th 
otFebruary^ 1811^ and Charles WoUskmecnffi died in Sep- 

C4S£$ IN CUANCflRy. 31 

lfif^,1817. The divorce wa« granted at the instoifce of the 1819, 
said Cfu^rfes fVfflfstanfcn^i for the cause of adultery com- ^^^'"'^^ 
i^\tted by bis ynfe^SpIhi W., with onp Harris^ and with divers WousTovi- 
Qtl{er person^. TJ^ th^ 8^4 Sa2y> wee her diyorc^ and ^'^"' 
6>r about tWp y^a^rs before^ b^ no intercourse with the said 
ipf^mL That /»ificje die ^cjcease of Charles W. she has made 
duffr^ alt^pts ju> pbtain possession of the infant. That 
VkffrhM W. wd Jfancy K. W. were married in 1812^ or 
1813, and lived togethernntil his death, and the infant lived 
w^th them. That the s^id Jfancy bad the care of the infant, 
ijrpoi the time of her marriage with Charles W. until the 
io^LOt was plsu:ed under the care of the deponent. That 
Cfiqaies fF.j by bis wijl, ^ve one half of his estate to the 
fofaajti and appoiait^ his wife JVancy her testamentary 
guardian, and enjoined her to secure the infant from any in- 
tercourse with her mother. That JVanejf K. fV. resigned 
her trust, as guardian, and procured Alfred Hennen, to be 
appointed guardian, by the competent authority in /Loiii- 
siojM* That she brought the infant to ^ew-Hampshire, 
and ;by virtue of the authority of Hennenf placed her 
under the care of the deponent. That on the 28th of Au- 
gust ^ 1818, Sally fT., with the assistance of Joseph T.Jack' 
son, forcibly took away the infant, and brought her into 
this state, and that she is now detained by the said Joseph^ 
at hb dwelling house, in FishkiU^ or by the said SaUy^ or 
ber^tb^r, Hefury Qarrisan^ at his dwel]in|g house, in Putnam 
county. That the defendant was the agent of Alfred Hen* 
nen, the legally appointed guardian, who seeks possession 
of his ward. 

(3.) A leUer of Alfred JEIetinen» dated JfeuhOrUans^ 8th 
of ^ajt^ ji849, .directed .to R. H. the above deponent, in« 
Sfnpctiiig him. to apply jiersonally, for the possession of the 
iniaiit,aod sending him 1^000 dollars, of which 600 dollars 
ftfeto l)e applied agre^ly to the instructions otJSTancy K. 
W9iUi%M4srq/iy the second widow, and the other 400 dol- 
larSj to be^afipU^ by him for thp expenses of the infaol. 

Vol. IV. 11 


^ 1819. (3.) The instructions of Alfred Hennen, dated JStew-Or^ 

leans J 28th ot Aprils 1818, by which he put his ward, the said 
infant, under the charge and protection of the said JSTancy, 
and directed her to proceed with the infant to ^ew-Englanif 
and place her under the care of a clergyman, in s((me healthy, 
pleasant, and cheap residence in the interior, near an aca* 
demy, where she might receive an education; and he thereby 
invested her with all his authority and control in respect to 
the infant. 

(4.) The proceedings before the Judge of Probates, for 
the city and parish of JSTew-Orleans, on the application of 
Mary Kingsbury^ the said Mxncy K. W*^ widow and execu- 
trix of Charles W. praying that a tutor and sub-tutor, to the 
infant might be appointed, and under which Alfred Hennen 
was appointed tutor to the infant, in AprU^ 1818. 

Per Curiam. Let the writ issue. 

On this day, Joseph T. Jackson, on whom the habeas cor^ 
pus was served, brought up the infant, and returned that 
the infant was placed in his family, and under his protec- 
tion, by her mother and guardian, SaUy WoUsionecraft, and 
with the approbation of her grandfather, Henry Garrison.; 
and it appeared by a document accompanying the return, 
that SaUy fV. had been appointed guardian of the person 
and estate of the infant, by the surrogate of tiie 'bounty of 
Putnam, on the 19th of March last. The return being read 
and filed ; 

The Chancellor examined the infant touching her situ- 
ation and wishes ; and thereupon observed, that the object 
of the court was to release the infant from all improper re- 
straint, and not to try, in this summary way, the questioD 
of guardianship, or to deliver the infant over to the custody 
of another. That the course and practice of the courts in 
these cases was only to deliver the party from illegal re* 


Btnmt; and if competent to form and declare an electioui 1819* 

tiieo to allow the infant to go where she pleased, and if the ^^•^"^^'^^ 

io/ant be too young to form a judgment, then the court is Wollstohb- 

to exercise its judgment for the infant. That in the case of ^*^"'' 

Rex V. Johnson, (1 Str. 579. 2 Ld. Raym. 1333. S. C. 

and 3 Burr. 1436. S. C.) the infant was so young as to. 

have no judgment of her own, and the court delivered 

the child over to the party suing out the writ ; but that case 

was afterwards overruled in Rex v. Smiih^ (2 Str. 962. 

3 P. fPm. 155. note.) The practice sufficiently appeared 

from the cases of Rex v. Clarkson, (1 Sir. 444.) Ex parte 

Hopkins, (3 P. fFms. 151.) Rex v. Delaval, (3 Burr. 

1434. 2 Cox, 242.) Matter of M'Dowles, (8 Johns. Rep. 

328.) and Matter of Waldron, (13 Johnt. Rep. 418.) 

The following order was, thereupon, entered : 

'' The above named J. JV. W. being brought up before 
the Chancellor, by Josq^h T. Jackson, upon a writ of habeas 
corpus, heretofore awarded in this case, and being examined^ 
and appearing to be of the age of thirteen years, or there- 
abouts, and declaring herself to be of that age, and that she 
was unwilling to be delivered up to Richard Hall, on whose 
behalf the writ of habeas corpus was awarded, and that she 
wished to remain under the care, and in the custody of, her 
mother and Joseph T. Jackson, who married her aunt, and 
under whom she was placed by her mother, and she appear- 
ing to be of competent judgment to make a choice. Order- 
ed, that she be restored to the custody of Josq^h T. Jackson, 
and of her mother SoUj/ IV.^\ 



VosBURGk RdGERS against Vosburgh. 

"Whhh tiie pkiolUr has broa^ht a suit at law; and obtained a jddgteent^ 
and, at the aanoe time, filed bif bill agaibst tbe defebdllkntt Id tbi* 
CdQtt, fbr tlJe slime matten the Conrt, od the coaAng in df the an* 
iwer, will pat hiiA to hia election, either to proceed at lavir, under 
the Judcoient, or m the autt broug^ht in this Court; and if he electa 
to proceed at law, the biU will be dismissed with costs ; bat if be 
elects to proceed in this Co\irt, he will be enjoined from taking an/ 
step ubder the jad^efit, witboat the leave of this V^otirt 

Sugud6th. ON the coming in of the answer, /, RadcHff, for the 
defendant, moved to dissolve the injunction heretofore issued 
in this cause, restraining the defendant from fiirtber inter- 
meddling with the concerns of a periodica] publication, en- 
titled, « 7^ Jfeto-Tork City-Hall Recori&r;** and he also 
further ftibved, to restrain the plaintiff from proceeding at 
law on i!be judgment entered up in the Supreme Cbnrt, 
men^oned m the pleadings as being taken as liquidated 
damages, for the sanie matter now in controversy, knd by 
way of coltoter^I secnrity . 

Rogers, in propAa persona, contra. 

The following order, putting the party to hi& election, 
'was entered : 

*' Obdered, that the motioK for "dissolving the injunction 
be denied, and that the plaintiff, within eight days after no- 
tice of this decretal order, elect whether he will proceed at 
law under the said judgment, or in this Court, in this suit ; 
and that if he elects to proceed at law, the bill shall there- 
after stand dismissed with costs } and if he elects to proceed 
here, it is then further ordered^ that he proceed no further 

CAS& IN CHAilCSftt. 8S 

Ir^ ^ieciMdki, oir odi^rwise, 6ii tbe J^gniebt^ triUmiKt the I6i0. 
Ititfe 6f this Contt fiAi hkd and obuioed/' ac.(a) Jt^C'''^*' 

Dfe RlXMBIt 

^) Tid« 1 res. ^Btefll. 388,9. t Tatmr. £30. tfie Kk* tute itt ^^I''^' 

Dk Riiiiifik aiNi otben ajfute^ CANtiLL^ir and 

WlMit», OD a sale of land, teills, te. ia the peoieiniMi of tbe dafioad- 
matB, under an eiMcotion against them, the deed executed by the 
sberiifto the purchaser, by nddake, did not, inolade the whole pre- 
mises adTertised, and intended to be sold, the sheriff baring taken 
tbe deaoription from an original title deed, for tt acres, without ad- 
rarting lo tbe snBs69,iteat coni^yances of nome small pBiteHs contf- 
gaoos, and of tbe water lot ftdjoiaing tbe erigioaliiMmiseS^; tbedb- 
leadants, and all parties, at ih^ time, supposing the abesiff 's deed 
iDcloded tbe whole, and tbe purchaser having bid, aod paid a price 
accordingly: Deereedy that tbe defendants be perpetually enjoined 
from prosecuting tbe ejectment suits brought by them to recover 
tbe parcels of land not included in the sheriff *s deed to the pur- 
chaser, and that they execute to tbe purchaser a rdease of all their 
i%fat and title to tbe same. 

Wl^pre a Judgment at law, by confesocm on a warrant of attorney, ap» 
paan rogniar and formal, according to tbe record, this Court will not 
interfere with, or impeach it, on tbe ground of any alleged irragulari- 
ty, or informality in entering it up ; but will consider the rights ac- 
quired under such jadgnment, as yalid in law ; especially, where 
sereral years bare elapsed eioce the judgment, and the defendants 
IM^ ac<]ptiesced in it, and fa the execution and sale under it 

THE bill stated, among other things, that Ritkard De 
CanHBotif hi his life time, owned serenty-two acres of land 
oil the Budsim river, which, in his title deed, was described 
as beginning at a hemlock tree, on the banli: of Crom Eliaw 
Creek, and described by metes and bounds, and running to 
the Hudson, and along the river to the creek, and then as 


1819. the creek runs, incladiog the creek, to the place of begfai- 
ning. De CanHUan built mills on the creek, and on the 
land ; and he, jointly with J. T. SttnUenberghf purchased 
several small pieces of land adjoining, on the north side of 
— — the creek, for the purpose of making dams, from S. Bard^ 
the deeds for which were dated in June and September^ 
1790 ; and on the 6th of December^ 1793, S. released sill 
bis right to De CatUillan^ who, afterward, obtained a patent 
ibr five acres of land covered with water, in the Hudion^ 
^^4M./kJ^«>^A ^KMPii'his seventy-two acres, for the purpose of making a 
^ ^ wharf and landing place. De CantUhn died in Fdfruary^ 

1806, seited of all these parcels of land. Sec. and his right 
* and title descended to his four children, two sons, and two 
daughters, who were defendants. In 1809, several judg- 
ments were obtained against the 'children, the second of 
which was in favour of James Roosevelt^ for 7,000 dollars, 
against three of the children,, who, also, executed a mort- 
gage on their nndivided three fourdis to JR. Another 
judgment was in favour of Clapp Riiymandi on the 28th 
of October^ 1809, against the same children, on which a j?. 
fa. was issued in October ^ 1809, by virtue of which the 
sherifi* seized all the said lands owned by R. De CantUlony 
at his decease, and sold the same, at auction, to John Par' 
kimon^ for 350 dollars, subject to all the incumbrances, 
most, or all of wittcb^ then remained wholly unpaid, pard- 
cularly the judgment in favour of jR. On the 26th of Feiftt- 
ary^ 1811, the sheriff executed a deed to P. for the 72 acres 
of land, and, as the bill alleged, by mistake^ reference was had 
to the original deed for the seventy-two acres, without in- 
cluding the contiguous pieces of land purchased otBard^ or 
the land under the water of the Hudson^ all of which were, 
at the time of the sale by the sheriff, and at the time of his 
executing the deed to P., in the possession of the four de- 
fendants named in the execution, without being distinguish* 
ed, or separated by enclosure, firom the tract of seven^ 
two acres. P., in 1810, recovered a judgment against the 


Ibiir children of C, for a large sam of money, and in June^ 1819. 
1811, took an assignment from A., of the mortgage and 
Judgment. Caiharine, one of the daughters, and her hus^ 
band, Collins^ in December j 1810, executed a conveyance to 
P. for an undivided fourth of the seventy-two acres ; and 
on the 1st of May^ 1811, the sons, and the daughter, and 
Cottinsp gave up the possession of all the lands above men- 
tioned, and the wharf, landing, kc. except two houses, 
which they retained, with consent of P. It was, afterwards, 
ascertained, that all the incumbrances amounted to fifteen 
thousand dollars, and P. told the four defendants, that if he 
conld sell all the property for that sum, he would not en- 
force the judgments, be. against this, and other property of 
the defendants* Peter De ittemer, since deceased| at the 
request of die four defendants, purchased of P. these par- 
cels of land, so in possession of the four defendants and P., 
which he examined, in company with die defendants, and 
took a deed from P., dated the 1st of Jifay, 1812, describing 
the seventy^two acres, as in the deed of the sheriflf, without 
including the pieces bought of Bard^ and the land under 
the water of the Hudson. During all this time, Parkin^ 
jon, the sheriff, and De Rtemer^ understood and believed, 
that the sheriff's deed included all the lands so possessed 
by those defendants, and both P. and De Riemer paid a. 
price accordingly ; and the bill charged, that the four de- 
fendants, who were present, and assented to the purchase 
by D., fraudulently concealed from him and P., until May, 
1813, that the boundaries in the sheriff's deed to P., and 
in the deed of P. to i>., did not include the lands purchased 
of Bard^ or the land covered by water. De Riemer^ after 
the purchase of P., suffered /2., a plaintiff, to occupy the 
store and wharf, 8zc. and others to occupy the grist mill, 
be. In JHay, 1814, the defendants brought an action of 
ejectment against £*., for the wharf, kc. and another eject- 
ment against the occupiers of the mill, Ssc., on the ground, 
that no title passed by the deeds abovementioned, for the 



1819. the land purchased of Bard, or the land covered with water ; 
and also, on ihe ground, that the judgment in favour •f 
Clapp Raymond was void, having been entered on a war- 
rant of attorney, in vacation, in the Coiirt of Commop 
Pleas of Dm and no rule for judgment entered on the re- 
cords of the Court In the actions of ejectment, verdicts 
were taken for Ihe plaintiff, sutyect to t|ie opinion of tipe 
Supreme Court, on a c^se nade, but which had not beep 
argued. The suit against L. had been stayed by an iip- 
junctpop. The ipills and water lot were the principal 
objects of J)e Biemer in making the purchase. Prayer for 
an ipjunction from proceeding in the ejectment suits, and 
that the defendants may be decreed to execute a releasie to 
the plaintifis of the lands not included in the deed to P. 

Peter De Biemer died October 3d, 1814, possessed of 
the seventy-two acres of land, &cc« and by his will, devised 
the use of his estate, real and personal, to his wife, for liie* 
and directed all his estate, real and personal, to be solcOiy his 
executors, and the proceeds to be divided among his chil- 
dren. The bill was filed by the widow and children q£ 
^eter De Biemer^ deceased, plaintiffs, against the chil- 
dren of De CantiUorif and J. 5. Stouienburgh. 

The material parts of the answer, and of the evidence, 
are sufficiently stated in the opinion delivered by the CouijU 

P. BuggleSf for the plaintiffs. 

J. TaUmadgef for the defendants. 

The Chancelllor. The proof in this case is full and 
complete, that the deed from the sheriff to Paritnion did 
not convey all the land that was sold and bid off at the 
sheriff^s sale. Considering the situation and possession of 
the parcels of land not included in the sheriff's deed, it is 
difficult to believe, that they would have been tnlen^umaffy 
omitted in the sale. They are parcels of laud appurtepaat 

OJjlj/^ h^^ CUlOu^ 


to tbe aeventf-tiro acrei» and were parehaied by the anc^ 1819. 
lor of the dfifendantf, as proper and necessary for tbe enjoy- 
ment of the landingy and to give due Talne to tbe privileges 
attached to tbe fimn. No reasonable man could ever have 
thoaght of separating the land fronting Hui$evCt river frotn 
tbe water lot, becatise the latter would be useless without the 
ibraier, and it is fessendal to tbe value of the former ad a 
landing place. Nor would any reasonable man think 6f 
separating the mills on the creek from the small parcels of 
land On the north side of it, which are required for the con^ 
stmction, support, and use of dams on the creek, and are 
of little value for any other purpose. We accordingly 
£nd, that the defendants, prior to the sheriff's sale, had en- 
joyed the water lot, and the small pieces of land north of 
Cr&m EJh^ur creek, as part and parcel of the farm, without 
wvg visible distinction or separation, by fence or otherwise. 
And when the sheriff advertised the farm fbi; sale by execu- 
tion, he stated, that he should sell the seventy-two acres, 
<* with the miUs, landing, be. in possession of the defend-, 
ants.'' The witnesses present at the sale concur in the fact, 
that not only the seventy-two acres, but the wharf, store, 
mills, and privileges bdonging thereto, were put ap by 
the sheriff, and actually struck off to Parkinson. 

The cause of the mistake in the deed is easily seen, from 
the fact, that the deed was drawn, as to description and 
boundaries, from the original deed to Richard De CantiUorij 
deceased, of the seventy-two acres, without having re- 
course to the subsequent conveyances of the water lot, and 
the parcels north of the creek. But all tbe parties under- 
stood, that all the rights and privileges, and land appur- 
tenant to the seventy-two acres, had actually passed, and 
the defendants, at once, surrendered up possession of the 
whole to Parkifuon, the purchaser. No separation was 
thought of, at the time, by any of the parties in interest 

It is clear, that P. intended to buy^ and thought he had 
purchased the land now in dispute. He bought subject to 

Vol. IV. J2 


1819. all existing incambrances, which then amounted to 15,000 
dollars, so that he gave near 16,000 dollars fior the land, 
including another farm of 200 acres, which he bought at 
the same time. Admitting the other farm to be worth 8,000 
dollars, which the defendants allege to have been the value 
at the time, and admitting the seventy- two acres, exclusive 
of the water lot, and the Bard lots, to have been worth &0 
dollars an acre, (and all the witnesses agree that they were 
not worth mor^) then P. gave upwards of 4,000 dollars 
more than the real worth of the land at the time, if he did 
not buy the land now in question. This fact is decisive 
proof of his intention. Besides, P. took possession of the 
whole, with the assent and approbation of the defendants, 
and he used and occupied it as owner, with the like know- 
ledge and assent. This appears from his advertisement in 
the public prints, offering the landing for sale, containing 
seventy-two acres, with mills, a dock, store houses, &c. It 
appears, also, from the fact, that he repaired the wharf, and 
with the knowledge and assistance of one of the defend- 

Neither P., nor the defendants, were aware of the mis- 
take in the sheriff's deed, until after the purchase by Ih 
Riemer. It is in proof, that De Riemer intended to buy the 
whole land, including what is now the subject of Contro- 
versy, that he previously examined the store and wharf, 
and mills, and declared that they were the principal in- 
ducement to his purchase, and constituted its chief value. 
One of the defendants accompanied him in his examina- 
tion, and he gave the consideration of 15,000 dollars. 
After he had taken his deed, which was copied, as to boun- 
daries and description, from the sheriff's deed, (for the 
same mistake in description was continued,) he took pos- 
session of the whole entire premises, as P. and as the de- 
fendants before him had possessed them. He leased the 
store and mill, and had the land surveyed, and one of the 
defendants attended the survey, and pointed out the slip of 


land lying north of the creek, which bad been leased of 1819. 
Samnd Bardj as the correct northern boundary. 

In short, it is evident from the testimony of the witnesseS| 
and from the answer of the defendants, that the defendants, 
equally with the sheriff and P., in the first instance, and 
with P. and De Riemer^ afterwards, were under the mis- 
taken impression and belief, that all the lands adjoining to 
the seventy-two acres, as part and parcel thereof, had been 
duly conveyed and possessed, according to the original sale 
by the sheriff; and the mistake in the deeds was not discos 
vered by either of them, until after De RiemerU purchase 
in 1802. 

Can it be possible, that such an obvioUs and injU'* 
riOQS mistake as this ought not to be corrected? The 
correction is required by the most obvious justice. The 
defendants, who acquiesced in the purchase as it was origin* 
ally intended, and gave up possession accordingly, and who 
soflered P. to occupy and improve, and De Riemer to buy 
and occupy, under the belief that they were the lawful 
owners of the entire premises, ought, in justice and con** 
science, to be estopped from availing themselves of that 

The sale and purchase, as I have already observed, was 
of the entire possession of the defendants, and the mistake 
in the sheriff's deed was in the description of the bounda-* 
ries. The defendants were not, strictly, parties to that sale 
and conveyance, but they were the defendants in the execu- 
tion under which the sale was made, and in possession of the 
land ; they were present at the sale and delivery^ and assisted 
in carrying the contract into effect according to its trae in- 
tent and meaning ; and if it be just, that the mistake in the 
deed be corrected, the defendants are particularly bound, in 
equity and good conscience, to abstain from availing them- 
selves of that mistake, to the prejudice of the plaintiffs* 
They ought to release, and abandon their claim. More 
especially ought they to do this, in respect to the plaintiffs, 


1S19. mce ihey saw P^er De Kemer give Ae em/UenAtm of 
15,000 doirars, for Imd not worth 4,000 ddil«f«, if the w«r 
ter lot, and the (itrip of land QQrth of die creek, be eiekded, 
and since lh«y made no claim, at that timei id that paorl of 
the premises, and even encouraged i&m in the purchase. 

Under all the circumstances, the prayer of the bill that 
the defendants be enjoined from the prosecution of theur 
suits at law, and be decreed to release thdr claim at law to 
the platntifis, is most reasonable, and founded on clear and 
estafaliahed principles of equity. 

But, the defendanu allege, that the judgment in favour of 
Clapp Raymond^ under which the sherijOTsold to P., was en- 
tered op, in the JhticheMs Court of Common Pleas, on a con- 
fession of judgment, taken out of Courts and which, by the 
statute, as it then stood,- was declared to be void. This is 
the averment in the answer ; but the defendants have not 
furnished any proof of the fact,, and assuming it to be true, 
the quesUQU is, whether that objection can be raised here, 
and in thb case ? It is to be inferred, from die answer, 
tl^at the record of the judgment appears to be regular, and 
to have been rendered as of October term of the JDic^eAest 
Court of Common Pleas. Whether a rule for judgment was 
moved and entered in term time, is a matter of fact, and the 
answer det^ing the existence of any such rule, is not ac- 
companied with proof. The judgment was confessed, and 
entered in October^ 1807, and it does not appear to have 
been set aside as irregular, or reversed a^ erroneous^ It 
remains in full force to this day, according to the record. It 
cannot now be set aside for irregularity, even in the Court 
of Common Pleas, and this Court has nothing to do witfr 
<hat question. {Shotienkirk v. Wheder^ 3 Johns. Ch. Rep. 
275.)* Though the statute, in force in 1909, declared, that 
judgments in the Courts of Common Pleas, entered by con- 
fession in vacation, should be void, it is not to be supposed, 
that the legislature intended, that acts done under such 
judgments were in no case, and at no time, and under no 


pi»inihleciwnmiinrf>g| to be reywted agnJid* Tberigbu 18I0. 
r,biwiid outec flaob jiidgacnl^ ate siiceptible of coufirma* 
Ipm fcgr aoqaMcencd^aad timc^ and the waivtr af iImi iite- 
fidarilgc. faidie|Hreiratcafit^ thejadgmevcaad iheaxeea- 
lioQ and sale under it, have been acqnieseed in by the de* • 
fendamst and recognised by them as valid, until they are 
barred from applicadon to the Coort of Common Pleas, to 
set aside the judgment as urregolar, and until a banajide 
porchaser for a valuable consideration, and without notice, 
has been led to purchase under a tide derived from that 
judgneat, and with the knowledge, approbation, and en* 
ccNuragement of the defendants, or some of them. 

This Court cannot under such cupcamstaaces, (pes- 
tiott a judgment which stands segolar and formal lipon the 
icooids of the Coavl. It is bound to xegard the rights ac- 
qeired under it, as legally acquired; the invalidity of 
that judgment is a point falling within the cognizance q( a 
Court of law, and not of this Court 

I shall, accordingly, decree, that the (fefendants be per^ 
petnally enjoined from fiirtber prosecuting the ejectment 
suits m the pleadings mentioned; and that, within forty 
days after due notice of this decree, they execute and deliver 
to the plaintiffs a release of aU their right and dde to the 
tracts of land in controversy ; and thatt ^^ parties cannot 
agree as tp the form and ezeculion of the release,, the same 
be approved of by one of the masters of this Court, and 
he drawn and prepared at the expense of the flefendants, 
and that neither party have costs of this suit as against the 

I have adopted this course as to costs^ because the same 
eoturse was adopted by Lord Hwrdmtke^ in ShHm y. Cawper^ 
3 Jitk. 692.) where the heir, as remainder-man had lain 
by, and suffered an assignee of a lease to rebuild, and had 
received the rent, and then brought an ejectment for defect 
of legal title in the assignee. The Lord Chancellor, by in- 
injunction^ qnieled t{ie assignee ia his possession, but de« 


clared that no costs were to be paid on eitlier side. The 
same role was followed io the similar case of Jackson y. 
Cator^ (5 Vetey^ 685.) where a landlord^ by his condact, 
amounting to acquiescence and consent, was restrained from 
exercising hb l^al right. 

Decree acocnrdb^y. 

J. R. Livingston against Gibbons and Ocsdbn* 

The name of a defendant cannot be struck out of a bill, on motion of 
a co-defendant, witlioot bis consent, or notice of the application. 

Where one of two defendants is a citizen of another state, and there is 

no joint trust, interest, duty, or concern, in the snbject matter of ooo* 

troversy, he may be allowed to appear and defend alone, so as to 

enable him to remove the cause into the Circuit Court of the Uni-^ 

• UdSUUes. 

If a defendant intends to remore a cause into the Circuit Court of the 
UnUed SUUea^ he must file his petition, &c. for that purpose, at the 
time of enteriog his appearance in this Court 

Where a defendant files his answer to an injunction bill, and is heard 

^by his counsel, on the merits of the bill and answer, and the.court 
makes a decretal order in the causey it is too late to apply for the 
removal of the cause to the Court of the UnUed States. 

The usual mode of appearing io this Court, is by entering an appear- 
ance with one of the clerks of Court. But a notice by the defend- 
ant's solicitor of an appearance, given to the plaintJiT's solicitor, 
without an entry in the clerk's minutes, would, it seems^ be binding 
on the party. 

An appearance filed with the Register j is an appearance on the records 
of the Court. An4 where a defendant pots in an answer, which is 
read in Court, by consent of the opposite counsel, and ordered to be 
filed with the register^ and a decretal order is made thereon, in At- 
vour of the defendant, it is an appearance on the records of the Court : 
and it is too late, afterwards, to petition for the removal of the 

jtund 14th. HEJiRYf for the defendant CHhbtms^ moved for an order 
that the name of wiaron Ogden be struck out of this canse^ 


as a party defendant) or that the defendant Oihbong be per- 1819. 
naitted to defend this suit alone, in the same manner, in all 
respects, as if the bill had been filed against him alone. 

He, at the sante time, presented a petition of the defendant 
O.J with an affidavit thereto annexed, stating that he is a 
citizen of the state of JVew^Jersey^ and resides therein, and 
that the plaintiff is a citizen of the state of J^eto^York, and 
resides therein. That the plaintiff, shortly before the Sd 
day o(May last, filed his bill in this suit, praying for an in- 
junction, as in the bill stated ; and that on the 3d of May 
a motion was made for an injunction, according to the 
prayer of the bill. That the motion, as to the defend- 
ant Ogdenf was denied, and as to the defendant G. it 
was denied, so far as respected the navigation of the 
waters of the sound between Elizabethtovm Point and Am- 
boy J in the state of Kew-Jerseyj and it was granted only so 
far as to restrain the defendant G. from navigating with 
vessels propelled by steam, the bay of J^ew-York^ be. 
That the defendant is owner of the steam boat, called the 
BeUonaf and is desirous of employing her in the coasting 
trade, for which she is licensed. That she is duly enrolletf 
at the port of Perth Atnboyj in JYew-Jersey* That the pe- 
titioner is sole owner of the boat, and has no interest or con- 
cern on the subject, with the other defendant O. That the 
matter in dispute in the said cause exceeds 500 dollars. 
That being desirous of removing' the above cause into the 
Curcuit Court of the Untied States^ he offers sufficient secu- 
rity for entering the cause and his appearance, in the said 
Court, on the first day of its next session. 

JET. BkeckeTy An* the plaintiff, opposed the motion and 
petition : 1. Because, here was a suit against two defend- . 
ants, and one of them was no party to' the petition. 
2. Because, the defendant G. had already appeared, in 
fact, and made a defence, and this Court had passed upon 
his righte^n this cause, on the third day of May last.* • Fid», ant« 

' ^ p. 48. 


1819. Henry^ in reply^ teferned to 1 Ctxints^ JBqp. 248., and CoU- 

man*8 Cases^ 58., to show that an applicatioD for this pur- 
pose is in time, though bail may have been excepted to : 
to 4 Johns. Ref. 493, to show that after Judgment against the 
casual Rector, the landlord is in time \ tuid to J^eulatuPs 
Ch. Pr. 35. to show that an appearance in chaticery is en- 
tered with the clerk» 

He insisted that the defendant G. had never entered bis 
appearance with one of the clerks, and that the paper on 
file, purporting to be his answer, bad been used mecely 
as an affidavit. 

The Chancellor. The name of the defendant Ogden 
cannot be struck out of the bill, for he is no party to the 
present application, and has not had notice of it. It appears 
from one of the documents accompanying the petition, that 
the petitioner Gtbbansy on the 24th ult. addressed a letter to 
the defendant OgdeUf praying to know whether the suit as 
against Ogden^ was still subsisting ; that if it was still in a 
course of defence, he would unite in an application to 
have the cause removed into the court of the United States^ 
and that if Ogden neglected or refused to join for that pur- 
pose, CHhbons would apply to have Ogden^s name struck 
out of the bill. All the answer given to the application was^ 
that Ogden would not concur in, or anthoriie any measure 
to remove the cause, and no notice of the present application 
has been since given. 

The defendant Gibhow is entided to that part of the mo* 
tion which asks that he may defend alone. He has nO 
joint concern or interest with his co-defendant, and be is 
then, as of course, allowed to demni^ plead, or answer 
separately ; and I see no good reason why he may not, also, 
make the present application for himself. If the motion 
should be granted, the suit, as against Gibbons^ would be- 
come entirely separate and distinct, and so, perhaps, it 
ought to be, if there be no joint trust, or interest, or duty, 


OT concern in the subject matter of the sait. It oaght not 1819. 
to be in the power of a plaintiff to deprive a citizen of 
another state of his right and privilege to remove the caasei 
by merely joining with him another defendant who canndt, 
or who will not, unite in the application. 

3. The only serious question on this motion, is whether 
the defendant G. has made his application in due time. 

The act of Congress declares, *' That if a suit be com* 
menced in any State Court, by a citizen of the state in 
which the suit is brought, agaiust a citizen of another state, 
and the matter in dispute exceeds 500 dollars, &c., and the 
defendant shall, at the time of entering his appearcmce in such 
State Courtj file a petition for the removal of the cause, for 
trial, &c. and offer good and sufficient surety for his appear- 
ance, &c. in such Court, (of the United States^) it shall then 
be the dhity of the State Court to accept the surety, and 
proceed no furtberin the cause." (1st Cong. sess. 1. c. 20. 
8. 12.) 

The question resolves itself into this point, whether the 
defendaih (?., previously to the time of filing this petition, 
entered his appearance in this Court, within the meaning of 
the law, so as to be now precluded from the benefit of bis 
petition f 

The following fiicts appear from the records of this Court, 
and from the papers on file in the register's office. 

On the 3d day of May last, a motion was made for an 
injunction, according to the prayer of the bill. Due notice 
of the motion, together with a copy of the bill, had been 
previously served upon each of the defendants, Gr. and O. 
l*he defendant Ogden appeared in proper person, and the 
defendant CHbbons by bis counsel, Mr. Scudder, and oppo- 
sed the motion, and each of them produced their separate 
answers to the bill, drawn up in due form, and sworn to, 
and subscribed by counsel. The reading of those answers 
was objected to, as the solicitor of the plaintiff had not re- 
ceived notice of them, and they had not been regularly 

Vol. IV. 13 


1818* Sk^$ ^^ tke pbiiiti/if was lUiewis^ QDtitfed tQ tbr^ w^Mh 
to look. ioU) Ib^ aofiwers^ a^ii4 V> ^^H^ exc^plioR^ to tlw^i, itf 
tbey aboM)4 appeur to 1;^ iosufflcient. Tb?y veve^ t^Mrefere, 
not f atitkd to be treated hb «iiai0er«, but w^re peroHt^ to 
be read, and were i:eaid and used a9 affi4avih Qfth^ d«(end^ 
Mt» g9iiQg \o tb^ ro^it^s of the bill. . Tbe> apswev ^for so it 
may be c^d) of tJt>e de^ep^j^ CS. ims^ 4i^ sub&Uoco of 
tb^ b>lJ^ 9^ brpugbvtbe oaerito of tb^ cWi|i \Q ^ excWive 
l^ivilogeiie^ pp by the plainVifi^ iQAP fuU aJidfair dispu^siioa, 
^ oflSs^^ to OK^io^io iMEid prov^ ^11 tJI^ qiatteirs ^ ibjiDgs 
coBta^d ki tbe ans^^er, '^ a& tjliis bonoMrable Court 8hQul4 
4ijrec^" aiM^ conckide^ with prayiog that he m'l^ht' be dis- 
9)i^sed with oosl^. This answer waA regi))arfy swom to bjr 
tl|e defendant G,., as bis i^nswer, and- wa^ subscriJ^d bj( 
(Jr. Chiffm, as bis solicitor ^ couasel, and vm vs»4 osul 
jCZe{^, 03 his defence upon the motion. Tbe cai^ waVdii^cuss- 
^. and c(>ii&idered upon the roei^its of the bill, and. of tbosQ 
answers, and on the same 3d day of Matfy a decretal ordev 
wa« eoii^red, with tbe kppiirledge of all tl^ par^^* 

Do not.tbcse proceedings^ on tbe part of the defenda^ £r.» 
i^mount to an election, of bis^ tribunal, and. a submission la 
tbe jurisdictiou of this Court? He thought pi;oper to difr^ 
cuss here the merits of the claim, and of his defence^ which, 
arose luider the motion for an injunction, a^id he has bad 
tbe benefit of an opinion of this Court in bis fayour, oO; 
one essential part of the claiip. It is, evident,, ajso, that he 
intended to submit his defence to the cognis^ance of thia 
Court ; and the answer which he produced and read, and 
w(hich is now on file, was intended by hifn as his appear-, 
ance and answer to the suit. The act of Congress requires 
the petition for removal to be coeval, \q point of time, with 
the party's appearance in Courts and the defendant is not 
to be allowed to appear and submit to the qonsid^^'^tion of 
the State Court the merits of the case, either in wlu^le or 
in part, apd after having procured a decision, to apply fop 
4, removal of his cause. Qi^ is qpt, entitled, und^r tbajt a^t^ 


td aft 4>bHtiM ttf both thb State aitd tRe Federal Cddtis, l§f0. 
opon any part of the case, unless hi the fegafe^ coUrsc of aji- ^JJ^JJ^^yJ^ 
pea! or by ♦rit o^ ctrbr. It ap);ytors to me, thiit Hie de- v. 

ibttd^iit is j^tMly ba^k^, by Ms appearabee mid d^feti^, on ' 
the 9d of M&y la», frdm the benefit of hb petitiohj and 
th&t he is now cittt t^f tline with this knotlon. 

fiat it 11^ \ifjged, ihM the di^i^hdant O. has not entered hts 
appeiiranc'e in the 6it!inary and fi)nnal mtknner r^qtHired by 
the practice of the Court. 

The usual mode of a voluntary appearance in this Court, 
is by entering dn appearance with one of the clerks, (and 
the defendant applies for that purpose by himself, or his 
solicitor,) and the clerk, or solicitor, gives notice to the 
plaintiff's solicitor that the appearance is entered This 
appearance is nothing more than an entry in the clerk's 
minutes that the defendant has appeared ; there is nothing 
so solemn and material in this ttianner of appearance, but 
that it may yery easily be waived ; and, probably, the defend- 
aitt i»6\i\d be boand by a Uotiee of appearance given by hi^ 
solicitor to the opposite solicitor : if an entry of such ap- 
pearance should become material, the Court would compel 
the solicitor lo have it made. 

There is, also^ an appearance with the register, and sdch 
an appearance, say the books, " is an appearance upon the 
records of the Court, and differs from an appearance in the 
dfficei by a clerk in Gdoi»t.*» {Hiiide^i Prac. 1 44. 1 ttarr. 
Pftiti Al9.) It tntty fc« done ttf'hen the defenciant is not ih 

In the present t^tfle^ the del^fida^t G* may be cdn^ider^ 
u haviiig appeared Uptm the nc^ris of iht Couti. Htf 
eofliefi iMd CoiUI) bjr his counsel, with fth amwer duly 
sigtied by bis sotklhor htiA <*oitnsel ; that answer h per rhit-' 
ted to be read in the presence, and by the consent of, ide 
6ppiistte party, tfnd it w diretUd id befied with the r^ter^ 
Mi h mdde the ibOHdation erf a dee^eta) order of ih^ 



1819.- Court inr faTonr of the defendants Hk appearance is re^ 

y!^^"^^^ cognised by that decretal order. 
MArrxR or ^ 1, . . . , . , i. , 

BosTWicx. > 1 am of opinion, that this amoonted to a vabd appear^. 

""^"""'"^ ance with the register, and, consequently, thai the defendant 
6. ought to have presented, at that time, bis petition for 
the removal of the canse ; and that, according to the act of 
Congress, and the reason and equity of the case, in le- 
ference to that provision, the motion on the part of the de- 
fendant CHbbam ought to be denied. 

Order accordingly. 

In the Matter of S. F. Bostwice. 

Under what circmnstuioes, and in vhat manner* and to what extent^ 
the firindpal of a sum deviied to obildren, after the death of their 
mother, to whom the m/eretf was payable daring liie, will be broke I 
in npon, and directed to be paid, by the executors, for their present ' 
maintenance and education, being infants, and, also, for the dis* 
charge of debts contracted by the motheri fo their poit mainte- 

Jhigua leth. PETITION of Susmnah F. Bo§hoiek^ stating, that her 
father, Joseph Waikinif now deceased, by his will, dbected 
his estate, real and personal, to be appraised, and that his 
executors sboold put at interest, on good security, one 
eighteenth part thereof, and pay the interest of such part to 
the petitioner, during her life, in half yearly paynmiU ; and 
he then devised the principal, after her death, to her heirs. 
That the testator appointed her two brothers, Joseph S» and 
John S. Watkinif executors, who^have qualified. That the 
estate being appraised, as directed, amounted to 66,293 dol- 
lars, 85 cents; and that the share of the petitioner amounted 


to 9fiS2 dollars, 99 oeiiU. Tlmt her father left her no other 1 819. 

provision by the will, but a pecaoiary legacy of 250 dollarsi v^'v^-^ 

which abe bad received and expended, and the one fifth of Bowwick. 

a house and lot in Sprmg^Hreet, aAer the death of her no<* ^^-*-— * 

ther, who n fifty-six years dd, which lot is held npon a 

lease for years, of which fourty*foor years are to come. That 

the property above mentioned is all die possesses, except 

a small boose on a lease, vaked at 260 d<^ars, and the 

only means she has to support herself and six chUdreo, 

fbar sons and two daughters, all infants, the youngest of 

whom bring wider seven years* That her husband has 

abandoned his children, and by a decree of this court, of 

tbe 23d of /aaicary, 1818, ibe petitioner, as plunuff, was 

separated forever from the bed and board of her husband, 

smd the custody of the children was committed to her ; and 

her husband was prohibited from intermeddling with tbe estate 

to which she was entitled under her fiitfaer's will, or which 

she might otherwise acquire. That her children have no 

property but what is given to them as principal, by her 

father's will. That the testator died the 7th of Maj/y 1817* 

That she is now in debt 682 dollars and 82 cents, for the 

necessary maintenance of herself and childreo, whom she is 

unable to support for less than 811 dollars per annum. 

Prayer J that part of tbe principal which, after her death, 

will go to her children, may now be applied towards their 

maiotettaace; and that the executors may pay her tlie debt 

of 682 dollars, 82 cents, already accraed, and aa annual 

allowaoce out of th^ principal, which, with the interest, may 

be saffictent to mmntain and educate the children. 

TUft petition was supported by affidavit, and by sche- 
dolea referred to, showing how the debt of 682 dollars 
arose, to whom do^ and the necessary items comprising 
Ae sum requisite Cor the future maint^umce. Due notice 
of the time and place of presenting the petitioUt with a copy 
of it, was served upon the executors. 


CAS8S m CHAKCfitlV: 

H* Rikir^ iof the petitioner, etted ex patie Whii' 

fields iAlk. 315.; ex parte Kent, S Brd. 88.j tst pttttt 

BoCTmcHr Softer, 3 flro. 600. ; Sir I*. Plumer, to S^nrtcA v. rt^alfewu, 

*■——-** 1 ^crA CA. iicp. 957.^ to show that mainteoaiice may be' 

allowed for an infent^ open petition^ atid Without bill, atnl' 

though there be no cause in conrt. 

Maintenance Thb Ch ANCRLLoa. The pfactice ^eeiAs Miffieiebt) V ^ttl^ 

allowed for in- * "^ 

fanu, out of the bv the authorities referred to, and by that of ^ pariB MoiM*' 

capital of their "^ t ^ J- 

esiate. u()on forU (Id Vcs. 445.) to allow of the appliiiation for ikniiat^ 

peiition, with- '^ , . . . -—. . . ^ . . ., ^ 

oat bill. nance, by petiiioti. The history of the caMb where i«Uef 

of this kind has been afforded upon prtidobs withoni bill^ k- 
given in the case ex parii Salter y (3 Brg. 500}) and id that 
case the eostt of tl» peUtion were allowed lo the gunrdiaii 
in his aoconntS) according lo the precedeni In ex parU- 
TTiomaSj (Jlmb. 196.) 

The greatest difficulty in this case is the applicatiba to 
break in upon the capital of the infants' estate, for their aain-' 
tenance and education* The legacy of one eighteenth of the 
testator's estate, (and which amounted to 3,682 dollars, 00 
cents,) was '^ to be put at interest, by the exetutorsj upon 
real security, at sii or seveo per cent, per annam ; atid th« 
interest of that sum was to be paid half yearly to the peii* 
tioner, during her natural life } and after het decease, the 
moneys so put at interest for her use were given and be« 
Queathed to her lawful heirs, equally to be divided betweeti 
them.'' We must impair the principal sum, or Ho relief 
can be afforded to the infants. This case affords peeolia^ 
and strong claims to such an interference. The petitioner 
calls for it, though site thereby diminishes her own income. 
The capital is small when divided among the sit childteti ; 
and we may well adopt the relhorks a( Lord Keeper Mtihj 
hi Barlow v. Chant, (I Fern. $55.) that it was *fil and 
reasonable that part of th<^ prtncrpal of a child's legacy of 
lOOZ. should be allowed for bis education. The money 
laid out in the child's education was most advantageous 


mjA toNfieM for iht iB&m, and^ theteflm, be sheiiM VH9l 
make up acrnyife of breaking kno. tbe principal, vbere Jj^^JJ!)^^ 
ao ana}! a aafli waa daviseii, that the iaterest thereof wowM 9 mt m m m, 
not sqfice ta giv» tht kgatte a ccMipeleiil laaiatenance afidl '~'"""*'"'^ 
odaeation. But in caseaf a legaey af 100M« or tbe Hke, 'f the sum de. 

^ "^ ' vned be small, 

there it michi he caasooabfe ta restmn the naintenanee to ^ pnociMi 

^ may fae appu- 

Ab interest of the maaey.'* So, ako^ in Harvey v^, ffarveif, ^' otherwise, 

(2 P. Wms. 21.) the same practiee waa pomied, and the ^^r- 

Master of the RoHb declared^ that wliere a tegacy wtts given 

(o an in&ot, paya^lo^ at tweo^one, wtthont any devise 

over, and ihe itifanl has Dothiag efca to sabsist on, the court 

^will order part oC this legacy, in order to provide bread' for 

die infani, to be paid presently, all)i»wing interest for the 

same, Iq ibo person paying it, oat o# the remaining prin* 


Bat notwithstanding the doctrine oT these eases, the Bfas« * 
ter of the Rolls, in the modern case of Walker v. fVethereU, 
ifi Vti. 473.) wonld not only not allow trastees, of their 
awn authoriQr^ to impair the capital of the infant's estate, 
but said, that it had very rarely occnrred, that the Ctmrt 
iUdfhaA broken in upon the capital, for the mere purpose of 
aiaioteaance, though it frequently had Ao^ it for the purpose 
of advancement^ or setting up the child in Kfe. '' As to mere 
maintenance,,'' he said, ^^ I doubt it, even upon a petition 
paesented. It is agveat misfortune, if the capital is so small 
as not to leave a comfortable maintenance and- education ; 
bat what can tho Court do i^ The answec to be given to 
these doubts of the Master of the Rolls, is, that an allow<- 
aaoe of thia kind is within the poa^ers, and under the dis- 
cretioii, of the Court, and may, in many cases, be as fitly 
aodproperly made for maintenance and education, as for an 
advancement. It may be much more so ; for an advance- 
ment might not be of much use to a child that had been 
brought up in poverty and ignorance. The capital com- 
ing to each child, in this ease, at the uncertain, and proba- 
bljr distant, period of its mether^s death, wooldnot moch 


1819. exceed 600 dollars, and the necessity of immediate reKef to 
"^^^^^"^-^ the petitioned) for and on behalf of her children, is palpa- 
Bmtwmx. ble and pressing. The doctrine of Lord Keeper yarth is 
***"*~'~ reasonable, and applicable to the case, and I am disposedi 
in this instance, to follow it. The cases of Cavendigh v. 
MerccTf and of OreenweU v. QreenweUj (5 P^a. 194 and 
195, notBf) are strongly in favour of such an allowanoe, 
and they rested on the same principle. There were be- 
quests, in those cases, to grandchildren, payable at twenty- 
one, and the interest to accumulate and be paid with (he capital ; 
yet, the necessity of the cases requiring it, a maintenance 
was ordered out of the fund, taking the consent of the per- 
sons entitled over, in the event of the childrens' death. This 
was done from the reason and necessity of the case, thohgh 
Lord Rosslyn observed, in one of those cases, " I fear, if I 
should make the decree, it would be my will, and not the 
A parent maj The petitioner, also, asks for reimbursement for the past 
of Uie'Tnf^s maintenance of her children, or for the discharge of debta 
mlioteuuicr^' which she has of necessity incurred for that purpose. Such 
an allowance is, also, within tlie rules and practice of the 
Court. Lord Thurlow^ in Hill v. Chapman^ (2 Bro. 231.) 
and Andrews v. Partington, (3 Bro. 60.) held, that no al- 
lowance could be made to a parent for the past mainte- 
nance of an infant. But, afterwards, in Reeves v. Brymanf 
(6 Ves. 425.) and in Sherwood v. Smith, (6 Ves. 454.) 
Lord Eldon approved of the alteration in this old practice, 
by Lord Rosslyn, and he allowed a father to be reimbursed 
for the past maintenance of a child. Lord Thurlow was 
said to have changed his first opinion on this point ; and 
Lord Alvanley frequently made a retrospective allowance 
for maintenance, and the practice afterwards grew familiar. 
{SUson V. Shaw, 9 Ves^ 285. Chambers v. Goldwin^ 
II Ves. 1. Maberly v. Turton, 14 Ves. 499.) The old 
rule, as it was first laid down by Lord Thurlow, would lead 
to great inconvenience, for though the w^nts of the infant 


might be ever so pressing, he could not receive any main- 1819. 
teoance (charity excepted) without the expense of a suit, and ^*^[^^^^ 
reference to a Master Bqotwick. 

There must be a reftr^iice in tliis case. I oaight, indeed, ^— -^ 
say with Lord Rosslyrif in GreenweU v* Grtenwdl^ '^ that 
I think nyself sufficiently wanramted to order a suitable 
allowance ton maintenance, wfthout a reference," yet the 
extent of that allowance, and the disposition of the fund, so 
as to meet it, and the other means of support (if any) of the 
petitioner, and the items of her charge for past maintenance, 
are pr<]per subjects of reference. 

] shall, therefore, order and direct, that the executors pay 
to ibe petitioner, within twenty days after service of no- 
tice of this order, two hundred dollars out of the fund set 
apart for her and her children, towards the maintenance 
and education of her childmn, and for which the execotors 
shall have the requisite allowance in their accounts ; aid 
tiiat it be referred to a Master to inquire and report what 
yearly sum, onder all the circumstances of this case^ would 
be a proper allowance for the petitioner and her children, 
and what disposition ought to be made of the fund, so as to 
meet it, and also to examine ajpd report ooi the jastaess aid 
tralb of the charges for past .^aiote n ancey kc. 

Order accordingly. 

Vol. IV. U 


Matter or 

""— """"""^ In the Matter of Daniei^ Washburw. 

It it the law and usa^ of nations todetUrer ap olfenden tkKtged witb 
felony and other hi^ crimes, and who have fled from the cooAtry 
in which the crimes were committedy into a foreign and friendly 
And it is the dnty of the civil magistrate to commit snch fugitive from 
justice, to the end, that a reasonable time may be afforded for the 
government here to deliver him up, or for the foreign government 
to make application to the proper authorities here for his sarreBden 
But if no such application is made in a reasonable time,' the prisoner 
will be entitled to his discharge. 
The evidence to detain such fugitive from justice, for the purpose of 
- surrendering him to his government, must be such as would be 
tonfficient to commit the party for trial, if the crime had been per- 
. petrateci here. 

The srth article of the tueaty of 1795, between the United Staia 
and Great Brflain^ was merely declaratory of the law of nations on 
this subject ; and since the expiration of that treaty, the principles 
of the general law of nations remain obligatory on the two nations. 
Therefore, the Chancellor, or a Judge, in vacation, has jurisdiction 
to examine a prisoner before him on habeas corpus ^ and who has 
been taken in custody on a charge of ih^i^ or felony, committed itt 
Canada^ or a foreign state, from which he has fled ; and if sufli« 
cient evidence appears against him to remand him, or if there is 
not sufficient proof to justify his detention, to dischai^ge him. 

jtugu$i2U. D. JVASHBURJ>f was brought before the Chancellor 
upon habeas corpus^ allowed and directed to the sheriff of 
Rensselaer count}'. It appeared by the return, that he was ' 
detained in custody by virtue of a mittimus from the re- 
corder of Troy^ under a charge of having hi his possession 
170 bills of the bank of Montreal^ of the denomination and 
value of five dollars each, which had been feloniously taken 
from some person unknown, and that he had received and 
secreted the bills, knowing them to be so stolen. 


Ths CnMxGMUjhOJL, in pursuance of the act, entitled^ 1819, 
" an act to amend the act, entitled, an act to prevent unjust ^^^^^^^ 
imprisonment, by securing the benefit of the writ of Ao- WAWBuaib 
beat corpw^^* (sess. 41. c* 277,, which provides, '^ that in ' ' 
all cases of imprisonment, whether upon commitment of 
any eruunal, or supposed criiwBal matter, or not, the 
CbancfeHor, Judge, or other officer, before whom any per- 
son may be brought on habeas corpus^ in vacation tim^ 
shall, and may> examine into the facts contained in such re- 
turn, and into the cause of such imprisonment, and .tbere^^ 
upon either discharge, or bail, or remand the party so 
bfbtt^l, as the case shall require, and as to justice shall 
appertain,") proceeded to the examination of the prisoner, 
and of several witnesses, who were produced for and against 

It appeared, that a theft had been committed at ISngtiQUf 
in Upper Canada^ on or about the 29th of June last, and 
that one George Bidaui, upon whom the thd*t was commit- 
ted, had 4,000 dollars, or upwards, stolen from him, at a 
public house in that town.. That the, prisoner was an 
inhabitant of Kingston^ an acquaintance of G. IL, and 
spent the night, or a part of the night, in which the money 
was stolen, in company with him. That the money stolen 
consisted of Mmtreal bills, and were said to be five dollar 
bills. That the prisoner left Kingston within the two last 
weeks on a journey t» the United Staies. That he was in 
company with one Lyman Parks, who, on Tuesday last, at 
a bank in Troy, offered 900 dollars o( Montreal bank bills, 
of five dollars each, to be exchanged, at four per cent dis« 
count, and that the bills received in exchange were imme- 
diately handed by P. to the prisoner. The circamslances 
attending the intercourse between the prisoner and Parks, 
4tnd a denial by the prisoner, that he had ever seen or known 
Parks before that time, though it was proved tliat they had 
been together previously at Albany, and that they came 


1819. ckwn from tbe iMadi rivtr in oooipMy widi t«:b iKher, 

^^l^^l^l^^^^ were the chief grdatkte of ttieclmrgeuidooMbitiiittit. 

•"■"— Cifi&Mafi, twl Fiwi Veektm, for Ihe pruoner^ 
ibr his dKecbftrge c 

I. Becnse the Cfaaimlfor hwl no jnrisificlMMi of the 
Mte, even vdiniitkig the pritoner hnd Uoko the hiSk ia 
qnestien at Kii^$$m^ in Upptr Cmi^dn, inasniach, ne onr, 
CdurtB have no ccinceni with erimes eommiited oat of dw 
United Sm^^ and have no authority to arrest tft detain tho 
. offender. 

% Becanse the proof is insnfficicnt to charge *e fMisoncv 
vritfa the theft, even if it had been comniitted within tWs 

M^Manut and Pmne^ in behalf of tbe proseention, re- 
ferred to 5^. 64S. 4 TaunU 34, and 1 CM»y o* CMmsnoI 
LaWf IB— 4*, in support of the jurisdiction. 

It if Uw law of Tti£ CnAMccLLOR. It is the law atid usage bf nations, 

nations to deli- . . « . • • • ^* • « ■ i« •«. 

▼er vp oflend- fcsting On the plainest pnntipies of justice and public utility, 

with ^b^^ to deliver up offenders charged whh felony and other bigh 

who have fled crimes, atid fleeing from the country in which tlie c riww: warn 

tJT^wh^iTtbe committed, into a foreign and friendly jurisdiction. When 

conraitted^'^ A case of that kind occurs, it becomes the doty of the«i«il 

fna^itnte^^^ magistrate, on due proof of the fact, to commit the fugitive^ 

S^for?!!^ to the end that a reasonable time may be aibrded ibr the 

fo?^that pa'^ government here to deliver him up, or 4br the foreign go*- 

^f^^ vemment to make the requisite application to tbe proper 

authorities here, for his surrender. Who are the /iroptfr ««^ 

ihoritm ih this case, whether it be tbe executive of die stale, 

or, as the rule is international, the executive authority of the 

Viiittd ^Staiesy the only regular organ of comuMinicatiott 

with foreign powers, it is not now the oocasiott to discuss. 

It is sufficient to observe) that if no sochopplicatiou be made^ 

and duly recognised, witbip a reasonable tune, the prisoner 


will dm te eatM^ to his diKhargv opoa Meat emrfmt. 1819. 
If tbe jodkiai Mtboiiqr has ^fibrded MOdent meant mad 
•ppoftimitj for the exsn^seof thb act of cooramtattve justice, 
kbardbaeilada^. Whedier sochoflmder bemaalgeetof """""^^ 
dM frreigo gomernmeiit, or a dtisea of this conolry, woatd 
make no diieresce in the applieatkm of the prineiide^ 
tboegli, if tfaa f M W P OB sr , m m tbis case, be a sobyeot of the 
iomgm oooniry, the iolBcierenee imghi meet widb less re- 

This doctrine is sopposled eqaally by wmb and autho- 

Fottri observes <h^ 3. ch« %. s. 76«} tfaa;t to dcKTcr np Opiuoe K 
sae's osm sn&^ec^ to She ofieoded state, there lo reeem jaa- 
tice, is pretty generally observed, with rsspect to gceat 
orimes, or such as are eqnally contrary to the laws and tiie 
lafety of all nations. Assassins, iocendiaiies and robbert, 
he says, are seised every where, at the desire of the sore- 
reign in the phce where tbe crime was eoaMaitted, and deli- 
vered up to bis jnstioe. The sovereign who refuses to deli- 
ver op the gnilty, loaders faimsdf, in some measore, an ao* 
cemplice ks the iqory, and becomes responsible for it. 
Professor Martent also, in bis Summanf of the Lttu^ tjfJV^th of Martvu. 
tiemin p. 187*, says, that accoidiag to modern costom, a cri- 
Bumd b fieqnently seat back, to tbe place where tbe crime 
was coaamiftted, on the request of a powar who offisrs to do 
the like nenace, and thai we often see iastances of this* 

Oro^'tw^ who is of still higher aothority, declares, (b. 2» oiOroUKi^ 
oh. tt. 8. 3i 4, 5.) that the stale is accoimtable for tbe 
crimss of its sulsects, committed riiroad, if it aAnrds ibem 
protedion; and, therefore, tbe slate where the oflender re- 
sides, or has fled to,jNight, upon apfdication and examina* 
tion of the case, either pmiish him according to his demerit, 
or deliver him vp terilm foreign state. He says, farther, 
that fawdoctrine- applies equally to tbe subjects of die ge* 
vemment in which tbe oflender is foand, and to fugitives 
from the foseiga-stale. This learned jneist finally conclades, 


iei9. Umt thifi right of demanding fng^lives frooi justice baSi in 
'^^^''^'^^ modern times, in most parts of Europe^ been confined, in 

WAsuBoiub practice, to .cnmes that concern the pubhe samy, or which 

""""""'""* were of great atrocity, and that lesser offeaces were rather 
connived at, unlen some special provision, as to them,. exist* 
ed by treaty. ' 

Of Hetmcctttf. HeinecciuSf in his commentary on these passages, {Praiee^ 
m Chrot. h. t) admits that tbe smn«nder of a citizen, who 
commits a crime in a foreign country, is according to the 
law of nations ; and he says further, that it is to he deduced 
from the principles of natural law. We ought either to 
pnnish the offender ourselves, or deliver him up to tlie foreign 

Of Bwriema- government for punishment. So BuAemaquif (part 4* c. 3« 
s. 23 to 19.) follows the opinion of Gfrotffir, and maintains 
that the duty of delivering up fugitives from justice is of 
common and indispensable obligatinn. 

Of BriHOi It has been frequently deckired, that the law of nations 

Courts. ^ •? » 

was part of the common law of Engiani. (3 Burr. 1481. 
4 fiicrr. 2016.) And if we recur to .the Kn^iah decisions^ 
which may be considered as declaratory of public law on 
the point, we shall perceive a full recognition of this, gene- 
ral doctrine. 

Id Rex v. HiUekmtan, Trin. 28. Cur. S. {5 Ktb. 765.) 
it appeared to the K. B. on habeas corpus^ that the defend- 
ant was committed on suspicion of murder, in Por^i^/, and 
the court refesed to bail him. And again, in the case of 
Colonel JLundy, (2 yenU 314.) it was agreed, on a con- 
sultation of all tbe judges, that there was nothing in the 
habeas corpus act to prevent a person guilty of a capital 
offence in Ireland^ (then a distinct kingdom, thoogh nndar 
tbe same king,) to be sent there to be tried. In the case of 
Rer V. Ktmberly, {Sir. 848. Barnard. E. B. vol. i. 226. 
FiUngih. 111. S. C.) tbe same point underwent a further dis« 
cnasion. Tbe defendant being committed by a magistrate, 
for a felony done in Ireland^ ^*to be detained till there 
should be proper means found out to convey him to IreUmd^ 



to be tried,** was broogfit into the K. B. by habetu ewrfiu. 1819. 
Strar^^ for the prisoner, moved for bis discharge, or for v^^^/''''^h• 
bail, inststiDg that jastices of the peace had no power WismiuRir. 
over crimes in Ireland, and that the prwuo in the habeag ^— — - 
corpm act gave no power as to oBcoces in Irelandj wlucb 
was a disdQct kingdom^ and that it was against the habta» 
corpus act to remove the prisoner to Irdand. But the court 
referred to the above cases, and remanded the prisoner $ 
observing that the form of the commitment was proper, and 
that if the prisoner was not reipoved to Irdand in a reason- 
ble time, application might be again made to the eonrt for 
his discharge. To the same ^ect are the observations of the 
Court of Exchequer, in Bust India Company v. CampbtU^ 
(1 Fe#. 246.) in which it was said, that ^' a person may be 
sent abroad by government and tried, though not pooisba* 
ble in JESng'Iand ; like a case of one who was concerned in a 
rape lo Irdand^ and sent over there by tbe govemasent, to 
be tried, though tbe K« B. refused to do it, Oovemment 
may send persons to answer for a crime wherever commit- 
ted, that he may not involve his country, and to. prevent 

In support of the same doctrine and practice, we may 

refer to the uncontradicted remark of Heathy J. in the late 

case of ^tire v. Kaye, (4 Taiml 34.) and which Mr. CAt^ 

%, in Che book dted by the counsel, seems to regard as law* 

*' It hlta generally been understood," he observes, <' thai 

whfivesoever a crime has been committed, tbe criminal is 

pouishable according to the lex loci of the country, against 

the law of which the crime was committed ; and by the co* 

mity of nations, the country in which the criminal has been 

found, Itts auded the police of the county against which the 

erime was committed, in bringing the criminal to punish- 

meat In Lord Loughborough^ time, the crew of a Dutch 

ship mastered the vessel and ran away with her, and brought 

ber into jDedf, and it was held, we might seise them and 




1819* semi ^m to HMand. And the san^ has «Imf» faeea the 
^^^^^^^^ law of all civiliied coonlrieB." 

BIattsb of 

w^BBDBv. TboQgh these obaenratioBs ooiiie io the chape of ft dictum 

-^-"--^^ of a single judge, yet it ought to be tiadefslDody ihat Mmih 

was a judge of very great ezperieooe^ havuig sat upcsi the 

bench of the C. P., for the king period of foity years^ 

and he was right, says Cb« i. Qibb^ in most cases that 

ever came before him. 

Lord Ctket Lord CohB says, (3 hmU 180.) that '^ it is baUctti and 

corre^. "° SO it hoth bsco rssoHnd, that divided hkigdonss under sewe* 

nd kings, in league, one with another, are sanctuaries far 
servants or enbjectS) lyhig An* eniaty ftnoi one kitiglioni to 
another, and- upon denMmd made by lAens, are not,, by the 
laws and liberties of kingdoms, to be delineredi^* If^ by the 
lixws and Kierties ^kingiemi, he nseasM the laws -nnd usages 
of nations, the remark is unfounded in fact, and oontradieU 
ed by history, and by the great work of €hrotim$i whldi was 
pnblished in the lifetime of Lord Coke. With respect 
to the ibrce and jnstness of this passage, we may refer to 
fVynne^s TreatUe <m rtc Latd and Constitndon €f 
England. {Eunomusj Dialog, 3. s. 67.) He asks, how 
has Lord Coke supported his docfrmef He ^ys, ** it is 
holden, and so it has been resehred ;^ but he neither telk 
HTynw^s ffu- us wAen, nor tirAere, it was resolved. Wynne goes on to 
observe, that the assertion seems directly t^nst <he law 
of nations, and that, ^ if, from the Very natrnt^ of eociety, 
subjects are answerable to their own nation for their crimi- 
nal conduct, "hy ^ hm of natiom^ they may he jw^y de^ 
manded of foreign staiei io vfhkh they fly ^ and the refusal eif 
delivering them op is a just cause df war.** fife observes, 
further, that to prevent protection of fogilives by dauses in 
a treaty, only operates as a recognitioa, not a creation -of 

The27tfatr- right. 

treaty of i7w! The 2'Nh article ^ the li^aty of 179S, between the Kis- 
u. Sf^and o. ^ Stoiss and Crrea^ Britain^ provided for the delivery of 
d^mS^If criminals charged with murder or forget^ ; but that article 

the law of na- 


oi4)r iedanOmry 9f the Imo of fkaians, U weie also a 1819. 
wuaber of otiler articles in tlie aanie ircsaty. Tbw was the ^1^""^''^^*' 
case^ fcxr instaiicey with the provisien in tbe 21 st article^ Washbvwi. 
Ibal it sbottM not be lai^fol for foreign privateers, who have '— --^— * 
eMonussimis from a pritiee or f»tale in enmity with either 
nation, to ar» their ships in the ports of either ; and, alsoi 
with the provision in the 2fith article, that nather party 
Aonld permit ibe ships or goods of the other to be taken by 
bttign force, within the biiys, ports, or rivert,. of their 
territoiscs. These aHicles, to use the language of fTymif , 
were the reoognitton, not tbe creation of right, and are 
equally obligatory vpon the two nations, under the sanction 
of pitUic law, since the expiration of that treaty^ as they 
were before* 

There is nothing in the habeas carpus aet which controls 
Ibe application of this general law. The only provision 
in it which has a^y possible rehtioa to the case, is that 
which decLlres, <' thai no citizen of this state, being an in-* 
habitant or resident within it, shall be sent prisoner to any 
place whatsoever out of this state, for any crime or odence 
committed within this stale." The prohibition is thus ex- 
pressly confined to crimes committed tnthin this state. 

It has been suggested, that tbeA is not a felony of soch 
an atrocious and mischievous nature, as to fall within tbe 
usage of nations on this point But the crimes which be- . 
long to thircognisance of tbe law of nations, are not spe* 
dally defined ; and those which strike deeply at the rights of 
property, and are inconsistent with the safety and harmony 
ef commercial intercourse, come within die mischief to be 
prevented, and within the necessity as well as the equity of 
the remedy. If larceny may be committed, and the fugitive 
protected, why not compound larceny, as burglary and rob- 
bery, and why not forgery and arson? They are all 
equally invasions of the rights of property, and incompati- 
ble with the ends of civil society. Cousideriog the j;reat 
and constant intercourse between this state and the provin- 

Vol. IV. 15 


1819. ces of Canaday and the entire facility of passing from one 

i;^^^''*^^ dominion to the other, it would be impossible for the inha- 

Matteii of , . , . ^ . !. . 

Washburit. bitants on the respective frontiers to live m security, or to 

' maintain a friendly intercourse with each other, if thieves 
could escape with impunity, merely by crossing the territo- 
rial line. The policy of the nation, and the good sense of 
individuals, would equally condemn such a dangeMMW doc- 
trine. During the existence of the treaty of 1796, it might 
well have been doubted, whether the two governments had 
not, by that convention, restricted the application of the 
rule to the two specified cases of murder and forgery, for it 
is a maxim of interpretation, that ermmeratio uniu$ est excbir 
no alieriui. But if it were so, yet upon the expiration of 
that treaty, the general and more extensive rule of the law 
of nations revived. 

2. The difficulty, then, in this case, is not as to a want 
of jurisdiction, but the proof is insufficient to det&in the 
prisoner. There is no evidence that the bills offered in et^- 
change at the bank in Troy, were the same bills that were 
stolen at Kingstony and however suspicious the conduct of 
the prisoner, and his associate, may be, and however untrue 
his allegations as to Parks, yet, as we have no proof that 
the prisoner committed the theft, or that he or his associate 
were in possession of the stolen goods, he must, on that 
ground, and on that ground alone, be discharged. 

The evidence to detain the party, for the purpose of sur- 
render, must be sufficient to commit the party for trial, if 
the offence was committed here. The admonition in Gro^ 
tins, is not to be forgotten— non dccet homines dedere causa 
non cogniia. 

Prisoner discharged. 


Nichols against Wilsoh and others. 

Where aD iDJnnction had been granted, on a bill to stay a sale under 
a power in a mortgage, a few days before the expiration of the rix 
mmiihty it was dissolved after answer, on terms : tiz. giving six weeks 
further notice of the time and place of sale, and a reference, in the 
mean time, to the master to ascertain the balance due, &c. 

BILL to stay the proceeding to sell under a power con* 
tained in a mortgage, upon a charge that considerable pay- 
ments have been made, and^se not creaited or allowed, add 
that, by a parol agreement, when the mortgage was taken, 
the time of payment was enlarged. An injunction was al- 
lowed at the expiration nearly of the six months, on a depo- 
sit of a sum sufficient to meet the expenses of advertising, 

The answer admitted some payments, and denied others. 
. It denied, also, the parol agreement, and averred that the 
land was a slender security for the debt, &c, 

A motion was now made to dissolve the injunction. 

J*. L. BilKTigSf.fot the motion. 

J}. Russel, contra. 

P&r Curiam. The motion is granted upon terms, viz. 
that six weeks further notice be given by the defendants, of 
the time and place of sale, and that, in the mean time, a re- 
ference be had to compute the balance due, and that the 
master give notice to the solicitor for the plaintiff, of the 
time and place of such inquiry, and that on the payment or 
tender of the balance, so to be ascertained, together with 
the costs of proceeding under tbe power, afMl the costs tf ■ . 


1B19. this suit, no sale be bad ; and, further^ that no sale be had 
until the balance shall have been thus ascertained* 

The injunction was allowed in May last, and within a few 
days oCthe expiration of the six months, and it would pro- 
duce unreasonable delay, to compel the defendants to renew 
an advertisement for six months. A short additional notice, 
under the direction of this court, will satisfy the ends of 
justice, and of the statute, as this court is now in possession 
of the ^ause, at the instance of the mortgagor. Six weeks 
further notice, in connection with the six months already 
given, will answer all tlie beneficial purposes of notice, 
as it respects the plaintiffs, who may want time to rfd0t% 
and as it respects the public,..who may want an opportunity 
10 buy. 

Order accordingly- 

BmsoAW ^aimt Claw, 

Where a bill wu filed ag^nst C. charing* him with fraud and breach 
of trust, as administrator of B,, and the defendant put in an answer, , 
and also a ptea^ stating that all the acts, in relation to the estate of 
B., were done by him and V* jointlj, as administrators, to which 
there was no replication: Held<t that on the allegation in the 
plea, V. the co-administrator, ought to be made a part j ; blit leave 
was giren to the plaintiff to amend bis biU« on pay mMt of boosts. 

Jhient SUA. THE bill Stated, that the pkintiff \% one of the eM^w 
and heirs of Peter BregaWj deceased, and that the i^mdant 
and BaraU Vanderpod were appointed admiaistrators of 
P. B., and that the defendant was, afterwards, appointed ad* 
ministrator of John Brtgamo^ one of the sons of P. J$. and 
who died without issue, ipd intestate. The bill charged 
the defendant with various acts of fraud and breach of 


tnul, as admiiustrator of P. J7., and as adraUiistrator of 1819. 
John Bregaw. 

To this bill the defendant put in an answer, giving an 
acoovot of bb conduct as administrator. He also filed npleaj 
allegiiip that Barent Vanderpod was appointed one of the 
admiiiistrators of P. B.^ and that all acts, in relation to the 
estate, woTe done by him and Vmderpod joindy, and that 
the latter ought to have been made a party to the bill. 

No replication was filed to the plea. The question sub- 
mitted to the Chancellor was, whether B. Vanderpod ought 
to bsmrb^ai uMuie a party, according to the allegations in 

J. Vanderpodf for the plaintiff, cited 1 John$* Ch. Cat. 
349., and contended that the bill seeks only to charge the 
defendant for his separate acts* 

Van Buren and Butler^ for the defendant, cited 2 Madd. 
TV. 143. U3. 7 Ve$. 563. 2 P. Wms. 684. 2 Ath 51. 
2 Vem. 420. 11 Ves. 424. Finch, 82. 3 Aik. 406. 
Cooper^s Eq. PL 34. 290., and contended, that all trustees, 
execators» and administrators, &c. most be parties to a suit 
respecting the subject matter of the trust ; and that this case 
does not fall within any of the exceptions to the general 

Th& Chanccllor said, that in this case, the allegations 
in the plea were to be assumed as true, and, therefore, the 
plea must prevail. No reason appeared why the co-adminis« 
tralor was not made a party. Leave was given to the plain- 
fiff to amend bis bill, upon payment of costs. {Mitfard^i 
3V. 281. 1 P. Wm. 428.) 

' Order accordingly. 


H. HowKLL, assignee of P. Howell, agairut Bakbr and 


Whether an attorney for the plaintiff can purchase the property of the 
defendant sold uoder execution, hy the sheriff, for his own benefit ^ 

Where the farm of the defendant, worth two thousand doUarsi was 
sold under a judgment and executioD, on which not more than 
eighty dollars was due, to the attorney of the plaintiff, who attend- 
ed the sheriff's sale, at the request of the plaintiff, for ten dollars: 
Heldj that under the circumstances, the purchase by the attorney 
w^s not to be considered as absolute, or intended orig-iuahy Ibr his 
own benefit, but in trust for the respectiye intereste of She parties 
to the execution ; and the debtor, on a bill filed by hiln fiir that 
purpose, was allowed to redeem the estate, on paying the balance 
due on the execution, and the amount paid by the attorney, with 
intereMt, Sic, 

It seemi^ that the g^ss inadequacy of price, connected with the facts, 
that the sale was on a stormy day, when no person but the attorney 
and deputy sheriff were present, might hare warranted the in- 
ference of fraudy if the conclusion, that the purchase was made in 
trust» bad not been a sufficient ground for letting in the debtor to 
redeem his estate. 


BILL filed January 1 9th, 1818, to redeem land, purcha- 
sed hy C. BaJcer, defendant, at the sherifi''s sale, under cir- 
cumstances which, as was alleged, constituted him a trustee 
for P. Howell, the defendant in the execution. A judgment 
was recovered in Septemher, 1809, in the UUter Court of 
C. P. against P. H., at the suit of J. R. Boyd, for 112 dol- 
lars and 95 cents, in which suit C. £., the defendant, and an- 
other, were the attorneys for the plaintiff. A Ji. fa. was 
issued, and in 1810, the property of P. JET., being a house 
and about forty acres of land, was advertised for sale. On 
the 29th of December, 1810, P. H. paid the defendant C. 
£., fifty dollars, and the sale wfts postponed. The bill 


stated^ that P. H, had paid the deputy sheriff, in Aooemftar, 1619. 
1809, 27 dollars and fifty cents, and 18 dollars on the eie- 
cution, in December ^ 1809. The property was again adver- 
tised for sale, and sold on the 15tb otMayy 1612, at public 
auction, by the sheriff, to C. JB., (who attended as attorney 
of the plaintiff, Bayd,) as the highest bidder, for 10 dollars. 
The .bill staled, that P. H. had made several small pay- 
ments on the judgment; and that, in 1814, he tendered to 
C. B, ihe balance due on the judgment, together with the 
iO dollars paid by him, amounting, with interest, to 35 dol- 
hffs and 15 cents, which he refused to accept ; and that C. 
B. afterwards sold the premises for 1,200 dollars, to the de- 
fendwt. Clark, who purchased, with full knowledge of all 
the circvBitaBces* The bill prayed, that the defendants 
night be decreed to release the premises to the plaintiff, and 
deliver up the possession, &c. 

The defendant £., in his answer, denied that he purcha- 
sed the, property with intent to hold it as security only for 
the balance due on the judgment, but that he purchased (or 
Ms own benefit. He alleged, that he afterwards paid fioyd, 
the plaintiff, the balance due on the judgment ; and that 80 
doUars were due at the time of sale. 

It appeared from the evidence taken in the cause, that the 
property, when it was sold at auction in 1812, was worth 
about 2,000 dollars ; that P. If. was absent from the state at 
the time ; that it was a. stormy day, and no persons but the 
deputy sheriff and B. were present at the sale ; that after the 
sale, fi. frequently said, that he would give up the property 
to P. H. if he would pay the balance due on the judgment, 
and the ten dollars, and compensate him for his trouble f 
that he had told fioyd, the plaintiff, that he had bid off the 
property for him ; and that the defendant • C, before he 
purchased, knew all the circumstances. 

B. Aoitfuon, and Bristed, for the plaintiff. 


1819- i*- Rvg^, conmu 

Thk CBjjRcmuLoau The defendant B. ««« OM of the 
attoroeyi to the execation under which the sheriff eoid the 
laAd, and it might be a question whether an attAiliieji can^ 
in snch case, become a purchaser ibr Jus own benafit.' He 
is the agent of the plaimifl^ and generally, has ibo cooirol of 
tbe eiiecolion, abd may direct the time and place. «f jsak* 
It is well known that the sheriff receives Ua iMtriMllions 
from the attorney, lind usaally follows thett^ aadar tba ge* 
oeral negnlations of tlie statute, in pces^sig, or in pnslpopiiifil 
the sale, and as to the terms to be pres^ibsd) imA tj^.par* 
llcular parts of the real estate to be selected. It ia dRUger^ 
Otts to allow a person who has such a maltrigil ^^ani^ m the 
sale, the capacity of buying in, on his own ac€KMMi;t. He 
who is entrusted with the business of otbers^ OHg|i| ncft 
to be allowed to make that business an fjbjm^tot iiitfivr^ to 
himselC It tends to abase and coriruption. It is ujgtftk du« 
principle that the aaiignees of a banbropt are not allowed to 
become .purchasers on the sale of the banltMliytf» estate- 
The bringing it to sale, and the time and nMUier.dftltesakf 
are very much in their power* A purchase by tbie jtoHh 
eUor of the assigned is supposed to be within. the reaoMi of 
the prohibition, for be is tbeir durect the sale > and 
those wbo.have a duty to perform for^others^ ohonld npt, kk 
the discharge of that very duty, deal for theinselv^ai It baa 
accordingly been held, in England^ {ex parU Mn^heSf • 
Fa* 617. Ex pmrtt J4me$f 6 Fe$. 337«) tb^t pm^hsees of 
the bankrupt's estate, at public sale, by the assignee^, or 
their agent or solicitor, are not valid, but will be cMsider- 
ed as made in trust for the persons entitled to;tbo si|j])laSy 
and will be set aside on eqoitable terms, hx Ball v. 
Hallet, (1 Cox, 134.) Lord Thurhw observed, that ^'no 
attorney can be permitted to buy in things in a course of 
litigation, of which litigation he has the management. This 
the policy of justice will not endure." 


Bat tboagb tlie nde disqaalifying irasteci, and particular* 1819. 
ty iolicitorB and attorneyt, from porchasing al sales brought 
akoot thMMgh tbeir agency, bai icroag pMemmif to be 
apfrtiod to tbii very toot, I do not ptfccive h to be ittetini- 
beM «pon aie, at present, to decide that points The par* 
chase by the deftndant B. vas made «oder special cireooH 
Sluices, which are sufficient, of themselves, (and particolarly 
vhen fahen in connection with his character as attorney to 
the Msecaeion,) to coostitote Um a troslee Ibr the parties^ 
wfaos^ hMeresls were concerned in the sak» J^d^iHiowas 
pfaUnlMr in the execution, directed the defendant B. to attend 
and bid off the property ; and the defendant £., afierWM^ds, 
confessed lo bis dient, that he had done so, and that the 
deed wwoM be executed to BoydL He, also, admittsd to 
HMpeff, the defendant in that execution, that be had aiade 
s^ leinporaiy sale of the property, la prevent the efxpeoee of 
Ibaihei adveitising it, and dial he would receipt the euetk^ 
fk>D as soon as it was paid ap« These two witaMset esta* 
Mib tbe fees that the purchase was not intended, at the liiae, 
to bedkeohile, andfor ihebenefit of A In addition to this 

pswf, the feels admHied by die defendant jB., in bis t.«^^, 
that there wnsnotabove eighty dollars due on die execa* 
fSmtf at the time of sale, taeftidlNig Air eoiiSf and that he bid 
only tett dollars, though he afterwards discharged th4 execo* 
don, and sold the ftrm for 1,200 dollars, lead saroogly to 
die same conckision* 

It wodd be very inequitable, even if it were Iswfel^ to 
dlow tbe purchaser, in such cnse^ lo appropriate the bid tor 
hiDielf. J^an emus, quod Ucet^ Aoneslain err, is the obser- 
vation cf PoaZar, as quoted in die Digett^ (50. 17. 144.) 
and we have a similar observation from another Paulj who 
recdved inspiration from a purer soofoe than tbe Raman 
law. (1 Car. vi. 12.) ^ 

Indeed, such gross inadequacy of price, when taken in con- 
nection with the feet that the sale was on a stormy day, and 

Vol. IV. .16 /^ / 


1819. Uiat DO persons were present but the sheriff and the defend- 
ant B., would well warrant an inference of fraud on aoy 
other ground than the one I have taken. The most reason- 
able conclnsioni and tbe only one honiMirabie to the defend- 
ant A, is, that the purchase was intentionally made, at the 
time, in trust for the respective interests of the pardes id tH^ 

HowM did nothing, afterwards, to release his right,, and 
discharge the trust, and when B» sold- to the d^fendMlt C 
the right of H9tse0,or bis assignee, to redeem Ifae fnofsettjr, 
existed in fell force. 

Nor is the defendant C entided to protection as a'iona 
jUk purchaser, without notice. It is clearly established i^y 
the testimony, that be purchased with knowledge p(, all thai • 
material circumstances attending the purchase. by.9f9 and 
tbe right of redemption remained in full tst^c^Bf/muk^kim, 
He purchased at his peril, and after being duly apptitdl'of 
the infirmity of die tide of B. ^ 

I shall, accordingly, decree, that the plaintiff is entitled 
to redeem the estate, opon paying the balance doe ispoo the 
exeeation, with interest, after deducting aU. payments made 
by HomU to the sheriff, or to die defendant B., aM upon 
paying the amount, with interest, of all tbe incoiiibranceft 
upon the estate existing at the time of the sale, and subse- 
quently discharged by either of the defendanU, and upon 
paying the cash value of all bona fide and substantial im- 
provements made by the defendant C, since his purchase. 
I shall direct a reference to ascertain the amount of the 

Decree accordingly. 


Hatcs 4igai$ut Wasd and others* 

A^mff^t wJm) pftjr« the debt, it entiUed to be pvit ki tbe pbm of Um 

. creditor, and to ell the means, and to OTeiy reiaedy which the cre- 
ditor peesessea, to enforce payneet from the priocipal debtor. 

If, thei^fore, a creditor takes a mortgage firom the principal debtor^ 
he ^Am it not only for his own secority, but for the indemnity of 
^« efBtty, and he must do no act by which it may be tovalidatedp 
in the first instance, or be subsequently defeated er destroyed* 

WlM^ti^ a creditor c^ be compelled to resort to the prinoipak debtor, 
in the first instance, aad exhaust his remedies ^;ainst himi befoiw 
lie can sue the surety ? Qware, 

Bttt where a surety apprehends danger from the delay of the creditor, 
hsf may oinnpet the creditor to sue the principal debtor ; at least, 
omMemaifyinf the orediter foir the consequeaoes of risk^ delay, or 

A creditor in Jftw-Jmey^ where all the parties resided^ tool^ 
from J9., the holder of a promissory note endorsed by the plaintiff*, 
on a loan of money alleged to be usurious, a bond and mortgage, 
mladtk iris ample security tat the debt ; and instead of resorting to 
Ibe bowl aodoMrtgage, or to the principal debtor, sued the piaintil^ 
(while transiently in this state) at law ; but this Coort granted aa 
injunction to stay the suit at law, until the creditor had pursued his 
remedy on the9K>rtgage in ^ew- Jersey; resenring the question of 
costs, and all other questions, until the further application of the 

THE bill, wbich was filed May 3(Hb, 1818, statedi that ^Jum \m, 
the plaintiff, DaM Hayu, aod the defendaott, Thanm ^*^^*^*^ 
fVordf Kathanid Camp^ and Cyrenm Beack^ resided at 
Jfimark^ in the state of New-Jiney. That the defendant 
C. B. applied to Josqh Walter^ a partner in trade with 
SUoB HayeMj for money ; and proposed to famish notes, with 
which to raise five thonsand dollars^ and as aa inducement 
to W.^ proposed to take him into partnership, in a manafac- 
taring establishment, be. J. W.^ on the 1st of Maiy^ 181 1 , 


made m note, in the name of die firm of l¥aliBr If.Skjfmf 
for 1,000 dollars, payable in two years, to tbe plaindU^ i>. 
if., who endorsed it, for the accommodatioB of tbe makers, 
supposing it to be for thrir pse, his son beuig one of the 
firm of IV. 4* H. Another note of the same date, and for 
the same sum, was made by J. fV.^ in tbe name of Wn^IL$ 
payable two years afterdate to A&nmRtjffj whaeiidifaed«it, 
and is since deceased. That oa the iOth of Moff^ 181 1» 
two other notes were made by ^. ^ A for one tboiisatd . . 
dollars each, pigrable io two years, to the defeqd^pt C^ B-^- 
and endorsed by bim ; and he gave a receipt, dalMl ibe 27tb s 
of A%, 1810, to W^ for Oie fo«r iiote«, slating. tiint be h|t4 
peoeived them on aceoont of two lots of land in N^murk^. 
sold to /. TT., bat which were in fact never sold, beiog pert 
of the intended manufacturing estabUshment, which was 
abandoned. That C. B., also, obtained from /« IT* two 
other notes, one for 750 dollars^ dated the 1st of 4frHi 181 1». • 
made by Mwk JValiw, payable in two years^ and tbe f»tbeff 
ibr4fiQ dollars, made by J^kn IVsmpere, payable ia one 
year, for which he gave a receipt, on account of tfn^ lou of 
land, and stating, that he was to account for them to /. W. 
on demand. With these six notes, C. B. applied tq T*, 
Wardy the defendant, to borrow money ; and it ms agreed - 
thai T., W. should transfer to C. B.Jifty^eigkt sbar^ b tbe 
J^ewark Banking and Inmrtmce Company^ and that C. B. 
should thereupon endorse to T. W. tbe six4;iotes, amounting 
to 5,200 dollars, and secure the payment by bis bond^ and a 
aiar^ci^ on renl estate in Newark ; this iigreem^nt wes><;ar- 
ried into effect on tbe 3d of Jum^ 1810; and the nor^og^ 
which was duly registered, was ample, security for tbe aoiQuiit 
of tbe noteS) it being the first mortgage* Tbal, C^ U* ap* > 
pliad 10 his awn use ell tbe money so rais^, and disposedy 
also, of the hi^ak shares for his own benefit. T(^ biU 
charged, that tbe traoi^action Telativ^ to the l9an .l^^wetn 
T. Wirnd amcl ۥ J9., was usurious, and by tbe law of A4(t0* 
/es^,.tha:oa|as, bonds wd i^ojtgage, £ic»» i^Mn a#,se<^y: 

OD. Mwb iiivrfaina Icma, are ToiiL Thai fT. ^ A, the nakera 1 819. 
of ibe utrt*) fOQR aft»ward8| became insoWent, and abscood- 
edyOtkt'ia.Rcff n dead, and ifaatio 1815, C. fi. became 
iosoitelit, <»d gave a secood mortgage on his property to ^ 
7. ^* That the defendant A*. C, having obtained a jadg^ 
meiit against 0« £., for 5,000 dollars, iaiued an execution, 
wUab IMS kvied on the equity of redemption of C. B* ia 
tha'iittirtgaged preooiies, and sold in December, 1815, and 
jyV^A-lMmutte the purchaser at the sheriff's sale, knowing 
at iMb tim^ all the transactions above mentiooed, between 
/. IFA Md •&/ A, and between T. W. and C. B, That 
th^*)daidllff, ali#, at the time of the sale, gave notice of 
ibeee tllhfg^ to the said A". C. before be pnrebased, and 
catttkHiiid^ hiln agaiiisi the purchase. That the said T. W. 
instead of seeking payment of the notes frpm C* B* or X. 
C, br from the mortgaged premises, took advantage of the 
plaimUr being hi NtWh-Yorkj on occasional bnsiness, and 
ha#'biin arrested, in an action at the suit of T. W., in the 
Stfpireine Court of this state, on the note for 1,000 dollars, 
sadorsed by the plaiotifi) and the plaintiff put in spe- 
ciar&aH to #ie action, in which a declaration was filed of 
Jtfs^ term 181*. The bill prayed, that the defendant T. 
H^l^ rtnght be decreed to release and discbarge the plaintiff 
froin-Ms endolrsement, without prejadlce to the rigbu of T, 
l?^.,'nn<)er the mortgage, or agafost 0. B.; and that he be 
perpHtnAly 'enjoined from prosecming his action, or any 
other'actton at law, against the plaintiff, by reason of the 
sud endorsement, and pay to tiie plaintiff his costs and 
ehalfSea, be. 

The Mil was taken, pro eem/eiso, against the defendants, 
Camp and BtecA. The defendant Ward demurred to that 
part of the bill which songht a discovery from him, in rela- 
tion to any application to him by O. fi., to raise money for 
C. 9.^s tito, or to any negotiation between them, respecting 
tlie transfer of the notes, or the consideration of the trans- 
fer, or as to any msfiiers which might snifect the defendant 


1819. to any penalty or forfeiture. The defendant T. W. 4fi^ 
iwered to the residue of the bill, admitting the making and 
endorsing the notes, the bond and mortgage, and that the 
mortgage is a sufficient security, and a valid lien on the pro- 
perty ; and, also, the second mortgage, and the transfer of 
the notes to him, but denied all knowledge of the considera- 
tion of them. He admitted, that the parties all resided in 
Jiew' Jersey, and the statute of that state relative to usury^ 
and the insolvency of W. fy H., and the judgment and 
execution of JV*. C, and the sale of the equity of redemp- 
tion, &c. 

The demnrrer was argued and allowed in Sq^iember^ 
1818, and a decree thereon entered in favour of T. W^ ex* 
empting him from making any answer to the parts of the. 

bill demurred to. 

'• * * '» . 

June ibiiu fUgg^f for the plaintiff, contended, 1. That the demurrar 

put in by 71 W. was an implied admission of the invalidity 
of the bond and mortgage. 

2. That as the plaintiff is a mere surety^ the estate of the ^ 
principal debtor ought first to be resorted to for payment. 

3. That as the defendant T; W. insists on the validity 
of the bond and mortgage, and the sufficiency of'tbe mort- 
gaged premises, he ought to be perpetually enjoined from 
proceeding against the plaintiff. 

4^ That ^. Beadi was the principal debtor wasYulfy 
proved, and.not denied by T. W ^ the defendant. . 

5. That if T. W. is not to be perpetually enjoined, he 
ought, at least, to be enjoined until he has exhausted his re- 
medy against the mortgaged property, and until the further 
order of the court, founded on the resulf of his proceedings on 
the bond and mortgage, and that he ought to pay cosl^ ; and *' 
that if he failed to recover on the bond and mortgage, on 
the ground of their legal invalidity, it would be a bar ae^tnst 
his recovery of the plaintiff, resulting from hb own act, in 
pGisoniag the security with uiury. Bot that this question " 



would not arise uptil the defendant T. W. cane back to 1819. 
tbis court for further directioos. 

6. *tik9X if the plaintiff oagfat to pay» and take the bond 
and inortgage for bis indemnity, which would be the com- 
Bioa rule of equity, if there was nothing peculiar in the case, 
the defendant T. W. ought to be directed to assign the 
bond and mortgage to the plaintiff, with a covenant as to 
tbeir legal validity, since he asserts them to be valid ; and 
if they are not, it is owing to his own unlawful bargain^ 
when be took the note endorsed by the plainti£ 

7. That the plaintiff cannot plead usury, at law, because 
the usury apose after the notes were endorsed. The defendant 
T. W. oujgiit, therefore, to litigate the question of usury in 
Aetl^-/erJey, at his own risk and expense. That if the plain- 
liff 18 obliged to pay the defendant 71 W.^ and take the 
bond and mortgage^ and that security feils, he will then loie 
his indemnity. 

C. BMrnrtf for the defendant, T. Ward^ cootended, 
1. That a creditor has a right to sue the security, in the first 
instance : and a judgment against him nif^ be reqiusile for 
big security. ^ 

2. That if tbe pledge be invalid and rotten, the defendant 
ought not to 1>e compelled to rely upon it* 

3. Thi^ court wiU leave the parties to tbeir legal rights 
and remedies. 

^ That the plaintiff cannot ask tbe defendant to pay 
costs, on a. bill for a perpetual iiyunction. 

5. Tba( if .the plaintiff , com^ here for relief against the 
vsury^ bf^ ought to have brought into.c^wrt tbe sum reaUy 
due to the defendapts. 

The CoAMcaLLOB* It appears from the case that -the db* 
fendant Beach is tbe principal debtor to the defendant Ward, 
w the ^QU i« question) and that the plaintiff who ^ndoMed 


1819. itySteadi to the character of Mvelj. TheplahniffociiftDally 
endorsed the note without coa«deratMO» fiMr the heaefit of 
the drawers, W.^ H^ and the defenJaai A. teoh ii from 
^ the drawers^ m coastdetatioo of lots i^gfced to be silldio one 
of the aiahers, or of a partaership, Sato which, one of ihem 
was to be admitted. This consideratioo fiiited, for the lols 
were not sold, nor the partBership eatesed iaiew Jt» be- 
tween those origiaal contiwctuig parties, die woce Wfa^with* 
oat consideration, aad could not have been eoforoed* . Whea 
the note was passed by the defendant A ta4he dHeifendanl 
W, the dealing was exdossf ely between dbese two daifead- 
ants, and the plafotiflTs name remained on ^ ataief a^idvdor- 
sar, withcMrt any consideration for Us eadeMe^eilV We 
bave^no direct evidence that the fact of bis being a naked 
guarantor, or surety, wkbeat imereit, w&$ knows if the de*- 
leodant fT., when he receiired this and the e^fev m^lM tram 
B.f yet the facu are sufficient to justify socb oia infeienee.. 
The note was not received by the defendant fV» ip.lhe or- 
dkMwy oanrse of eoannercia) bnsinees. It wat nAwn upon 
She sale of bank shares; and insiead of relying apoa the cre- 
dit of the peior paeties to the note, accompanied with the 
endorsement of the defendant J3», he took a bon4 Md mort- 
gage &<om B^ as eventaal secnritj^ for the payaieni of Ae 
note. This and the other noses were sold by B. t# Slie de^ 
fendant fF., almost immediately after they were drawn, and 
the defendant fV^ admits that they were received by B^from 
.aneof thm maken; m^ does he 40ny a knowledgf of that 
faetf at the time he took the bond and mortgage firant A 

The knowledge of that fact was saficaent notice to him, 
Atkt the plaintiff iraa a voluntary eoderser, fee the accomaM- 
dation of the makers ; and the defendant JV, appeals,, fram 
the pleadings and proofe,to be justly cbaif;)eable with know- 
ledge, at the time he took the mortgage, that the plaintiff 
waa a gratattons endorser. The piaiatiff ie dien entitled, 
in equi^, to all the privileges with which a surety h clothed, 


mt Mfy fti it mpeds die defendant B., but as it respeelft I8I9. 
fbe defendaot lizard, the preteot kolder. I thall, therefore, 
in the farther eoaibkraiioo of Ibis case, assonse the fact 10 
dearly trae, and wetl estabKshed ; that between the plaintiff 
and thedefendants, IF* and B., the relationsbip exisled of cre- 
ditor on the one part, and principal debtor and surety on 
the other. This relatiooship was coeval with the bond and 
-mortgage, and the parties to this suit are eotidad to all the 
rights, and boond by all the duties resoMng from that re- 

9he ^tave and diAealt qoestion then pKsents ttsett^ vhe* 
4feer the defendant W. oogbt to be required to rtsort, in the 
CrsC inslatM% to the mortgage which he took from JB*, and 
whieh be says is a Vahri hen, and saffick nt to satisfy the 

ll b alleged that the roor^^ge seenrily is destroyed by 
die usury, ^md that it woUM be imavaiKng in the fanods of 
Ibe plaintifl^ if he were to pay the note, and have the bond 
tod mortgage assigned to him, (and which, as surety, he 
wonld have a right to demand) by way of sriMdtntion and 
fndemnhy. It is fotther aH^ged, that if the defendant W. 
has destroyed the validity of hb own security taiten from 
ti|# priocipai debtor, he cawnol ham nconme to the plaintifl^ 
beennee he has vohintarily disabled himself feom aAwding 
to the plaint^, as surety, the requisite substitution. The 
tight of snbstitntioo is a valoaUe right belongiag to a sare- 
tyi amf die creditor mMt do nothing to inqmir it. 

T hiiic w ewld be nrach equity in the plaintiff's case, if it tim mtmr 
'■* dMld «ttitty appear that the defendant W. had by his own ^ H^'eo'ti! 
M midered the ndsqaate' security which he took from the Mkttodlii'th^ 
prfamipdl debtor, ttiegat and void.. The very takiog of that JiSdUor m*^ 
ssenriiry by him may have eicited cooMence in the surety, » SiSSJ'"^ 
ao» kdfed htai so sleeps and deprived him of taking other ;^,^{p^J^. 
and sbond security; far his own eventual responsibility, until S^tL'^^SS^ 
it was too lale, and the rights of third persons had hiterven- P»^ ^*****'' 

Vol; IF. H 


1819« ed. This comderation readers it an act of beoeVolaict 
and eqaitjr, and imposes it as an obligatioti upon the credi- 
tor who takes security from the principal debtor, to take it 
fairly and lawfully, and to hold it impartially and justly. 
The creditor According to the doctrine of the civil law, the surety may 
do 'no "wrt^ to P^ excqfiwnem cedendarum adiimumf bar the creditor of so 
diKhBi^ thi ^^^^ ^f his demand as the surety might have received, by 
teken^^m tiU *° assignment of his lien and right of action against th? 
or^to'Se*'*^- P""^'P*' debtor; provided the creditor had, by bis own ua- 
rrlite of the °®cessary or improper act, deprived the surety of tbat rt- 
•aretj. sourcc* The surety, by his very character and re)atipn of 

surety, has an interest that the mortgage taJ&en fr/om'tb^ 
principal debtor, should be dealt with in good faith, and. 
beld in trust, not only for the creditor's sequrity^ but Air tbe 
surety's indemnity. A mortgage so taken by the creditor^ 
is taken and lield in trust, as well for the secondary interest 
of the surety, as for the more direct and immediate benefit of 
the creditor, and the latter must do no wilful a^, either to 
poison it, in the first instance, or to destroy or cancel it,.a£> 
terwards. These are general principles founded in equity^ 
and are contained in the doctrines laid down in PoihUrh 
TretUise on ObUgatums^ (No. 496. 510, 620.) to wUcfa 
reference has been made in the former detisions of tUs 
court. {Cheesebrovgh v. MtUard^ 1 Johm, Ch.iUp* 414* 
Sieeveng v. Cooper, 1 Johns. Ch. Rep. 43Q, 4310 . 

This doctrine does not bebwg merely toibe civil. la«r 
system. It is equally a settled principle in the JS^itJi4 
Chancery, that a surety will be entitled to every, xemedy 
which the creditor has against the principal debtor, to en- 
force every security, apd to stand in the place of the credi-i 
tor and have his securities transferred to him, and to avaiH 
himself of (hose securities against the debtor. This right of 
the surety stands not upon contract, but upon the san^ prin- 
ciple of natural justice, upon wliidi one surely is entitled to 
contribution from another. (2. Veu 622* 1 fViglUmck, 


%^. 1 DeHiunurej ,W9. 2 Madd. Ch. Rep. 437. 1819. 
14 r«. 182. 10 Ves. 412. 11 Ves. 22.) (a.) 

Bat the application of these principles is not, necessarily, 
Ibe question^ at present If the defendant W* should be re- 
quired to prosecute previously upon his mortgage, and he 
should be defeated in that remedy, by the invalidity of the 
mortgage, arising from his own illegal act, and should then 
recur back to the plaintiff, it would be in time to examine 
whether this case fell within the range of the doctrine to 
which I hare referred. The only point now to be settled is, 
wtketh^ the defendant W. shall be stayed in his suit at law, 
ttdttl- he hfts tried hit remedy against the mortgaged pre- 

I am not aware, that there is any general rule in Chance- whether a 
ry, that the creditor must look to the principal debtor, CT^ill^pei^ 
and exhaust his remedy against hm^ before he can be per- Kr^^i^^sm 
n^hted to resort to the surety. The general language in prfLd^lSS? 
thie books and the practice have been otherwise, and the JSj ^^^ thj 
surety has been considered (without any formal adjudica- ^'^^ - 
tieil iipon the point, and, perhaps, without any examination 
of it upon principle) as amenable, in ordinary cases, to the 
ctMStor, in the first instance, though the creditor may have 
taken dmple security from the principal debtor. The cre- 
ditor has usually called on the surety at his election, and 
left him to resort to the principal debtor for his indemnity, 
after be has paid the debt, and after he has been clothed, by 
sAhstitu^ofl, with all the rights and securities of the creditor. 
"The- holder of the security, therefore, in general cases," 
says Lord ^<f on, in Wright y. Simpson^ (6 Fes. 734.) "may 
lay hold of the security ; and till very lately, even in cir- 
cumstances, under which the security would not have had 
the same benefit, that the creditor would have had." But 
in late cases, and under particular circqmstances, Lord El- 

(a) Vide Clann ▼. JforrU, 10 Jokn$^ Bep. 534. S. P. 


1819. Sm adtnito, that the snrety hag a right to eaU opao thecr«* 
ditor to do the most be can for hb benefit 

It is now considered as a settled rule, (see the casts nrfS^ 

rad to ia King v. Baldtoin, 3 Johns. Ch. Rep. M& and 

AwKtyap- 3 Merivalej 579.) that a surety »ay resort to Chatce* 

S^r*"fitHii 'y» ^fhe apprehends danger from the creditor's delay, tad 

^ ^ciS£to?J compel the creditor to sue the principal debtor, though, pro- 

Sw/cSStMd *>aWy, he roust indemnify the creditor against the'<:ol»e* 

^^^^^^* quences of risk, delay, and expense. This ta what Latfd 

STbtoP'Sr'^* iJWon supposes in the case already referred to. As eavhf 

mj an'mdem. ^ thi time of Lord Keeper Jimh, (1 r*m, 190.)^lt wat 

cesSfriTJ'dr ^^^W'^*^** equity would compel the principal debtor to pay 

Uy. Md'ex- the debt, after it had become due, at the instance of' tfca . 

surety, and though the latter had not been sued, ftp H was 

cc/i^ -5* reasonable chat a man should always have sod* a t^oaid 

hanging over him." It seems, also, to be new eoniidered, 

(2 Fonb. a03. n. L 17 F«#. 517. 520.) as the right of » 

surety to call upon a creditor having another fund, which ito 

surety, cannot make available, and to require Irim to yesisH 

to that fund in the first instance and exhaust it. And h is 

now settled, that the surety may require the creditor u^on 

a proper indemnity, to go and prove his bond under a com* 

mission of bankruptcy of tlie principal debtor, and the ^6re^ 

ditor will be a trustee for the dividends to die surety paying' 

the whole. {Beadmorev. Crvtttnden^ 1 CookVBank. Law 

211. 10 Ves. 414. « Vet. 734.) Tlie case of ff right v. 

J^utt, (I H. Black. 136. 3 Bro. 326.) which underwent 

great discussion, and which Was much questioned, though 

not overruled, by Lord Eldoh^ in Wright v. Simpson^ (6 Pet. 

A creditor 714.) may be cited for the principle, that there are cases in 

baviDK * P«r- . . , ,. ... , ... 

ticaiar fond, which a creditor mny, in equity and good conscience, be 
polled to nuort compelled to resort to a particular fund, before he pursues 

to Uimt fond, .^, 11 ri • iif». 

before he pur- the debtor personally. One circumstance that led Lord' 

or personalir. Thurlow^ Lord Kenyan, and, afterwards. Lord Rosslyn to 

that decission, was, that the creditor could not assign the be* 

nefitofthefundto theddftor. It is easy to perceive that 


*sach a^Mwiciple «pplief with much gremter Ibree to the case 1819. 
of a sarety, and to a 6m4 or pledge, created at the time of 
the ofjgiaal trfmsacUoo betweeo the parties. Bat all the 
iDStaiiota to -which 1 have alladed, may be comidered as 
cues of a special oatore ; they do not appear to estab* 
Ttth asy aucb gmtral role as that derired from the cmk 
hir, i«c|Qiriiig the priacipal debtor to be first toed, which 
rtle prevails in all those countries where the civil law is an 
sttential pan of the nranicipal law of the land. 

Aocording to the M^man law, in use. beforejhe time of 
JaieJMMvs, the creditor, as with us, could apply tiUhe princt* 
pal. 'jMrem0iiro 'est foiesiv credUori^ relicto reo^ digendt 
fidejmiaru; {G^ 8. 41. 5.) and tlie same law was declar* 
ed in aaother imperial ordinance. (Code, 8. 41. 19.) But 
JuBfimumi in one of hk Mbvdi^ (Aoa. 4. c. 1. eatided, Ut 
CredU0fre$ frimet loco conveniant prinapalemf) allowed to 
mretsee tho exception of discussion, or ien^dum ordkiiip 
by which they could require, that before they were suedt 
the pviMipai debtor should, at their eipense, be prosecuted 
to judgment and execution. It is a dilatory exception, and 
puts off tbO' action of the creditor against the surety^ until 
the remedy asftio^t the principal debtor has been saffiaent- 
ly exhausted. This provision in the JVoveb, has not been 
followed in the stales and cities of fifenaony, except in Po* 
merofdaj (Fernsf . JBZsai. Jur. Gferm. lib. SL tit. 16. s. 448,» 
460, 461. 4(85.) but it has been adopted in those other 
countriea in Europe^ as Franu^ Hottand^ Scotland^ &C 
which &Uow the roles of the civil law. {Poihier'i TnUt. 
da QL No. 407—414. Code Jfapdeon, No. 2021, 2, 3. 
Voet^ Com. ad Pond. tit. De FidefuuorOnuj 46. 1. 14— -30. 
Hub. PrwUc lib. 3. tit. SI. s. 6« Ersk. Imt. ^04. s. 61.) 
A rale of such general adoption shows that there is nothing 
10 It iQconsislent with the relative rights and duties of prin- 
cipal and surety, and that it accords with a common sense 
of joslice^ and the natural equity of mankind. 


tp^u^^ ^^^'if^'^^^ ^ 


1819; Withoot meniiiig, hovrever, to lay 4owo tiiny tfneH gene- 

ral rule, (and for which I have not seen* any suffioieDt ito* 
Ifaerity in the eqteity jurispracieDce of En^nd^) I (hiali 
there are peculiar circumstances, in thi^ cade, to caH for a 
Where a ere- continuation of the iqjttnction upon UiQ' suit at law, nnfil 
f^^d** Md ** defendant W. has pursued bis remedy upon the mtirtA 
?Q^^V^ S^S^* '^^^ defendant W. has shown a distrust of the 9a- 
^trSi ^rdl I'^^^y ^^ ^^ mortgage by his demurrer, and by omittfaig (o 
retided, m ae- prosccute either the plaintiff, or the defendaac &, ^ JWt^ 
Bote endors^ JeneVy where they* all resides and where no impediment to 

bytheplaiotiff, /' ** . /* . J » . .^ 

and (ransferr- a sttit appears to ezist, and by prosectttmg the pfaintilfy 
cwd^tor^oaan while on a temporary vifiit to JVeti^-Forfc. The defendant 
instead of re* FT* ought to be obliged, under such a just suspicion of his 
!S!rt^ or case, to tiy the validity of his mortgage, at home, and not 
^tor ""iJed to compcl the plaintiff to pay, and then turn over to him li 
^iie in °^ pledge, which if frail and insecure, has been tendered so by 
dollar r £?s bis own illegal act I put this case entirely upon the 
^?nj^Uon ground of the allegation, to which no answer b^ been 
iS'uwl^Vntii given, that the mortgage is infected with usury, and would 
htA pm^o^d be useless and void, if placed, by substitution, in the hands 
th^'^rtgV^ of tlie surety. If this should happen to be the case, the 
plaindff, on paying, might be deprived of all indemnity from 
his principal, by reason of the conduct of the creditor. 

Nor does it appear to be necessary, that the suit at law 
should proceed to judgment, for there is no allegation of 
* any apprehension of the plaintiff's iasoiveocy, and the mort- 
gage, if good, is admitted to be an ample security. 

1 shall, accordingly, continue the injunction, until further 
order, to the end that the defendant fV, may m^ke a fair 
experiment with his remedy upon the mortgage, before he 
applies for leave to proceed in his suit at law ; and the 
question of costs, and all other questions arising upon this 
case, are reserved until such further application. 

The following order was entered : " It is ordered, to. 
that the injunction issued in this cause, against the defend- 


mi T%OMai Ward^ Kslrainiog bini from piweeding ugakist 1819. 
tbe phuotiff in the actioo at law, in the pleadings mention- 
ed,. b« continued until the further order of this Court to tbe 
contrary J and that the said defiendant, TimM$ Ward, be, 
siad be is hereby prohibited from proceeding in the said ao* 
tioa at law, in tbe pleadings mentioned, and in any other 
action at law* against the plaintiff, in the promissory note in 
the pleadings mentioned, endorsed by him, until the deftnd- 
aat, ThfnM$ W§rd^ shall ,bave pursued and eibausted his 
woe^j:.^ laWi^Qd ip equity, on the bond and mortgage in 
tfa^ pl^a^ii^ meoliooed, gi? en by ihe defendant Cyremti 
Beaeh^ to the defendant Thomas Ward, as a farther security 
for the payment of the said promissory note, endorsed by 
the plaintiff, and other promissory notes in the pleadings 
mentioned, wd .umil tbe further order of this Court to the 
contrary. .And it is further ordered and decree^^ that after 
the s^d de^amjbv^t, Thotn^s Ward, shall have pvsued and 
exhausted his remedy on tbe said bond and mortgage, as 
aforesaid, if he shall be unable tp obtain by means of the 
said bond and mortgage, payment and satisfaction of the 
money dne oo the said promissory note, endorsed by the 
plaintiff, he shall be at liberty to apply to this Court for 
further directions, with respect to tbe said injunction, and 
his further proceedings at law^ against the plaintiff, on the 
said profpissory note, endorsed by him in the pleadings men- 
tioD^ed ', in which case^ tbe defendant Thomoi Ward^ is to 
satisfy this Qourt as to the steps he may have pursued upon 
the said bond and mortgage, and why he has not been able 
to obtain satisfaction of* the said note, or tbe amount there- 
of, if sQch. shall be the case; and the quostion of costs, and 
all further direcUons, are reserved for the further considera^ 
tion of this Court." 



M'EvBM. SflSPBBU>, sorvivor, &C agaimt M'ETJUit and Qtbers, 

Where traetees have accepted the trast, and eotered eo its execntian, 
they, cannot, afterwaniB, without the consent of the cedui que trusty 
or the direction of the Court, surrender, or dischai^e tbemselTea 
of the trust. ' 

^e yested interest of a 0e9imi que trtui^ caiknot be topairei or de- 
stroyed by the Tohmt^ actof the trustee; bni tbe tnist wtf Mknr 
the land ia the hap^ of the person to whom it has been oonrejnad 
by the trustee, with knowledge of the trust 

Thoug^h a trust be created for the benefit of a third person, as a credi- 
tor, without his knowledge, at the time, he may, afterwards, affirm 
the trust, and enforce its execution* 

As where 5., such cestui que imti resided abroad, and before he was 
informed of the trust, created by the deed of his debtor, for the be* 
nefitof his creditors, the trustees, without the direction of thisooart^' 
conveyed the trust estate to others, upon other trusts and coodi* 
tions, which, in their operation, would hare exchided $. from all 
share or benefit in the joiai-estate ; the trustees, ia the^econd deed, 
were held chargeable with the trusts contained i& the finldeed, of 
which they had full knowledge at the time. 

^^em^erftA. BETWEEN the years 1795 and 1812, T%eopk^Mei 
Backe became indebted to the firm of Satter, Eyre fy Co. 
of Sheffieldf io England^ of which the plaintiff is sarvivinjf 
partner ; the amount of which debt, indoding interest, aa 
stated in the account annexed to the bill, was 4021. 8r. 
sterling. 71 B. having become insolvent, on the 8th of Juney 
1807, executed a conveyance Co JktEven and LciipeMrdf 
defendants, as joint tenants in fee, of certain real estate in the 
city of J^euhYork, and in the coanty of Etsex^ in tru$t^ to 
sell and mortgage the same, as, and when, they should deeaa 
it expedient, ^nd apply the moneys arising from the sale, 
or mortgages, to pay the debu of T. B. and such responsi- 
bilities which they, the said M ta L* might incur, in the 
management of his concerns, '*or such of them as the said 




tnutees might deem it expedient to pay,** and where the 1819. 
dd)t8, resfidnsibilities, and all necessary costs, &c., were '^-^*v-^y 
paid and discharged, the trustees were to reconvey what v. 

remained of the said property, be. The tmstees accepted 
the trust, and entered on the execution, paid some debts, 
and incurred the responsibilities. On the 9th of October^ 
ISOTy an indenture was executed between T. B of the first 
part, the said trustees, M. fy L* of the second part, and E. 
J)l; Jl W.\ C A., S' D.^ and J* &, creditors of T. B and 
Jl' A/'defendants, of the third part, and the five persons 
namVfd,^ and the several other creditors of T. B. and j1. B. 
^Ep«, . wbp should execute the deed within the time therein 

, vnmaiifinedy (three months,) of the fourth part After reciting 
the former deed of trust, and that Jlf.^and L. had incurred 
d^bt«'^nd>MpOmibtlities for T. $. to a large amount, be. 
that they bad not sold any part of the estate so conveyed 
to them in trust, and had, at the request of the parties of the 
tbinl part, in behalf of the creditors, be. declined to ad in 
tie tr^Hif and ibr the purpose of vesting the said property in 

'ihe^l^avties of the third part, be., the parties of the first 
and second parts sold and conveyed all the said trust pro- 
perty^ and all the estate, real and personal, of 71 A, be* 
to the parties of the third part, in irust^ to sell, and out of 
tlie proceeds, to pay, (1.) what was due to JIf. and L. with 
interest : (2.) to pay an annuity of 1,000 dollars a year, to 
T» B. for life : (3.) to pay costs and expenses, iic.<i and to 
$vide the residue between the parties of the third part, and 
the other creditors of 71 B. and A. B. who should come in 
and execute the deed in three months from the date, in equal 
proportion, according to the quantum of their debts, 8zc. ' 

The billf which was filed in June, 1816, prayed for a dis- 
covery, and an account, and that the deeds of trust might be 
brought into court and cancelled, be., and for general re^ 
Vol. IV. la 


q^m iH curnQmr 





(m tkt eih of Jwii^ 19m, to the hxmn of Sumt, Si/r\ k 

Ca. of wlucb tb« plabtUT is tha ^iirvivor. Tlw9 «ppn|^ 

very clear^ from Ihe tser^cate^ of 7* B^ p( 4|)e i^ ft( 

Jtfay, ]l79lf, and Itie 17th of Fdftwm, 1798, i^d ffOf^-^ 

vnfmony of J, O, Hojfmn, JV; r» djntvieij^^a^ "^^Iff^W 

fi4cA€. The la«t ^f tb^fif witoe^fef pro?i^ ^ 5.^^|I^Wf» 

of r. Bf a ftipn tiioa before bifi deatbr iP 1807; jf^ ift ;f|jf| 

exisWDCe and validity of the debt , , , ^, ,^p,,^,, 

BoiQg so indabtod, T, -5» on the 8tb of /t|n^, l|^,^^^- 

vayed his re^^l estate ia the city of ittvo-York^ ^^^4^ ^ 

County of £Mejc, to the d^feodanu JtPEvers H^f fA^fj^m^^ 

10 trufti to pay bis debts. These defeadanu afc^t{)4, ^^f^ 

trust, and entered upon the e^acotipn of it, and ivwJM.iWl^ 

in their power, without the asseqt of the ^tui jtve^ri^i^ 

which the bouse of Swer^ Eyre ^ C9. wq^ 9>^A; <H? Witlfc 

oot the direction of this court, to diaehaiprga thaws^vea ^^. 

tjn^U I take this to be a dear aod settled ride of the c/^wu U 

eppeaiVi however, that op the 9th day of Ocioier, followiag« 

time defeodaats, without such aasant or direction^ iiwte4 

with T. ^. in a conveyance of that estate to the other de*' 

lendauts, upon other tnists and conditions, which, in their 

operation, expiaded the piaintijOTfrom aU benefit under either 

4^, This conveyance wa9 evidently a breach of tmU; 

end as the grantees in the second deed had koowledgei at 

thetiiee, pf the firit deed, and of its contents, they hecamcfr 

chargeable with the trusts centained in the first deed. The 

vested interest of a cef^ij ftie trmt^ cannot be impaired or 

destroyed by such a vokntary act of the trustee, and tbo 

trust will follow the land in the bands of any person taking} 

it with knowledge of the trust Though a trust be created ibr 

the benefit of a third person, without his knowledge at the 

CASES IK CtlANCfift V. i$i 

tim^ he may, afterwards, affirm the trust, and enforce its 
eiecation; <3 JohruanU Ch. Rep 261.) but in (hb case, 
the tmst was violated by the creation of a different trust, 
before the boose df iSfauar, Vifrt^ if ^^m Hi Snglavd^ bad 
doe opportunity to act under it 

"^ f sball, accordingly, decree, tbat a reference be bad to siSr 
e^rtBiin and report the amount of the plaintiff's debt, as 
ilioiira by (be proofi and exiiibits in this gause, aAer making 
itf Jtist allowances, and that tbe master take an account of 
tfifir^t^oceeds of tbe real estate mentidoed in the deed of the 
6ttt'^6f'iyti(Ae, 1797, and of the debu chargeable thereon, 
MhiSt &it ttitd 'deed, and bow much of these proceeds has 
Gooie tp the hands of the defendants, or either of them, and 
of the' investment and disposition of these proceeds, or any 
ftak tiki^oC by way of payment, or otherwise, or of tbe 
laiijb,' iftr any part thereof by the defendants^ or any part 
^f than) and that he have power to examine the parties opon 
Hktb^Mdio take sucb proof, by witnesses, not ab-eady er- 
aiaiifed, as eitbet party may produce, and that tbe qnestioa 
of'tiosti, and all other questions^ be^ in tbe mean tim^ nd- 

'"'" , Decrte accordingly. 


C. &; S. S. Pebinb agaimi Dvnv. 

On a bill to redeem, or for the forecloMire of a aortga(^ the 'tiow. ftU 
lowed for the redemption ii not fixed and certain ; bi\t resU in the 
8oand discretion of the Court, to be regelated by circumstancet. 

Ute usual time, on a bill to redeem, is #kr monrAi, from the iiquidatioB 
of the debt by the Master's report ; and it teems, that the time altoir- 
ed will not, afterwards, be enlarg^. 

On bill a foe foreclosure^ the time may be enlarged from bIx mimthi \m 
six months, or from three months to three nonths. vfl^ eq^tal^le 
terms, and according to the circumstances of the case ; but tjhis rale 
of practice applies only to bills of foreclosure^ strictly so called. 
Where the equity of redemption is barred by the decree, and 
a complete title vested in the mortgagee ; and not to cases of a 
decree for a sale of the mortgaged premises, according to the dniil 
practice in this Court 

Where a party fails to redeem within the time allowed, it is oinal to 
dismiss the bill, which amounts to a bar of the equity of redemption, 

TThere a bill is dismissed on the merits, without any direction that 
the^dismissal shall be without prejudice, it may be pleaded in bar td 
a new bill for the same matter. 

Where a bill was not simply to redeem, but, also, to set aside a mort* 
gage, three months only were allowed to the mortgagor; and WheM 
the mortgagee has been detained from his remedy on the mortgage, 
for many years, by a long and tedious litigation* payment may be 
required in a shorter time, as thirty days afUr the final decision of 
the cause. 

THIS cause came before tbe Court upon exceptions to the 
Master's Report, in respect to the amount due to the de- 
fendant upon the mortgage which the plaintiff, C. Perine^ 
wished to redeem. (See S. C. vol. 3. p. 508.) 

Th£ Chancellor having corrected the report, and de- 
termined, upon the facts contained in a special report of tlie 
Master, the amount of the principal and interest due upon 
the bond and mortgage, decreed, that the plaintifis should 

pay tb^ saviet tQge^tr with. the costs 0C this suit, and cer- ]iB19; 
tain costs directed to be paid by the {ormet decree of the 
28th of September last, iri^tn ikrte mowtiu^ or that the bill 
stand dismissed with costs* He said it might be propter 
here to give some explanations on the subject of these al* 
lowancet of tim^ ^^uk in a decree to redeem or foreclose* 
The period of six moiitbs was allowed by Lord Hard' 
iridte, in the case of Proctor v. Oote, (2 ^tk. 139.) which 
was njpc^i a bill to redeem. The six months were compnted 
from the date of the Master's Report ascertaining the 
imo«pt> dm Qpwtbe mortgage, and upon default, the bill 
was 4o be - dbmissed. From what Lord Eldon said, in 
J^ovosid^ V. Waktfidd, (17 Fes. 417.) it may be hiferrad, 
that the usni^ time allowed to redeem, on a bill by the 
mortgagor to redeem, was six months after the debt was 
liquidated by the ^'aster's Report; and a distinction was 
taken by the Chancellor, between a bill by the mortgagor to 
redeetti, and a bill by the: mortgagee to foreclose the equity 
of redemption. In the latter case, he admitted, that it was 
the practice, after ginng the usual time of six months to r^ 
deem, in the decree of foreclosure, to enlarge the time, upon 
motion and upon terms« He said, he had found such a practice 
estaUished by his predecessors, and he had followed it with 
considerable regret, as the effect was frequently a severe 
grievance to the mortgagee. The period to redeem, on a 
decree of foreclosure, has, in some cases, been several times 
enlarged from six months to six months, or from three 
months to three months, upon equitable terms, and under 
the special circumstances of the case. (Jlnon^ 3. Eq. Cos* 
Ahr. 605. n. 37. Edwards v. Cuniiffe^ 1 Mad. Ch. R^. 
287.) But in the case of a bill to redeem, the plaintiff pro- 
fesses to be ready with his money ; and Lord Eldojih would 
not enlsurge the time for payment, and said there was no 
such practice. 

I take it for granted, that the time to be allowed by die 
decree to pay the mortgage debt, whether on a bill to re* 


t^t CAitS Ifr OHANC£itY. 

IM^ deM^ « QpMii faM tb llM^ole, is not MbibliiiKiy iettain, 
iwi n»tt ib ^kdredM, Utid will be r^gdlfkte^\i^%t <:fh:am- 
Mftneei of tli« pftftie«ltr case. In the preoHkins id the 
Eqmif PNjfimm^ ibe thoe k ieO thaJc. Btrtltitn ftcRMil 
t^lUttki ilMiliit MMtftt It die itffHil fiille ttbder flM JB^^ft 
fNTMiioey on bilb to ^erfeeo j ftild rfieiN^ is the more it^^oa 
S» die alh^tnce of Mich a liberal ^me, conslclMiig Aat 
Ae tim* wiR not aAemrairds be enlatged, stfd thttt tf iUlttre 
ef p^yoeiit by the dine winild^ probsWyj be eqtihrAlent to 
ft forftittre <ir the eqiiiQr of redempflmi. IW trgur so itti- 
dentood by dieoomiftel, tA fbe cade ah^KAjT dri^ fttiU If 
P^vqr. The ostial decree. In these cased of tlRs 't6 ttieem, 
irtiefe the fMu^ iltik to redeem, or is not" entitled t(t i^^deetn, 
Im, that the Mil be dismissed. (ShiftH ^if^aUhte/i Rep. 
to CI. M. Roiearriek t. Soit^ t CA; Vdi. '^ll jT^ 
/efo y. Tumetf S Fern. 41B. J^tuMngton 'V. Sdrr&w^ 
Free, m CA. Sl(^ JBn^uifei v. S^^e^, 1 tiq. Cos. Ah-. 
S15. Proc^ie^r y. Oofet, dwM. 139. Batipote'^. Wdsh^ 
4 A^. P. C; 9M. Van HegikeuykenU Eq. Dtapman, 649. 
Nmi^Yark edit) ^iich a dfamissati I apprehend, aihoadts 
10 ft bftr of the eqaitj^ «f redemption, bec&ase it niigtiV be 
pleaded b bar of a neir W\ ti^ redeem. 

A bill regohrly dlsmissej npori the merits, Vheie the 
mailer has beefi passed opon, aiid there is no direction that 
the dismissioo be Whhoot prejadice, may' be pleaded in bar 
of a new bill for the same matter. This is the amount of 
die eases tm the point {Prettyman ▼. Prtftyman^ \ Vem. 
310. Peterborough v. Gtrmaine^ 1 Bro. P. C. 281. Jlnon. 
i OL Com. \S$. Brmdlyn v. Ord, 1 Aik. ffH. Cater v. 
Demar^ DiekenM^ ^f4.) There may, indeed, qoestions arise 
on dtts nbfect, as, wiiether the decree of dismissal has been 
duly eoaoUed, ot dnly and flcially rendered, or whether it 
amounts to a ret JtMMa tipon the sabstance of the bill ; 
but assmoiog these points of form and crkidsm (o be all 
properly setded, h wonld seem to be .within the reason of 
die tnle, that « decree dismfssing a bill sedkiag to redeem, 

CA^ Df ^4NQIIiT. la 


bcewne Ukt p)iw4<C wfoU saI rtifem whn aUoired «mI 1819. 
fccctied, ^ h iw^, Wy to * > *• »*>f^ fr«n a iwir Wll to le* ^"^1^^ 

4eeii|« WItjr. th^iilf be^b^ «Uowe4 to v«x the OMitgagM 

law wnpld.fem jio ba^ralM^ Ki 9mh •c ti i oim jUet 
'i<»i'10^«^j|(<6wt^«j^^ AdacifiioBof Jbori«A(«e« 

^^459^ «ii4j$ J9^o«f • C.3i6. oM €d.)ofwrtt]iDgaptea 
(Mfi^ t^(^^)}feo^.. to • bill sttbiiqiieot^ 

^ii|bt .t^ ffl^m ,, d(w UK MWi to lie foconoUiobk wltb 
]«iiH^|p^. flfj^fifq^/f^^ btHM if we ware|i«raiitlcd to read tb«t 
case ujj^rdffhriu^ uodermod it, [% Fet* 4fiO.) who 
coosidered. the pics, to be bed, because tfiete was no final 
and .absolote ^der tor forecloaore. Op that groond, tbe 
decisioQ .avelTl^PD^ ««^h a plea woald be iotelligible. It 
may be proper here to obierv^y that though six months, 
pobjeci . to^ e^i^r^iQent, are allowed to redeeniy an a bill to 
fw(e^pffj yei*. the fule and the practice apply only to cases 
o( ^ct foroi^oanre, where, by the decree, the eqotty of re- 
difffii^ iftUvvMi ttd lhee«»plete tide is aesied ioth^ 
menji^ef^ The role doee mi apply to eases of decrees 
Ihr the sate of the mortgaged preoriaes, according io our 
vsqel ji^a^ce* ^fae mortgagor, in soch cases, b not subn 
J€c»d ^8i,a, Wc?e «itt4 absobte forfeiture of all hie right, bat 
lie haf t^ ,f^WQ^ 9( tbe sorploa momgra arising from tbe 
8de,a9dHpliM«4nponthaaaoiefiMlia9^Qr eqM with 
debtoia agaiaat vbao jadgmenta are ro a d e fc d>- and eaaca- 
tions awarded at law. 

In thexpresem case, I have allowed to tbe phuntiir three 
months only, because tbe bill was not simply a bill to io» 
deem. Tbe main object of it was to set aside tbe mortgage, 
and it hai, ^ tp a lonji;; ai^ discouraging liligaftio» of 
seve^ jfeai^* The prayer to redeem was upon the coo« 
ditioq that ,tbe plaintiffs failed in their principal parpose. 
la sech a case^ the mortgagefs who comes oat of the eontast 
lucc^^ully has .a jas( ^^t to expecti and to' demand 


1819. prompt redemption. So, in the late case afBrinekerhoffv. 
Lansingy^ one object of the bill was to set aside the mort* 
gage as satisfied, and kept on foot by fraud. The idea of 
redeeming it did not seem to have occurred to the pUin* 

tiffs. I, therefore, required prompt payment on the final 

^' ^' ' decision, as the mortgagee had been detained, by a suit 
for years, from his remedy on the mortgage. In soch cases, 
it is peculiarly incumbent on a mortgagor to be ready with 
bis money. But where the bill is a plain simple bRl to 
redeem, and there has been nothing unfavourable in the 
conduct of the mortgagor,.! shall be disposed to follow the 
Engliih practice in the allowance of time. 



Parol proof it admiraible to correct a nUsiake in a written coniract, in 
favour of the plaiatiflT, seektog a specific (lerfofiDaiioe of that god* 
tract ; especially, where the cootract, in the first instance, is im- 
perfect without referring to facts aliunde. 

As, where there was an agreement to execute a lease for lives, " con- 
taining the usual clauses, restrictions, and reservations, contained 
in leases given bj the 'defendant," it being necessary to resort to 
proof, dekon the agreement, to ascertain what were tlie usual 
clauses, te. in such a lease; it was held to be open to the plaintiff, 
also, to show by paroly that it was agreed and understood, at the 
time, that a particular reservation was not to be inserted in the lease, 
which the defendant was to execute. 

'the statute of frauds does not apply to such a case. 

SepL im. "^H^ bill, which was filed December 15, 1814, stated^ 
that on the 15th of February ^ 1803, the defendant (proprie- 
tor of the manor o(L.) entered into an agreement, in writing, 
with William Fritz^ to execute a lease to him of the farm 
on which he then lived, in great lot No. 3., in L., for the 


lives of W. F* and bis wife^ and his son J. fV. F. was to 1819. 
pay to the defendant 480 dollars and 37 cents, with interest, 
from the Ist of JMay, 1800, on the 1st of May^ 1805, and 
the annual rent of twentj^-two bushels of wheat ; the lease £iy„|^',Toir. 
to contain the usual clauses, restrictions, and reservations, ■ 
in leases given by the defendant tV, JP. covenanted to 
commit DO waste, and not to assign before the agreement 
was fulfilled, without leave of the defendant in writing. fFm 
F remained in possession of the farm until the 28th of ^^pril^ 
1806, when he assigned the agreement, and all his interest 
therein, to the plaintiff, for 1,300 dollars. The plaintiff took 
possession under the agreement and assignment, and has 
ever since continued in possession of the farm. The plain- 
tiff took the assignment in the presence, and with tbe ap« 
probation of the defendant, and has paid tbe renu reserved. 
Tbe bill alleged that the defendant refused to execute a lease 
to the plaintiff, unless he would pay to him ane-Jifih of the 
purchase money, and agree to receive a lease containing a 
reservation of the same proportion of the purchase money on 
all future sales ; whereas, it was agreed and understooid 
by tbe partis, when the agreement was made between fV. 
F. and tbe defendant, that tliefarm should not be sutyect to 
a fifth of the purchase money, or quarter sales f and that the 
plaintiff paid tbe whole consideration to fF. F. That the 
defendant had brought an action of ejectment against the 
plaintiff. The bill prayed for an injunction, and for gene- 
ral relief, &c. 

The material allegations in the bill were either admitted, 
or proved by tbe witnesses examined in the cause. The de- 
fendant, in his answer, referred to a printed form of leases 
given by him, annexed, (and which was tendered to the plain- 
tiff, who refused to execute it,) containing a reservation of 
one fifth of tbe money arising on sales, &ec., and denied 
any such parol agreement as stated in the bill ; and insisted 
that, by the statute of frauds, he was not bound by any parol 

Vol. IV. 19 



181t. agreement contrary to the written contract, and claimed tfa» 
benefit of the statute. 

InmrGtmnr. ^«» Buren, for the plaintiff. 
JB. VFUliams^ contra. 

The Chancfxli.or. This a bill for the specific per- 
formance of an agreement in writing, to execate a lease for 
iives, '' containing the usual clauses, restrictions and reser- 
vations contained in the leases given by the defendant." 
The agreement was made and executed in 1903, with FTtV- 
liam Fritz, who was in possession of the land, and continued 
thereon, until he assigned his right and interest, under that 
agreement, to the presient plaintiff, in 1S05, who took posses- 
sion, with the knowledge and consent of the defendant, and 
has remained in possession ever since, and paid the rent 
down to 1813. The defendant, in August^ 1814, offered to 
the plaintiff a lease with a provision in it, that upon every 
sale of the demised premises, one fifth of the purchase or 
consideration money, should be taken by the defendant to 
his own use* The bill states that such a lease was ofiered 
and refused, and charges that the parties agreed and declare 
ed, at the time of the execution of the agreement in writing, 
in 1803, that no such quarter or fifth sales should be de- 
manded or paid. 

The defendant does not, in direct and clear terms, deny 
any such agreement, that the farm should be exempt from 
quarter or other sales, but denies '* any other or different 
contract than tb^e one set forth.*' By contraeti here he evi- 
dently means the agreement in writing ; and be says, fur- 
ther, that the parol agreement is falsely charged, but it is 
not stated wherein, or to what extent ; and as to the validity 
of any such agreement, he pleads the statute of frauds. 

The only material point in this case is, whether the lease 
to be giveD, should or should not contain a reservadioa of 


one fiAk of the neney on every ttfee, In ibe defefidant, aiul 1819. 
bit heira at>d aMiaiift, N.*^v^^i/ 

The lesliiDony taken in the cause establishes, beycmd aU. mack 
doofaCy ihe parol agreemeiH as charged, and that the vriliog, uvuiAtTov. 
if it requires a diflerent constraction and operation, has been — — 
so ftLT drawn and executed in oiistake. The three witnesses 
{Qttprge ^nmgky fVUliam Fritz j and John Loomis^ estab- 
lish the fact moat clearly, and I am not at liberty to discre- 
dit vriinesses wtio are onimpeached. Ttie only question 
is as to the competency of tlie proof. 

The statute of frauds does not appear to me to have any 
bearing upon this case. The agreement for the three life 
leaae, is in writing,, and it lias been partly performed by pos» 
session taken and transferred, and rent paid. The right of 
the plaintiff rests upon the contract in writing, and the only 
inquiry is, whether there is not a mistake in the generality 
of the expression, tltat the lease was to contain the *^ usual 
clauses," be., and whether the parties did not intend an ex« 
ceplion in respect tor tbe quarter sales. There is no doubt 
of their declared iotentiou to make such an exception} at die 
time the agreement was drawn ; and 1 am iaduced to tliiok 
Ibat ibe writing is, and ought to be, susceptible of amend* 
mem and correetiont in that pardcuiar. This is not an un- 
dertaking to supply a defective agreement by parol prooi^ 
or to construe it, by resorting to previous negociations and 
conversations between tbe parties. It is making the writing 
speak what the parties intended it slioold speak, when they 
executed il ; and 1 see no objection to ibe admission of parol ^ 
proof in this case, that would not equally apply to every ca^e 
of an attempt to correct, by parol proof, a mistake io a 

This is a peculiar case, in which parol proof is necessary, 
at all eveotSi to give meaning and effect to timt part of tlie 
writing wUeb refers to tbe usage of the defendant, in draw* 
mfi bis leases. The reference is to a maOer of fact) since 
what %nu9naicUuue$m\iis leasesymnst be shown bypro^ 


1819. iek^n the fattrament. The agreement was not, in the first 
instance, perfect, without reference to matters of fact, aliun* 
de. Parol proof is let in by the agreement itself, in ordei 
to settle the terms of the lease ; and that being the case, 
there is le^s objection, in principle or policy, to carry the 
parol proof so far as to show what was the actual under- 
standing of the parties, at the time, as to those terms. The 
Master of the Rolls stopped short of relief, in the case of 
WooUam v. ffeom, (7 Vei. 211.) where a mistake was al- 
leged, because he said there was no precedent for allowing 
Parol proof to parol proof to correct a mistake, t» faixmr of a plaintiffs 
tdkTm a coo- scekmg Specific performance of an agreement. He adroit- 
•ibie,^aB well ted, however, that the proof before him made out the plun- 
»iainUfi;'^a« the tiff 's case, and that it would have been received as sufficient 
to refuse relief, if the defendant had sought a specific per- 
formance. I am not sufficiently instructed, at present, to 
admit the soundness of this distinction, which holds pard 
evidence admissible to correct a writing as against^ but not 
in favour of a plaintiff, seeking specific performance of a 
contract Lord Hardtoicke does not appear to have been 
aware of any such distinction, in the two cases to which Sir 
Wm. Crrant refers. Lord Tkurhw rejected parol proof in 
the case of Imham v. CkUd, (1 Bro, 92.) when offered by 
a plaintiff seeking performance of an agreement, and at the 
same time seeking to vary it by parol proof, but he went upon 
general grounds, applicable to such proof as coming fi-om 
either party^ And why should not the party aggrieved by a 
mistake in the agreement, have relief as well where he is plain- 
tiff, as where he is defendant ? It cannot make any difference 
in the reasonableness and justice of the remedy, whether the 
mistake was to the prejudice of one party or the other. If 
the Court has a competent jurisdiction to correct such mis- 
takes, (and that is a point understood and settled,) the 
agreement when corrected, and made to speak the real 
sense of the parties, ought to be enforced, as well as any 
other agreement perfect in the first instance. It ought to 


have the sane efficacy, and be eDtitled to the same protec- 1819. 
tiooy when made accurate under the decree of the court, as 
wheo made accurate by the act of the parties. The one 
case illastrates the other — ret aecendmt lumina rebus. 

But without pursuing this point further, at present, it is - 
sofficieDt to observe, that we are obliged, by the particular 
terms of this agreement, to deal with written and parol 
prool^ to ascertain the clauses, and restrictions, and reserva- 
tions that were intended. The written agreement rests for 
its coDsiderati<Hi and performance, pardy upon the aid of 
parol proof. And such proof being let in, by the contract 
itself, it may, upon the very principle admitted by the agree- 
ment, be applied to correct any mistake manifesdy shown 
to exist in the general and unqualified terms of that part of 
the written agreement which depends for its explanation 
upon external proof. 

I shall, accordingly, direct a specific performance of the Cofiti 

6d OD a (iffCTCK 

agreement as corrected by the proof^ and shall award costs, corrsctio^ « 
as was done by Lord Hardwicke. in Bingham v. Birurhanu contract, oo « 

/I TT tOfi\- J *• • * 1 ^ ^ bill for that 

(1 Fes. 1260 in a decree correctmg a mistake. purpote, and 

for a specific 

Decree accordingly. 


OodBN t^amit Gmboks. 

The tereral acts of the Lcn^slatvr* ^f tbit state, ^ raetiny end se- 
curing to R, R LmngBton and R> FulUm, the sole and exclusive 
right of usiag^ and navigatiDgf boats or vessels, bjr Bteam or fire, in 
the waters of Ibis state, for a certain nnmber of jears, ate consti-' 
ttitional and valid acU. 

ilfid dkie Geart will frani m MjgMcCieD to restraia the oiliMeM ol 
another state fitmi nanrigaiiBg the waters of this state b^ vessels pi«- 
peiled by steam, without the consent of the said R, R, L. and R, 
F.y or tbeir assigns, although such vessels may have been enrolled 
and licensed nnder the laws of the United Statu^ as coasting ves- 

3^ 2701, AAROX OGDEN filed his bill, ob tbe aigf pf €ktfAer, 
iMiA ^t ou. jQjg^ against ThomoM Gibbam, stating, that on the IMi of 
Mardiy IMt7 the Legislature granted ta John FUeh^ the 
cxdusive right of asmg, for a Kmited tme.. a steam boat^ 
tic* That on the STth of Ahnkj 1798, the Legishtvre re- 
pealed the act so made in favour of Fitch and passed an 
act granting a similar right to Robert R. Livingiton, for 
twenty years ; and on the 5th of Aprils 1803, granted the 
like right to Robert R, lAvingitan^ and Robert FtdtcUf for 
twenty years. That on the 6th of April, 1807, the Legis- 
lature passed another act in favour of L. and F.^ extending 
the time for giving the proof required by tlie former acL 
That oo the lltb of Aprils 1808, L. and F. having given 
the requisite proof of their having built a boat impelled by 
steam, at the rate of more than four miles an hour, kc. the 
Legislature passed another act, giving to L. and F*^ and 
their associates, an extension of five years of the exclusive 
right to navigate the waters of this state, by boats or vessels 
moved by steam, for every additional boat which they might 
build, so that the whole term should not exceed thirty years 
from the Ume of passing that act ; and declaring, that lio 



persoo or persons, withoul their licenses, sliovld set in mo- 1819. 
tioo, or navigate, upon tiie waters of this state, or withio 
the jurisdiction thereof, any boat or vessel moved by steam 
er fire, uinkr the penalty of forfeiting to the said L. and F,^ 
and their associates, such boat or vessel, tec. That by 
another act, passed the 9th of *^pril, 1611, it was declared, 
among other things, that the several forfeitores mentioned 
in the act of the llih of w^prtV, 1806, should be deemed to 
accrue oa the day on which any boat moved by steam or 
fire, not navigating under the license to L. and F., or their 
. associates, shall navigate any of the waters of this state, or 
tliose within its jurisdiction, in contravention of the said act, 
and that L* and JP*., aud their associates, might thereupon 
have the same remedy, in law and equity, to recover such 
boats, be. as if the same had been wrongfully taken out of 
their possession, kc. The bill further stated, that the said 
L. and F. having, in ail things, complied with, and fulfilled 
the terms and conditians expressed in the said laws, became 
entided to the exclusive right and privilege to navigate the 
waters of tim state, by boats moved by steam or fire. That 
on the 20th of Auguit, 1809, R. R. L. and F., by inden- 
ture, granted to John R. Litingstfm^ and his assigns, ** aH 
the right which the said R. R. L. and F. possessed under 
the laws of the state, exclusively to navigate from any place 
wiihia the city of Xew- Terk^ lying to the south of the state 
prison, to certain places in the said indenture specified, and 
l^iug to the south of Pottles Hookferry^ and particularly 
to Suuen Island^ MizabeUuotm Pointy Perth and South 
Amhoy^ and the river Rariton tip to ^ew-Brunswickf fi^c* 
That on the 5th of May, 1815, J. R, L., by articles of 
«^:reenient, agreed to permit the plaintiff to run a steam 
boat, or steam boats, between EUzabeihtown Poini and the 
tsty of JVtwTork^ (&t ten years, from the 1st of Marchy 
IB15, in as foil and ample a manner as he, the safd J. R. L., 
had then a right to run the same, by virtue of the grant to 
Um fipon R. R. L. and R. F. ; and tinrt the said J. R. L. 


1919. further agreed with the plaintiff, that be would not run, nor 
grant any license to run a boat, or boats, during the ten 
years, to and from lUizabethtounij and Elizabetht&wn Point, 
That JR. JR. L. died in February, 1813, and R. F., in 
March, 1815, and that the legal representatives of/?. R. L. 
and R. F, on the 29th of December^ 1815, covenanted 
with the plaintiff and Tkoma$ Morris, among other things, 
to release and confirm to the present owners, or their as- 
signs, of any steam boat, or boats, run by them, or any of 
them, on the Hudson river, on the sound between J/ew-Tork 
Island and Long Island, or between New- York and Eliza- 
bethioum Point, or Eltzabetktoum, to the whole extent of the 
township, all their right, tide, or titles respectively, to every 
patent, or other right holden by them, he* That when this 
last mentioned deed was executed, the plaintiff was owner 
of a steam boat then running on the waters of the state, be- 
tween Keuh-York and EHzabeOuown Point, or Elizabeth- 
town ; and the plaintiff claimed the exclusive right of na* 
vigating the waters of the state of JVeio- Foriy by boats 
moved by steam or fire, between Kew^York and Elizabeth'' 
toum, in virtue of the two deeds last mentioned. That the 
plaintiff has lately built, and runs a steam boat called the 
Atalanta, by virtue of his said exclusive right, between 
EUzabethtoum Point and the city of ^eu^York. That the 
defendant, T. Gibbons, of EUzabethtoum, in the state of 
KeW'Jersey, is owner of two boats impelled by steam, one 
called the Stoudinger, and the other the BeUona ; and in 
contravention of the exclusive right and privilege of the 
plaintiff, and without any license from the plaintiff, or R. 
A. L. and R. L., or their representatives, the defendant 
had set in motion the said two boats moved by steam or 
fire, and employed them in the trasportation of passengers 
between the city of JVet^-Fori and EUzabethtoum, and that 
those boats now actually navigate between ATew-York and 
Eliz4ibethtoum, be. to the great loss and prejudice of the 
plaintifil Prayer fi>r an injunction to restrain the defendant, 


bid ^giiil^, kc from «siiig» eB^>l^jing, and iM|vigftti|)g the ISig^ 
said two «ieam boats, or either of them, or aoy other steam 
bcMit by hin purchased or built, as aforesaid) on the waters 
qS this stale ^'mg between J^izabethtovmi or aoy place 
witbin the bowdl of |be towpship^ and the cuy of .Yeu^ 
Ybrki ^* A writ of iiyuDCtioa was granted on the 21st 
of Oc^o&er, 1818, according to the prayer of the bill 

On the I9th of Augw^^ |819, the defendant filed bis an- 
^W^T to . the bill, in which be admitted the several acts of 
the Liegiflatnre, and the deeds, ^. set forth in the plaintiff 'a 
i^ bat denied the es^clusive right claimed by the plainti^ 
i^ider theoL He adpaittedy that he was the owner of the 
twro steam boats described in the bill, and which were in-« 
tended to navigate by ^team between the city of JYet|»- Fori;, 
and the wharf of the defendant in .Veu^-Jer^ey, at a place 
usually called J^ahied^i Painty which is within tlie bounds 
pf the townships of Elizabethtoum, hut separated from Eli- 
Zifb^htow^ F<mt% by a largp and navigable ereek ; that th^ 
Wi4 boats did mn between JfeuhYorh and the said wharf 
of the defendant, which is a short distance from Klizabetf^ 
town Point, the place from which the plaintiff's boat runs t^ 
^ew-York; and thai the said boats of the defendant conti- 
Uned so to run, ifc. until restrained by the injunction issue^ 
la (his cause. Pat he denied, that the said boats ever rnii 
fyam lUizQbethtQtpn Point. The defeqdant averred, thaf 
fiis two boats are vessels above the burthen of twenty tons, 
Mid were dqly enroUed and licensed under tl^e laws of thf 
llpit^d State$f to he employed in carrying on the coasting 
trade, according to the l^ws of the United States. That tb^ 
ifUfudinger wfis enrolled at Perth idmAoy, in Ne^Jeneyij oi| 
4b^ ^ of Od^ber^ 1817, and licensed for one ye^r, which 
Jj^cen^ was renewed on the 20th ^f October^ 1818, fi»r one 
year, by the collector of fhe port of Perth Amboy^ in the 
(bfin prescribed by law, in ppfsuanpe of an act of Cpn- 
gsess, entitled, f* an acf for enrolling and licensing ships 
upd vessels to he employed in the co^MJP^ V^i^ wd ^he^ 

Vol. IV. 80 


1819. ries, aud for regulating the same.'' And the'defendaQt ia« 
sisted, that the Stoudinger^ under this license^ may be law- 
fully employed and navigated in the coasting trade between 
parts of the same state, or of different states, and cannot be 
excluded or . restricted therein, by any law or grant of any 
particular state, on any pretence to an exclusive right to 
navigate the waters of any particular state by steam boats, 
&c. That the steam boat Bellona was in like manner en- 
rolled and licensed on the 20th of October^ 1618, Sic That 
the representatives of jR. jR. L. and jF., claiming to be en- 
titled to certain patent rights for improvements in steam 
navigation, and, also, an exclusive right to navigate the 
waters of the state of J^ew- York, with boats or vessels pro- 
pelled by steam or fire, on the 14th of September^ 1816, by 
deed, sold to JD. JD. TompTdns^ Adam Brawrty and JSToah 
Broumy and their assigns, " the right, liberty, and privilege 
of navigating, for all purposes whatsoever, boats or vessels 
of all kinds whatsoever propelled by the force of fire or 
steam, upon, over, and across the waters of the bay of Jiew* 
York, Staten Island sound, the outward harbour, including 
Prince's and Gravesend bays, and a part of the Atlantic 
ocean, and Jamaica bay ; and, also, a right, privilege, and 
liberty, with all such boats so propelled, to touch, stop, and 
land passengers, and discharge cargoes, to depart from, and 
arrive at the city of JVew-Yorky or any part thereof; and, 
also, the sole and exclusive right, privilege, and liberty of 
navigating, with all such boats to and from the city of JVetir- 
York, and to and from ihe points and places in the said 
deed particularly mentioned and specified, to wit : " Shrews- 
bury bay and rivers in New-Jersey, Sandy Hook, Spermaceti 
Cove, and the waters and shores adjacent thereto, to the 
southward of Sandy Hook, Fort Diamond, and the shores 
of Long Island, with liberty t j touch at any point or place 
on the easterly and southerly side of Staten Island, and any 
point on the said shores, at which the grantors may lawfully 
touch, consistenly with their grants to others." That Adavi 


Brawn afterwards died, and his executors, on the 4th of IS 19^ 
December^ 1808, by a deed, reciting, that all the rights and 
privileges under tlie last mentioned deed, had been released 
to JD. jD. Tompkins^ and as respected Shrewsbury^ and all the 
shores ot^hrewsbury bay and rivers, to Noah Brovm ; and 
they, the said, executors of A, B.^ sold to the defendaat and 
his assigns, all the rest, residue, and remainder of the right 
o(A. JB., derived under the said deed of the 14th of £iep- 
iembeTj 1816. That D. D. Tompkins and JSToah Browup 
on the 7th of December^ 1818, by deed, sold and conveyed 
to the defendant, a right of navigating with steam boats, 
upon, over^ and across the waters of the bay of New-York^ 
SMen Liafid sounds the outward harbour^ the Atlantic oceaUy 
and all the waiters specified in the deed of the representatives 
9[R.IL L, and F. to them, and to touch and land passea- 
gerSf and take or discharge cargoes, and to depart from, 
and arrive at, and navigate to, from, and between the city 
f>[ Msuf-Yorkj or any part thereof, and to, from, and be- 
tween any place or places, point or points whatsoever, ii^ 
the state of JSTew* Torkj or in the state of JSTew- Jersey ^ or 
elsewhei^, other than, and excq^t Staten Island^ and cU the 
points (mdplaoes on the shores of the state of New^erseyy be» 
tween the point cf Sandy Hook and the east end of the divi^ 
sion Une between Matunouth and Middlesex counties^ in tho 
stale €f JVeio^ersey" And the <lefendant insisted, that if 
R. /{• L. and JP., or either of them, had any exclusive rigiit 
to navigate .b^ steam boats, (which, however, the defcndaojt 
did not . admit,) he, the defendant, liad a right, under the 
deeds ab^ve mer<tioned, to navigate the waters of the state 
of Ntw-Yorkf between the city of JVew- York and Elizabeth--, 
town, or ElizabethtowH Pointy or any place or point in the 
creek called Elizabethtouni creek, in the township of Eliza^ 
bethtoum, in the state of New-Jersey^ with boats or vessels 
moved by «team or fire. And the defendant denied the 
right of the plaintifi', if the matters set forth in his bill were 
true, to prosecute alone, as by his own showing, he was as* 


181 9. sigtiefe of to puti only of the^xctwiWo right cWntd by km 4 
and be pray«d ih«t be aughl bttve die benefit of Om Al- 
ienee, equally «b if life bed aemmd to ifae biU» or plsiMh- 

^d it 

Sept. 27<A. Od l!be coming hi of Ibe eneirer, a MMkA tvae» ilw 4af(p 
made to dissoflve the tojonciioB, wMcb «» Mgaecllby iliiiv 
ry, for the ddeHdaot; and Iq^ the jriaiaitf bnudf; and Van 


Od. M. The caose stood for cotiitderalim antil tbia 'day. 

Ths Chakcbllor. TbenotioatoAMtilvelbe iftftfM- 
iion is founded upon the matter ooniaiaed 4a M» aasivtfr. 

The defendant sets op two groundsof ti^ ^ aavigala 
with steam boats between the ciQr of ^tuh¥m1c «lril.lifa(» 
sUcPs Point, withm the towntfiip «f SUktiMUmmi, te 
New-Jeney : (1) A license to carry on the cMotiog srada» 
granted under the laws of the UniHed Siaie$^ aod (A) «r 
Kceiue under the representatives -of Lhiv^iUm and Fidtmu 

I. The act ofOongress (passed 18th df iFeArMty* 179^^k 
8.) referred to in the answer, provides for the < 
licensing ships end vessels to be em^rioyed m the 
trade end Jisbdries. Withoat beiag enrolled and ltcensed» 
they are not entitled to the privileges of j&aerieiw vessria» 
but must pay the sane fiees and tonnage as f aps ign vessels^ 
and if they have on board artieies of foveign ^^^wth or 
manofacturei or distilled sfMrits, they am liable iiylorfUtiira* 
1 do not perceive tliat ibis act confers any right iiicompat»* 
Ue with unexckisive right in Livingston and Fekon, to oa* 
Vigate steam bdau upon the waters of this stale ; the right of 
the Legislature to pass the laws mentioned in tlie>(deadings is 
not attempted to be made a question of in this pkoei and upon 
ibis occasion* That right has been settled (as far as the 
Courts of this state can settle it) by the decision of the CSoort 
of Errors, in JUvingsion y. Van Ingm; (9 JMncpa, 5Q7.) 


aad if liiofie kiri are to he dec— d» 4b the fint JaKaaee, Md iSi9. 
jper Ml ^nlid and coMtelienel, mmI m codfieiiuig valid legal 
■ghca^ a ^eaating liceaie caaaot savily have aay efiepi aa 
oontraUiDg ihenr a pcw i ie a. The aoc of Co^gfess r^enad 
toy aevar amnt «d dmciai iae ^ right of prpper^, or the 
aw ar enjoyaieiit of k, aoder the laws of die stales. Auy 
peMM, in theatMuaed chamocer of cMmer, may obtain the 
earoloeDt and lieeate fe<|aivad j hot it will atill reoiaia Hu 
ihelaiRi and coortt «f the several states to detemine the 
ngfal and tide of each assomrd owner, or of sooae odier 
person, 4o novigale tlie vessel. The lioense^only gives la 
Ihe vessd an ^detmean character, wMle the right of the 
iadmdaal peaeariqg the lioeaseio «se the vessel, as against 
another faidividaal setthig «p«a distiant and eoKlostveinght, 
lemaiaB ipreciasly as it did hafere. it is. neidwr eriaifpsd 
nor diminished kf awani of theKcense ; the act of (he col* 
lector does not decide the sight of property. He has no 
jntisdictBDn over «ooh aqoestioo* Nor do I think it wonU 
alter theons^ in respea to the ibroe and e&ct of the laws 
hsfbae ns, if the Keense of the cdkctor was evidence of 
property. However unqaestionable the right and tide Ion 
specific ahmtel may be, nnd frmn v^miever tanree tkai dde 
wMfbe dsTMd, the use and employ oient of it most, as a 
geaend mie, be snb|eot to the laws and regulations of the 
state* If an indsvUnal be, for instance, in possession of any 
daiypatsnted aehiele, or nmcfaine, or vessel, or medicine, 
or book, mast not sochjiroper^ beheU, used, and enjoyed, 
Sdl^eet to Ae genefol laws of the hwd, -such as laws eslab- 
Kdiing mnipike 9oads and toll bridges, or the eicfasive 
fight to a Any, or .laws for preventing and removiDg noi* 
sancesf Most it not be subject to all other regnlations 
t ene lii ng .the^ose and employment of property, which the 
Legidatare of 4he slate may deem jast and eipedientf It 
appears to me thattbese tfuestioas mast be answered io the 
eArnmdve. • The only limitation npon soch a general dis-^ 
€retioQ4md pownr of eaatrol, is.tfae occorrenoe^of the casa 



1819. wh^n tb^ exercise of it would impede or defeat the opera^ 
^"^fP'"^^^ tion of some lawful measure, or be absolutely repugnant to 
V. some constitutional law of the Union. When laws become 
repugnant to each other, the supreme or paramount law 
must and will prevail. There can be no doubt of the fitness 
and necessity of this result, in every mind that entertains a 
just sense of its duty and loyalty. Suppose there was a 
provision in the act of Congress^ that all vessels duly licen* 
sed, should be at liberty to navigate, for the purpose of trade 
and Commerce, over all the navigable bays, harbours, rivers, 
and lakes within the several states, any law of the states, 
creating particular privileges as to any particular class of 
vessels, to the contrary notwithstanding ;. the only questioa^ 
that could arise in such a case, would be, whether the law 
was constitutional. If that was- to be granted or decided ia 
favour of the validity of the law, it woald certainly, in all 
Courts and places, overrule and set aside the state graat* 
But, at present, we have no such case, and there is no ground 
to infer any such supremacy or intention, from the act regu^ 
lating the coasting trade. There is no collision between the 
act of Congress and the acts of this state, creating the 
steam boat monopoly. The one requires all vessels to be 
licensed, to entide them to the privileges of American ves- 
sels, and the others confer on particular individuals, the ex- 
clusive right to navigate steam boats, widiout, however, in- 
teriering with, or questioning the requisititions of the license* 
The license is admitted to be as essential to these boats ^^ 
to any others. The only question is, who is entitled |o takiB 
and enjoy the license? The suggestion that the laws of the: 
two Governments are. repugnant to each other upon thi» 
point, appears to-be new, and without any foundation. The 
acts granting exclusive privileges to lAvingiton and FulUm^ 
were all passed subsetpient to the act of Congress } and it 
must have struck every one, at the time, to have beea per- 
fectly idle to pass such laws, conferring such f rivileges, if a 
coasting license, which was to be obtamed aa a matter of 


course, and with as mach facility as the flag of the Vniied 1819. 
States could be procured and hoisted, iras sufficient to inter- 
pose and annihilate the force and authority of those laws. 
If the state laws were not absolutely null and void from 
the beginning, they require a greater power than a simple 
coasting license, to disarm them. We most be permitted 
to require, at least, the presence and clear manifestation of 
some constitutional law, or some judicial decision of the 
sopreme power of the Union, acting upon those laws, in di- 
rect collision and conflict, before we can retire from the sup* 
port and defence of them. We must be satisfied that 

^ftptnnm mwros^ tnognof tie tmnia hidenti 
I%m/itunenia qnaiU, 

2. If the defendant has any right to navigate his steam 
boats upon the waters of the stale, be must have derived it 
under the representatives of Livingiion and FtdUm. But 
the grant he sets »p was subsequent to the deed from L. 
and F. to John R. Livingston^ under whom the plaintiff 
holds his title; and if the pretensions of the plaintiff under 
that deed are well founded, the defendant fails in his de* 

The deed to John R. Livingston^ conveys f' all the right 
which L. and F. possessed, exclusively to navigate with 
steam boats from the city of JWtr- For^, sotrth of the state 
prison to Staten Island^ FSizahethtown Pointy Perth and 
8<nUh Awboy^ and the river Ronton up to JVet^-Brunncic^." 
The defendant says, that Hahied?s Point (between which 
and the city of Kew-York^ his boats navigate) is ^'within 
the township of Elizabethtoum^ but separated from Elizabeth* 
(own Pointy by a large and navigable creek.'' ^'Tbat bia 
wharf, at Hakted^s Point, is within a short distance of Eliza^ 
hetktmim Poimi,^ and j'et he denies that be is sailing within 
the limits of the grant to J. R. L. Whoever is acquainted 
with the position of the land and waters at and adjoining 


1819« ElvBal^eAiown P^mi^ or will ci^sl )m ^e iifiOQa m^jof thai 
country, wiH at once perceive, tbal upon the defendant*)! 
coDstructioQ of the deed of X R. £*., the grant to hiiB waa 
vain and illusory, as a beneficial excluaive privilege. If 1^« 
and F., notwithstanding that deed, retain^ in thenuelvea 
the right to run steam boats to and from Eliz^eiktwm and 
Aeu^-ybri, by starting from the opposite side of the smalt 
creek that runs>at JE/tzo&el&ifofen Pointf into the bay or so^nd,- 
the right in X R. Xf, wa9» in effect, no longer e^cWsive, }>al 
comiuoii. This is certainly not the aoand construction oC 
the deed, which gave him the right to navigat^ evcTt^meljf 
within its prev^cribed limits. It is to be so coiistruecl as. to 
have value and effect, as an exclusive right ¥;or this pur- 
pose, Elizabethtoum Point must be considered as ibcluoing 
the whole shore or navigable part of EK:ahidS(!wi ; afidrnis 
appears to be the clear and necessary interphel^ition of the 
grant, when we take into consideration the sftnatidd'bf''(he 
ground and waters, and the nature and object oT the grant 
Any narrower construction in favour of the grantors would 
render the deed a fraud upon the grantee. It woiidd be 
like granting an exclusive right <f ferriage 6etWJaen twa 
given points, and then setting up a rival ferry witfiinrH few 
rods of those very points, and within the same course and 
liue of traveK The common law coptamed principles ap- 
plicable to this very case, dictated by a sounder jndgment 
and a more enlightened morality. If one had a ferry by 
prescription, and another erected a ferry so near it as to 
draw away its custom, it was a nuisance, for wbieb the iot 
jored party had his remedy by action. {Bro. acHon iwr U 
case, pi. 57. tit. Xuisanct, pi. 12. 2 Roll Mr. 140. pi. 20. 
3 Black. Com. 210.) The same law and renfedy were ap* 
plied to the case of a fair or market, in whicfa an individual 
had a freehold interest, if aaotiier feir or market was erects 
ed, and used, within iu vicinity. {F. A*. B. 184. and notes. 
2 Roll. Mr. 140. pi. 1, 2, 3. Ford v. Ford, 2 jSmnif. 
172.) The same rule appKes, in te spirit and sabstaoce? t^ 


CASES i^ fctf Ancery. Ul 

fSS&dtuivt gtinis and tootiopoHes. The grant most Be to iM. 
construed ats to give it doe effect, By excluding all ^6ntigti- ^^^^^T^ 
6tt8 and injurious coihpefition. . ^^_v. 

The grant of an exclusive right to rum steam boais be- 
tween XeW'Tork and Elizahethtovm Pointy was intended t6 
comprehend the entire benefit of all the travelling, and pas* 
teoger* going to and from Elizabtthtovm and ^eiv-t'ork. 
tt meant io embrace the whole stream ot intercoiin^ between 
these two places, and Elizabethtoum Point was used for th^ 
Euiding place of the toWn. No other landing place occor- 
ttd to the parties, or it, doubtless, would have been hiserte^lf. 
fThe intention of the instrument is clear and palpable. It . 
if fo be deduced from die general description, and the na- 
tore of the grant as an exclusive privilege, and the particu* 
far locality of the land and waters in question. Any other 
coostmction is unreasonable, and incompatible with the ob- 
ject of the grant, and with the principles of the common 
law applicable to the case. An exclusive right to navigate 
with steain boats between the city otJSTeuhYork and Eliza^ 
bethtaum Pointy includes in it the use of the waters on the 
dsual i^a^sage between those termini^ in exclusion of the 
use of those waters on such a passage or route, by any other 
steato boat. It is like the grant of an exclusive right of 
way, ai^d no stranger has a right to use it. {FincK't Lav;, 

In the subsequent grant from J. jR. L, to the plaindff, 
the existence of his right under (he deed of 1808, to the 
entire navigation between Kew-York and Elizabeihtown, as 
well as Elizabethtotpn Pointy was assumed. It was also pro- 
vided, that an exclusive grant to navigate to the latter 
place, should exclude any interfering navigation to the 
other. There was an interval of seven years between the 
deed of 1808 and this latter deed, in all which time we are 
led to infer that J. R. L. had enjoyed the exclusive right 
under bis deed, to the extent now set op by th^ plaintifl^ and 
Voi. IV, 21 


1819. that both parties to the deed or 1808 bad given it dial prac- 
tical construction. Bat if the deed of 1808 was liable to 
donbt and difficulty upon this point, the sense of the parties 
was more explicitly declared in the deed of the 29th of i>e- 
cember^ 1815, which was also prior to any deed under whi<;h 
the defendant sets up a right This last deed was from the 
representatives of L. and F. to the plaintiff, and T. M*; 
It was a covenant with them to release and confirm to 
.the owners of any stieam boat owned and run on the Hud' 
son river, or on the sound between J^ew^York and Long 
Island^ or between New-Tork and EHzabethtown Pmnt^ or 
Elizaheihtovon^ to the whole extent of the township, all the 
right and title which they then held. The plaintiff was, at 
the time, owner of a steam boat running between Elizabeth' 
toum Point und New-York^ and there was then no other 
subsisting g^nt under L. and F., relative to a navigation 
between New-York and Elizabetktown^ or any part of it, but 
the one to J. R. L. The covenant to release and confirm, 
in respect to those waters, applied to that grant, and to 
pone other; and when the representatives of L. and F. 
opeak of running between *^ Mw-York and Elixabethtown 
Pointy or Eiizabethtovmy to the whole extent of the town- 
ship," they give a construction to the former deed, and re- 
cognize a right ou: of tliera, to the reasonable and just ex- 
tent which the grant imported. They must have considered 
the right under /. R. L. in that broad extent, as then sub- 
sisting and held, or they would not have used such pointed 
«ind strong description, when speaking of that right. The 
expression was evidently intended to be dedaraiory of the 
meaning and operation of the former deed. The words 
have no sense, or meaning, or application, in any other 
iriew ; and neither the representatives of L and /I, nor 
those claiming under them, can now be permitted to put a 
narrower construction upon their former grant, and espe- 
cially a construction injurious, if not repugnant to its end 
«ad. design, as the grant of an exclusive privilege. 


n is/hofwever, an act of Justice to those representatives, 
to observe, that no subsequent attempt appears on their 
part, to defeat or impair the right previously granted. 

The defendant sets up a right to navigate steam boats be- 
twi^en Elizahethtown and Hoisted^ s Point and Jiew-Yorky de- 
rived under the deed from the representatives of L. and F. 
of the 14th of September, 1816, io Daniel D. Tompking and 
Jldam and M'oah Brown, The extent of this grant is partly 
described in the defendant's answer, and partly given by a 
reference to the deed. It was " the right of navigating, 
for ail purposes whatsoever, steam boats upon, over, and 
across the waters of the bay of J^ew-York, Siaten Island 
feouhd, the outward harbour, including Princess and Graves- 
end bays, a part of the Atlantic shore, and Jamaica bay, 
tzc. And, also, the right to stop and land passengers, and 
discharge cargoes, at the city of JVew-York, and tlie sole 
and exclusive right of navigating with steam boats to and 
irom the city of New-York, to and from Shrewsbury bay 
and rivers in the state of New- Jersey, Sandy Hook, Sper- 
maceti Cove, and the shores and waters adjacent thereto, 
lying within, and to the southward of Sandy Hook, Fort 
Diamond, and the shores of Long Island, from Denise's 
heights inclusive, southerly along Gravesend bay, &c. And 
the sole and exclusive right of touching at any point, on the 
easterly and southerly side of Staten Island, and any point 
or place on the said shores, at which the parties of the first 
part may now stop or touch, consistently with the rights 
heretofore granted." This died was not intended to inter- 
fere with the former, grant to J. R. L , and the onfy part of 
it that looks like an interference, is in the expression Staten 
Island sound. But we find, afterwards, in the deed, that 
expression explained by the liberty giv(|n (though very cau- 
tiously, and dt the risk of the grantees) to stop aiid touch 
at any part on the easterly and southerly side of Staten 
Island. There is no liberty to stop or touch, or deliver or 
receive passengers or freight, at any port or place in StMten 


Island $ound Th^l^ l^ ^<^ p^tifege i^ranted 10 4i|fi|f«le 
between JSTew^Tork apd EUzabethtawnj or to touch, or-ra* 
ceive, or land passengers ; and every assuniption of such 
right^ as derived from and under that defed, is manifestly 
'" groundless. If any right be given to navigate bn the rout^ 
to that place from NeuhYork^ it u only a water passage 
through SiaUn Inland sound ; and every act ia carrying 
passengers, as between New-York and Eltzabethtqwiy under 
colour of that deed, is a trespass upqn the rights of the 
grj^ntors, or their lawful assignees* 

If the grantees in that deed had no such ri^ht, th^y ha4 
poo^ to impart to otherf, ^d it becomes unpecessary to ex- 
amine into the leg^l import and operation of the subsequent 
deeds from those grantees to the defendant*' > ^ -*• * 

There was an objection raited in the answer, to tb« 
pot making of Thomas Morris a party, because his name is 
pientioned in the deed of the 29th ofDecember^ 1815. Pnt> 
as Lt is no wfaere averred, nor does it appear, that Mr. Mor^ 
ris was the owner of any boat to which the covenant in that 
deed applied, he had no interest in this cause, and there was ' 
no qeeU to make him a party. 

Every branch of the right and title set up in the answei^,' 
2^ matter of defence, appearing to be without support or 
solidity, the motion to dissolve the injunction is, conse- 
quently, denied. As the injunction was, however, granted 
before the decision on the 3d of May last, in the cause of 
^'AUe, p. 48. Livingston v Ogden and Gibbons,* it might, perhaps, be 
more extensive than the dpctrioe laid down in that decision 
would warrant. I shall, ther^ore, so modifiy or explain the 
operation of the injunction, as to confine it to the whole of 
the waters in the bay of JSTetv-Yorkf on the passage or route 
between the city ot New-York and Elizabethiown Point or 
Eiizabethtowny or any part thereof, and not apply it to 
. the waters of the Sound that lie between Staien Island and 
the state of New- Jersey^ so long as thf boats of the defend- 

antdojMikMrf ibe Sound, on their pannge to the citjr of %^l^ 

Order accordingly, (a) 

(•} On «npffli, tbu decretal order wai nnaDiiiunuly t^ffirmedt hy tbe Coart 
for the Correction of Errors, jayril 27th, 1820. Vide 17 JMknt. Rep. 

«ia 8.C. 



BooKW8|.ii againii Folbom. 

T¥bere a witness is &beiil to depart tke state, pennaiiaiitijr to reside 
abibidv*lhfrje«|ir^ on ]ieti|bp r^n^ |»y aiBdayit, ai|d mcitioQ for 
tbatfivif^f^^wjiU px)l^ bim to be examioe^y de befte eiie, without 
prSGpas ait^ipe of tbe motion. 

Q^i t))e|)etition Qf the plaintiff, verified by the affidavit M. riiL 
of ))i^«olijcitors in his absence, that |Z. S. wa9 a material 
witness for him in the cause, and that he was aboot to d^ 
part4!)^|ew ds^ys for the Alabama territory, and to reside 
ihe^f^ Pgimaneiidy j H^ry moved that the plaindff be at 
liberty to examine ttie witness, de bene eae. ' He referred to 
tbercase of For^ v. Raguainj (2 Johns. Ch. Rep. 146.) and 
staled, thaj notice of the motion coald not well be giveq in 
lhi«.|»i|e; and that it was unnecessary, as a copy of the in- 
terpQ^atories must be previously served upon the defendant, 
acoQcdil^ to the 68th mle of this Court. 

fef: CyH<m* Motion granted. 



Cook & Kane againtt Mancius & Visschbb. 

Where the defendants pleaded certain ontatandin^ judgmentBy and th# 
Court ga?e leave to the plaintiif to amend their bill, by making the 
judgment creditor* partiea; and, subsequent to the order, the judff- 
ments were satisfied and discbai^ed, and the plaintifis, instead of 
amending their bill, replied, taking issue on the plea : the Court 
ordered the plaintifi to pay the costs of the plea and of the snbse-r 
quent proceedings, in thirty days, or that the bill stand dismissed, 
with costs ; but if the cosU were so paid, then the deiiftttdants to 
answer the hill insur toeafct, or that it h^ tBkeik pro tmffktm^ 

^M. IM. THE defendants pleaded in bar certain oatstanding jadg- 
ments, and that those creditors ought to have been, made 
parties to the suit* 

The plaintiffs, instead of amending their bill, bj malting 
those creditors parties, upon the terms directed by the Clian- 
cellor, {vide S. C. v. 3. p.. 427.) traversed the plea, by re- 
plying and taking issue upon it, and putting the defendant 
to prove it 

The cause came on to be heard upon the proofs take» 
under that issue. 

If. A. Duer^ for the plaintiffs. 

J. V. Al Tatei^ contra. 

The Chancellor held, that the testimony very clearly 
established the truth of the plea at the time it was filed, and 
the issue was to be considered as referring to that period. 
It appeared, that the judgments had been discharged, and 
satisfied subsequent to that period. It was thereupon or- 
dered^ that the plaintiffs, within thirty days, pay the costs of 
the plea, and of all subsequent proceedings, or that the bill 

GMet»^ OHANCEBT. ««7 

9taM 4HmmtSd, irhh icoM ; md tbAt if tb^ costs Weve ^ iei9t 
[>«H that tbc.4eAlQd|unU'sboii14 then* answer the bili,wilb1ii ^"^^^1^^ 

m i»e«k«9 or thaltbe UE b»takM pra confiao agaiofl then. ▼. 


Strong and others, Trustees of Mitchell, c^ainst 
Stewart. ' ■ 

Parol wdmtc^ 'is admiitibfe to tliovr that a mortgage only was in- 
tendAik ^od .not •» ahwilate sale, and Chat the defendaot had IrandQ- 
lently attempted to cooFert the loan into a sale. 

And, in such case, the plaintiff was held entitled to redeem. 

BILL to redeem mortgaged premises* The defendant Oct. I9fh. 
set pp an absolute sale, by an assignment, absolute in terms, 
of the right of Mitchell in the land, and denied the fact of 
a loan. But the defendant, at the same time, admitted in 
his answer, that after the assignment was executed, he gave 
MHchdlj at his request, time to return the money, and take 
back the assignment. 

Parol proof was taken, which established, conclusively, 
the fact of a loan, and not a purchase and sale ; and that 
the assignment was made, given and received, by way of 
security for a loan. 

/. SSrklandf for the plaintiffs. 

X fFiUiamsy contra. 

The Chancellor. On the strength of the atithoritiesi, 
and on the proof of the loan, and of the fraud, on the part 
of the defendant, in attempting to convert a mortgage into 
an absolute sale, I shall decree an existing right in (he 


I«l». fiiMtkUfteMoL The cwet 6f <3t*a-eB t. j Piirc JlWii, 

^^ jiv CKMe^, fttfO nPoiMwte r. MetfUk, (I Ptfy't €dM 
in ErroTf ISft*) aod the ackooirMged doctrine, io 2 -ddr. 
99. 358. 3 ^d;. 389; and 1 Poti^eS on JMbr^. 104. 
(4th LoiMlon edit) aie wflttuil t» show, that pafol evi- 
dence 18 admissible in snch cases, to prove that a mort- 
gage was intended, and not an absolute sale, and that the 
party had fraudalendy perverted the loan hito a sale. In 
this case, the admissions in the answer were sufficient to pre- 
sume a mortgage, against the absolute terms of the assign- 
Decree aocordio^y. 

Maskle agaihit Marklb anfd dibelrs. 

A fduaU dBfeadaat, vBoiarried, above wtiy ytarwrf agt^ and m\6 
had been deaf and dumb from ber inftocj, was admitted te appear 
and defend by guardian. 

M. Wh. P£llTidl^ of the defendant, Jacob Marlde^ stating that 
DeRa Jdatkle, one of the defendants, and who is his sister, 
and unmarried, is of the age of sixty years^ and has been 
deaf and dumb from her infancy, and is of such imbecility 
of mind as to be incapable of defending the tnit These 
iacts were verified by affidavit* 

Fordj for the defendant, moved that a guardian be ap- 
pointed to appear and put in her answer, and defend the 

Per Curiflm* Modon granted. Cases to this efiiect were 
referred to in i Johmon't Ck. Rqf. 235* 



In Ihe Matter^ Fjouiu, ft Lnaatjic. --rrrTrr 


"^^^iMm «ii 1M petitiao of » ns|ation of a.luQftUc* ao4 w)u) bad re- 
. omrnA frtm bim « deed of a Aurd, a few dajra before tbe findiDg of 
the iaquisitioo of Innacy, an iswe was awarded to try the fact of 
lonaoyt and the party, op the trial, was foaod to hare been a inna* 
. tic for ae?era] years preceding ; the party trarerting the inqaisitioB 
was ordered to pay the cod$. 

PETITION of Jarm Folger^ conamittee of ti^e Ml|le fif jv^. larM 
iii€ lunatic, stating that he was appoiDted conimi.Uee in ^i^^ 
gust^ 1818. That in the autumn of 1818, on the peUtiop of 
TluHnas Folger^ stating that he was grutee of a farm of the 
Innatici by deed, dated a (ew days before tbe inquisition 
had been found, an issue was awarded to try the question 
of lunacy, That to eipedite tbe business^ the petitioner 
applied to have the issue tried at the Rensselaer circnit. 
That TTiomas Folger interposed a number of affidavits to 
prevent it, and succeeded^ That tbe issue was to be tried 
at the Wcakingion circuit, and the petitioner attended with 
twenty-three witnesses, but there was not time to try the 
issue at that Court. That the trial of the issue was then 
ordered for the Me»90daer circuit, and the lunatic was found 
to have been n0n compos^ for several years prior to the 
trial. Prayer, that the said Thomas Folger may be onter- 
ed to pay the taxable costs attending the trial of the issue, 

L. MitcheUj in support of the petition. 

The Chancellor. In the case ea: parte Ward, (6 Ves^ 
579.) a groundless petition by a stranger, for a traY^rse,x 
was dismissed with costs. So, where .the heir filed a bill (o 
^ set aside a wUl, on the ground of the testator's insanity, 
Vol. IV. .22 


1819. and failed, he was ordered by Lord Hardwicke^ in WeSb v.' 
CUverden, (2 Atk, 423.) to pay costs. It would appear^ 
from the case of IVhiie v. fVUson^ (13 Ves. 87.) that when 
the heir demands an issue to try the testator's sanity, and 
fails, he will be ordered to pay costs, if he sets up insanity 
as a pretext. The question of costs is discretionary, and 
depends upon the character of the application, and the eon- 
duct of the party. 

In the present case a relation of the lunatic bad procured 
a deed from him, while a lunatic, and his interest In es- 
tablishing that deed, and not concern or hamadity for 
the lunatic, was, probably, the motive for the traverse of the 
inquisition. He was straggling for his own advantage ; and 
it is just and reasonable that he should pay the costs to 
which he has, without just ground, and in furtherance of 
his claim, subjected the estate of the lunatic. 

Ordered, that T. F. pay the cosU to be kriedr within 
ttf enty days, &cc. 

Luce against E. and C. M. Graham. 

Tbongh a rale to amend a biU, is of •.ourse, yet it mnst be actually ea* 
tered with the Register ; fot the clerks cannot allow the records to 
be amended without a certified order for that purpose. 

The amendments should be marked and distinguished, that they may 
be easily seen by the defendant, and without 'being blended with, 
or repeating the original bill. 

Ab».flsa. ON the 23d o( August^ 1819, the plaintiff, on an tx parte 
application, without notice, obtained an order, " that the 
defendants answer the amended bill, wixh the exceptions, in 
this cause, in four weeks after the service of a copy of this 

^ /Sx3c-o^ 


•rdery or show cause why an atiachment shoald nol issue 1819. 
-agaiDSt them.'' 

Riggs^ for the defendants, now showed cause : 

1. That an order to amend the bill was never entered 
with the assistant register, and the clerk of the court consi- 
dered the amendments (which were engrafted into a re* 
enj^ossed copy of the bill) as irregularly placed in his. 
office, without an order : 

2. The amended bill prays process against the defendants, 
which is not the usual course, and is improper, as it treats the 
defendants as being out of court, so that their former an** 
ewers cannot be used in their defence. (1 Viuey jun, 250. 
4 Ves. 66.) It ifr not necessary to serve a new subpoena 
upon an amended bill. 

3. The manner of making the amendments was ia^roper, 
and renders the records of the court confused and inconsist- 
ent. It is extremely difficult to point out distincdy what is 
original, and what is new matter, and how much of the ori- 
ginal bill is retained, and how much left out. There ought 
to have been such an arrangement and designation of the 
original matter, and of the amendments, as to enable (he 
opposite party clearly and readily to discern them. (2 Jltk. 
109. 11 Fes. 678.) 

It appeared that the original bill was filed July 17, 1818, 
andlhe amended bill July 22d, 1819. The latter appeared, 
in every respect, to be a new and original bill, and no part 
of the matter therein, is stated to be by way of amendment. 

The defendants answered the exceptions taken to their 
original answer, but did not take any notice of the amended 
bill, for the reasons above mentioned. 

H. and R, Sedgtmek^ contra. They cited 2 Johns. Ch. 
R^. 226. 

The plaintiff, also, at the same time with the discussion 
en the above rule to slv>w cause^ moved, on notice and 


lgld« alBdflnrit, for «n aUftcbmhrt agmst the dufewh wi U , for Mt 

'^^^^''^■^ answering the exceptions, and for a sequestratioo of the per- 

V. sonal estate, and of the rents and profits of the real estate of 

-^*^*' the defendant fiflmnl Cfrdbm, ^hd lesidea in JVofti. 


The CHAiicBLiiLOR. Tlie defiMldants have shown Suffi- 
ciebt catse against the attadimeht. 

1. Though the rule to amend the bill might balFse been 
entered, is of boar^ ; yet a nie masl be festered for the par- 
poie. The derks are not id permit the pleacfings on file to 
be amended, without the production of an order certified 
by the Register, olr anistant flegister. The reason of the 
practice speaks for itself. There would be no security or 
certainty in the records of the court, and the derk wonld 
' not be able to interpose any control or check to irregidar 
and improper iiHerference with the pleadings, if the solicitor 
cduid come and alter tfaem^ at his pleashtie. The Englmh 
practice ireqftires an 6fder for the amendment, in caies like 
this, regularly drawn arid entered. This appears fironl the 
ch%eo( Partridge V. Uaycrafij (11 Fe». 577.) 

3. The good sense of the thing obviously requires, that 
the amendmeftits should be distinctly shown, so that they 
may be easily perceived. They are either to be made by 
interlineations, or by insertions in the mlirgin, if short, or by 
being separately eoglrossed and annexed to (he original Ibill. 
If the amendments be of such a nature lis to require the ori- 
ginal bill to be re-engrossed, (hey must then be designated 
in some way sufficient to point them out to the defendant. 
In WiUU V. Ewms^ (2 Ball, fy BeaUy, 235.) Lord Chancel- 
lor Manners observed, that " the rule with respect to amend- 
ed bills was, that if there be not much new matter to be in- 
troduced, it is done by interpolation ^ if much, it mo^ be 
done on another engrossment, jio be annexed to the bill, bk 
order to preserve the record from being drfaced." He said, 
that if the party filed an amended bill, be itiiglH relbr to the 


allegadou in th^t»i§inl bUl, widioat rapeatiag t^ He iSltl. 
bdd Untdf bomid to ki«k« with great jnlmsj, that tbt 
walwn of the eoart be not put to any annecenary eipmce, 
aod that noltiiiig Maid oMre increaee it than by pcrnittiog 
the record to be loaded with acmecessary matter. He Mdd| 
t&at when at the bar^he bad repeatedly applied to aoMDdy 
and never had ao idea of introducing in the amended bill, 
the charges of the original bill. 

By anneziDg the engrossed amendments to the original 
bill) and by rdemog ia that part of the bill whefe die 
amendments shonld faav« been inserted, to the annexed 
amendments, and by referring, at each amendment, to the 
proper place for its insertion in the original bill, the record 
will be kept from being defaced, and all the requisite cer« 
tainty and convenience Will be obtained. 

It is, accordingly, ordered, that the rule calling upon the 
defendants to show came iHiy an attachment should not issue,* 
for not answering the amended bill, be discharged with 
costs, and, also, diat the metion for an attachment and se- 
quefttration be denied with costs. 

Order accordingly. 

MiNTUBN against Sbtmoub. 

Where an injunction is allowed by tbe Chancellor^ the defendant, be- 
fore be puts in an answer, may more to dissolye the iDJunction, on 
the ground of a want of equity in the bill. 

tiUiffNitt^ for tbe defendant, moved to dissolve the id- jv*09. 2 
JQfietion, though the defendant had not answered, on the 
ground of a want df equity in the bill. The injunction had 
been allowed by theChaacdlor. 


D. B. Ogdenj and Haritony contra. They raised a 
preliminary objection to the motion, because the defendant 
had not answered, and insisted, that except in cases where 
the injunction was allowed by a Ma$ter^ the defendant is 
not entitled to move to dissolve the iqj unction before he has 

S. Jones, in reply. 

The Chancellor overruled the preliminary objection^ 
but denied the motion upon the merits. 

Ogden agaifist Gibbons. 

L^znd F., to. whom the Legislature bad pnoted the sole and ei^la- 
Bi?e right, for a tenn of jears, of nuDg aod navigating boats or 
vessek, by steam or fire, in the waters of this state, assigned to J, 
ll» Z(., who assigned to the plaintiff, the exclnstve right of naviga- 
ting steam boats, Aic. between the city of Jfew- York and EUxO' 
beihiovm Poiniy in ^evo-Jeney^ for a certain period : Held, that 
the running or employing steam boats, by the defendant, over the 
waters of this state, for the transportation of passengers, to and 
from those two places, directly, or circuitoosly, by or 
more steam boats, and shifting the passengers from one boat to an- 
other, at any intermediate point between those two places, without 
the consent of the plaintiff^ or his assigns, was a violation of thq 
right of the plaintiff; and an injunction was granted to restrain the 
defendant from so using or navigating steam boats, to the injury of 
the plaintiff. 

Bee, 4tiL PETITION ofthe plaintijflT, stating, that in October, 1818, 
he filed his bill, charging, that he had obtained an exclusive 
right under Messrs. Livingston and Fulton, to navigate, by 
boats moved by fire and steam, between JVeto- ForA; and 


^izabeiktoum, to the whole extent of the township ; that 
beiDg^ 10 the possession of such rights he was anlawfully in- 
terrupted in the exercise of it by the defendant, who was 
ntiiiiing, without any license, under the exclusive right grant- 
ed by law to L, and F.^ two steam boau, called the fieUo- 
na and the Staudinger^ between those two places ; that upon 
(bat bill an injunction was granted, restraining the defend- 
ant and bis agents, &c. from navigating, with steam boats, 
the waters of this state, between the city of JVeuhTork and 
EUzabethiaton ; that on the 18th o( August last, the defend- 
ant filed his answer, and then moved to dissolve the injunc- 
tion, on the matter set up by way of defence and title in the 
answer, viz : La coasting license under the laws of the 
United States; 2* a license under the laws of this state re- 
lative ID steam boats. That the motion to dissolve the in- 
junction was denied, on the ground, that the coasting license 
did not interfere with the exclusive right granted to L. and 
F., under the laws of this state, and that the title set up un« 
der L. and jP., was subsequent to the grant under them to 
the plaintifi^ -and could not affect it ; that the iigunction was, 
nevertheless, modified, so as to confine the operation of it 
to the whole of the waters in the bay of J^Tew-Yarkj on the 
passage or route between the city otJ^ew York and Eltza" 
bethtaum^ and not to apply it to the waters of the Soand, 
between Siaten hland and the state of JVew-Jersetf.* - •jinie,pp,^. 

The patition further stated, that the defendant, after the ^^' ^^- 
issaing of the injunction, and the service and notice thereof, 
and for more than three months past,Jiad procured, and still 
eontinued to procure, for a stipulated price, the steam boat 
JiauiUns^ belonging to Daniel D. Tompkins^ which usually 
mns between the city of New-'York and the Quarantine 
Ground on Staten Island, to aid and assist him, the defend- 
ant, in the transportation of passengers, travelling and 
going to and from Elizabeihtown^ to and from New-York; 
that this was done |)v so running in concert with the steam 
boat Bellona ; that the latter boat, almost daily, and agreea- 


1819* h\y to public adTeitiaeaieiit, had left, during the time afore- 
saidyBBd mail contiiMies lo leave the wharf of die defendant^ 
in the township of C3Mra6^Atotoii, with tuch pasieogersy audi 
passes with then, od the durect roate betweeo those places, 
until she is net or overtaken by the steam boat AfhuMus^ 
either on the waters 4)f Staten idand sonnd, or otJteahTork 
bay, but more frequently on Kew-York bay, into whick 
last mentioned boat such passengers are then received, audi 
in her transported on the waters of XeuhYork bay, to the 
city of JVeto York directly, and on the direct route between 
that place and EKzabethtoum. That in fike manner, and 
under the like procurement and concert, the XoatBuSf 
during the time aforesaid, almost daily, had left, and atitt 
continues to take on board at, and leave, the city of Jlkuh 
Yarkf with passengers travelling and goin^ from thence' di- 
rectly to ElizabetfUawnj and passes with tbeih on the waters 
of the bay of iffeuh^York^ on the direct route between liiose 
two places, Ontil she is net by the steam boat BMpMj dtber 
ion the waters of the bay of JVen^-YofA, or of Staien bl^ni 
sound, but more frequently on the waters of Meuhfork 
bay, into which last mentioned boat such passengers .are 
then Teoeived, and in her transported directly to the dock, of 
the defendant, in the township of Elizabethiatohj on the di- 
rect route thereto, from the city of Kew-Yotk. That tbe 
steam boat fie//ona sometimes takes on board at, and leavos 
the city of JVeu^- Fori, with passengers travelling and going 
thence to EUzabeihtovm^ and on her passage to that place 
with such passengers, passes over the waters of the bay of 
JVeto-YofA:, to the Quarantine Ground on Staten L^and^ 
where she stops and touches for a few minutes, and then 
proceeds on with such passengers, over the waters of tbe 
bay of JVeuv For A:, until she enters Staten Island sound, and 
from thence passes on through that sound, in tbe direct 
course to tbe defendant's dock in Elizabethtovmy where she 
lands the passengers. That the Bdlona sometimes takes 
passengers from Elizabeihtown to Aetr-ForA:, on the same 


•8 roote. Tkat the steam boat Bioitiingtrj beloQg- 1619. 

iqg to the defeodaut, daring the time aforesaid, and almost 
AUy, since the bcgiimiog otAvguit last, takes oo board at, ^ ▼. 
and leayes the Quarantine Qround, on Siaien Idand^ with 
ptttengers traveliiog and going from New-York to £/umi» 
itikUmn^ moA on the passage to that place passes met the 
Wiaterv 4if the bay of Neuhlf^rk into Staieti Island soqb^ 
and s» Qp to MStzabetktown^ where she lands her passengefs. 
That, in like manner, the Stoudinger takes ps^eagers, who 
«re travelling and going from EUzabethtatm to *Afeu^TbrAr,' 
oo the same route front Elizabethtoum to the Quarantine 
€hrmmd on S/o^en hland. That such running of the boaa 
aferesud is injurions to the rights of the plaintiff, and a 
ViolatioB of the iiynnction. That the injunction was per- 
vooaMy served upon ComeZutf Vanderbdt, the captain of the 
BeUona^ but not upon the defendant, as lie resides oat of this 
•tate^ Tbal the defendant has, however, full knowledge of 

The patitioii concluded with a prayer, for an attachment 
aigaiost the defendant, and the captain of the BMona^ fot 
disobeying the hijanclion* 

This petilioD^ was sworn to by the jdaintiff, and being 
daly served, a rale was granted, that the defendant, and 
olhen, show cause against it. 

In support of the motion, the plaintiff, on the day assign* 
ed for showing cause, produced and read two affidavits : 

1. Of John CarUimj the captain of the steam boat Ata- 
{onto, ki support and confirmation of the facu stated 7n the 
petidon* ' 

*2. The affidavit of Tkomat Van Fbnf, jun. stating, that 
oo t|ie 12th. of Jiavember last, the steam boat Stoudinger^ 
belonging lo the defendant, left the city of JSTew-York with 
passengers for Elizakethtoum, and proceeded on in her di- 
reet route, with such passengers, for EUzabethioum. 

3. Several other affidavits were, also, Mad in suppoit of 
the charges in the petition. 

Vol.. IV. M 




1819. In opposiUon to the motion, and on the part of the de- 

fendant, it was stated by the defendant, in his affidavit, that 
01} or about the 15th day of Mxy last, he entered into an 
arrangement with D. D. TompActm, for the running of his 
steam boat Bdhna^ from J^ew-Brurmoick^ to his wharf at 
Hoisted?* Pointy in Elizabethtaum^ and from thence to meet 
the steam boat NarUUus^ owried by the said D. Ik Tomp* 
iifu, on her way from StaUn Idand to JVet^-Ybri, and put 
on board her, on the waters of Xew-Jersey, the passengers 
to be brought hither in the BeUona, and the said passengers 
to be transported and carried thence in the MnOUusj to the 
city of ^etc^-yorA:. That passengers who might offer for 
the BdhnOjJo be taken and received by the JVautHttSf at die 
city of J^ew-York^ and transported and carried in bef, on 
bcr cetiira passage for Staten Island^ to the BtUom^ fai the 
JKi/Zf, or Sounds aforesaid, and there to be put dntioard tbe 
BMona from the Nautilus^ and transported and' carried 
thence in the Bdlonay to Halsted^s Point aforesaid; Th^t 
by that arrangement, the said D* D. Tampkim was to re- 
ceive, and uniformiy received, the price of twenty-five cents 
for the passage in the NautUus^ which was one half df 
ihe whole fere from J^kw-York to Halsttd's Point. That 
the defendant believed this arrangement was proper, and 
not a violation of the injunction. That the BMonahM so 
run under that arrangement, ever sinte the middle of May 
last* That be understood, from what passed wben Cbme- 
Uus VanderbeU waft brought before the Chancellor, ih June 
last, for an alleged breach of the injunction, that the trans- 
portation of passengers to and from Mew-York, and to and 
from EUzabethtovffij onder the above arrangement, was law- 
ful, and agreeable to the .opinion of the Chancellor. He 
iBsclaimed all intentional violation of the injunction* 

The affidavit of Comdiua VanderbUt^ the captain of the 
Bdlona, admitted the running of the BdUma^ and tiie inter- 
change of passengers between her and the Ndulihu^ as 
charged by the plaintiff, and admitted in the affidavit of the 


defeDdant ; aod be stated, that be ooderstood from tbe opi- 
nioD of tbe Chaocellor, on tbe decision upon tbe attacbment 
JO June last, that such a mode of employment of the boats 
was lawful, and not a violation of the injunction, and he 
disclaimed all such intention* 

. ' The plaintiff in propria persona, 

S, Jonesy contra. 

, T^E CuAifCBi^iiOxt. The question arising upon this.mi^* 
tton, is,, whether the employment of the steam boat BeUenOf 
by the defendant, in the transportation of pwengers be- 
%Vfeevi JSUzabetJUown Point and tbe city of J^Tew^York, with 
jA? assistance of the steam boat MmiUuaf is not a breach 
9f tbe iKgunctioD heretofore granted in this cause, 
i- It; . baa been already declared, that the plaintiff was etk' 
litled, under a grant from Livingston and Fulton^ to the et- 
elusive right of navigating steam boats npon the waters or 
this state^ on the route or passage between tbe city of J^ew* 
y^ork and Elizabethtmcny in JSTew^Jersey, Neither the re- 
presentatives- of L. and F*^ nor any other person claiming 
under a iiubsequent grant from them, or acting without such 
grant, could interfere with, or disturb tbe plaintiff in ^e 
enjoytnent of hb exclusive privilege. This Court is spe- 
cially . required, by statute, to protect, by iq^unction, the 
Steam boat monopoly granted to L. and JF\, from all distur*. 
bance or. invasion. It was observed, when the decretal 
order was pronounced, on a former motion in this cause^ 
that the grant under L. and JP., of an eidusive right to run 
sleam boats between JVaiEH Fori and EKzabeUUovmy was in- 
tended to comprehend the entire benefit of all the travelling 
and passengers going to and from ElixabethUnon and J^sw^ 
York. It meant to embrace the whole stream of intercourse 
between these two places. It included the use of the waters, 
OB the usual passage.between those places, to the entire and. 


I81d. absolute exclasion or tbe usfe of these waick^ (so far tis die 
jurisdicdoo of this state extendedO od saeb a passage or ' 
route, by any other steam boat. It necessarily, and from its 
Yery nature, as an exclusive grani, excluded all cootigueua 
and injurious competition* 

It appears to me, therefore, that the attempt of tbe defend*- 
ant to transport passengers between El%zabethM>n and the 
city of Xew-York, by the aid of the A*aii^/to, is a violation 
of tiie plaintiff's exclusive right, and an evasion of tbe spirit 
and intention of the injunction. The J^autilus, employed 
under his procurement, and by an arrangement to which 
tbe defendant was a party, became, for this purpose, and for 
tbe occasion, Am boat. Any other cotistrnction might ren* 
der the grant from L. and F», to the plaintiff, vain and illu- 
sory. Whatever pretensions the JiautUui may have to na- 
vigate the waters of this state under L, and F. (and she can 
have no right but under them,) these pretensions Cannot fai- 
terfere with the right of the plaintiff, to the exclusive naviga- 
tion between Elizabethiotvny and JVeu^-For^, because bis is 
the prior grant ; and what L* and Fm could not do them'^ 
selves, they could not do by their assignee. The assignee 
can only take what they were competent to give, and they 
bad already parted with their right to the navigation in 

The right of Uie plfiinUff to transport passengers between 
^eW'YorJc^ and Elizabethtown, may be compared to a right . 
of ferriage between two given points ; and it is well setded, 
that where an exclusive right of ferriage exists between two 
places, no rival ferry can be set up within the same course 
and line of travel. The just and rational principles of the 
common law considered every such attempt as a violation 
of right. Indeed, it must be plain and obvious to the com- 
mon sense of every man, that the defendant is here doing, 
with the assistance, and andtr the cover of ibe steam boat 
JfauiUuSy what he cannot do directiy with his own boat, the 
B^ma^ and yet that the result, and the injurious effects I0 

CAflS9 .IN CHANCERS - 18t 

the fltintU; im pitietsely the MOie. The NmJSim has bo 1819. 
■M#e right to be enploiyed ia the ferriage beloogmg to the 
pla^otiflTy thao the BeUonaj and yet she is so employed by 
the 9ct and procaremeot of the defendant. The two boau, 
by their joint and concerted operation, ^re engaged in the 
Tery business excluyi? ely granted to the plaintiff They are 
engaged in transporting passengers to and from EHziAeth" 
iaym and JfeuhTork^ and it would be a reproach to the 
Jnslioe of tbja Court, if such a contriTance could be sue- 

The circnitoas route between EUxabdhtown and «A/a«- 
Tori^ by ihe way of the QuarwUine Ground^ is equally a 
violation of the right of the plaintiff, and of the iojunctios 
which wi^ intended to prevent it. Such a small and nnes* 
sential deviation from the direct route, cannot vary the 
naUire of the act so long as the intention is still the same. 
Tbe olpect afqpears equally to transport passengers and 
carr^ on the travelling betweea ^ew^York and Elizabeth'^ 
(awuf and that design cannot lawfully be pursued by any 
pei;iQa but the plaintifi^ because he is in possession of the 
exclusive right. While that is the object of the circuitous, 
foqte, .the iiyury is the same, and the abuse equally within 
the irea(:h of the injunction. In short, every efibrt and ar* 
nmgeiDent, however specious or well devised, for the regular 
and,9(^oaected transportation of passengers between Aeu^* 
T^rk and Elizabetht^un^ by steam boats, is a trespass on. 
the exclusive right of the plaintiff, and most now be aban* 

But the defendant, and one of his agents, rely for their 
excuse upon the impression which they had received of tlie 
decision made by me in. the case of Fanierhilt.{a) 

There was considerable desultory conversation, in the 
course of the argument in that case ; and it is probable that 

(o) Be WM tbe master of the BeUmuh aad was brought before tbe Coert, 
oa an nUaAmaU for disobeyliig the injunetlon before issaed. Vide Umng* 
ifen V. Og4en and OibhotUj mate, p. 48. Metter of VanderiUt, aate, p. 67.; 
and Ogden y. Gthbom^ ante, p. 150—^161. 


1819. I may have made observations which misled the defendaotr 
The nature and extent of the plaintiff's right had not then 
been discussed and duly examined ; and what I may have 
saidi must have been in the course of incidental conversa- 
tion, to which no importance ought to have been attached* 
The decision is upon record, and to that the party should 
havelooked for his guide, and my opinion was reduced to 
writing at the time ; neither the decretal order, nor the rea- 
soning in support of it, afford tiie least colour for the im* 
pression which has been received. 

It is this misapprehension of the defendant, and of Cap- 
tain Vanderbdt that induces me to pause upon the motion 
for the attachment. I shall be content, therefore, with 
making k new order in the case, and of withholding tlie at- 
tachment, on condition of the defendant paying the costs of 
this application. , The defendant, by his answer, admits 
knowledge of the injunction, and professes obedience to it 
The following Order was accordingly entered : 
^^ The motion for attachment in this cause being opened 
by the plaintiff in person, and several affidaviu in support 
of the motion being read ; and the said motion being op- 
posed by Mr. £■. Jones, counsel for the defendant, and seve- 
ral affidavits read on his part, and due deliberation being 
thereupon had, it is liereby deckred^^ that the running or 
employment of the steam boats Bellona^ Standingerj and 
J^auUluSy or either of them in die said petition mentioned, 
or any other boats propelled by steam, over waters withia 
the jurisdiction of this state, for the transportation of passeq.- 
gers to and from the city of ^ew-York and EHzabethtown^ 
in the state of New-Jersey^ whether such transportation be 
effected directly or circuitously, or by means of one or more 
boats, or by shifting from one boat to another, at any inter- 
mediate point between these two places, without the license 
or consent of the plaintiff or his assigns, is an infringement 
of his exclusive r^ght to navigate, for those purposes, with 
^steam boats, over the waters of this state, between the cjfy 


of JfeuhTork and Elizahe^taum, and a violation of the in- 1819. 
janctioo issued to prahibit that exclnsive right 

And it is further declared and ordered, that a copy of the 
said injunctioni and of this order, or of any other order of 
this Court, in the premises, delivered to the acting roaster, or 
in case of Us refusal, to recieve the same, left, in some con- 
spicuous place, on board of the said steam boats, or either 
of them, or of any other steam boat employed, as aforesaid, 
shall be deemed and taken to be good service thereof, on 
the mast^ of the boat in which the same shall have been so 
left ; and further, that the service of the said injunction, or 
other order aa aforesaid, on the solicitor for the defendant, 
shall be taken and deemed good service on the defendant. 

And it is further ordered, that the rule to show cause in 
this cause, be discharged, on payment, by the defendant, of 
the cosu of this application, and on default thereof that the 
attachment, as against the defendant, issue." 

Moo&ft agaimt Ltttli akd Gibson. 

W hetbcr tUt Court will take cogfoisance of a eause, where (he amouAt 
in «ootrovertf 4«at not exceed the sum of fifty dollara ? Or frant 
ao iDJQttstion to ttaj ^xecutioo on a ju4ginent in a Jntdoe't Court? 

BILL for an injunction to stay execution on a judgment Du. m. 
i^eodered against the [Jaintifi^ for 44 dollars aud 15 cents, 
before a Jospce of the Peace, by delaolr. The bill charged, 
that the plaintiff had a good and roeritorius defence, which 
it disclosed, aud that the default was by surprise, and is 
sufficiently excused, and that he had paid to the justice the 
sum recovered, by way of deposit, and had offered to pay 



1810. tiae costs of (be sail, and to let the depoitC remain wslii (be 

/. L» IFendell, for tbe pluoliff. 

The CHAVCBLLoa. I have great doobts whether the son 
in qaealioB is sofficient to joadfy tbe interference of Ibis 
court. A small sum wiH not bear tbe expense and harden 
of the liijgadon, and the remedy woaM be worse than the 
disease. Bat, perhaps, it may be more advisable to let tbe 
objection be rmsed by the defendant, and tbe point disenssed, 
than to bar tbe door in the first instance. I, therefore, 
hesitatingly, allow die injunction, and nnder a donbl, 
whether the demand ooght not to exceed the jorisAetion of 
justices of the peace, which is now fifty delhts. Tbe 
qoestion wSl be fairly opened, if the defendant chooses to 
raise it. 

As far back as we can trace tbe subject, it seems to have 
been the rule of the English Chancery, and which may have 
been borrowed from the Court of Star Chamber, where the 
same rule prevailed, {Hudson*$ Treatise of the Star ChamF' 
ber^ in 2 CoUeet. Jurid. 164.) that if the matter be peUy or 
trivial, and so not worthy tbe dignity of the court, the de- 
fendant might demur. It was a provision in one of Lord 
BaconU Ordinances, (Rule 15.) that ail suits under tbe value 
often pounds, were regularly to be dismissed ; and his rules 
come with the imposing character of original constita- 
tional ordinances, for the government of the practice of the 

Bat the jarisdiction of the court was formerly, in prac 
tice, extended to very small demands. Thus, in Cob v. 
fV/ey, (1 Vem. 359.) it was held that a bill in equity wouM 
lie for the recovery of ancient quit rents, though very small, 
as two shillings and three shillings per annwh, if proved to 
have been constantly p^d ; and Sir Wm. BerufbrJTs case 
was cited in which there had been a decree for rent of 


one shUliog and ibtee pep^e, per mnum. This case was as 1819. 
earijr as 1685}.yet, in aaotbar ca^, a few years earlier, 
{Fax y. FroU^ Rep. iw^. Finch, 253.) the plaintiff had 
grounded bis equity upon the payjneot of five shiUingSi as 
earnest money, to bind the alleged bargain, and on demorrer 
to the bill, Amt not having a sufficient sum to warrant a de- 
.«rac^ th^ Court allowed the demurrer. 

AAerwardS) io 1728^ we find the Master of the Rolls 
(Axunu MofeUjff 47.) denying an injunction where the ori- 
ginal matter at law was only five pounds, though, by letting 
judgment go by default, it had increased to fifteen pounds ; 
he. said jthat he had dismissed another bill on the same ac^ 
coantf because the sum was originaUy " below the dignity 
of the Coort," though by oe^^ect or mismanagement, it 
had aaMXuated to a competent sum. In Brace v. Taylarj 
(2 Aik^96^) Lord Hardmcke dismissed a bill at the hear- 
ing, though the defendant did not demur, as being of too 
smaU and trifling consequence for that Court, it being for 
the arrears of an annuity, and only six pounds fiAeen 
shillings in amount He referred to a case in the time of 
Lord Haramrtf where a bill was brought for tithes, and 
as the tithes which were due, appeared to be only of the 
value of five pounds, the bill was dismissed at the hearing. 

The next case, which was determined about the same 
Ume, in the Exchequer, advanced the requisite sum for the 
jorifldiction of the Court, to ten pounds, and upwards. The 
bill in Owent v. Smithj {Com. Rep. 716.) was against an 
executor, for discovery of asseu, and payment of a demand 
of M. 10s* 2d,y but the bill was dismissed without demurrer, 
and at the hearing* because the demand was '* beneath the 
dignity of the Court.'' 

The sum of tea pounds, fixed by Lord BacoUf seen^ at 
last to have been assumed as the criterion of equity juris* 
diction, but then it must have been an original demand due 
to that amount, and na^^one increased to or beyond it, by 
default or neglect at law. This is the sum mentioned in t^e 

Vol. IV. 24 


161d. books ; {Moseley's Rq>. 356. 1 Ef. Cos. Mr. tt. lUfU:) 
and it is agreed, {Moadey's Rep, 356. and per Price^ B. 
Brnib. 17.) that the bill for that caase may be dismiftsed 
"upoD detniirrer, or upon motion, and we faa?e seen that it 
toay be, also, at ihe hearing. (Vide the fbroi ofrach a de- 
murrer, CtLT. Can. 229») 

Tlie note in Eq. Cos. Mr. and a note to the €a«e in 
Bunb. and to Beame^s Ordefi in Chan»ery^ p. 10, state 
some exceptions to this litoitatioo of jurisdiction, and lay it 
down, that in cases of charities, or where there is fraud, or 
"vrbere it is a compliciated matter, the bill will be retained, 
though the som be ever so small. So, it is mentioned in 
the first of those notes, that a bill will lie ia the case of 
lands, where the value is of forty shiiKngs per annum, but 
no authority is cited fot* either of these exceptions, unless it 
be in the case of a charity, or where the biH is to establish 
^ right. 
^ It is to be observed, that these sums mentioned in the 
EngHsk books, are sterling money, and fifty dollars, wbicb 
is the ettent of a justice's jurisdiction, very nearly agrees 
with the sum adopted as the . standard in Englandy and 
Would, probably, be a temperate and just limitation, and 
best accord with the English rule, which appears to be the 
result of long experience and sage reflection. I may safely 
^pply to the English rules of practice, the observation of 
Montesquieu, in respect to the* Romm law, ^^ Je me tronve 
fort dans mes maximes lorsque j' ai pour moi les Romains/' 
And I will venture to avail myself of another of (lis re* 
marks, {VEsprii des Loix^ liv. 29. c. 1.) that the spirit of 
moderation is the spirit of good policy and of good morals, 
and it is always to be found between two extremes. He 
illustrates the truth of it by the forms of proceeding in 
Courts of Justice, which, on the one band, are necessary to 
liberty, and on the other, ought not to be too numerous, 
kst they should defeat the end for which they were insti- 


toted, hy tendering Ulig^tioq enfllesg, wd n^iwe ^ partiei 1819. 
Qoder the weight qC ex^minadoo. 

Tbe tme olgectioQ to the cogmiance of smim causes by 
this Cottrt, 19, tb%t tbe liUgRtiQii wpuld necessarily be yej^r 
tioQs and oppressive tP tbe suitori apd exhapst move than 
tbe subject ia controversy ; and it would evidently be con- 
trary to tbe policy of tbe law in the iostitation of Justices' 
Courts, which er^ afithorized to detern^ine " according to 
law end equity/' '^ I sb^ll always/' said Lord Morthing'' 
tat^ on anotb^r oppi^iopit^ '^ be very attentive, to prevent the 
inbje^t (rqvfk grfptt waste of expense about matters by no 
mems ad^queUe ip il." 

I bftve given this view of the subject, ^nd thrown ou^ 
these reflections fyr the cpnsideration of the pituntiff, if his 
^oi^i^el shall choose iq b^zard the farther prosecution of the 
fuit* Tbe injuoctioq. is allowed iqerely as ^ provisional 
measure, to bring up a point quite new and untouched in 
(his Cour^ 

Mo4<^n granted accordingly. 

Barrere against Barrerc. 

Where a diroroe, a mmua H thormr^ .te^need, fer oroel ai^ inbuaao 

tyeatnent of the wile* by tlie ba#ib«Ad, the separatioa will be mad^ 
jKfjM^) )f>(b.9i|Kr9|a«e» that tbe prtief piay* at any time, bj their 
mataal and voluntary act, apply to the Court for leave to be disT 
charged from tbe decree. The wife, under the circumstaDces of 
the case, was allowed to retain tbe custody of an infant son, sub- 
ject, however, to the future order and direction of tbe Court; aad 
tbe husband was directed to pay a oertaio som for the fupport of 
his wife a^d child, and the coats of |^jb S|^. 

BILL for a divorce, a HMnaa et tboroy by the wile against nee, I8K&. 
the husband, on the ground of cruel and inhuman treatment. 

188 CASES IN chancery; 

1819; The parties were married in tiie eily cfMm^Torkj is Mag^ 
1814, wliere tbey have unbe rerided. Tbe hill charged va* 
rious acts of personal violence and brotality, on the part of 
the basbandf in Aprils Jdy^ and A%igtutj 1818, which were 
proved ; and that he was of a very hasty and ungovernable 
temper. The defendant, id his answer, adaaitted the acttf 
charged, thoogh in a much less degree, and alleged that they 
were owing to the disobedience and provoking language of 
the plaintiff, whom he charged with being unchaste and dis- 
solute in her conduct, of which, - however, there was no 
proot After the last quarrel between them, on the 81st of 
Jlvgtuif 1818, when the defendant struck the plaintifl^ and 
dragged her on the floor, by her hair, and would have beaten 
her with a stick, had not a person interposed, the plaintiff 
left the defendant's house, taking with ber their ^nly child, 
a boy between two and three years of age. The plaintiff 
alleged that she separated from her husband, because she 
considered her personal safety endangered by remaining^ 
with him ; and that his evil example would be injurious to 
her child. She prayed for a decree of separation, a niensa 
et tharo; that she might be allowed to retain the custody of 
her child altogether, or, at least, for a time, and that the de- 
fendant should pay a sufficient sum for the maintenance of 
hersdf and child. 

The defendant submitted to a decree of separation from 
bed and board, but prayed, that his son might not be taken 
from him, and that he might not be ordered to provide main- 
tenance for the plaintiff. The defendant had carried on the 
business of a confectioner. 

The cause was submitted to the court on the pleadings 
and proofs, without argument. 

^fttS^on, for the plaintiff, 

ArUhan, for tbe defendant. 


Ttat<imMncBLvnL. Tfats b a bill for a diMrce fjrom 1819. 
bed and board, opon the charge of cruel and inhvoiaa ^"^'"'^^ 
treatmeot of the wife, by the bosbaod. ^ ▼. 

The defeadaot, in his answer, admits occasional personal _ 
violence of a slight kind, and he attempts to excuse it. 

The proof is very clear and decided in sopport of the 
charges in the bilL A quarrel arose, at one time, on the oc- 
casion of her wanting to lake a ride in a coacbee, with some 
female friends, because she insisted upon taking her child 
along with her, a boy of between two and three years of age. 
At that time, the defendant slapped her in the face, and 
struck her several blows with a whip, and caught her 
by the hair;and this was done in the presence of the domes- 
tics. At another time, he knocked her down with has hand, 
and beat her head against the floor, and polled out a hand- 
ful of her hair. At a thurd time, he threatened to beat 
her Ant staying over night, npon an errand on his account, 
in JfeuhJenejff though the testimony is perfectly clear that 
the absence was justifiable, and almost unavoidable. 

There can be no doobt that these acts of bodily violence 
and harm, amount to that cruelty against which the law in« 
tended to relieve. Mere petulance, and rudeness, and sal- 
lies of passion might not be sufficient, but a series of acts of 
personal violence, or danger of life, limb, or health, have 
always been hdd sufficient ground for a separation by tlie CA/f^^^^^ 
-comflsmaJaw, whith is the law of England upon thb sub- 

Though a personal assault and battery, or a just appre- 
liension of bodily hurt, may be ground for this species of. 
divorce, yet it mast be obvious to every man of reflection, 
that much caution and discrimination ought to be used on 
this subject. The slightest assault or touch, in anger, 
would not, surely, in ordinary cases, justify such a grave 
and momentous decision. Pofthier says, {Traite du eontrat. 
de marriage^ s. 509.) that a blow or stroke of the hand 
woold not be a cause of separation, under all circumstances, 


1819. unless it waft often repeatw]. The judge, be 991^, ought to 
coDsider if it was for po cause, or for a trivial one, that the 
husband was led to this excess, or if it was the result of pro? 
voking language on the part of the wife, pushing hb p^* 
tience to eitremity. He ought, also, to consider whether 
the violence was a solitary instance, and the parties had pre- 
viously lived in haroiony. All these different circumstances 
will, no dotibt, have their due weight in regulating and di* 
reeling the judgment of the court. 

The plaintiff, before me, may not have been always suffix- 
ciently discreet in her conduct to her husband ; ^nd it is easy 
to perceive from the case, that the defendant is a man of 
strong and ungovernable passions, and that his mind was a 
little distempered with jealousy. Tiie plaintiff has par^ents 
living in Aeto-ForA;, and the defendant appears io be a fo* 
reigner by birth ; and I should be led to infer, from a fact 
mentiooed by one of the witnesses, that there was a consider- 
rable disparity of age between the parties. Bat there is 
nothing in the proof against the general demeanor or chas- 
tity of the plaintiff; nor baye any of the witnesses been able 
to point out a single act of egregious indiscretioo 00 h^ 
part, since the marriage, in 1814* 

The plaintiff is, therefore, entitled to the relief sought by 
the biU ; but for what time, and upon what terms and condi* 
tions a separation shall be decreed, is the next point for con-* 
sideratjon ; and I have always regarded this as a ddicatt 
and difficult subject of jurisdiction. The Statute concerrdiig 
divorces, (1 A*. R. L. 197. sess. 36. ch. 102. s. 10, 11.) 
gives to this court the most enlarged discretion. If it shall 
appear that the defendant " is guilty of such cruel and in* 
human treatment towards the plaintiff, or such conduct to^ 
wards her as renders it unsafe and improper for her to co* 
habit with him, and be under his dominion and control, or 
that he has abandoned her, and neglects to provide ibr her, 
it shall and may be lawful for the Court of Chancery to de* 
cree a separation from bed and boand, forever thereaileri or 


for a EiDit^ tithe, as shall seem just and reasonable, or to IS Id. 

make saeh bfher decree in the premises, as the nature and ^^J^^ 

circomsttinces of the case require." ▼. 

There is much emharrassnUeht, on the ground of policy ^**g*«- 

Bttd public itiolulity, with these partial dissolutions of the Divorces a 
matrimonial onion. It is throwing the parties buck upon 
society, ^< in the undefined and dangerous characters of ia 
wift without a husband, and a husband without a wiie." 
Hffmdorf {De Jure Oent et J^ai. lib. 6. c. 1. s. 22,.) con- 
demns tfaetn, except for a temporary purpose, and in order 
to puttish and reclaim the ofiending party ; and it is said 
the separation, a mensa et th^Oj was entirely taken away by 
tile first Et^lith reformers, as productive of great abuses 
and scandal in the marriage state. Opportunity ought to 
be left, and pretty freely left open, for reconciliation. This 
CODsideradon will have the more weight, if the unhappy 
parties have a common ofispring to be afflicted by tiieir in- 
firmities, and especially, if *' wounds of deadly hate" have 
not pierced too deep into their bosoms. I am persuaded, 
that it is best, in such cases, to give the parties the means, 
though they may not, at present, indulge even the wish of 
reconciliation. There are objections to a separation for a 
precise or limited time, though such decrees have been ren- 
dered. It may inspire a constant fear on the one side, and 
nourbh hopes of revenge on the other. It rather appears 
to me, to be the most kind and salutary course, to declare 
the separation perpetual, with a power, however, reserved ^ 
to tW parties, to come together, under the sanction of the 
Court, whenever they shall find it to be their mutual and 
voluntary disposition. This will be leaving them to the 
iiree operation of contrite afllections, and will make the re- 
anion to rest (if it should ever take place) upon a strong 
sense of its fitness and propriety. I entertain no doubt of 
my power to annex such a condition to the decree ; and, 
indeed, the reconciliation of the parties does away the force 


1819. of a de^e^ of ceparation froiDbed and board, by- Uie qwokt 
orecclesiastieal law, among the natioiis orEtmope.^ . 

The decree of divorce, a rnema et. tiarOf l^r Uie Ettglish 
law, U <aid to be either for « ame, or« wUbttut limi|a<ioo of 

Torcei • shu- 

Uw of ^y tioie. (Bum?8 Eddes. Xroio, tit. Marriag€i c* :11..8..4.) 
Tet, by the form of tbe depree, the leparalioii is ^y.ontil 
a reconciliatioD : In amni $enteniia lata immiwr hme ^u- 
tuhy Dictos JV*. «£ M. radone HBoUiiB aUegatee ei^pr^iaim, a 
th&rOf memuy €t mniua coAoMalioae, a&ijM 0b$^guimm coft'- 
jugalium impenrione^ Amec et quoiqm duuperimi iwitm re- 
eOncUiandosj et non ^iUr^ me^i^ Mo moioyr j^fmrnmur. 
(OtcgfA/onV Ordo Judiewrum^ Ctt. 216. s. d«) . 

We have a jodicial determination aponr:.thii^paiot,'to tbe 
case of VmUhknen v. Vanthienm, \Fit:i^*. 293.) mhich 
was heard opon appeal in the Churt o/Mdegat^^^iu 1731. 
Tbe wife had libelled her hnsbaad in tbe CooMlory Court 
of Ditiaiziekf in the- then - kingdom ofPoimic?, for crael 
treatment, and a sentence of divorce^ a mensa €i lAofv, was 
pronomiced ; it was further decreed by tbe Pope's Njuncio 
at ffarsewy fibat the husband sboold not have any. power 
over her estate ; and we are ted to infer from tbe case, 
that tbe decree was, afterwards, oonfirmed in. tbe Chancery 
of Poland. Tbe qaestion raised by the caae in Enffiand^ 
was, ivbetlier the husband^ after the decree in Pdand, had 
a right to interfere with her administration of a former hus- 
band's estate, who, by will, tiad given a legacy to her, and 
compel her to administer thereon, or to be admitted to ad- 
minister for hen The wife, relied opon this decree of di* 
^orce in bar of bis pretension, and she had constituted an 
attorneys to whom she prayed tfaat such admioistniiion might 
be granted. Tbe husband replied, that Uiey were recon^ 
ciled subsequent to (the divorce, and inosted, that this re- 
conciliation annulled the sentence, and inopera- 
tive. I't was held, upon tbe argument, by tbe husband's 
counsel, (Dr. Strahanj tbe trambtor of Datnat^ was ope of 
them,) to be the settled taw, that the subsequent reconcilia- 



timatmilkd tliefitiH«ide,fiod mMvA aU tUagiv $Aprui%' 1819; 
mm Biattm. The other Me temed te «d«Dit tbift general 
resolt of the reconcilMtion^ and odjr eontewled, that it did 
DoC aSect the right of proparty whkh had befai vMed un- 
der the decree. The Court ptoAoaoced a decree in Avoor 
of the haabaod, nd mast have admits the doctrine in 
SQpport of hb claim. 

By the Frmek law, taken froai one of the AVweZi of /tc#- ^!^S^ ^ 
Ikdan^ the wile jodieially convicted of adidtery, waa sea*' 
timced to iaqpviioaBMm in a monastery ; bat the bnsband 
within two yeara might reclaim her ; and if be did not, sha 
was to remain in the convent for life, and to be clothed in 
the habhs, and sdlyeeted to the austerities of the hoose. 
Bat it seems to have been setdcd, diat the httsbaod, not- 
withstanding this alteration in her condition, might stilli at 
any period o( bis life, reclaim her, and this was deerqed 
just end reasnnable, as the prosecution was at his instance, 
and upon hitf aecoaot It was one of the •ATovs/i of Jastj- 
mmi, (JVbveJ, 134. c. lOO that fixed the period of two 
years, for tile husband to recover his wife, but the thirty* 
second ;Ye«aI of the Emperor Leo^ mitigated the severity 
of th^ former ordinance, and it has since been understood, 
that the husband's right to reclaim his wife w^s indefinite as 
to lime. Aen tnlra Uenatam, $ed perpeiuo^ de Jtare cmMmieo, 
peitit reooeare. (FeamePr Traiif de P MuUere, p. SOS, 
309. aaO, 23h*33B, 327, 338. lat^ au Droit. JPrm^oii 
par Argouy torn. 2. 357.) That the husband's time for recen* 
cUiation is nnlimiied, was adaritted and shown by AL Fqvt" 
nitr^ and by Jtf. TUoa, the Avaoai Qw/btA^ in their iageifi* 
oos and learned pleadings in the case of .rAeme and /oisei, 
which is reported at large in the CmiH^ Cehbm^ (touk 10^) 
under the title Ftme Mtdkre^ and of which a copious 
abridgment is given in Ferriere^t Dkt^ tit. Anteniigu^ une 
feme. It is a little eitraordinary, that so accurate a writer 
as PotMer, should not have adverted to this well-settled iln«' 
provement of the canon law, and thai ha ehoold conAnp the 

Vol. IV. U 

^ 93/ 


Idld.' fattsbAtid^i H^' to reds^nn bir wife, to cbe peHcM -of tirtf 
years, atconding te the rigid and eiploded Novel of Jiati*^ 
mm. {Trake cfa Qmtrat dt Marriage, n. 5S7.) 

Tbe JV^neA )a# to wWdi I bave referred, is Unii anaht^ 
goas to the Engliih canon law, bjr equally admitting a sub«' 
sequent reeoneiliatlon to control these jadidaittecretti'of 
separation from bed and board. My object is to show the^ 
prevalence and acknowledged policy of that measure, and 
the practice under the French law is, therefore, a case \a\ 
pnofnt, for it is well known, that under the former laws^ 
France, divorce, in any case, signified only a sepai^ti6n of* 
goods, and from bed and board, and that the hi'arria^ 
contract, according to the doctrine of all Roman ChtHoRt^ 
countries, was considened a sacrament, and held Indissoluble' 
during the life of the paftles. But I odght hcte' to obs^ve, ' 
that the analogy has now ceased ; for (he lair of marriage ' 
iMikderwent a radical change, at the period of the J?Ventft^ 
revokKion, and in an eariy stage of it, the revohitlofttsts at^ ' 
niost declarad war against the marriage contract. 'Tb^' 
Code J^Tapotean checked, indeed, the unlimited freedom of^ 
divorce, but, with the exception of the new Pruinah C<fii^ 
published at BtrKn in 1794, it stilt left the marriage tieiti'^ 
a tnore relaxed state than is permitted in Other natfons" 
under the iafloence of christnmity. Marriage is absolutely '^ 
tlis^olved by divorce, which^may be not only for many rea- * 
sonable causes which are specified, but for nd cause irbat- ' 
ever, except the inutaal and persevering consent bf tiie par- 
ties, dttly declared nnder certain checks and provisions. 

Uw of fib/- If we pas to tbUmd^vr^ shall find these divorced a mema ^ 
et thora, in use under the sanction of the civil magistrate ; 
aad the* law of Halland, is, in this respect, very analagous 
to our own. The decree, according to BjfUkershoeckj 
{^uCRst Jur. Prw^ lib. 2. ch, 8.) is always with the provisb, 
joub 9fe recomtiHationis, and the jurisdiction of the subject 
in fheir temporal courts, ifs nnder the inflaence of the canon 
iair. S^umekmatrimc/hiaiibus aliqua in faro nostra tit juris 


fOtii^UiiHUioriiai. . (lShM» cb. 10») The divorce, a mensa 1819. 

e<-XA«ra, is'for great cruelty, or immnent personal danger, 
aod a distritmUoo of property is orade beiween the parlies, 
and the m^triinooial tie coDlinoes : ItUerdi€ti$ uiriftte aHis 
n^plW' {y^t. Cam. de divpfiiU el rcpudini, s. 16, 17*) 

* My iaftswiice from this revi^lt^ tluu fay the hyutt ^^^^^ 
l^w of JSingimulf and of «lber nsdons on the conliiieQl • w€»n» ^ 
where the canon law prevtttis, a time for reeonciliatioq is 
^fjt open to the parties upon these qaalificd divorces from 
had and board; and the indulgence is founded in sound 
liplicy, ;aod dictaied by benerolence. The question then 
Hfises^ whether the decree ought not to porsne the formuh % 

given.inxOtfgilon, and declare a separation notil the parties 
ai^aU be rfponciled lo each other. I awune that I have corope* 
lent.power to make such a decree, for the statute auihoriaes 
the CJwiceUor to decree a separation '' forever," or, ** for 
a tUoiiad t^i" or, to make ** such other decree^ as the 
ftmc may n^ire* Bm joch a general decree seems to be 
of loo looflca tezlore, and to be destttute of the mmisita 
•aoction* it separates the partks wM ikey are reeoneikdt 
and Waves that event open to dispute. 1 should rea)ly be 
apprehensive of exposing the court to some portion of that 
sarcasm w,l)icb Lord Thurlauf^ in arguing; the Du€hu$ of 
tR^g9k>n\$ cQ$e^ bestowed upon matrimonial causes, in the 
Ecclesiastical Courts, when he spoke of the fiivolouioess of 
their proceedings, and the vanity of their decrees. I pre* 
for that tb« sentence shall be binding and efiectual, until the 
parties shall have applied to tlie Court, and received, npon 
juBt grounds,, a judicial recognition of the oertainly and M« 
cerity of dip ir reconciliatioD* The parties should be en* 
cooraged to look forward to that cheering event; and to 
escape, as soon as possible, from the peribns and paiofiil 
sitnadon in which they are placed by the decree. Tho ^ 
canon law, wilb a paternal solicitude, well worthy of adop- 
tion, (finm'j Ecdf Law^ tit. Mtrriage. ch. 11. s. 4. 
Oi^giyon's Ord. Jud. tit. 215. s.4.) requires tbM a moaition 


.1819. be iararted iu ill leileiicft (oi 4kotce^ i^mmm€i4iomi^i 
fhe parties mu 
ring the lire o 
Qttier per^eiu 

- fhe purties must liv)e cfa^telyi aod chat neither pf tbffiD, du^ 

y. ring the lire of the olber* pva oonlract miHnia^eirith tar 

Formula ofthe Thete kind ^jimimitiotm ate pecolfaur to the Eockaatfictl 

EcclesiaiCicAl ^ . . . ^ ...... . 

csbohi. A^McleiDtheetax»8eoribekjcifiiaiclioD0v«r 1 

Mu0n; aad iUbiil of thb IbmkI ehoald fail Awi: tbb \ 
of pnMC the ewrU do iiol» evea^iii tbat caact Mwl;the isile. 
kackyflfilhottt due cave &r her leocplioB. The mmMfiftM 
not ooiy '* that the htisbaad shall take hcv back^'^ but/' thiil 
he shall treaf her with coofOBai kipducsi.'* {FUk BirJIfM.^ 
Seatt?$ opiakM in the C4iiiMtoi7 CouM, in Sooton'^CiflaHi . 
moat, ia JSmnm V. Awft.) Since the ^whdeoC'tlHftMi* 
cate )iirisdicdon has been recemty-coaiaitttd 4ci-tfaiK.Coiirly 
1 haive no better soarce to whieh I can refton<or4heignidadoe : 
of my jodgomit, ui thie near path af datyt^hanttftheldaai- 
irbeftof the EngiiBk ecdesiattical or canoplaw^' It^ota 
gu pp l eiaeo tal part of the comoioa law, and* leemBto be ^ 
brie^ ohaale^ and ralioaal code. It fiimis, in eo«a re4phel% 
A coatratl to the unwiddy icompUations which conflditiite(the> 
canon law ofthe Romam CadMic eouttries^ and wWahcow* 
tain very ctrGomttantial, and many very unprofitable rcfp^ 
latioMfOn the sobject of marriage and divorce. {Fih^Xhi^ 
pu$ Jum Ctmorndt pur QUmrtt edh«>6«Moay 1735^ eoaa 9k 
J96 iSecnnnda^ir, tit 12» de kgkimo mm nuKtnmmdif^u Id« 
De fiapediSMsaA ara^hrJeiomH tit* 14* ds Hmriiiii) 

ll'm fi^thec understood to be the law^ (TAa fWiMen of 
SU Gwrgttmi 8c Margarti, 1 iSUL 13a) thattf the wift 
be separated, from the husband by a divoroei a maua el 
ihor9^ the. children she may have daring saehsqMunaaion are 
besltards, because a due obedience to the decree ia to be pre« 
aumed until the contrary beshoivm If» however; a oohabi* 
tatipn l^elween the husband and vifie be made ont io/peooi^ 
the ojflbpriog would then be legitimate, for the relation of Ims^ 
ban4 aD4 wife is not dissolved* It only ondergoee a very 
ipcoiivenient suspension, and wbipb is intended to opemte as 


a eonAi^al tevlMiM to.Ae ptfiet tm iclsra to their fnll 1819. 

AmUkm. imMMmtmg' and dHficidt qoatlhMi iaas ta^he dK«- 
podtei af the ckild, and the idlowaoce to be made to the 
wife.*. .<Ii>is to be dbenred that the bosbMid it^ in this €aae, Ditpomtioa or 
the {MB^ogMguMnly in the wrong, aad ha-k adely reipoo«- cMei of Ju 
ii bk iiw r dM laptora of <be conyagal lie. It appeOrt, abo, ITSwo! ""^ 
tiatMs ma^Qfmmv^i ike keeper of a porter^Miiie or ke^ 
cmnbf IplnAmy ia not the aioat fevoaraMe fer a propitioas iih 
flneeca ttpoa the habks and OMiincrs of Us son* I fhall^ 
tbeMftMB, 7>ia ikb respeet» ako grant (be prayer of the bill, 
aod-oonAgii«the ctire and eu^tody of the child to the atother. 
Bi]t*4bkai«ifaiile*iipotlthiBtiib^ (act, aels. 88. eh. 321.) 
wiaai3P'«H69riJibt8a ovden to be varied or amialled, at any 
tin« Ttbemftar; Hpan aottatent caoae. The allowance to 
the «ao>haa^<ar theehild, onght to be quite small, in the first 
instMnbe^f and- <niore especially as some weight ought to be 
attachod to the colisideratioD, that' the father may be gready 
aflK atedf<by«thoJoss of the presence and gnardianshtp of bis 
son^^oadiihe mother wHl have most persuasive motives to 
mdnttryiand'ceonomfy, by the daty and blessing of soch a 

The delei*laiit wouM nht, probably, be able to bear a Aiionrtncet to 
large peoaniary allowance to his wife, either fer her or her r^' ^^^ ^ 
child's mauitmanoe. It is said, that the profiu of his osta- 
Wsbaaeot will enable him to maintain himself and Ms wife, 
bol the witntesef alkido to the case of then* living together, 
and coaWifaaitiog their united efibrts fer their motoal sup- 
port. Ho might be able to maintain her in his own house, 
and' yet not be able to pay a considerable annuity. He 
owan o leasehold estate, on which he has expended conside- 
rable money, and which is charged with a ground rent, and 
a BHMlgnge debt Indeed, one of the witnesses supposes 
thai the flvortgage, and another bond debt, would sweep 
away his interest in the land which he holds under a short 
lease. If he pays 200 dojiars a year, towards the mainte- 


181& Miic« of tke wife Md cUU| h it as: nradb as Uie4aicQiit- 

ttances of the case would seem to jastify ; aoc^ i^ I am-inia* 
taken in tbe aiaoluit dtber way, the partiety ormikat of 
them, can, at any time, Apply for relieC Ttie.aaaalaod 
proper course, is. to refer questions of this kind to a Master, 
bat a« the proofs are all before me, and the aUowaooe is so 
entirely under fotare discretioo, and snigect to altenifioa, I 
have not thpagbt it necessary io this case, to 6eUin dm 
cause by tbe delay and ej^p^nse of n reference apon thai 
^o^' The following decree was entered : " It appearing firooi 

the pleadings and proofs, that tbe defendant i)i|s been goiky 
of cruel and inhuman treatment of the plaintiff, by repeated 
acts of personal violence, so as to rendiec jt.cmiiafei^fKifMaiF* 
proper, under existing ciraumitascee, fer her to^nDbahilMlb 
him, or to he under hb dominion and eoatrai* IttrihireapM 
orderedj &c. that the plaintiff and defendant' be separated* 
from bed and board forever; provided,, however, that the 
parties may, at any time hereafter, by their joint aadmito- 
ally free and voluntary act, apply to 4h^ Coiirlibr ileavfiiK^ 
be discharged from this decretal ordet* -Airi itfiaitaaahy 
declared to be the duty of each of them to lite chasttly 
during their separation, and that U will be criminat, and an 
act void in law, for either of them, daring the life of the 
other^ to contract matrimony with any other i^fisn^^o^ And 
it is further or^ed^ &c. that tbe plaiatUI^ iha 
^ prayer of her UU, shall be entitled to, aad be ckaiged wiltiy 
the custody, care, and educatioo of the infent son of tbe 
parties in the pleadings mentioned, provided, always, that 
this order for the custody, care, and edocation of the said 
infant, may, at any time hereafter, be modified, varkd» or 
annulled, upon sufficient cause shoa^n. And it is farther 
orderedj &c. that the defendant pay to the plaintiff 200 dol- 
lars, a year, to be compnted from the date of tliis decree, in 
half yearly payments, to be applied towards tbe support 
and maintenance of the plaintiff and her son, and tbat this 


aBowttce it to contintie until furtber order, and be sobject 1819. 
to v^amdoD, u fafture cifclimstaDces may reqaire. And it 
II finther orderedy that the defendant pay to the plaintiff 
the costii of this suit, to be taxed, and that she have execa- 
tien fbereibr, acxfording to the course and practice tf the 

' J. B. Datouk agaifut Fannikg. 

IMigfc'ttie le^tttee may tiie alooe for his specific le^qr, yet where 
ha.oliiiaiv jslso, as a ruiiuarf iegtOett aU the rMufwiry legaien 
nni^ htl^madlp* parties to tlie seit 

1 decree capoot be impeached by an orig^ioai bill, except on the 
g^rouod of fraud. 

Tboiigii a decree io a former snit, to which the plaintiff and defendant 
were parties, cannot be pleaded in bar, uqUI it is signed and en- . 
«olM, it inky be insisted on by vajr of answer. And when the 
lisoaas ia the 4btmer sait appears on the ftce of the bill, the de- 
iseit^t may demur. 

Where a bifl is taken pro eonfe$$Oj a^inst a defendant, who is absent 
from tbe state, he may, noder the statute, come in, after the decree, 
and idMwer and iefeod the suit. He cannot institute a new suit, 
WfaAe the decree in the former suit remains in force. 

If a MITileaibHig'ether a demand by the plaintiff, as legatee, against 
.the jilftiinjant, as executor, with a. demand of the plaintiff, in his 
pfwa^ (}a|ieeity,.agaiest tbe deibo4snt« in his individual character, 
it is ^f>od caoae of demurrer, and the bill will be dismissed with 


^•i • • • 

Ttf^bitl, filed Jtdy 27tb, 1819, stated; that Frederick Da.\m. 
JDavoue^ the father of the plaintiff, being seited of real and 
personal estate, on the 7th of Fe5r«ary, 1809, made his will, 
by which, among other bequests, he bequeathed to the plain- 
tiff a legacy of 5,500 dollars, payable to him, ^len he came 
ef fell age. The testator, also, bequeated to the plaintiff 


1819. an equal pi>ilh>i» wMi bis other chtldmOi •f the nesMoe of 
his estate, after the paynent of debts aidl spedfit fegade^^ 
and made die defefidaat, and two other personsy his execo* 
tors. The testator died, June 4, 1809, leaving six childreOy 
m. Frederick, Jnn^ the wife of the defeadam, Mn B. die 
plaintiff, James i3., since deceased, Mary E. and Harrieiy 
the two last being minors. The defendant alone qualified, 
and was the sole acting executor ; and took possession of all 
the estate; the personal estate, amounting to 19,000 dollars, 
and the real estate to 22,000 dollars. The bill further 
stated that the defendant had paid a part only of the legacy to 
the plaintiff, and refused to pay the haktnce. That the estate 
of the testator was sufficient to pay all the debts and lega- 
cies, and educate and support the infant children. That the 
accounts rendered to the plaintiff were incorrect ami m^ust ; 
particularly a charge of 2,128 dollar^ and eight cents, com- 
missions, for receiving and paying the monies of the estate, 
and 352 dollars, and 36 dollars for interest. That the de- 
fendant had expencfed large sums io useless liiigatios, awd 
in alterations of buildings on the estate. That in a suit in 
(his court, in wliich the wife of the defendant and Freieridc 
D* one of the legatees, were plaintiffs, and the defendant, 
the piaintifl^ and the two infant legatees, were defendants, 
(the plaintiff then being absent from the state, JodatttMU^t 
-hestc of the suit until t!ie bill was taken pro coirfeno^ agiilMt 
the defendant, and a decree entered,) -siMfriMIM^had no op- 
portunity to dispute it; and by the decree in that cause, a 
large real estate was ordered to be sold, and was advertised 
for sale on the 27th of July, then next. That in his ac- 
counts the defendant had charged 2,000 dollars, paid to the 
plaintifi^ io part df his legacy, which was nor tfue; it being 
an order dtawn by the plaintiff, on the defendant, on account 
of a farm in Weti Chester, frandulently sold to the plaintiff 
by him, and to which the defendant bad no title, and the 
jjaintiff was dieted. That, in 1814, the defendant being 
in prison, employed the plaintiff to do business for hisii 

CASES in' chancery. 201 

and promiie^ to compensate him; that for one service the 1819. 
plaintiff received 100 dollars, and for another 500 dollars, 
&C. That there is a balance due to the plaintiff, on account 
of his legacy, of 3,000 dollars. That the defendant is rn* 
solvent, and if permitted' to have the control of the estate, 
il would be wasted. Prayer ^ that the accounts of the de- 
fendant may be re-examined, and the plaintiff be permitted 
to contest them ; and that the Master's Report thereon be 
ifbrrected, if erroneous ; and that the rents and profits, and 
the proceeds of the sale of the estate, if made, be paid into 
CJotirt ; and that the sale of the farm in West Chester^ to 
ih^ plaintiff, be annulled, on the ground of fraud, &c. 

The defendant demurred specially to the bill, and assign* 
ed for causes : 1. That the other children 'of the testator, 
some of whom were legatees, and all the residuary legatees, 
ought to have been made parties : 

2. That the plaintiff being a party to the suit, stated in 
the bill, and a decree taken against him, pro confesso, was 
entitled to examine and contest the accounts, and still is 
entitled to come in and answer, and contest the accounts, 
and the administration 'of the defendant, in that suit ; and 
that if this suit proceeds; the defendant will be liable to an- 
swer again concerning the same matters, which are compre- 
hended, and ought to be determined in the former suit. 

3. That several distinct matters having no relation to 
ekch other, vix : the claims of the plaintiff, as legatee, against 
th^ defendant, as executor, and the claims of the plaintiff 
for services rendered to the defendant, individually, &£• are 
bUndffd together ; by mingling of which separate matters 
in the same bill, the proceedings would be intricate and pro- 
lix, and the plaintiff be obliged to answer, Stc. to separate 
and distinct matters. 

4. That the claims of the plaintiff, for services rendered 
to the defendant, and for moneys expended to his use, in . 
his private capacity, are matters properly cognizable and 
triable at law. 

Vox.. IV. S« 


/. Raddiffi for the defendant^ in support of the de- 

/• Rodman'f for the plaintiff. 

The Chancellor. The defendant has demurred spe- 
cially to the bill, and assigned in the demurrer several rea- 
sons in support of it. The objections all appear upon the 
face of the bill, and are, therefore, proper subjecU for a 

1. The first objection is to a want of parties. The plain- 
tiff claims from the defendant, as executor to the will of 
Frederick Davoue^ deceased, a specific legacy, and he 
claims as a residuary legatee, and names several persons aSi 
being residuary legatees with him. It is a clear point, that 
they ought to have been made parties to the suit. It was^ 
considered in the case of Brovm v. RicketiSj (3 Johns, Ch. 
R^ bS5.) as a settled rule, that though one legatee might 
sue alone for his specific legacy, without making the other 
legatees parties, yet where he claims as one of the residuary 
legatees^ they must all be parties. Tliis demurrer is, there- 
fore^ well alleged. 

2. Another, and a more fatal objection to the bill is, that 
it seeks to be relieved against a former decree of this Court, 
in which the plaintiff, together with the defendant, and the 
other legatees, were parties. The bill, as to the .plaintiff, was 
taken pro confesso, he being absent from the state, but he is 
entitled (and so it is admitted in the demurrer) to come in 
and defend that suit, and to open the accounts. The statute 
(1 Ji. R. L. 486. sess. 36. c. 95. s. 9.) provides for his 
case. His remedy is by coming in to defend, under the 
provision of the statute, and not by instituting a new suit, 
while the decree in the former siut is left in full force. It 
must be intended, for the present, that the decree was duly 
taken against him by default, and was correctly rendered. 
A decree <:anBOt be impeached by an original bill, except 


on ifae ground of fraud, and no such allegation is made in 1819. 
the bill. So long as the former decree remains undisturbed| 
it is a bar to this suit. It cannot be pleaded in bar, until 
It is signed and enrolled, but it might be insisted on by way 
of answer ; {Anon. 3 -M. 809. Kinsey v. JGrwcy, 2 Fes. 
577.} and when the decree in the former suit appears on 
the face of the bill, the defendant may demur. {Redesd. 
Tr. p.' 196.) 

It would be most disorderly, and lead to great confusion 
and endless litigation, if a new and original bill between 
the same parties, and concerning the same matters, could 
be sustained, while the former decree remained untouched. 
The decisions of the Court have clearly and wisely estab- 
lished a different rule. 

As early as the case of Read v. Hambey, (1 Ck. Cos. 
44. 2 Freem, Rep. 179. S. C.) a demurrer to an original 
bill was allowed, because it sought to alter or change a 
former decree, and this was considered as a dangerous and 
irregular proceeding. Lord Talbot^ afterwards, in Taylor 
V. Sharp, (3 P. JVms. 371.) held it to be an established 
rule of the Court, that a part^ could not obtain relief against 
a decree by original bill, " for that the decrees of the Court 
would be opposite, and contrary, one to the other, which 
would breed the utmost confusion." The same principle, 
in nearly the same words, was, also, declared by the counsel 
for the defendant, on appeal to the House of Lords, in the 
case of the Earl of Peterborough v. Germaine^ (1 Bro. P. 
C. 281.) and the doctrine was sanctioned by the Court. 
The same rule is, also, laid down by Lord Hardwieke^ in 
the case of Shepherd v. Titley. (2 Atk. 348.) We have, 
also, the cases of Cbranville v. Comimoner$ of Epworikf 
{Bunb. 56.) and of Wordey v. Birkhead, (2 Ves, 57L 
3 Atk. 809. S. 0.) in which a demurrer to the bill was 8us« 
tained for the same cause. The language in the latter case 
was, that such a bill could not be brouglit to inpeacb a 
fonser decree, but for fraud in obtaining it. That the opi- 


1819. ' nion of tlie Court, in ooe decree, could not be varied by an 
original bill, but the party milst first get rid of the decree 
by a rehearing, or a bill of revievr, or a supplemental bill, in 
the nature of one, or by appeal, or upon special application 
to the Court. That as the party might have reached the 
equity of his case under the former decreet be cannot attain 
it by a nevr bill. 

The same doctrine has been already recognised by this 
Court in an analogous case. {GeUion y. Codmsty 1 Johns, 
Ch, Bep. 195.) 

3. A third reason for the demurrer is, also, well founded. 
Tlie bill blends together a demand of the plaintiff, as lega* 
tee, .against the defendant, as executor, and also a demand 
of the plaintiff in his private character, against the defend- 
ant in his private character, being for work bestowed, and 
money expended, to and for the nse of the defendant. A 
demurrer will lie for such multifariousness of matter wjiich 
requires totally distinct examinations and accounts. In the 
case of The Attorney General v. Corporation of Carmaihon^ 
{CooperU Eq. Rqp. 30.) an inibrmadon was filed for misap- 
plication of some property, held for purposes of public uti- 
lity, and of other property held in trost for private charity, 
and a demurrer to the bill for multifariousness was allowed. 
In the downright language of Lord EUon, on that occasion, 
" the two things donU hang properly together." The prin- 
ciple of that decision is clearly and perfectly applicable t»- '- . 
this case. **^Ad^ 

The bill must, therefore, be dismiss with costs. - -^4^^ 

Decree accordingly. 


PfliLUPS an4 otben, Executors of Swosr, Ag^miil Pmsrots 
and otben. 

It is a general rale, that wher» a defendant rabmits !U» aowrer, he 
miMi answer fuUir ; but this rule is subject to exception and inodi£- 
cation, according to the circumstaoces of the case : As where tbe 
defendant obfects (o a discorery because the plaintiff has no title. 

9o, where a bill was filed by tbe execntors of a creditor, claiming 
under a judgment of more than ihirty-iix years Bta&ding« against 
the legal cepresentatxYes of the debtor^ abore thirty years after his 
deathf 'without aocoonting for the delay, or showing any attempt to 
recover tl^e debt at law, and seeking a discovery aod account of 
as$els ; the defendants, after admitting the dealh of the original par- 
ties to the judgment, and tbe representative character of tbe plain« 
ti£& and defendants, may object to making any disclosure as to assets, 
Qr the material ot^jectief tbe biU) on the ground of tbe staleness of 
tbe demand, and the greit lapse of time. 

THE bUI stnted^ thai Charge Croghan, deceased, on the 
6th of Febntary^ 1799, executed a jadgment bond to Ji>^ 
siph Simmti deceased, conditioned to pay 3,2002. sterling, 
on tbe 6th of JPe&mary, 17899 ^i^ intenest. That in April 
term, I779»a jiidg«ie»t was entered upon that bond, in tbe 
Court of Common Pleas, in We$imordand county, PinruyU 
vaam. That on the lath of Fe&ncary, 1782, Gto^rgt Crag- 
hrnkj ejcecuted a bond to J* 5. conditioned to pay 3967. on. 
the 13th of February^ 1783, with inteiest That on the 
11th of June, 1782, G. C« made his will, and devised to his 
daughter and only cbUd, Suionnah, the wife of Augutiin 
Prevo$t^ his real estate, Ssc. That Cr. C. died, in 1782, 
seised of certain lands in Otsego county, and of divers other 
lands in the states of Kew-York and Penmylvania. That 
in 1790, Susannah Prevast died, intestate. ITiaifour of the 
defendants are her children. That on the 5th iit J^ovembeTf 
17Q9, Of C. executed two bonds to QUdsbrow Banyar; and 


1819. in December^ 1769, a third bond, and a mortgage on 40,000 
acres of land, to secure the payment of the bonds. That in 
Aprils 1S04, 6. J7. assigned the bonds and mortgages to 
John K. BeekfMn. That in October^ 1770, John Morion 
obtained a judgment in the Supreme Court of New-^York, 
against G. C. for 10,000/. of debt, which judgment was, in 

1804, assigned to John K. Beekman* ' That in June, 1804, 
administration de bonis non, with the will of Gr. C annexed^ 
was granted to the defendant G. IV P., and in Av.just^ 

1805, John K. B,j for a nominal consideration, assigned to 
the defendant 6. tV» P. the bonds and mortgage, and judg- 
ment, aforesaid. That O. W. P, caused the judgment to 
be revived, by scire facias, against the heirs of G. C. and 
zji.fa. to be issued in Fthruary, 1806; and the Otsego 
lands were sold for 1,000 dollars to fV. P. Beers ^ who as- 
ugned and released the same to the defendant, G. W^ Prt^ 
vost. That the judgment was revived, and the lands sold,, 
with intent to bar the creditors of G. C, and that fV. P. 
Beers, purchased as agent of the defendant, G. W. PrevosU 
That on the 28th of December, 1810, the three defendants, 
A- P., A. J» P., and S. P., released their right in the said 
lands, to the defendant, G. fV. Prevost, which iras, also, done 
the more effectually to bar the creditors of G. C. That the 
land IS now held in trust by G. W. P. for the heirs of G. 
C, and parts of the land have been sold, and the proceeds 
divided among those heirs. That G. fV. P. as administra- 
tor de bonis non^ has received and converted assets to his 
own use, or apportioned thetn among the heirs of G. C, and 
withholds or conceals the amount. That other large tracts 
of land in JVc«7-Ye)ri, and elsewhere, have descended to the 
defendants, as heirs of G. C., but the situation, value, or 
disposition of the lands were not disclosed. Prayer, for dis- 
covery and account, and that the lands descended may be 
sold for the benefit of the plaintiffs, be. 

The answer of the defendant, G. W. Prevost, (filed D«- 
cember, 1818,) stated his ignorance as to the debt or claim. 


oT the pkiotifis, by bond'or jadgmeot. It adiftitted the re- ISlOi 
latiooship and character of the defeodanCs. That 6. C 
by wijj, appointed five executors, all of Penntyhanin, . and 
that JUtcAae2 GrcUz, one of the executors, married a daughter 
of Joseph Simon^ deceased, and that he and J. Simon re-* 
sided in Philadelphia. That M. Gratz died there, in 1304, 
and bad assets in hand sufficient to satisfy the pretended 
claioi, and all other debts of G. C. and he believed that such 
debt, if any existed, was satisfied by him. The defendant 
admitted, that he was administrator de b<mi$ non, &c. but 
as to so much of the bill as seeks a discovery and account, 
and sale of the estate of G» C, the defendant insisted, that 
considering the circumstances above stated, and the lapse of 
time, the debt is to be presumed satisfied, and that the de- 
fendant is not bound to make any further answer or disclo- 
fiore in relation thereto. 

Six excepuons were taken to the insufficiency of the an* 
swer, for not containing a due disclosure. 

The master reported that the excepUons were well taken. 

Exceptions were made to the master ^s report, and insisting 
that the answer was sufficient 

The cause was argued on the exceptions. JVtf. znh. 

Ch. Baldmr^ for the plaintifls. 

JBurr, for the defendants. 

. Far the defendants, it was contended, 

1. That when a creditor seeks, in equity, satisfaction of 
a judgment at law, he must show that he had taken oat exe- . 
cution. {Miif. 115. I P. TVms. 445.) 

3. That a defendant may insist by answer, that he is. not 
bound to answer. (3 Atk. 276.) 

2fe QJMBr' m CHi^<SBRT. 

1819. f^ M f J M^ , a wk$, iaikttd^ UnH vbeM a ddbadhnt 

^^^^^ sotw«r«iQ part, Im m bomid ta am#er fidfys. (1* /aint.' €k. 

'^^^^ 1 Fa. jiiD. fm. 4Bro. la.) 

iVc 2(MA. The caiMe stood over fiir conskleralion Qottl tfai^ dajr. 

Thb Chancbllmib. The defendant, Btarg^ W:Pjfhfo$i^ 
kavifig answered certain parts of the bill, does' jaot submit to 
answer that part of the bill which seeks a dUeovtilfytaod ac- 
count of the assets of Gsof^ Cra^n»deeea8$d^Hgtbic|iuftiay 
havedeseended to him as heir, or have ooMoe ID jiii >P9Sfiif ion 
as admioistratdr. His objection is founded ufwi^nifittte ap- 
pearing upon the face of die bHI, and IhMa itttdihaJmists 
that the discovery would be useless, as the. pVMltfi.We 
no subsisting valid demand, which can, #r ought to ba^en- 
fbiced in this court, l^be dettmnd of the plab^fis isrfoand- 
ed upon a foreign judgment entered againa Crc^kmB in 
1779, and upon a bond given by him, in 17S2, and ih«-biU 
slates that' the plaintiffs are executors of tie crfdMff* iand 
that Croghan died in 1789L .> 

Here is a lapse of thirty*siz years siace tba dealioa of 
the debt, and the death of the defendant's 'jMicesllir,:«Krthe 
delay is not accounted for or explained, nor does theresap- 
pear to have been any attonpt to recover tlie di!9iagid at 
law. . . ^ ^ 

The question is, whether the defett^tnt iS hound,: under 
the circumstances of the case, to disclose-and laadet an^c- 
count in his answer, of the assets, real or persooalr of Oro^- 
h^. This brings' up a point which has been very mach 
diM^sssed, and concerning which the EkigliA books abound 
with codtradiGtory decisions. 

I bad occasion to examine the point, in the case of 4he 
Methodist Episcopal Church v. Jaques^ (1 Mm$* €k. 
iiep. 65.) and. it appeared to me, . from the short, examina- 
tioB jrhich I was then enabled to make, that it was nnder- 

cAsn IN cstanobrt; 

mod 10 be di» gmmi f«k of pkadbg, Hun if ft dtted* 1819. 
antfldbnits tt> WMNrer, fat mail timrtr Jbtty, bat tbtt the 
nie was snlgeet to neepdom; Md that, at any. rait, if the 
Mttdaat pou bifliaelf ' upoa an ebjtctioo to « full aatwer, 
It mutt be of a matter which would form a ckar and abao* 
lalt bar to the damaai. The difimJaati io thai caae, did 
■ot place himtelf apoo soch an objectioD, and there wai no 
decided opiaioo given epon the generd qnttdon. 

Lard£Uim(16 Ftt. S87.) taid, dial the oU rale, htibie 
liOffd Tkmdtm*$ tiaM, wa$ either to dtanir, or plead, or en-- 
Mttr lAretgAear, and be odlt the new amde of aatwtriog to 
pan of a biB, and^refonng to antwtr to the residne, a lort 
of iMegitiaMte pkading. In sapport of die oU role^ die 
ente of RtAafAom v. MikkM, {Midi. 1196. Sdmi Coim 
m Chmmrg, BU 8 Ftntr, 644. pt 6. S Eq. Ca$. Mr. 
W. pL $. S. C.) may be eked. That was a bill lo ieC 
Mide a purchase, and to have a discovery of tiie site and 
proits of an estate^ and die dt ftn dtnt, by answer, insisted 
be was a porcfaater, and that he was not obUged to mak« a 
discovery. Bat Lord Bug ailewtd an eiception to the an- 
swer, though what he answertd might have been good by 
way of plea f and the case of St^hmi r. Stqkmt^ before 
Lofd MmktfiM, wasclied,in which toa bill lor ditcotery 
of rmu and profits of an estate elaimtd by will, die dcAod* 
ant clahned Ude, and insisted he was not obliged to account 
antil the right was determined. The Chancellor, however, 
held, that though it might have been good by way of plea, 
yet having tntwtrtd, he must answer the ebarge in the bill. 
. This decision by Lord Kmg^ in the case of a purchaser, 
-is clearly overruled by a case which I sbaM mention, beibrt 
Lord Im^^hkoraitgkf and which stetm to be ac quit sc t d in. 
There are, also, some of Loid Harimiek^i decisions, 
which dt Mow the defendant toolgect, by answer, ton fius. 
ther answer. 

Thus, in QMm v. I7#fe, (cimd in Svmi v. Tmmg^ 
Jmb* 3<3.} the biH wae Uy «• heir and creditor t^aiost a 

Vot. IV. ft 

fl» CASES IN.CHANG£&tr. 

. }81B« chmeB, fiir an accoimt The debadtoi latiiMdM the jni^ 
twtr, that the plaiatiff was not enlitlod to aotJ^ dfAA^QKioflT 
from the estate vS the teiBtator, Qr lo any I^M^ ^vA^T, hj# 
wiU, and, thercfura, the dtfenilaQt ^a4 aot cpmpfUflMk ^ 
account, or discover to the plaiaiiff» tb» t^tafor's wnlo. 
Oo exce|itfcMtt to the amite^ and arUoki had bean ■AoncA 
hy a MasidP, Lord ffard^McfoheM the fBwer inflyitiT, aa 
the plaiotiff^s right waa npt lipparenc I lUakthsU J4^ 
jBMm has some where taidy that there niust hMomfl»i»fl|ro 
is «he ohienr|3itiai» uspaled ta I^ovd £arab0tiA%^ f|ia|i fiM% 
but 1 pmoaae there was no mistake ia iba %!, tl|vi<^ a,4ilF( 
feodaat refiisiiig, in his answer, tQihscOvi^aad.^CilHfiViAlt 
reasons thereia assignedi was not requinedtQ iMiswff^fi^j^ 
So, in another case before Lord Hafx^inJcfeSf .(ij^^fieyiwirf 
V. Seboin, ^Aik. 276.) the-deTeiyiaBt, io his aqeiintviM% 
ed, that he was not bound to make a diacpvery .U^ «n>ul4 
subject him to statute disabilities^ and the ^psvei* ^ on az<9ifr> 
lions takeo, was heM sufficient, and theCbaaceike olysenrf^ 
Aac tlie defbodant could not have deoMirned^ far t^mpihjk 
hav&admitted the facte charged, to be true. In.^miky^ 
J^Vkoly (2 Fes« 491.) the defendant objected, in hiajmsim^ 
ta certain dii^coverj ; and in the discttssioai of. the ^ajftj^fl^ 
Lord Mwcimekg observed, that .you could aot^ask a disc0^ 
rery of him whom you might examine as a wi|ne6Sv> , ■ . - 
Tiie contests and embarrassnaeou respecljnv ^KSsfopdi^tOl 
pleading, first began, in tlie Coairt of Chencery, i^ndj^Lord^ 
I%tt9:2dfi;. I say in t)ie Cbiirt o/ Chmneery^ far tb^/^uJ^ is 
well estaMisbed in tiie equity side of the Conn-^ £jbcbe*t 
qaer, that a defendant may, in bii answer to, part of a.Jbptl, 
object to a furtber answer. Thus, ia BtnMi Xt ffMdj 
{Hard. 188.) the Coart held, that where lbe:d^ndant, ia^ 
his answer, denied the custom by which tbe plaintiff daiAr-* 
ed tithes, be need aot discover the amount or 'Valae of tbe 
tithes, until the right of the plaintiff had been tried, and if 
foiiod against the defbodaoiy ite should be eiaaunadupoi^ 
iaterragitoiies, to discover* his knowkdge» Soy^agaiii, ift« 


JlM^v. WiN^, {Ambi ^53.) the deiendaot, io Ik answer^ 18)9«' 
te 'Aecotori ^kotcid the ft9in6S*M preteosioni m next of kip» ^^^'^'''^>^ 
td M kecteQi^ and feftised to set 6ii« 0IM9 and Ike Court df v, 
Itxcheqileie held tbe assirar iufficieot. The lame rule wa* ^"^^'^ 
fiMlAM i^ ibe ease of Ja^ois v. Ga^ibiaa, (9 <9ni* 4894 
»$l». "2 CiMP, 288. S. CO in wbicli the plaintiff static a 
dti|MrtD€KsWp, atid called fyt an aecoant. The deleqdanft 
ki^hk niswefi set inti a BpeciM agveenient^ and denied pil| ' 
Kiwilbiieeni #(th the plaimifl; avdstat^ tfba^oiii|t«/ On 
cieeeptiQb ceAi aftsirer, h iras held by tb? Oeort of fixche^ 
qlKM^, A«( ite plaiticifi' was noi entitled to an accoapt, ttaiesa 
MreH^ i^ pannertbtp, and tbattbe answer ara« eufficient. 
tCii witHf not M>| any nan aright oompel the tot ^lercantilf 
llcklAe iki 'lienidkn to account So, abo, in Richardson v* 
HMb^t; {1 ^9n^i. 65.) on ji faill by an beir against a trustee^ 
ttk^ dS^feMlint^sliid be never acted as trustee, and did not an^ 
9Wer tbtf cbar^ of fravd ; and the answer, on exception, 
#a8 fteld siiMBcieitt, for tb^ defendant, disclaiiaii;»g all tpterest; 
had ridtteM himself to a mttt witness* Another case in thf? 
Bk^lleqaer was died by the eoonsel in 11 V^nyf 286. in 
wUtihr^pon a bHl by a vicar against theoccapier^ the hitter 
by I&'a] denied the vicar's right, and did nat set forth 
th^*qaafatiiy and valde, and an exqeptioa |o the answer wag 
overnikd* Ibdeed, the Exchequer practice is admitted by 
LoHl'difon, who supposes it may be attend^ witb less in- 
coBWtffebiil*, asbytbe practice of that Court conceptions to^ 
an AiMJwef are not referred to a master, hot go before tfai 
Cdoli ^i^'decermination, in the first instance, 

Tbk fil^tcaee which seems to have given rise to the dis- 
cnssl^nia Chancery, was Cooksan v. Ellison^ (2 Bro. 352.) 
TheT/MMif had made a defendant a party, who bad no 
inttiie^ and might have demurred, but he answered all bat 
ohe iiMerrogatory. He had, ' in fact» slated part of a convert 
sation, and not the whole ; and Lord Thurhw said, that ai| 
th6 defendant had submitted to answer, be could not enter 
ifllO' tha* questiotti whether a deounrer or plea WonU have 

ai2 CASES IW CHANCteftV . 

ISIS. been allowed, bat be must answe^ fully, andUfe rf!l6#W At ' ' 
"^^^^"^^^^^ eic^ption to the answer. Lord JTrtiyon, aiterWards,* **Mrf' ' 
\ ^r^'^ sitting as Master of the Rolls, in Newman v-^€te4^ («^ 
FaETotr. ^^^ 322^ ^^j^ ^^^ this case was wrong} aa*'4ia*1«Mr 
that where the defendant, by a dlwlaimer , had t^^MetVUt- "> 
aellTto a mere witness, he was dot bound to answer Awtheiv^ ^ 
BttI Lord 7%ur/ow, in Cariwrlghiv. Hatdy, (9'i^;'fe9ii 
1 M«. S.C.) again asserted the «aiBfe dofertn^r ? 
which he had hid down in Coohtmn. W/wiMi/^ni«l»': 
Shtfh^d V. Robtris, (SBrd. 2S9.) be sipplit* It ^ d»lll»^ -^ 
ent case than that of a witness. The |dajnCMP«l«iiM|^^'<'' 
be a partner, and called ftnr an accoonu The'deft^•hfci^i■r^ 
bis answer, denied the partnership ; sind Ih^dwWdflflhr;^ bo^i 
exception, held that the defendant must answer iUljr/'aiUr 
ttiat he should have pleaded that he was not « pttWta»Wo'> •. .- 

Thus stood the cases on the point, when Ldftf'Awif***^ 
rough took the great seal, and he seems to hkti ibHsbotf 
. Lord Kenyan, and to have overruled the doctrine HT'E^itf' ^ 
iVr/ofD, on this point of pleadhig. '^» ^ ^« ' '^ 

In Jerrard v. Saunders, (2 Fes.jisn. 464.) dW d^bdatf^-^ 
in his answer, stated a purchase for a valuable contSttAliictl/'^ 
without notice, as a bar to a fhrther diseorery; Th*^llfr«2 
swer was excepted to, on the ground that' a defendihiflllWI 
submito to answer is bound to answer fully. But #(i^ f«0^ 
Chancellor overruled the exception, and said Hia< i^dkmi^ 
V. Ellison was certainly erroneous, and that in S*4riki<wrV> 
Roberts, Lord 7%ftr/oiD afterwards changed Ms oj^MMt.i 
Again, in the case of the Marquis of Donnegat v. ^tetkWIH 
(3 Ves. 446.) the defendant, in hi« answer to a1»nFftAr«att^ 
account, stated facts, and denied the ground npod Mffe^ an^ 
account was prayed ; on exception to the answer t&ft "toaf? 
setting forth an account. Lord Loughborough saM^ ih^'WS 
swer denied the species of dealing to entitle the plaiAiff^ 
an account, and he held the answer sufllcient. *^So, aiMP, Ifr 
Phelips y. Cuney, (4 Ves. 107.) it was held, that Btt'%ffii(l^^ 
nktrator cBsputing, by his answer, the (bundationref dfj1)tllf 


Tn.,%bi4iate af«ecMiiit# ligainn the intMtale's estate, ww 1SI9. 
set iMWd. «p 8«t forth m acoduol ^ the personal estate by 
way oCfcliediile. 

Tta Veigh i of aotherity was, thus far, decidedly in favour 
ef ihej^r^cticaio ibeExeheqaer, when the question first 
eaoM tmintft the, review of Lord Eldon. 

hE'lhxm^-tm^ which were brought before him in succes* 
sio9<r'(-£toMer V* Lord HmUingfitli, F&Mer t. Stuariy and 
SA0l9|rfrC%l|«S M Vu. 98». 303. 305.) the. same point 
wa^^Mle^wd iim:hdisc(MMed. His tordship felt the dif- 
ioid^^^ffrtfedllmrrassmentof the qaestion, and avoided any 
demfodl^fteimH though the incHoation of bis mind was evi« 
dettdy 4il^fimMir ef the rale declared by Lord Thurlow. He 
saidv'^/ICi^ttkl'lie a very painfol and difficult duty, when 
the Conriwftii. called to it, to say which of the various and 
diacMdanftopim^ns expressed by Lord Thurlow^ Lord Keri" 
yd^ KifMl MQM^yn^ and Lord Chief Justice £y re, was right.** 
H|i-.4(f>Qght that whenever the question came fairly before . 
him, it would be infinitely better to decide that the obje^ 
tiOjOi fbinx)<^ be made by plea rather than by answer ; and 
fl^.tb^ question came totbis^ how much of the answer, con- 
si^^yipedspr a plea, would be a good defence to the whole 
pmgp^p ioT' discovery and relieC The proceedings would 
ha knSI b«rtbeasome and expensive by plea, which brings 
Ibrwitfdli <a0r to displace the equity, than by allowing the 
defends to answer just what he pleases, and compelling the 
plaiiitiff to reply to the answer, as he found it, and go to 
proof. He was convinced the forms of pleading could not 
stand as they t))en ijirere, upon the reported cases, for it was 
a geiieridnile, though with exceptions, that the bill and an- 
swer .sllould form a record^ upon which a complete decree 
aught^be made at the hearing. He stated these difficulties in 
tUmt V. Tud^ (15 Ve$. 372.) and again, in Sammerville v. 
^ciay, (16 Ves. 367.) where he observed that the incon* 
venh^oe of tins new mode of pleading was, that the defend- 
esil wa» Mt jodged of by the Court, in the first instance, (as 


1819. it mas by die fiKhe^MlP FAotie«,) bm k «eil §h»m IMt 
masteri upw ^m^ndftioUB to tlw awg w m, wni tfMil^'^tlM 
Court, upoo esceptioBft to the report. :• . • *- 

This is the resuk of the casee before L^ JBAm. 'He 
has stated the incoaveoieiice of ibis new mode of frfetdhSt 
which had been saDctioBfld hy Lord Xai^Mi, slid^tiOirA 
Rosdjfiiy but none of the cases cootaia a diieot do rtri otf of 
|us upon the poioti either way* As far as ad}iidg;€tt'' iw^A 
go, the preponderance is in fiivoiir of the aefv Mdt^*4s-bii 
lordship has been pleaded, to term it. It h. ooncedad im^iXk 
the discossioDSy that ibeM a«e.exceptMl cases 404her(»Uw^f 
^t if the defendant answers at all, lie amsC attswe|P4UHMtgb>i^ 
oat ', as where the discovery would criwMnati^^ af'4vi|eMlb# 
defendant seu up a purchase for a valuable eaosidMtttiooi^ 
Lord Chancellor Mannen^ who had followed lArdiyPkai^ 
i4m'$ rule, in Leonard v. Lmwrd, (1 Balk ^ BmlfySaSiS}^ 
though he admitted, at the same time, A^t tfasnaaisifrtfab 
question so unsettledi makes a third eieeplion ia Simffrrd^ 
V. Hoganf (2 BaU* j- Beat. 164») to the rQle,idiaiariMiia«& 
party undertakes to answer, be must do it folifb u Hesiy^ 
a solicitor mayi in his answer, refuse to discoaer . dyda on 
facts confidentially communicated to him by the cUeal; . : « ' « 
It is very difficult to know what to do with a coune jqE) 
pleading so exuemely nosetded. I have lacently^faeld,. il^ 
the case of Green v* Winter^ upon exceptions to an. aosmeiy' 
that where the defendant bad di#cUim^d all ioieinM.ip.4ba'i 
subject matter of the interrogatory, and jrednoffi bi^Nelf Uki 
a mere witness, that be was not bound to.aasg^§f Jya^rj^ 
as to tlie situation and value of the suigect. T(k iliVitQt 
would be perfectly useless, for the answer oould i^pt b^,rf>B4.i 
in evidence against any other person ; and I <K>ii}d»np^ pfit.;, 
ceive the propriety, or feel the necessity of requiriagA4fli^n/ 
ther answer, merely to serve the curiosity 9r conveiM^ / 
the plainti^l Nor can I perceive the g0Q(| ^fifBm of ^mn 
quiring long accounts and schedules from a defendant, when^ 
a defence is 9et up in the answer^ which meets the l^tl^, I(. 

oriBfesiN^eHJivcBur. iis 

lt» mUtn (rf^Jeftaee 8lwkl;fca» iin.^Mto^iit might Aen 1819^ 
Ut'n^aipfiiio.finuMrjfiMther; orif n aeeomrt sbooM b« 
decre^, casaot the deftndant be eoMpelled to answer epon 
Wprrofimnift, 10) the mttter of the acooimt f 

'ZHhi^ mroag i a cH netien of Lord JSIUiMi't opinioo, that a 
MMdeM cqbU Mt asnrer ai to part of a bill, and refase, 
k tiMeMirer itael^ to oawer the lesidoe, was declared by 
ihtctVitotCfbaMflaor, mMaxmrndo v. MmOmd, (8 Madd. 
CA. Jlqa. 46^) to4ie so oseM a rale that he should alwaye 
fldbfaelMit. Ipfesmney hoa^ver, he mist bemidentood 
^jiieaii».«nderlhe inceptions which Lord l^i&n him- 
ssUihoAagraed^o^ and^ petbaps, there may be other excep-^ 
tioaskoqnanoi psraiaag The great pofan, in the case before 
aNiy.naat Msnrsft la the dc fciwlant bound to go on and dts- 
doa* VbewieU of Ue ancestor, under the denial of the phdn*^ 
dflTatJghtm tbeni f The argonent, ito the cases, fat favoar of 
siftiUtanswa# is^ that the defendant should raise his objeedon 
iQr pJMu-^. The wbole oeotro^ersy lesolfes itself into the 
mode midfcvai of pleading, and may safely rest upon % 
qnaMiolAof oomparative convenience. The defendant may 
insiitii^n the benefit of the statute of limitations, in his an- 
swer, na' weH as by pka. This has been done repeatedly. 
(Xiaemr.£f^, Sjfie»/105. PWnee r. HeyOn, 1 Atk. 
4m. aiRir^JBjai^ Dfafimnm, p. 9S9.) But here there is 
aoeaatotrof Kasiiations to plead, for the demand is stated 
tobeiA>tMded upon specialty, and the defendant relies, in 
Un ailMlll^, Yifpon the stateness of the demand, and the lapse 
of timv^na \i bar to tbe aid of tfie court* A plea of payment, 
i^^'^iifoce upon ihe presumption in support of it, as is 
tb^\eDttrie''at law, f apprehend, would not do in this case, for 
paynienit^s matter of defebce, on taking the account before 
the mister.' ' The province of the plea is quite limited in this 
Obnft;-afftd^is confined to certain precise, single, and specific 
matters of defence. The answer is more loose and compre- 
henrive, and embraces a large field of equitable matter. If 
the caie be evidently such, upon the face of the pleadings^ 


1819. M <lmt an ttecoont amoot be d«cm<l, wliy thooU 
oouM be staled id jiha^aMmr? it woaM I 
aaleiB tbe piainiiSi aaftankaa«t ntm^ftofttrf^Jt^weie* 
reoct to take an aocooot TbeAiSmiMtlmAtmmilmmmy 
to faise tbe <ibjectkui ioiirieadiiigf bat by the aaearer» and 
tbU coniidenitioQ has great weight ia ianwr oC tha^/iofi- 
dency of the aoftver. He ooaM not have drnmrad^ ta the 
bill, for.tbU arquM be deprii4i|g the plaimiff.of tbe^oppofw 
laniQr pf accouiHiag Ibr the lapte af time* la aa eejipTiry 
case, pwhafMH aa ejiecgtof oagbt to diamrer sassfftsb Atm^ 
he.deaies tbe debt ; aad as dM Cooirt ofEiabfUisir.sii^ iai 
Bamdel y. ff aofs abeady cilwly there it aa iiMsifaiigmia^ io. 
Che caeew Bai here waaU be very greatuicaiivfiijii^m;^ la tbe 
defendaat to meet (arbca the plaimiff had ao jas^,ti44 ^^ 
tbe charges, io the bill about ibe ooaqdi«;«led tnranapppnt 
aod settleawn of tbr ellate q{ Croi^umt. epiaiig ^|^ii&. 
Here the plaintift ccHne^witb a deataad* after lyii«.hiy ifafarty-^ 
iU year^t and, andcr coyer of that stale claiio, sceb to njp op 
tbe.settleiaeot of the family estate. 

Lord lUrdvfUJcei in L^ma v. A%gr, said, tbatio.dficree 
aaaccpiuit agaiust an executor, after tbe pbdatiflrftJuMiatate 
had been dead twenty-seven years, aad the deftod^^BA's tes- 
tator ten years, apd oo depaaud ip^yeotqent years, ,if9old 
be making o^e^fthe wont yreee4mtifor.duiwrl4nsAfi ftaoR 
iffamiUei. And in Sturt v. MiljU$h, {^MUfs. aiqv^),l|f( re- 
fused to direct an account, op the presumptioa of sfitis^joMon 
from length of time, and an acqiaiescence by^ th^||4^i|^ for 
fourteen years. Tbe present case, aa it stan4fit; ^ pucfa 
stronger than either of those referred to; aod I*4|i9|n<^see 
the fitness of compellij^ the defesidaots*|o.8^te.aniP^CGoant 
of the assets of CrogAoa, wbea i% would bei^iq^ssi^)e| yuth-^ 
out ifurtker ejiplaoation, to decree an ai^couq^ , ,^^ 

It is oo doubt a good genecal rale, tbat.thede(eadum.4baH 
not stop short in his answer, but that havis^ submitted to 
answer, be shall fully answer. If he cp^isents to detail. part 
of a conversation, why should .be not detail it entirely f If 

CAStS m CHANCEKlr. ttv 

'tiff dlftMlAttt in Aitcttse bad given m ftceomit«if te Miefl IMO. 
lit pan, hb m«hl to bUve dM» U ta fM), iMMame he dtould 
lilif«Ukeli Ms objeetioo in ttme,iriie itHettM to i^st upon 
k. fh cMtiot tefeci pari of a qoeslioo, and reAM Mr ath* 
Me^ the mt. fa .f^an t. The Begenet Canal Campanfj 

* {C60p»^'9 Eq. Rtp. 91S.> the I^ce-Clranerihpr eoQSidiml il 
' a* a uiiiroriDly settled practice, that a defendant who- an« 

fMlto i* part «Mi^ a«f#^r Aiify at to tkiapmn, and aanhot 
vtAte ao^be gvouad of inmaierfaliiy, bat he dtd not taoeli 
^Me^lPeat question in which die answer objects to a discover 
fjr, fiecanse it denies the tide. In SomerviUe v. Maekejf, 
*'-ftoin which case Sir John JLeadl extracted Lord JBMon't 
apittion, as to the rale to which he meant to adhere, the de» 

- * fendam bad answered so (My at even to give a scbednle of 
* %oeki and ktters relating to a ti^de, but refined to produce 

the books ; and the only question was, whether he ought not 
produce then. There cannot be any inflexibie rale of plead- 
ing upon this subject. We have seen bow far it is already 
' Mbfect to noAfication and exception, accordii^ t4p|jrcuia^- 
^* '^Mfidees.- The reason and convenicinGe of the case muat de* 
' terttlne when, and how far, the application of the general 

- rule, which I am willing to recognise as a general rule, 

* Clio be coatrolled. The case before ne appears 4o be one 

- * iar which the defendant may, by answer, object to a ditdo- 
' 9fM bt assets, by putting himself upon the great lapse of 

'dm^; wbidrmust, of course^ (unless sufficiendy acconated 

- ih*,) stol^ the taking of an account of the estate, and cause 

theVHI-td be^nmissed. This case resembles diat of ElBtM 

* V. MH^irf, (1 JiAns. Ch. Rep. 46.^ in wUch die real and 
''personal M]pTesentatives of a testator were eaUad oa l»y a 

creditor to account, after a lapse ^ twenty-siz years ; and 

^^ -Mjf dfddared, in tbrfr answer, tbai tbey wiera anaUe to ac- 

^''' ite^, atod iMsted on tbe stateness of the demaiid, and the 

^-^is ^'fiaie, and on that ground the UH Was di smissed . 

* ' The dcAndam has iiera admitted himsalf to ba an liair, and 

Vat. IV. f8 


adniniilraior of Crvghan, but be has notjAOeiapied wy Wt 
swer wbmever, or mdeai^r partial <Utclai«r«, i^to ifae siibr 
staoct and purport of the bill He lias placed ,bia)^14 ^ 
once, apon tbe objection to the pUuntiCs. right of, aclioo.; 
and this case has as good preteasioast as that of aa apswer 
setting np a parchase, to form aa exception to the general 

I aoni aecordiDgly, of opiaioo, that the objeotions to the 
Master's report are wdl takeoi and that the answer in SttCt 

Excep^n aUowed. . . 

SaARLE b Adams agaimt Scovell. 

Where s ship pad into an iotermediAte port, in dhtress, tad k dMi- 
dsmiMd as nmaawoitby; and it baoomei MosMary, limr tkp traas^/ 
portatiooof the caiyo savad to its destio^ port, to.bire a^/9thac 
ship, the carg^o, on its arriyal at the port of destination, is chargea- 
ble with the increateot freight arising from the charter of the new 
ship : That if, the extra freight beyond what the freight would bare* ' 
been andm* the original charter-party, if the necessity of hiring ano^ * 
therthip bad not interveaed. Thao#nerof thefsodaiasnotaa*- 
sponsible both lor tbe old and aeif freight 

To liacertain such extra freight, the proper rule seems to be, to deter- 
mine the difference between the amount of the freight under (he 
original charter-party, and the rateable /reigktj for the goods saved 
to tbe port of necessity, added to the freight of the new ship hired to 
t»nj en the goods. 

Du. Sd and BILL for an injonetioni filed June U, 1819« The plain* 

^^' tiS; Cateh Adamsy master of the ship Middlesex^ whicbibad 

been chartered by R. PetiU^ of London^ wtiite sailing on tU^ 

Toyagef, with o'ciirgo of goods on board, from London^ bound 

to Mv)-Yorkf was obliged tocput into Fayal^ in distress, where 


the ship was condemned as anseawoitby, and sold for the be- 1818. 
mtfc lOf aH eooeeroed. Part of the cargo bad been ibrowD 
oi^Mrboaffdon tbepassage from Lmdan to Ajya/, aad a part, 
being damag^, was sold at ^ai, to defray the necessary 
expeoies there. The plaintiff «^., in order to procvre the 
transportation of the residue of the cargo, in his possession, 
toJMW-Farifc, asraasler, acting for tbe benefit of aUconcenn 
ed, according to his best judgment, and the advice of the 
.4NS<rtain consul at ilzya/, on the 29th of ^fercA, 1819, en- 
teMd iator a ebaner^party with James Smrlt fy Co. agents of 
Ae plaintiff 5., owner of the ship EnUrprize^ by which he 
hired ao^aMicb of the tonnage of the ship £., as was sufficient 
to stow the residue of the cargo of the Middlesex^ to be car- 
ried to Xew'Yorkj and for the transportation of which he* 
engaged to pay two thonsaod dollars freight, on tbe delivery 
of the goods at J^ew-York. The master of the Enterprize- 
sigfied a bill of lading, in the usual form, for the goods, to 
be delivered at Neto-York to •/?• or his assigns, he paying 
fireigbt, 2)000 dollars, as per charter-party. A part only 
of the goods so re-shipped belonged to R. P* of London^ and 
were conaigned to the defendant ; tfie reminder of his goods 
had'bieen thiy>wn overboard, or sold as damaged r tfiere^* 
sidue of the cargo of the Middlesex belonged to diflerent 
persons, who were general shippers in the Middlesex. Tbe 
En^eijvnse arrived atWew-ybr^on the 17th of May^ 18I9» 
when an adjosCmhnt of tbe freight of the cargo from Fa}/al 
to New'Ywkj was made by an insurance broker, so as to 
charge the owners of the several parcels of the goods, with 
a rateable proportion of the 2,000 dollars. Upon this ad- 
justment, the freight of the goods belonging to R. P., con- 
signed to the defendant, was charged with 1,338 dollars 
and 19 cents. Each owner and consignee of the goods en- 
teeed tbtir respective parcels attbecoston bouse, and paid 
tbeir ptoportioos of the freight from Fajialf agreeably to the 
a^instpient, except the defendfuit, as consignee of the part 
beloogiiiff UkR^ P. The plaintiff j1 offered ta. deliver the« 


1619. gOdd« bflMgiBg t(9iR. P^totka d^i^v^dmi^ »^9m(ftm Pm 
hM fmjfiag Urn «AiouiH of fieighi dMurf^d* di» 
a^lmiivtili; (nM the defendMl vafiiMMi lo aocepi tiM goodt^ 
and pay ibQ fraigbu To proleei ihe iH« of the pWaiiff & 
on the. goods for tM frQigbt, ^. oftrad |a eot«r 4it 0oodii 
ai t|ia«o«loia kqqfi^ m ooofigiie^ vndeF Ike bill of Miag; 
boi ih« ftoUi^ciori D- Cf., refioed to allow 4iicban mtty tob» 

Th0 biU al<o cbargfd, that the defeodaot omktad to <»ter 
the good«, in ordor to defeat tb^ tiei^of the pUuiliCiSM^.wdl^ 
th<it OD thic 4th of June, 181B, ii^^ good^ were ud^tnkfm^tlmi 
ship and possession of the plaioti&i Iqt orto «ift th^onUBCr 
tor, and dieposited in the public i^ore, agreeabtjr tc^tefF.t CMe 
the i|fth of J^H«i the deteodan) was allowed to ^tor« ibr 
goodsi and thus obtained pQste«»ioB of tb^m, wWua vjn^w 10) 
defeat the /ien of S,, the plaintifi; for the freight* That the, 
plaintiff ^., having become personally responsible to the 
pkuntiff S. for the freight of the goods belonging. to fi. /^»:- 
hy the ^hart^r-party entered into at Fay^l^ shipped ^e 4S9(ld«' 
ill his own name, consigned to. himsdfi for his onq.iodtmr 
nUy. The bill further charged, that by the 4elivQi9^'«f thfs, 
goods 40 the defendaiMy the plaiathf ^t had Wsl dl fitc«ril|rt 
for such indemnity^ es^cept the personal rosponsibilky of ll)#k 
defendant. The bill prayed for ad iqjanction io>cestiraitt iho: 
defendaot from selling and disposing of the goods so teem^ 
ved by him from^ the public store^ uottt tbe fiwsght was pud y 
and that the defendant may be compelled to pay suCb- freight 
to the plaintiff iS., or deliver over tbe goods to. him> fioc. An 
iqpinction wafi accordingly issued. 

Tbe defendant pat in his ai^swer^ oibtbe38tbof t/Wjfv ad* 
netting the material facts stated in tbe bill; bnt denying that, 
the plaintiff^, had power, by any acts at Fayalj to bind R. P^ 
of the defendant, or the goods, for tbe freigbli^tba £n/er-- 
prize. The defendant insisted that be could not be Sttbjed 
tQ a (^ater freight than what was provided for in the tet 
bill oC lading* Be slated, ihat a^tuag merely aaagaot, ho 


^d Ml 9mM^ bimetf «ilbofi«ed to pny dit ireigbi d^ 1819. 
naiidM^ mtboai 4m jndgflwiic of a coMpeteat Co«n. He 
dani^^Mijr Mproper views or imeaiioo id defraud tbe plain* 
tiff & of the' freight; and avemd his abiU^^ to pay die 
fireig^'aad eeeu, if so^dkecied -, aod that he bad oftred se- 
GoritjJlo pay Ihe ireight, if reqaked, whieb had been re&- 

▲ medbo wai aaw Made to dissolve the iajttoctbn. Ike. dd. 

<►» '• 

CHifin and T. A. Brnm^i^ far the defendant, in sopport 
of tfee*modoO) eoBSsaded^ on the gronnd slated in the an* 
swer, that the master had no power to bind the cargo for 
dK fMghtftam fixgai^ ander the new charter-party of the . 
shlpfilMy^iies. They cited S Camph. X. P. Rep. 49. 10 
Ernst/ 919.^ 4 J)s6. Aim. Hep. S86. 9 Si0fkit*$ A*. P. 
JSsp.'t^ ' JWkrr&»eii Ins. 541. 
.. » • '• • •. 

B^yd, ^onirs, contended, diat the master, at /bjftt/, be- 
camtf^le ag^At'of th^ow^ers of the cargo, from necessityi 
and 4MUla right to bitod the cargo for the new freight, for the 
trans||Midon of it to Asv-IWA^ on the same principlie diat 
be bad sb right to hypothecate or sdl a part of the cargo, 
for repaks of -the ship, and to enable him to prosecute the 
voyagk Ha cited S /te6. Adm. Rep. 240. The Oratihtdine, 
I Jokm^Rep^ 1 1'5. Laws tf OUron^ ait. 4. Laws of Wis- 
hstjf,, aati Mi CM. JP Amsterdam^ art. 3. Ord. Rotter- 
dam^ w^t. 147. Mfffloyy J. Marit. b. 2. c. 4. s. B. ? Burr. 
iBep/0B2. 1 3Wm Rep. 611. note.. Doug. 292.231. 9 
Johns. Rep. 21 . 2 Camp. JV*. P. Rep. 623. Marsh, on Ins. 
dfKrM^ 1 Emerig. des Ass. 428. 9 Mass. Rep. 548. 
10 Mums. Rep. 192. 5 Johns. Rep. 262. 

The eaase stood over for consideradon to this day. d^c ^iti. 

l\ni CBAKctLLOR. Tbe material charges in tbe bill are 
not denied in the answer, but the motion for dissotving the 


1819/ itijaDCtioD 18 foanded upon the doctrine set up hi ibe^ntmer, 
that the master of the ship MidMuex had m ponder, «^ile 
at Fayal, to bind the goods, or the owoer of them, for the- 
esctra freight arising from the hire of the ship Eitiitrf¥i^ 

We are, upon this motion, to take, as true, the chiA-ges in 
the bill, that the ship Middlesex pot into Faj/al in distress ; 
that part of the cargo was lost by the perils of the sea } that 
' the ship was properly condemned as mseawortfay^thafit be* 
came necessary for the purpose of conreyiag the ^emfgo that 
was saved, to Jfew-Y^rk, to charter the Aip JSkt^rwe, and 
that the captain acted with good faith, and to the^best of faia 
judgment, throoghoat the transactioa. \ 

Under these eircumstanoes^ I take the nip iif law to be^ 

that the cargo brooght to J^few-York was ehaigtableiwitk 

the increase of the freight arisii^ Arom the dqiflterof the 

new ship. Whether the amount of freigihli aeoordiilg to 

that rule, and under the complicated circomstancite of thia 

case, has been correctly ascertained, is not now theqnestiian* 

The important point now in dispute is^betber the owner oC». 

the cargo delivered at J^ev^ York^ is bound to pf^y ^baoisigiiiid 

freight only, or whether theplaintifisareentitJadM^lai&AWdy 

in lieu of it, the new freight contracted for at JPffyaj* The 

plaintifis, in tber bill, claim ou^ the new fceigbt^froai foy^l 

to New-Yorkf according to the adjustments and. ibe dt(efid*>- 

ant, in his answer, seems to admit that the original freight^ 

as contracted for by the charter-pacty at l^n^inh ^M. <Uie» 

and that freight he has offered to pay. 

of\he maat^. It is Understood to be tlie duty of the mast^, when hia. 

Mi'iSdiMbied vessel is disabled in the course of the voyage, t9 prodQie 

of thr^voy^t Another, if he can, and take on tlie cargo. {Emerigoikf torn. 

2ioie7,ThJ 1*427, 428. WHsm v. The Royal Exchange Imurance 

Z'c.^r^o*!"'" Company, 2 CampbeWs Nisi Pnus, 623. Seh^elin v. 

c^/f;4"mne^ The Mw'York Insurance Company, 9 Johns. JBgi. 2^.) 

glnt*^of^*'tb« This duty arises from the character of agent fur the owner 

cai^ojandhia ^^ ^^^ cargo, whfcb IS cast upon him from tlie necessity of 

S^\o'Sie w^ ^^^ ^^^^ 9 *^"^ ^" ^^^^ character be is bound to act foe ihfr 

1^, are bind' 
mgupon it. 


b«it interest pf al) cooceriied HU acU, in the ezecuUon of leiO. 
such a tnut) and ia relatioo to tbe property under hU 
care, ought totbe valid and binding npon tbe property, 
except in caoes where his power is limited by positive 

Hmerigat^ (torn. K 429 to 433.) lays down this doctrine^ 
and declares that if tbe ship be forced by necessity into a 
foreign part, the cajptain becomes the agent of tbe owners 
of ibe cargo^,aa weU as of the ship, and be is bound to see 
to tbe pfeseivatioaof.tbe cargo, and to do whatever tbe cir- 
camstances of tbe .case ^all dictate to be for the best, and 
wJhttt it is 10 be presumed the owners would do, if they were 
pMBRit. His. character of master invests him with die 
csve and vesponsibility of a general agent of the ship and 
carga; and be would be very blameable, continues £men- 
gen^ if he left the cargo at a foreign port, while be had it in 
his power to carry it by another vessel to the port of desti- 

These general principles, in respect to the power and duty 
of the master, in a case of extremity, have been repeatedly 
recognized in the English Courts. 

In MXer v. Fleichtr, (Doug. 231.) Lord Mamfidd said, 
thai tbe captain, at an intermediate port into which he was 
forced by necessity, bad an implied authority to do what 
was right and fit to be done, as if it were his own ship and 
cargo ; and this general discretion arising from the necessity 
•f bis situation, was again laid down as sound doctrine, by 
the King's Bench, in PlatUamour v. StapleSf{l Term Rep. 
511. note.) But the power of the master over the cargo, in 
situations of distress, was much more fully discussed in the 
case of The ChroUitudine, {SRob. Jldm. 240.) and the princi- 
ples which were ttiere brought forward, are so clearly illus- 
trated, and so powerfully enforced, that they can scarcely 
fail to command universal conviction. 

Tbe language of that case is, that considering tbe peculiar 


1819. •iltiftdoB (n wbicb a mtitef is placed, in.tinw* of dttoger, ftnd 
his kiiowo power over tbe cargo ia other analogous cftse^, 
Mich as JeHkon and RaMem, it wouM seeft to foBow, as ad 
essential protision of the system of raaritioie lavr, ihat he 
should have a power and authority over the cargo adequate 
CO the purpose of dischargiBg his trust, and providing for 
the safe delivery of it at the port of destioation. Tbe op- 
portunity of abuse ensts equally in the cases of acfcnow- 
ledged. power, and cannot iaipeach (he soundness or utility 
of the general principle. And though, in the ordinary state 
of things, tbe master b a stranger to the cargo beyond the 
purposes of safe custody and contc;yance, yiet in cases of in- 
stant, and unforeseen, and unprovided for necesshy, the cha* 
racter of agent and supercargo is forced upon faiin by the 
general policy of the law. It is not to be supposed the taw 
intended that valaahle property in hie hands d^oufd be left 
without protection and care ; and be mus^ in cases of emer- 
gency, exercise the discretion of an authorised agem. The 
cargo is not to be leA at the port of necessity to perish for want 
of care« The master smst eterdse his Judginent, whether 
it would be better to tranship the cargo, if he has the means, 
or to let it remaro. He may bind the cargo, for repairs to the 
ship. He may sell part of tbe cargo Ahp the pnspose of ap- 
plying tbe proceeds to tbe prosecution of the voyage, or he 
may hypothecate the whole for tbe same purpose. If be 
sells, the law does not fix any aliquot part, tfaougft it nmst 
be of a part onty ; and generally speakings it Must be ade- 
quate M> the occasion. WiMrt Is reasonable and jisrt, in re- 
spect so tbe exeenthm «f Ms powiers in suck eases, k l^al. 
Upon ilie dactarine of these deciskms, (atid nMch has ve^ 
oeived: the sanction of ilie Supreme Coort, 9 /aAn#. Mefi. 38.) 
theM can be sm deiubt ^of the authority af tho master, in a 
case of necessky, t» hifw another ship m the foreign port, 
and in the character of agent, fo dHwge the cargo with tbe 
e^i^fa freight of snch renewed voyage. Tbe necessity of 

Hat powg ba g iM t tt'thi mort appiuiAt^ if it ii novrtofaft 1819 J 
coMdered as settled^ (Fim Omeron r. JDnwkh, 2 Gan|piLr. 

Mn Priui, 42. »1?«afi v. JUaiar, a S^artfctVt A« FKt«^ ™ 
Rep. r.) that the master cannot pat an end to the advcmwe. 

hsf setting* tfe cargo at the f>reigD pom, withoot any rieir t» yfhttrt ih« 
a further prosecation o( a voyage, even though soch a ^oIIn-SImoV mm- 
wooUf lie the most henefidal courae for the cmwit. Sbw 'dl^*^ 

Trie power of nhe master to hure another vesiel fi>r thr ^^ ^ IJi! 
completion of the myage^ tod to charge die cargo mth the ^ ^^Jjg 
iiicfe^s<3d 'fltigh^ ia not oofy \m be dedooed bom gemnd ]S^^ ^^ 
prhkc)|)M of t&aritime latar^ baC it it. a power eiplaoitly !«<*• <^ug^ 

co^nMetf ^MF adtfiiuedl in the hooka. ^ ^''^ 

JDmef^d9»'(aU n^a) raisea aod diecotBea the ftaeitiM, •< tf>« y>^^ 

arwle^M(leii8etbene«rfhrpiitobehwedL Heiaofopi* te pjitt 

idott^llMltbet:a0tciii>ooeiitto'HBtirehis electioa;eitbef to»taka'?«Bt«ra, stim 

caa bira -— - 

thie e««i^fieighft first agreed, and Mnme «po» faAmmlf fbe tber vmmI ip 
fMi|glM<of the new sb'^ o^ «9 obarge only i^raleabM freight ^TlX^ te^ 
ftr tlie'p^opottieK of tl» veyage perferaae^iii iieinc sbip^ ^>»«^p^ 
and Ift'let ehor fnrigbc of ihraobstitmed' eWp baairiheeharftf' 
of the cargo saved ' and transpotteA, it k miith better, 
favsii^.tbat ir sboaU baeoQMdired like defy of tbe i 
tenure aoMfaer ship, and tbaa the dMrge of ^ i 
fai%he;sboald baaa the expense of die: eaifo^ than that ir 
shoaU>ba kftlahiaowei velitiaii whetlinror Ml he-troali: 
Ikt .i)iio4har aUp at. his own .cnpenee, aiid coaiplele thdi 
voysigcib r ■ . 

V0lm an4 JBeaaryondid nol» agete in their eeaMnHtiottr 
of tb^dvdiemoo ofi the apociMi nps* tbiscsntijeciu Amom^^ 
ing to the former, (tit. Du JVei, art. 1 1. tonu L p. ^&4 ^ 
masisr b nolt «Mi^ to hire another aetsel :io tafcH on the 
oH^pvand ie^onlytia do so^ if he ateasM to<eamand deaHmd 
bis amiae fireight».bwfettd>of strnteiocponiienindi at them^ 
termptioft of tfao voyage^ aoAhia jwornitefinii^; and i£ 
hefahm anotheriKeMelf hedaesitathisowQoqmnas^tboi^' 
the Uring dionIA esceed the freight whibi» remained^ So be^' 
eaneibydiefiiatdhip^ iBtuPWota^atof (pnd *n>^ 

Voi^ IV. «9 


1819. eetsioii is decime on tbe point,) that if the bMng oT another 
ship was a daty, and not a mere yolantary act on the part 



T. of the master, the excess of fireight beyond tbe original . 
aomint agreed on {pour Pexctdent dufret canvenu dPahord 
enir^etix et U maitre) would be at the expense of the owner 

The royal declaration otAugust^ 1779, charges the insu- 
rer of the cargo with the extra freight in such cases; {sur- 
crcU de fret, bHI y ena;) and this, in the opinion of £nie- 
rigon^ gives the true spirit of the ordinance pf 1681. The 
Fntafich Code'de ComTTierce, No. 391. 393. adopts the r^g^r 
lations of the ordinances of 1681 and 1779, and declares^ 
that if the ship becomes unfit for sea, the master is bound 
to use his best endeavours to procure another ship, and the 
insurer on the caigo is bound for the charges of unloading^ 
spring, re-shipment, and txtra freight. (De Vexctdmt du 
fret.) In addition to the weight jusdy due to these fo* 
rsign writers and ordinances, on a question of marine law, 
we have an express decision upon the point, in the case of 
J^fumford v. T%eXlommereiai Ituurance Company ^ (5 Johns, 
Rtp* 26%) It was there held, that the insurer upon the . 
goods must pay the increased freight arising from the n^ 
"cessary change of the ship. This decision settles the law 
here, and shows that the claim of the plaintiffs to a lien on 
the goods for the freight from Fayal, was well founded. If 
the cargo was chargeable, under the contract of the master, 
with this new freight, there can be no doubt that tbe plain- 
^ tiffs were entitled to retain possession of tbe goods until the 
'freight was paid. 
- It asight require some consideration, before the master, to 
settle the amount of freight which is to be paid in these cases 
of a change of ship ; but the parties before me seem to agree 
that tbe only point in dispute between them is, whether the 
original or the new freight should be demanded and paid. 
I understand from the French books, that the extra freight 
the surplus beyond what tbe freight would have been 


by the original charter-party, if no necessity of hinog ano^ 1S19. 
ther siiip had interveQed. The owner of the goods is not 
responsible for the old and the new freight nnited. The 
first ship did not earn, upon any principle, more than a , 
rateable proportion of the original freight, because she per- 
formed only a part of the voyage; and it might weli happenf, 
if the freight up to the port of necessity was accurately and 
justly apportioned, that the hire of the new ship might not 
amount Cd more than the portion of the original freight 
which remaimd to be earned by the first ship. The mari- 
time law b( Prance gives a rateable freight, in all cases of a 
loss of voyage by vis major^ for the goods brought to an 
intermediate port ; and, therefore, the ordinances contem- 
plate the case of a re-shipment without any excess of freight 
beyond the original contract. (Surcroit defret, sHly «n a.) 
In the present case, only part of the cargo was preserved 
and brought to its place of delivery, and therefore freight 
"^Was due only for the goods that were brought, because, un- 
less there be a very special and precise agreement to the 
contrary, freight is only due under the original contract, in 
proportion to the amount of the goods delivered. (Abbpt^ 
p. 244. Fothier, tit. charte-partie^ n. 67, 68. Frith v. Bar- 
ker^ 2 Johns. Rep. 327.) To ascertain the amount of the 
txtra freight in this case, upon the principles of the French 
law, I apprehend we ought to see what would be the difler- 
euce between the amount of the freight under the original 
charter-party, for the portion of the cargo delivered at Jfew- 
Yorkj and the amount of a rateable freight to Fayalj for the 
goods saved, added to the freight of the new ship. That 
difference being in this case much greater than the original 
freight which would have been to be paid, if the first ship 
bad been able to come on, would show the excess of freight 
incurred in this case by the defendants, as owners of the 
cargo. But any attempt at an estimate of this kind becomes 
unnecessary, because the original contract is considered as 
dinolved, and all claim for freight an^er it is abandoned by 


1880; Itepkhidft. Tbey^laia wly tbe itew^iPrngbrflMK^^ 
to J(cto-¥wrk, atidthe defendant is wQling 10 pay, uder the 
original coBlract, aa thmgh there had Ijeen no change of the 

The motion to dissolve the iajmction uum aocordfOgly be 
denied, eaeept opoa ihe condition of bf jogi^g into Coufl 
^.fipeigbt «hargod ia tl^ bill^ withintereat thereon kon t» 
i 4be jpiaintifis were dispossessed ^ the goods* 

Order aecofdin^jri 

ll. Troup agairut W. Wood and S. Sherwood. 

Where a jadgmeot aad exeoutioo, vrbkb had heen falljr,{iai4 mi ialJK» . 
fied, were kept on foot by the assig^nees of the Judgmeot, fraudulent* 
)y, for the phrpose of speculating on 6ie property of the debtor, 
<^ wbicfa (lieilefnidants, SBsignees or owners of sncb jud^teent,' 
iMcaaM pifdiatert at a •beriff's sale, they we^ decreed to ektoite 
*a reUoH ef all tbeir 4iUe and intenat so soqaired* ta tbe ommtHdii 
tbataods tofiraadalently sM in eaecutioa, an^ to dalivejr up,^ 
poawiiriqp tiMreof, and to pay the reatSf and profits^ and 4sp^(^ 
* lor any woBti committed, with all coats, &c« 

A judgment, after it has been fuDy paid, cannot be' kept on foot' to 
ceaor any near demaiida of the plaintJC 

Itseemi, Ibatapenaa-oenriclsdef feioay, aadaeateaoetfto imysri- 

. aoament in the state inpiaon lor Jafa»Uaialil^f«Mviif. Tbereftet, 
writs of «ctre/acsa#, issued to snch convict, and not to his Jf^l re- 
•presentatives, or terre-tenants, to revive a judgment against him, 
and nihil returned thereon, can have no legal operation or e£*ect 

An a g te e went h^ die owner of an execution, on which lands te an 

. ,a«ettBt hi ▼nine hr eToeediag tlw debt, ktd been iaiaed, to pteveat 

the UHal oompotitiea at the sheriCs saie, ^d io.ord#r to )ea?e a 


tvon lh»««ae«lm» for Ihe ^Tf0B»w£k^nng,htthkit^ 

debtor, ta otber connUea^* a<ized and sold, is ^randulant And (be 

execution it deemed, in law, satisfied. 

Where the sheriff seizes sufficient property of the debtor, under an ex- 

ecntian, the debtor is disohaii^ from the judgment, and the plain* 

I mok WWe meiiff forhii money. 

Mils flied iA ^Wy, 1812, staled, Aat die phintHT JWw. km, 
•smed in fte df lot No. S9, io Lystmder^ in Onondaga i8i9, and 
cOQoty, and of lot No. 76, in iSo/on, in CorHandt county, •'•»'^»*"^- 
^hich he'pftrchased, in 1792, k<ma fide, and for a valuable 
tMHideration, of &nry Plainer. That tlie plaintiff took 
possession of the lots, and continued in the enjoyment there* 
«f, umil dislarbed by the defendants* That in AprU term, 
1787, Mraham Bachman obtained a judgment tigainst Hm 
^UUner, in the Supreme Court; for 773 pounds, debt, and 
6 p«Mnids 18 sUHingg, costs, liiid the judgment was dock* 
Mied the 16th of .4pn/, 1787. The plaintiff, when he pur- 
^ased the lots, was ignorant of the jadgiqent. That Bach'- 
Mmi and Platnerj having had various dealings together,'be- 
fbre and after the judgment, came to a settlement of thetr 
accounu on tfie 4th of J^jf, 1798, in which settlement, dbe 
jvdgdieot waa induded; and a considerable balance was 
ibmid<d«e> t» P. from B., far the payment of which he exe» 
evtMl'^t bcfod to F. ell the same day. l*hat on the settle- 
iMiit, st^^eipt in full for the jadgment was given by B. to 
P., which -receipts, together with other receipts for previous. 
payneota on the judgment, came to the bands of Charh$ 
yimmU lheaoiKu»4aw «f P. who had aooeas to his papefs) 
shordy after ibe'iinprlsonment of P. That C. V. deliver* 
ed the receipts to Bi or to Jacob F. Miller^ his executor, or 
10 Jacob R. Van Heneselaer^ after the death of Miller. 
That satisfaction of the judgment was neglected to be enter* 
^ on i«pord. That P. wa» convicted «f forgery, in Jvnu^ 
l9M,^and sentenced to the state prison for Hfe, and contimi* 
^ in pfison «iidl ^he fOtfa of /tme, 1806, when he was 


lasa pardoned. That in October term, 179d, the jodgment 
' was fraudolently revived by two writs of <c»re/acu», retarn- 
ed nikU, and which were issued by B., or by some other 
person, with his privity, both of them well knowing that the 
judgment was satisfied. That in the vacation following 
Odoher term, B. or some other person, with his privity, 
issued a teat JL fa. on the judgment, to the sheriff of Ontario 
county, who sold, as the property of P., three lots of land, ' 
and part of another, containing above 841 acr^ of liind, 
for 332 dollars and 25 cents. That B. having died soda 
after the execution had issued, the judgment was firatiflo- 
lently revived, in the names of George Monettf Jacob F. JMtf- 
/^,and Catharine BachnuMf as executors of jB», in Oitoher 
term, 1 800. That Mondl^ soon after the revival of^e jii%* ' 
nent, being informed that the judgment had been saiilified, 
reftised to be concerned in any further pr(k:ecdings upon it, 
and requested of Mtter an indemnity for all claims aj^iost' 
bim as executor, which MiBer gave to him, accordMgly. ' 
That Mtter, afterwards, well knowing that Hk jMgmeot' 
had been satisfied, fraudulently sold and assigned It t6 
Jacob R. Van Renssdaer^ for some trifling considerati^. ' 
That Van Rensselaer^ before he took the assignment, ktiew, ■ 
or had grounds to believe, or suspect, that the judgmeift had' * 
been satisfied. That he, afterwards, as assignee,* id the vtf-^' 
catioo after October term, 1802, fraudulently festtett a tht' 
fi. fa. on the said judgment, to the sheriff of Delaterore, re^-* 
quiring him to levy 689 dollars and 48 cents, as the residn^ 
of the judgment. That the sheriff seixed sevei^l lots tn 
Ddhi^ owned by persons deriving title from P., who, ili 
order to protect themselves, agreed with the deftndant, Sir* 
mud Sherwood, either as agent of J. R. Van Renstdae^', Ot 
as having an interest in the judgment, that the sheriff Aotttff' 
set up their respective lots for sale, and the owners purchase 
them for some trifling consideration, and receive deeds flMmi 
the sheriff, and that the owners shonld be reqxmriUefor ike 


ptyumitof the 689 dollars and 48 cents, in propoitioo to the 1890. 
mam^tkty oiifuoiji avoed by tl^eni respectively^ tliftt the greater 
part or the said sum should be iiDiiiediately paid, and for 
thej^flaoce, ao execation should Issue for the sale of the 
lam)^ JR. the jaoilitary tract, and if they failed to produce 
the balance, the owners of the said lots should pay it 
in the proportions above mentioned. That the defend- 
ant. S., wbo had the' entire direction of the sale, either 
as ^jj^nty or as having an interest therein, procured the she- 
riff t^iaf^^t in carrying tbe agreement into effect; and he, 
wcQfffi^iiff^\yf sold the lots to the owners thereof, for trifling 
sQOfi y^^9ji^d deeds to them, and returned on the execution^ 
thattjbe ^ad levied 402 dollars and 80 cenu, and that Plat- 
mr, 1^^, op odier Jands, 8ic^ on which lo levy the residue. 
Thuf . lh(^,ftR^d qwners of lots paid the greater part of the 6S9 
doflar^ 4^4 '^3 ^P^ under the agreement; and for the rest- 
dae,,s}^y^/*al,9ther writs of test. JL fa. were fraudulently issu- 
ed fojr tl;ie sale of lou in the military tfact. That the de*. 
fendan^ ^H ^ ^^ ^^^ ^ (be said sale, bad notice^ or had 
gc^ufid tp J^elieve or suspect^ that the said judgment bad. 
been ^sfied before issuing the said execution to the sheriff 
o( Deijtip^rc.j. but conceiving tbe design of a fraudulent and 
prq|Q|^^le speculatipo, owiqg to tbe situation ot Plainer^ hy 
oii^^^jpijuogj, by meaiiM of sales under the judgmenti titles 
derived from P*f suid by selling the remainder of tbe lots^bif9 for. nominal prii^es. That in pursuance of 
8Uc(l firw<lHl^^>^ 4esign» the defendant <S. made the said 
difg^llffpiffkt^ fod procured it to be carried into effect ; and . 
propo^ IQfhe defendant fT., who resided on the military 
tract, Ic^.]^ concerned with him in the purchase of lands in 
tbait trai;t* That the defendant fT., with notice of this cor- 
mpt aod frandiil^nt design of the defendant <S., fraudulently 
agreed to the proposal, and the two defendants associated 
accordfiigly for that purpose. That the defendants thea 
prg^M^ from J« £• Van Rensselaer, or some other person, 
an asiigameat of.tbe said judgment, for a trifling sum, but 

-yL Cjyt^-c 


aa cms IV GHAVCERT. 

wilh jDOtice to both, or with grooods to hetlfve, or j 
that the jodgmem had been satisfied* That tbedeieodaiitt, 
as assigoass of the said judgment, and in pro^ntioa o( 
their cormpt and frandoleat desiga, m» the J^oveffAer vaca* 
tioo of t)ie Supreme Court| in 1803, fraadalentlj caused a 
test. Jin fa* to be issued to the sheriff of the cooaty^f CSa* 
}pkg(Lt and delivered to a deputy of the sheriff, (P. Ht^ij€s,) 
without his knowledge. That the sale uuder the «|e(^da» 
was entirely under the direction of tl«e defendan|S| Of oqf^ of • 
tbem } and by artfol and corrupt practices between^ ^bf^tn^ad 
the deputy sheriff, tbe tatler, without the privity, pf^^jiffiflv 
sold to tbe defendant, or to* some other person 6>r tl^^jfse^ 
above forty mitiiary lots, ef great value, and wh|c{i -^a^ 
been levied on as the property of Platner^ for eie^n dolffors 
and twenty-eight cents. That the execotion W{^s^,re|pnied^|hg^ 
tbe deputy, in the name of the sheriff, and wiibootbig jipvi* 
ty ; and the return mentioned tbe lands and teperoen,t%||ai io 
rally, without desigmvting tbe tota. That tbe de^odj^^oi.^* 
then applied to the sheriff to execute a conveyance |bc»tke • 
lots, which the sheriff refused to do ; and die deiipf^^^lMi^ 
took a deed from the deputy shei^iff, which was fcaujjlje^catly 
ezeeuted by him* That the defendants, in furiher jproeppi* ' 
tion of their corrupt and fraudulent design, in. thepA%g(^i;i|ea- 
tion of the Supreme Court in 1S06, fraadolenily .^aiis^ fN|a^ 
ther test.JL fa. for the residue to be issoecL te tb^ s^iK^oC 
tbe coualy of Oio7u2aga. That the sheriff s<4d^ to, fb^, 4^ 
fendanis, or to some other person, for theiv use, aqd-efccif^ 
a deed for divers military lols, seiied z% \ki^g^Qffi/itfip£ 
Platneff for e^Aleen dollars and fifty-two aems,. and amVff 
which were the two lots above mentioned, bato0gi^gv.|Q.'{|ie 
platatifis. That the sale was frauduka^y GQod«fte4 by .the 
sheriff, who, in his return to the eteeutioo, speaks of \evy^ 
on lands generally, withoqt deiignaiing tbe.latl^ sold^ X|hfl$ 
the defendants, as assignees aforesaid, in fiwtbarpr^secuiioa 
of their corrapt and fraudulent desi^) in Fd^tfmtjf "^m^ 
tion of the SMpreme Court in iS07, fraodulemly i 


CASES m CHANCfittT. i&S 

tanoth^ (esL fi^ fh^ US the flh^iflf of the county tf ^enecdl iSsOi 

undtt- Which exectttion the sheriff *otd to the def^ndahb, «^ ^T*oei?^ 

to some other peMoft for (faetr ute, divers ndiHtkry loUt of ^v. 

IfteBt ^aloe, seiied ijto th^ property of Plainer^ for iitehit/^Jtti 

dtiHura and ibrty cents ; th^tthe sale was corruptly coiidtict^ 

ed by thf^ sheriff, who returiled a levy on the lands gener^Dy, 

Witfabttt designating the lots. That the defendanu, nikM 

covet of Iheii" frkadoflem de^, had taken poisession of the 

tfwo lota belonging to the ptaintlffi by procuring an attonw 

tritol ffOBd the person in possession. That th^ plaintiff was 

ignor&Dt of the daid judgment, or of any proceedings there* 

GH) until he was so frauduleritly dispossessed of the satc^ lots. 

The plaintiff prayed^ that the defendanU might be decreed 

to quiet bis title to the said lots, by executing to blcn a re^ 

tease of Iheli* pr^nded interest in tfae same ; and b^ de- 

ereedl 10 deliver up tfie possession thereof to the plaintifll 

Tfae plaintiff offered to pay tfae prilicipiil and inf^i^st ot 

what the dettmdant gave for the lots, and thk costs and 

charges of the exeootion and ^al^, if, in equity, the same 

could b^ demanded. 

The defendant, Samuel Sherwood^ in his linsWer, filed 
Decimber I2th, 1812, adAiitted, that be had se^n a deed OH 
record l>om H. Pltxtmr to the plaintiff, for the two Ibta 
above mendahed. That he believed that A. Badhmah 6b- 
tftined a judgment, as stated by the plaintiff. Thait he ttt^ 
ver knew or heard that the jodgmeot was satisfied, in whole 
or in pttrt, except so far as it was siitlsfied by executiona 
issued ubder it That while b^ acfed a^ agent of /. tt. Fan 
R^Msel&er^ Md sdperint^nded the sale in Detawari COiemtyy 
Uk 1808, Stephen Hogebornn^ who attended that sate, suggest^* 
ed that the judgment was satisfied, bat as bis lamh W^ 
sold under the execution, anfd he became a pdrcbaser, the 
defendant S. pMced no confidence in the suggestion. That 
Jhtfih R. Vmi Rtnstelaer always assured this defendant thait 
the same was a jast subsisting judgroenr, and in oo'wiie Sa- 
tisfied dr paid, except by the collectioas on the executions* 

Vol. ir. 30 




1820. That the defendant knew nothing, nor has he heard of the 
^^■^*^^*^^ bond or receipt said to be given by Abraham Backman to H* 
Plainer, nor does he believe any were ever given. The de* 
fendant admitted that H. P. was convicted, imprisoned, and 
pardoned, as charged ; that the judgment was revived b^ 
the executors of A. Backman, in 1799 or 1800, but he did 
not recollect whether he ever knew or heard of any other 
revival. He denied any knowledge or suspicion that the 
judgment was fraudulently revived* That a test. Ji^fa, is- 
sued upon the judgment to the sheriff of Ontario, but what 
lands were sold the defendant did not know. That he be* 
lieved the sum made upon such ttsU fi. fa* was 1^%L l^s^ 
(332 dollars 25 cenU.) That be always believed tb«it tbf 
execution issued, by direction of the plainti^ to col* 
lect a just and'subsisting debt* That he does not know 
whether the judgment was revived by the execntora of fli. 
before or after the execution to the sheriff of Ontario, though 
he always supposed it was before* That be never knew or 
heard of the refusal of the executor, G. Moncll, or. of the 
indemnity to him, That he had understood from J. R. V, A 
that the judgment was assigned by the executors of jB* to 
him, on the 4th of December, 1802, and that he then albw- 
ed on his accounts, and paid them, in cash, 275L I5s. lOi. 
(689 dollars and 48 cents,) being the balance then due qpon 
the judgment ; and that the transaction was fair, without any 
knowledge or just ground to suspect that the judgment was 
satisfied. That in October vacation, 1802, a test. ^^ fa. for 
the residue, was sent to the sheriff of Delaware, and the in^ 
dorsement on the execution was to levy 275/. 15^. lOd* with 
interest on 248/. lAs. 2d. That the defendant was consti- 
tuted by /• R. V. R. his agent, wiih written directions to at^ 
tend the sale, and without any interest therein* That the she- 
riff was directed to sell the right of jET. P. to lots No. 10. 20. 
and 40* in IVhitesborough patent, in Delhi, (except such 
parts thereof as were possessed by Levi Baxter, William 
Reside, Joseph Denio, and Oeorge Fisher^ who were then ac- 


tifal Mltlm thereon,) with' a view that the ezecutioD should 1820. 
be sarti^ed, by the sale of wild lands in the hands of those 
who liad purchased for speculation* That the settlers not 
being* apprized of this direction, or not assenting to it, agreed 
whh Stephen Hogeboom^ the owner of the wild land, that 
they and he were to pay their proportions of the execution, 
according to the number of acres each held, or of the 
amonnt of sales, if it did not satisfy the execution. That 
the safe was duly advertised, and held at the court house, on 
the 16th 0f April, 1803. That the sale was proceeding 
whenf the defendant entered the room, the property of Hoge-^ 
hooni being up. That the sheriff agreed to delay the sale a 
few mttiutes, and propositions were made to the defendant, 
(iheii the agent of /. R. V. £., and in no other manner in- 
t^ested;) for some terms, better than immediately paj^ing 
the execution, as some of them had not in hand the necessa- 
ry amount of money. That the defendant said, be had no 
authority to consent to any accommodation as it respected 
fiogtb60f]/i?s land, but was authoriied to accommodate the 
settlers. That the interval of the sheriff's delay lasted 
twenty minutes, during which time it was agreed between the 
delbbdant and the settiers, (excluding Hogeboom,) that in- 
stead of payhig up the execution and discharging the judg^ 
ment, they might become purchasers of it, and take an as- 
signment, so that if any property of if. P. could afterwards 
be discovered, tbey might be reimbursed. That the settiers 
then took the direction of the sale, and the sale of Hoge- 
booni^s land was continued, and was struck off to him, un- 
der the previous agreement between him and the settier^ for 
the amount supposed to be his proportion. That the settlers, 
understanding that a sale under this judgment would pro- 
tect their lands under younger judgments, chose to have 
their lots sold, and they were sold, and each owner became 
a purchaser. The lands of the four settiers named, amount* 
ed to 684 acres, and the land of Hogeboom was 856 acres, 
and the amount due on the execution, including slieriff's fees, 



1890. W^ Wi doUais and Q9 cwtB, Thai in pqfiUMee oC in* 
agmem^ vUh iti« oetilers, he, m agem, rtorifed of iha 
Mierif wi of Ike aetller^ «&5 dollars and B\ oaalB ia <asi|» 
Qr a note aqwl tlracelo. Tba( tie deiaUed ibe traiwciio^^ 
tf^J^R. F.ii,wA requested aa assignmem of ibe jadgmeat 
tp J^evi &M<«r, ffltr 1^ benefit ef the setOaia, Thai «fUN 
doUavt wd 4^1 oequ was libe amoimi eif Ibe execvtkim wif^» 
iqterest op |q the dajr of sale. TM the anMniat fq/t mimh 
4ie JMdg#f«l w^ X^ be astigped was 209 doUare and 7<> 
oeota. Tbal vl^ fi. V^ H. amgoed die JMdgoiea^ to. (jjc^a 
BaxHr, Ibe 9d of /««»«, IS03| to ccmideraiioftor 987 4t4i89i( 
and 77 eeots, wl^twbiebiiaie the defeoda^t had oa h it HMH 
in the baeioese, eiLcept as ageoi. Tfaiat die sheriff i uyij a nid 
deedi lo Ibe purchaser^ and he probably direwr. ihein« V Hbal 
the lands saaold wonldi aiiHal peried* if uBcqfiivafeedy'bayi' 
been worib dtom three to eight deUars an aore. Shat- 
the defendant sappo^ed the reaaen why the laada weiio oM 
bid Ugher waa» that no person present was dii^ieaid to nafce 
the seiders pay more than they were obliged to, or to re- 
duce die balance^ which by their parohase of tht Jadgaijbal 
they might obtain Stom the property of If. F. That ba^ 
tbiohi it probable the sheriff returned on the eReeutlon ibki' 
he had levied 402 dollars and 80 crats, as that was the ftanr 
made by htm on tbs sales, besides his fees. Thai soon afier 
the assignment of the judgment, the firar settlers darned 
caUed on the defendant to osahe arrangement He coHeet die 
balance due on the execution out of the property of jK R 
That it was agreed between diem and the defendant, thai he 
should become their agent, m collecting the balanee^ fer a 
reaaeaable compensation. That the defendant commmced 
an inquiry, and ascertained that J7. P. owned military tides^ 
and he suggested that it would he best for them to pnrchase 
in the title of if. P;, sup{y>sed to bepvecarious, and by riflk-> 
ing the tide of several lots, they might get some good ones. 
That ob|ectioi» were made, and it waa finally agfved be^ 
tween Au^er and the defendant, that they would haaaid 


t)i»t fkkt and ike other defendaots agracd to aceept what-* 1830. 

ever ira$ mudf oat of the tales upon the eieMtioa, accord^ 

ing to their .rtwupci. That this defendant then prapoeed to 

thedefenriat >F, thai if he woaM engage in the litk, and au 

tend la the aaka, anj pmehaaes ande under the same sboold 

accmato Ihaheneiitof Um and the defendant, and LeoiB., 

IB e^al shares. That the defendant W. agreed, and the 

4efend«iit thencansed a te9t.ji.fa. to be issaed to the sheriff 

of Cfa^mra, 00 die 20th of Ikcmber^ 1803^ and eent it to 

die defitedant W. That the defendant W. informed him that 

a salei «ras ed vettise d for the 6tb of Mwreht 1804. That 

diis defaaAint aMaded die sale. That he had no interest m 

the j wd gaiD nt in eontemplatioo, when the assignment war 

maila iti L. BaaBkr^ and that the assignment was made 

aoMy nith a lAetr to collect the bahace out of the property 

of H. R Thai the execation was not deKverad to adepatj 

of thtf aheiiff of CagugOf with a design to oonceal it from 

iba rihmC That the sale b Coyi^w wee in a tavern, in 

Sct|Ma» That a namber of persons were present, of whom 

the.detedaot named four. That several persons bid. Thai 

I Joi or. lots were strack off to Joekm Patnekf to .Aeiya* 

.3Wtor, and EUnar Bwnhams and all or the greeler 

parlvitf tba remmnder to the defendant fV. That the lots were 

set mpsaeparateliyf and tba persons present seemed to suppose 

P(a#ii«r'9. title spurious, aod were not willing to bid* That 

the lot stffack off tp Menezm- Bvmham wa9 intended for the 

dafemiaAt W^ thia defendant, and Lm A That a deed 

was^irajini by the defendant, and executed the next di^, by 

the deiMy, in the name of the sheriff* That twen^five 

lots, lyhm in tw^elf e different ipwns, (the namber of each 

lot, and tba. towns, bring aientiooed,} wene sold for ten dol* 

lars and aim cent. That aotbing was said, at the time of 

the Side, taocbMtg.the jadgmeat, or die amount due upon iu 

Thai he drew, Cog the dpp.ii^y, the return 00 the execntion.- 

That the:d^^dai»t, on^ bis return home, informed the proprie- 


1820. tors of (be aMignmeiit, of- what had been done, and offetei 
then to take bis share of the purchase, and tbey to allow hiin 
for bis trouble aiid expense, which they declined. That the 
defendant then bought out their respective shaMs, and al* 
lowed them the principal and interest of them respectively. 
That on the 21st of Ottoberj 1812, he bought in the sham 
of Lem Baxter J so that he is now sple owner of the balance 
due on the judgment. That a test fi. fa. for the retfdtte, 
was issued to the sheriff of Onondc^a^ and tbts defendsniti 
and the defendant W. attended the sale, on the ISthofOfc- 
tober^ 1806. A number of persons were present. The de- 
puty sheriff sold the right of If. P. to twenty-two Mts in 
deven towns, (all mentionedi) and they were purchased ibr 
the benefit of the defendant, and the defendant W.^ and Ijetfi 
Baxter. Each lot was sold separately, and no lot brooghi 
more than three or four dollars. Nothing was said, at the 
time of the sale, relative to the judgment, or theiundont due 
thereon. That the sale was fair and legal. That the de- 
fendant drew the return to the execution, and the deputy 
sheriff executed a deed. The two lots of the plaintiff were 
included in the sale or the deed. That in FAruar^ vaca- 
tion, 1807, a test fi. fa. for the residue, was issued to the 
sheriff of Seneta^ and a sale took place, and the defendant 
IF., and Levc Baxter^ were present, and a number of lot9 
(eleven) were sold for the benefit of themselves and this^e-' 
fendant, and alt the proceedings were (air and legal. That 
m October^ 1807, the defendant IF. took possession of the 
two loU of the plaintiff, under claim of title, and has exer- 
cised acts of ownership ever since. That the defendant 
does not claim title to the two lots of the plainiiffi under the 
deed of the sheriff aforesaid, or in pursuance of the sale, in 
May vacation, 1806. That he claims title to the said lots 
by virtue of a sale, by the sheriff of Ononiaga^ under the 
said judgment in May vacation, 1807, to the three asso- 
ciates, aqd by virtue of a release from the defendant W.' 




and Levi B.^ on the 30th of September ^ 1813, of all their 1620. 
t^iiftaqd tiiW. Tl^e defendant adoiitied be.receiiwd a.Iet- "^"^T^^^ 
ter froa Ibe plaiptifl; dated the 7th of December^ 1811, de- 
iDaodMg* a rpliease of Ms claim to the two lots of the plain^ 
tiff, md that the de&fulaDt did not answer the leUer. That 
if the plaintiff will bring an ejectment^ the defiendant will 
stipnlate not to introduce^ in his defence, any title whatso^ 
aver, derived, under the said judgment. That this sugges- 
tion is nott:made, because the defendant is apprehensive that 
a till^.deilived under the said judgment is not good ; but be- 
cause be is satisfied that the plaintiff never had any title to 
the vm\ lots ^ claims. 

Ttw '9ms9^ of the defendant Walter Wood, filed the 
30tb;Qf JVV^xtfm^er, 1812, stated that he did not believe that 
tbQ pli^ntiff .was ever seised of the two lots. He admitted 
his iMu^ase of H, P., as stated, and the judgment otMra* 
Juftn .J?. 06 9s^ that he knew nothing of aoy satisfinction 
of the judgpient, except by the executions and sales, and be- 
lieved it to have been a good and subsisting judgment. That 
he di<| nol l^elieve any such receipt existed, as stated in the 
bill ; and that he understood the executors of B, revived the 
ji^lgixiept. He did not belieye that it was fraudulently re- 
vived. That he knew nothing of the Ontario execution. 
Th8^.. be. believed the judgment was assigned to Jaco6 iJL; 
Van Rem^daer, for a fair and valuable consideration. That 
he knew ppthing. of the DeUmare execution. That in 
)§07^ the defendtot S. informed him of the judgment, and 
that ill was assigned to Lm £., and that there was a balance^ 
wbi^h the defendant 5., apd Levi B,j wished to collect, and 
proposed, if the defendant would engage in the risk of eventu- 
al^ obtaining title, that the purchases should be for the joiut 
benefit of the three, and he agreed to the proposal ; and a 
ietUjifa. iras issued to tlie sheriff of Cayyga. That he be- 
lieved the l>alance appearing was justly doe» and he delivered 
the execution to the deputy sheriff in Sdpio. That the ex- 
ec|itiou. contained an indorsement, to levy 292 dollars 70 


1830. oenlSi and interest. That there was on design of ieensjr fli 
ibe defeodant, and that be believed all was Mr. That he 
searched the clerk's office, and believed that aiaiiy <if d^ PkO^ 
ner lots were worth attemaoDy and might ^^ become benefioial 
to themselves." That his hopes have beeoi in a degree^ tea^ 
feed. That the sherilTs sak was on the 6th of Mttrth, ISM, 
and duly advertised, and the lots, (naming them,) were sold 
separately, and bid off for the benefit of the three asaflttioles. 
That a namber of persons attended, besides tlie two defiMd-^ 
ants« That no conversation was bad, as he reeoileetaK MidM^ 
sale, relative to the jodgment or the monies dae« Ttiat Ae 
deed was executed by the deputy, on the day i»f the 4«let 4d 
the dwee associates. That die sheriff {Utigku} i4ii«e- 
cute adeed to Betymmm Tweker, for lands parchaped atsutA 
ttXe. That an execution on the jodgment was issued io4h^ 
sheriff of Onondaga^ on which he was directed to levy 281 
dollars 42 cents, and interest ; and a sale was dal(y adver- 
tised, and took place on the 15th of OdiAer^ 1806. . That 
a number of persons were present. That the plahitiff 8»r^ 
and Levi 0. were also present That the eale was by the 
deputy sheriff, and a number of lots were sold, (naming theoH) 
separately. The deed was executed, on the same day, by die 
deputy, to the three associates. That a lot sold for aboveimir 
dollars. That the persons present were deierred from baying, 
from an opinion that Platner^s title was bad. lie recollect' 
ed no conversation, at the sale, relative to the Judgmenti Or 
the amount due. That he beUeved every thing wa&fairifluid 
legal. That the two lots of the plaintiff were not sold 
That a teat. fi. /a., for die residue, then issued to the slieriff 
of Seneeo, in February vacation, lS07,aod a sale was made 
on the 25th of Majfy 1807, and eleven lots, lying in five 
towns, (namiog them,) were sold, and bid off by the defend- 
ant, and Levi B., and a deed was given by the sheriff to the 
three associates. That several persons attended the sale, 
and bid. The price of all the lots was twenty-<eight dol^ 
lars. That soon after this last sale, Benjamin Twker in* 


rtiiAt the jQd^ent had been paid aod satilrfiied. 1890. 
T*at be did not believe in the suggestion. That in Ortd* "^-^p^"^^ 
h^j 1807/ he took possession of the two lots of the plaintil^ y. 

mT cbtHtniied in possession to the Sfkh of Sqfiember, 1812, _^'^''' 
and cmMised ovmersfaip, and then sold them to the defend- 
not S. and rwMVed an indemnity. The defendant admitted 
dteiiMHreMived a letter from the plaintiff, in Deeemier^ 181 1» 
i »|ttiituy •' release, and that he did not answer the letter. ^ 
B» AdiiMted that hegavo the agentof the plaimtf a menKH 
iMRkMtt, siathig; tmoBg odrar things, that on the 7tfa of 
'S^ptfM&erv 1807, ^ sheriff fst Onondaga sold to the three 
aadMiafes, the two lota of the plaintiff aforesaid. That 
m^ twO'l#tSf with others, were parchased at the ^riff*^ 
'siii&, ttoder the said jndgmeBt, o»tfae 7th of S^iember, 

^ ItepDeations ha^g been filed to these* answers, namerons 
tfitnesses were exandned, and much evidence given on both 
sides ; bnt the material parts of it benig noticed by the 
Chancellor, in his opinion, it is nntiecessary to detail it 

- '^bt dsuse tras argned by Henry and Van JSireni (br the •V<»9. lotftand 
phiitttHrr andby Van Vtchtm and E. WiOiam, for the de- **^ "^^^ 

^^ 'The cause stood over for consideration to this day. Jton.4iA|i80(^ 

'■'TPftE CHANcttiLOR. The prayer of the bill is, that Xhft 
pilatttiff tie quieted in his title to two military lots^ which the 
delbndants caosed to be sold under a dormant judgment, 
s^nst Htnry Plainer. The charge is, that the judgment 
was satisfied long before the fale, and that it was kept on' 
feot by fraud, and made subservient to a scheme of fraudu!* 
lent specnlation on the part of the defendants. 
Vol. IV. '31 


i8t0« The jadgmeot was entered up in 1787. The sale pf 

the two lots claimed by the plaintiff, was io 1807, and was 
the last and closing act of a series of transactions, in which 

real property, lying in five different counties, estimated 

at upwards of 134,000 dollars, at the time of the sales, and 
upwards of 409,000 dollars at the time of taking the testi* 
mony, was sold for less than 800 dollars, to satisfy a judg- 
ment originally for a debt of less than 1,000 dollars, and 
which had been avowedly reduced considerably below the 
original sum when the first execution issued. 

It is contended, on the part of the plaintiff, that there are 
several periods in the history of the case, at each of which 
the acts that occurred amounted to a saUsfacUon and di^ 
chaiige of the judgment, and that every subsequent step 
which was taken, was an act of premeditated fraud. 

1. It is said, that the judgment was satisfied by a settle- 
* ment between Bachman and Platnerf the original parties, in 
Jlugusi^ 1798. 
Tli6 judgment Henry Plainer was examined, being made a competent 
F. wu Mtisfi- witness by a release from the plaintiff. He says, that there 
tiemeot bo> had been various dealings between him and Bachman^ who 
liMla AugwU was a merchant, and a neighbour of bis, between the date 
of the judgment and 1797, when they came to a partial 
, setilement. That in Aiigustf 1798, they came to a final 
setdement, and there was a considerable balance due Plat'- 
ner. That Bachman then gave him a receipt in full, as 
well of the judgment as of all other accounts and demands. 
That as Bachman was then bail for Plainer, and wished 
some indemnity, it was agreed that the balance, being abore 
400 dollars, found due to Plainer^ should remain unsatisfied. 
Charles. Vincent^ son-in-law of Plainer^ another witness, who 
was present at the partial settlement in 1797, and kept seve- 
ral receipts in his possession belonging to Plainer ^ testifies^ 
that in August^ 1798, Plainer gave him the receipt in full 
above mentioned, and a few days thereafter be saw Bach" 
man and Plainer togelhcr, and the receipt in full of Ae 


Jadgment^ was admilted by Bochm^n. That at that tiiM 
Aicimafi saggested, that be still mighl want the jodgmem 
to cover bim as a security (br being bail for Plainer. 

These two witnesses thus prove, tbitt the judgment was 
satisfied, by the act and acknowledgment of the parties, in 
AiguMii 1798* They concur as to the circumstances .al« 
lending the partial settlement the year before, and fi*oni 
them it would appear, that though the balance on the judg* 
ment was 2£2 pounds, yet that Baeh1^an assumed or ac- 
knowledged several debts which would, when adjusted^ 
leave a considerable balance in favour of Plaimr, and the 
acijustment of these debts iu 1796, left the balance, already 
mentioned, in favour of Plainer. 

If this receipt in full had been produced, it woald have 
silenced this controversy, in the first instance, hut the non-" 
production of it is accounted for in the following manner : 

Plainer admiu that he gave his receipts, which were pro- 
duced at the partial settlement, to Vinceni to keep, but bo 
thinks the receipt in full was retained in his own possession^ 
and he does not account for the loss of it. But Vincent 
says. Plainer gave it to him to keep; and this is the more 
•probable account, as Vinceni bad been the depositary of the 
former receipts. He says, that Bachmon repeatedly urged n 
him tQ mrrender up that and the other receipts to him» as 
he wanted to use the judgment as bis indemnity for becom- 
ing bail for Plainer, It is to be observed, that Plainer waa 
aboui ibis period overwhelmed with misery and ruin, beii^g 
early in Jt^ne, 1799, convicted of for^ry, and sentenced U^ 
imprisonment in the state prison for life, where he continued^ 
until pardoned in 1806* This will very easily account for 
the dispersion of his papers ; and this calamity afforded 
facility and temptation to the plunder, of his estate. Fm* 
ceni says, that Bachman became so importunate, that in JtSie^ 
1T99, (being the very time of the conviction of Plainer^) 
be delivered the receipts to John Shafer, and requested bim 
to take and preserve copies^ which he did ; and in Sepiem^ 



1830. 6er, 1799, he surrendered up all the originals to Bathmani 
^^1^*^*^^ who died a few weeks afterwards. 

IT. Plainer and Vincent were both of them, at fke period of 

1799, men of bad credit. The former has, however, const* 
derably regained the forfirited esteem of his acquaintance ; 
and the intrinsic prob^bilitj and apparent candoar of their 
•tory, is corroborated by facts derived from other and an- 
qoestionable sowrces. 

Shafer confirms the fact of having the original recefpt* 
delivered to him by Vincent^ and one of them purported to 
be a veeetpl in ftill from ^achmmn to Plainer^ as well of the 
judgment as of all demands. He says, Ftncen^ wished him 
to keep the originals, but owing to the conviction of Plainer ^ 
he was afraid of difficulty, and refused, and only consented 
to keep copies, which he .took, and then returned the origi* 
nals to Vincent. He says, he had seen the handwriting of 
Bachman^ and he believed the receipts to be genuine. The 
copies he took were called out of his hands by Vincent in 
September^ 1799, about three months after they had been* 
taken ; and Vincent says, this was done at the soKcitation 
of fiacAmon, who required the possession of them. The 
character of Shafer is not impeached. Abraham Vincent, a 
brother of Charles Vincent^ ^and who lived with him in the 
spring of 1799, says, he saw in his possession a receipt, 
purporting to be given by Bachman to PkOntr, in fall of 
the judgment, and of all demands. That he was well ae> 
quainted with the handwriting of Bachmany and knew the 
signature to be his. Be read it, and recollected the contents 
of it distinctly. 

When the copies of the receipts were returned to Vinceni^ 
Shafer took a receipt in these words : ^< Received of Major 
John Shafer, a copy of sundry receipto of Mraham Bach' 
mm to Henry Plainer, Sept. liO, 1799*" This receipt is 
proved as an ohibit in the cause, and it gives peculiar fotce 
to the other testimony. 


Other proo( in corroboration of the sattft&ction of the 1820^ 
judgment, is derived from the testummy of Cb. J* Spencen 
He stMe^ that be jecovered a jodgmeot against Henrjf Plat^ 
ner, in Jlprili 1797, and believing ibis old judgment of 
Baehman was satisfied, or liept on foot by fraud, to protect 
Plainer from creditors, (for Buckman and Plainer were con-* 
nected by marriage, and intimate) lie appUed to £acftmaiiy 
and demanded as a matter of right, that he should release his 
lien under that judgment, lo the lands of Platner^io the va* 
Ine of 5,000 dollars, in Claveracky where Plainer and Bacbr 
man resided, ^hat Bachman gave the release wilbonl hesita- 
tion, and without consideratioa. The release is an exhibit, 
and is dated in October ^ 1797* He believed that Bachman^ 
by thai release, devested himself of all expectation of obtain-^ 
ing any satisfiiction under the judgment ; and that act of 
Bctckman confirmed him in the belief that the judgment was 
satisfied, or fraudulent 

Tlus fact is in eorroboradon of the testimony of Plainer 
an^ Vinctni, that the partial settlement in 1797, showed that 
Platner could not eventually be the debtor. 

It is proved by Hmry Avery^ that be found among the 
papers of JSac&man, after his death, several receipts given 
by him to Plainer^ and which are exhibits in the cause* 
How came Bachman by these receipts, unless, upon a final 
setdement, the parties considered tbeir dealings and demands 
as closed, or unless Bachman repossessed himself of all the 
vouchers be bad given, in tlie manner stated by Vincent ? 
Plaitner was, at tb«t Ume, deemed dead in law, and forever 
separated firom all the business or pecuniary concerns of this 
life. ' 

Jacob F. Miller was peesent at the partial settlement in 
1787, and be is said to have witnessed the receipt in full in 
1798. He was one of the executors of Bachman^ who re- 
vived the judgment, and gave it credit, as being vsdid and 
subsisting. He died in 1804, and we are deprived of any 
explanation which he might have given to the mystery of 


1620. diis transaction. Vincent admits, that after the death of 
Bachmarij he was induced, by an oSkr of some of the pro^ 
perty of Ptatner^ to agree with Miller not to disclose hia 
knowledge of the satisfaction of the jadgmeot; and hesays, 
that MMer showed him a bundle of papers of his testator, 
Bachmanj and that among them was a foil statement of the 
final settlement between Bachman and Plainer^ and upoo 
which there appeared to be a considerable balance due to 
Plainer. These papers he saw Miller destroy* 

There is another exhibit in the cause, which is an Uem of 
some influence on this point. Bachman^ on the 17th of 
August f 1798, gave a receipt to Plainer^ of a bond from 
Joseph Demo to Plainer ^ on which was a considerable ba* 
lancei which he promised, when collected, to pay in good9 
to two of the daughters of Plainer ; and Plainer says^ that 
on the final settlement, he deposited such a bond with Bach' 
man for the benefit of two of his daughters. 

Here, then, is the evidence in iavour of a satisfiiction of 
the judgment in Ai^mt^ 1798. We have four witoessea 
who all testify to the existence of a receipt in full of the 
judgment given by Bachman^ and one of them sadsfaotorilj 
accounts for its loss. In corroboration of the testimoay of 
these witnesses, we have another fact, which shows, that 
Bachman could not, as early as October^ 1797, have re- 
garded the judgment as a valid, subsisting debt. We find, 
also, that he was in possession, and died in possession, of 
other receipts, which he had before gi%'en to Plainer^ and 
at the time of the final settlement, in Jlugustt 1798, he takes 
a bond due to Plainer^ to collect, as agent of Plainer^ abd 
to appropriate the proceeds according to his direction. 
This mass of positive and circumstantial testimony satisfies 
me, that die judgment was setded and discharged in August^ 
1798 ; and if there was any understanding or arrangement 
between Bachman and Plainer^ that the judgment shoaI4 
remain as a security or means of indemnity to Bad^wua^Sat 
becoming bail to Plainerf such an arrangement was, in judg- 


neat of lav, null and void. It is a sound and settled rnlet 1S20. 

that tiie penalty 'of a bond cannot be made to cover any "^'^P'"^^^ 
other debt or demand than that specified in the condition. ^t. 
It would, as the Supreme Court observed, in Bergen v. 


Baenunj (2 Cainesj 256.) be ** against the* very form of The penalty 
the contract, and liable to great abuse. It would be a de- not be made 
ception on the world, for the condition, which is to discharge other debt i 
Ibe judgment, b on record. If, therefore, it was to reach thatmeatiooed 
other demands, it would be impossible to know what would tTon. 
satisfy the debt." There could not be a more dangerous, Nor can a 
and there is certainly not a more inadmissible pretension, ^^^"'^i^nai 
than that the parties to a judgment may keep it on foot, after f^^ ^d/b! 
the original debt has been paid, to meet and cover new and ^er^J^uS 
dbdnct engagements between them*. But the parties have ^llJ^ntsSlI 
never acted upon any such agreement, for the executors of gjj«*>»P*'^- 
Bachman have only claimed what they assumed to be the 
balance on the judgment. 

If the judgment was satisfied in 1798, it mast have been 
fraudulently revived by JlftSer, the responsible and acting 
executor of JBoc&tnan ; and whatever validity may be attach- 
ed to Ixmafide purchases by third persons, under executions 
issued upon the revival of the judgment, yet the owners of 
the judgment ought not to be permitted to derive any be- 
nefit from such sates, and every assignee of the judgment 
look it, and made purchases under it, at his peril. 

^ I( however, there was a balance due upon the judg- 
ment, at the time of the conviction of Plainer^ the judgment 
was not revived in 1800, either with the formalities required 
by law, or with the notice that justice and equity required. 

Plainer was convicted of a felony in Jitnc, 1799, and ^ j^^n^ ^jf^^ 
sentenced to imprisonment in the state prison, at hard labour, Jict!S3rfefo?y 
&r life. The act of the 29th of March, 1799, declared, f"^ »entenced 

' ' 'to impnson- 

that all such convicts for any felony thereafter to be com- Se"*JSte**^^ 
mitted, should be deemed to be civilly dead, to all intents "^viLT '^ 

And, there' 

, ^.., ^ , .... fo«*» '^"to ^ 

sewe Jma$ issued to snch convict in prison, and not to his legal representatives, or terre-te- 
lants, to revive ajiadsnMBt,aad two nimU retnmed thereon, csa have no iegml eflbct or opera- 


1S20. and purposes* The record of PUoner^i conviction is not 
produced, or cannot be found, and we do not knoW| tbere« 
fore, with absolute certainty, whether the foi^ery of which 
Plainer was convicted, was committed before or after tiie 
29th of March preceding. The presumption is as fair, that 
it was committed after as before that period; and every 
presumption, in a case so extraordinary as this, ought to be 
turned against the party who has so abused the process of 
the law. But I apprehend, that the act of JHarcA, 1799, was 
only declaratory of the existing law, and enacted for greater 
caution. Lord Coke says, (Co. lAtt. 130. a. 133. a.) that 
every person attainted of felony, or who is banished for 
life, or having committed felony, abjures the realm, is exirm 
legem pontus^ and is accounted in law, eivilUer vunimu. 
ChrUUan^ in his notes to 1 BL Com. 133. says, that if a 
person be convicted of treason or felony, and saving his 
life, is banished forever, this is a civil death ; and so it is, 
also, if he receives sentence of death, and afterwards leaves 
the kingdom for life, upon a conditional pardon. When the 
new criminal code was enacted in Murch^ 1796, changing 
the punishment of forgery from death into imprisonment 
for life, the legal consequences of the conviction, as to disa* 
bility, must have remained the same. The party was inca- 
pacitated, forever, from discharging any of the civil relations, 
equally as if transported, or banished for Ufe, or outlawed, 
or as if he had abjured the realm, or become a monk pro- 
fessed.(a} He was equally within the reason of the rule, 
declaring a party convicted of felony civilly dead. And 
we perceive, that the Legislature, in 1796, when they 
changed the punishment from death to imprisonment for 
life, seemed to be aware tliat the other common law conse- 
quences of the conviction would still follow, for they de- 
clared, by express provision, that no such conviction should 
work a forfeiture of property, real or personal. 

(a) Vide Maittr of Deming, 10 /ohm. Rep. S82 : and LoJUn r. Fowltr, 
19 Johm. Rep.9S6. 


If this conclasioQ be correct, the scire facias which was 
directed to Platner^ and to him only, ought to have been 
awarded to his representatives and to the terre-tenants. Two 
nihih returned upon a scire facias j awarded against a partj 
then tinder the execution of a sentence of imprisonment 
in the state prison for life, was a useless act, and of no force 
in law. Ajid it aflbrds a very unfavourable specimen of 
the spirit with which the jadgment was revived by the re- 
presentatives of BachmaUy (one of whom, if the testimony 
is to be believed, was a witness to the final discharge of the 
judgment in 1798,) that no effort was made to give personal 
hotke pf the proceeding, to any one representative of Plat^ 
ner^ or to any terre-tenant or purchaser holding under him 
the property sought to be charged. It wears very much 
the complexion of a fraud. 

3, But, admitting the judgment was not satisfied before 
the death of Bachman, and was duly revived^ it is next 
contended, that it was satisfied by the sales made in Onia^ 
no, ond?r an execution issued at the instance of the execu* 
tors pf Bachman, and in Delaware^ under ao execution 
issued at the instance of J. R. Van Renssdaer, the assignee 
of the judgment. 

Recording to a statement of the book account, and the 
balance due on the judgment, made out to the 17th of 
JSprU, 1798, and which was taken from the papers of the 
estate of Bachman^ the balance due to Bachman, at that 
t^me, on the judgment and book account, and other de- 
mands taken together, amounted to 252/. 3^. lOd. This 
^as the statement and balance shown to Jacob R. Van 
Tlenssdaery the first assignee of the judgment by Miller^ the 
executor, as coming from the estate of Bachman ; and 
E. GUbertj the attorney of Bachman^s executors, in re- 
spect to the revival of the judgment, states, in a letter to 
Van Rensselaer, (and which is an exhibit in the cause,) 
chat Jlfi//er, the executor of Bachman, presented to him 

Vol. IV. 3? 


1620. tbat suin» as bring the balance claiioed upoB the jiklg'* 
ment, in Aprils 1798* If we take tbat suin as the basis 
of calculation, (and the defendanU do not pretend to 
any greater sum as being due at tbat period,) there was, 
after allowing interest on tbat balance, and after cre- 
diting the sum of 332 dollars 25 cents, raised by the sales 
in Ontario county, due to the estate of Bachman^ on the 
16th of April, 1603, (the day of the Delaware sales,) the 
sum of 464 dollars, and no more. The costs of entering up 
the judgment, in 1787, ought, probably, to be considered as 
having been included in the accounts and settlements be* 
tween the parties ; and that the 2521. 2e. iOd. was the whole 
demand that existed, at that lime, against Plainer. The 
judgment had been. entered up eleven years before, and by 
an attorney, Richard St//, who, as it is uotorious, had been 
dead some years prior to the time that the balance was as^ 
certained, in 1.798. It is, probable the costs of entering up 
tbat judgment had been paid by one of the parties to the at- 
torney, and were included in the charge of book account. 
The balance, in 1798, was made up not only of the judg* 
ment debt, as one of the items, but of other debts and de- 
mands, and particularly of a large book debt on each side. 
After such a settlement of various accounts and demands, 
and including the judgment debt, it is not to be presumed 
that the costs of the dormant judgment were omitted, and 
the representatives of Baehman, who exhibited the balance 
upon that settlement, as the amount of their demand, ought 
to be precluded from claiming any sum beyond it. The 
presumption is, (and they ought to be concluded by it until 
it is destroyed by direct proof to the contrary.) that the 
costs of the judgment had been previously settled between 
the parties. Nor were any costs legally chargeable to tbe 
estate of P/o^ner, upon the revival of the judgment by scire 
facias, for the judgment under that process, passed by de- 
fault, without plea, and no costs were taxed or inserted in 
the scire facias record. 


We may then safely conclode, that at the time of the D$>- 1826. 
imvare tales, there coald not bave been more than 464 dol« 
lars doe oo the judgment. If we credit the 402 dollars 
81 cents, being the acknowledged amoant of sales in 
Detawarej there remained only a balance of 61 dollars 19 
ceirts, unsatisfied, ti^Am Ae drfendants became interested in 
Aejudgmmif and sent executions, for the purpose of specn* 
laiioni into several of the western counties of this state I 
£ven, if we were to add to the balance so remaining unsatis- 
fied, the costs of entering up the judgment, it would be only 
an addition to that balance of 17 dollars S4 cents. 

Van Rensselaer parcliased the judgment of Miller^ one 
of the eiecntors oi Baekman on the 4th of i>ecem6er, 1802, 
for 2062. as. i\d. and he states that MUer claimed that sum, 
as being the balance due on the judgment, on the 14th of 
JVevemfrer, 1801. Upon what data such an estimate conld 
have been made, does not appear ; and we know that it 
conld not have been correct, for the balance admitted by 
MiUer to be due in ^prilj 1798, with interest, and after de- 
ducting the Ontario sales, fell far short of that sum. Van 
Rensselaer^ who had now become proprietor of the judgment, 
had already issued his execution to the sheriff of Ddaunire^ 
by whom it was received on the 13th of JVbvemAer, 1802, 
and he added to the 206/. ds. i\d, his own private demands 
against Plainer ^ and thereby made the sum for which execu- 
tion issued to be 275/. 15f . lOrf. This addition to the execu- 
tion was utterly unwarrantable; and to show in bow loose and 
careless a manner the property of Plainer was pursued, it is 
worthy of notice, that the test. JL fa. issued in 1800, to the 
sheriff of Ontario^ (as appears from the exhibit of the writ 
and its indorsements,) contained a direction, not only in the 
body of it, but by indorsement in the name of the attorney, 
to collect 772{. 8t. 2d. (the penalty of the bond,) besides 
costs and sheriff's fees. We have no evidence that the 
judgment had ever been even revived v^ hen this execution. 
issued in the name of £. QHberi^ as attorney* 


1820. But, if the 402 dollars 81 cents, raised upon the Delamxre 

sales, did not entirely extinguish the judgnouent, th^re wert 
circumstances attending those sales which must be adipitted 
to have produced that eflfect. 

The defendant S. says that he attended the De/au^are saki, 
as agent for Van Remsdaer^ the assignee of the jiidgmeat, 
and that the sales were at the court house on the 16th of 
Aprils 1803. That when the sheriff was commencing the 
sales, he entered, on behalf of Van Rensselaer^ into an agree- 
ment with certain persons, who were settled upon lots ad* 
vertised and set up for sale, by which, instead of paying 
up the execution, they might become purchasers of it, and 
take an assignment of the judgment, and, under it, pursue 
other property of Plainer, that might afterwards be disco- 
vered. That the claimant of one tract of land was not in- 
cluded in this agreement, and he accordingly bid off that 
land for a sum which was, by a previous agreement between 
bim and the settlers, deemed to be his proportion of the 
burden of the execution. The other persons bid only nominal 
sums, and took the direction of the sale, and received a title 
from the sheriff under the judgment. The real sum bid by 
one of those persons, and the nominal sums bid by the 
others, produced the sum already mentioned of 402 dollars 
81 cents ; this sum was produced upon a sale of lands 
proved to have been worih, at that time, upwards of 16^000 
dollars, and, at the time the testimony was taken» op|rards 
of 43,000 dollars. This arrangement Ipft a balance remain- 
ing due upon the execution, according to the sum for which 
it was issued, of 292 dollars 70 cents, and that sum was to 
be considered as the price which the settlers were to pay for 
the purchase and assignment of the judgment. This agree- 
ment was ratified and carried into effect by Van Renssdaer^ 
and in June following, the judgment was assigned to Levi 
Baxter, one of the parties to the agreement, for and oa 
behalf of himself and the associates. 


Erash$s Root^ a witnesft present at the sale, ftaya^ that tbe 18S0« 
deTendaot S. dissaaded byBtanders from bidding, aiid pro* 
posed tint the persons interested in the lots should not bid 
to the amoant of their relative proportions of the judgment, 
but that they should leave a balatu:e due on the execution, to 
be sent into the western part of the state to be satisfied, and 
by which the parties were to be indemnified. Th^t a certain 
sum had been agreed to be left as a balance to remain due 
OQ the execution, to be sent to the westward, and the means 
used to prevent others bidding at the sale, arose from 
the arrangement made between the defendant S. and the 

There is no essential difiarence between the answer of the 
defendant, and the testimony of the witness, in respect to 
the arrangement of the sale, except that tlie latter describes 
the intention of it, and the baneful effects of it, in more clear 
and explicit terms. The defendant says, be acted throughout 
the sale, as the agent of Van Rensnlaer^ and had then no 
interest in the judgment or sale ; and it was not until the 
settlers had received an assignment of the judgment, that be 
entered into an arrangement with them to share the risk and 
profits of a speculating excursion with an e^iecution into the 
western countries. He says, the settlers first applied to him 
to be their agent, to collect the balance, for a reasonable re- 
ward ; and that having ascertained that Plainer owned mi- 
litary titles, it was finally agreed that he should come in as 
a copartner in the concern, and sliare in the risk of acquiring 
some good titles to military lots. It was then that the de- 
fendant S. applied to the defendant fT., who resided in Ca- 
yuga county, and made a proposition to him, that if be would 
engage in the risk, and- attend to the sales, purchases made 
under the same should enure to his benefit in equal propor- 
tion with the others ; and to this proposition, the defendant 
Wi says, he assented. 

According to the testimony of Rooty the defendant S. must 
bave had an eye to the speculation, at the time of the sale, 


1830. fof if lie *had remained only a disinterested agent of the 
owner of the execation, he woold not have taken any part 
or interest in the arranprement between the settlers, but would 
have left them to satisfy the execation oat of the immense 
property then under its power, by lome equitable apportion-^ 
roent of it among themselves. 

An ame- The question ROW occurs, is the owner of an execation to 

inctit by the \ , . . . . ^ . i 

owner of an be permitted to enter into an agreement by which a rair sale 

execution.with .... ",, 

ccrt&in per undcr the usual competition is to be suppressed, and property, 
Tenuhe^ usual to morc than thirty times the amoant of the execation, sold 
aXInfinsTate, for a nominal sum, in order to leave a balance to feed the 
b'live^a smaU cxecution, and enable it to swecp away property to an unmea- 
czermion! for sarable extent, in other counties ? Such an agreement is 
teUing^^oUier agaiiist the policy of the law, dangerous to the rights of 
SS*to^^° * P^'operty, and fraudulent in its design. The creditor who 
I'ndlhlT'xJco. suffers an execution, which the law lent him (or his security, 
Jir°iaw*^to^' *o be perverted to such a purpose, ought to be deprived of 
havrn^ hee'II ^^Y farther use of it. It is satisfied and cancelled by the 
thS^eiSIfuilon" ^^"^^ ^^ ^uch an act. This must be the necessary conclu- 
JSSe to"f for "®" o** la^- I^ would be a violation of all principle, and 
SiTn'the dX" * reproach to the administration of justice, to consider a 
OTDsequcmViTf *"**" balance preserved under such circumstances, and for 
kn? ^7^nl' *"^*^ ^^^^' ^^ ^ subsisting debt. As was truly observed, ia 
ment. sofd for the casc o( Joncs v. CaswelL (3 Johni. Cos. 29.) « the law 
prices. has regulated sales on execution with a jealous care, and 

provided a course of proceeding likely to promote a fair 
competition. A combination to prevent such competition, 
IS contrary to morality and sound policy. It operates as a 
fraud upon the debtor, and his remaining creditors, by de* 
priving the former of the opportunity of obtaining a full 
equivalent for the property which is devoted to the payment 
of his debts, and opens a door for oppressive speculation." 
By the interference and act of the owner of the execution, 
and by a combination between him and third persons, the 
property of Plainer chargeable with the execution, is sold 
for nominal prices, and for the very purpose pf pursuing and 


sacrificing other properly. This conduct oogbl to be deern^ 1830. 
ed and adjudged a satisfaction of the execution. The sheriff 
adzed sufficient, property, and if it bad been wasted or 
fraudulently sacrificed by the sheriff, the plaintiff would 

liave had his remedy against hiai« When sufficient goods where the 

. , , . , , - , •herlff seiiet 

are seized by execution, the party can have no further re- tufBcieot pro- 
medy against the defendant, who is discharged by an ade- S^tor ^ooder 
qnate seizure* He must look to the sheriff. This is the !he deb^^ 
jost principle of law, which will not subject the defendant's ri^^hfj^dr- 
property to satisfy the execution a second time. {Clerk v* ^"n^l" man 
Withers^ I Salk. 322. 2 Ld. Raym. 1072.) Here it was feh^S^ 
not the sheriff, but it was the plaintiff himself, by his agent, '^^' 
who agreed that the property on which the execution was 
levied, should be sold for a nominal sum. Can it be possible 
that the plaintiff, or those who come in under him with know- 
ledge of all these circumstances, shall be permitted to travel 
into other counties, and to hunt up other property with the 
execution ? It is rarely that we meet with a more flagrant 
attempt at speculation under the forms of law. It was the 
pursuit of the property of a helpless and imprisoned convict, 
who had left his family in shame and misery. The plunder 
of the shipwrecked property of such a victim, was a hard 
and unconscientious act, which can never receive any coun-* 
teoance from this court. 

The execution was, accordingly, satisfied and discharged, 
by the sales in Delaware* 

4. But assuming that there did remain a balance, after saiet bj^ tbe 
•these Delaware sales, from sixty to eighty dollars, legally |^, ^nnder 
due on the judgment, we are then to examine the conduct of freudaientuKi 
the defendants at the Cayuga sales. They had now become ^"^ 
the principal owners of the residuum of the debt, small in- 
deed in amount, but mighty in mischief; aud the Cayuga 
sales were under tlieir special and immadiate direction. 

The defendant S. says, that an execution to the sheriff of 
Cayuga was sent by him to the defendant W.^ in December^ 
1803, and the property of Plainer advertised for sale on the 


l62Xk 5th o( March, 1804. The sale was held at a tavera in the 
town of Scipie^ and the defendant S. attended in person from 
the county of Delaware, a distance, as traveUed, of opwiirds 
of 100 miles. As he had already engaged the defendant W., 
who resided on the spot, to attend the sales, such a joamey, 
at sach a season of the year, and when the sum remaining 
due, according to his own calculation, was only 110 doUars, 
is pretty good evidence that the real object of the sale was 
not the debt, but speculation. It is evidence, also, of the 
ardour and vigour with which that olgect was pursued. 

At that sale, according to the answer of &, some few per- 
sons (of whom he mentions four) attended, but the persons 
present seemed to snppose Platn^tr^s tide spurious, and were 
unwilling to bid. He says, that nothing was said, at the time 
of the sale, touching the judgment, or the amount due upon 
it ; and twenty-five military lots, lying in twelve different 
towns, were separately sold, for the aggregate sam of ten 
dollars and one cent ! On the day following, the deputy 
sheriiTwho attended, executed a deed to the defendant fT., 
who purchased for the benefit of the defendants, and the four 
setders in Delaware who were interested in the assignxtient 
of the judgment. After this sale, the defendant S. purchased 
in their respective interests in the execution, and the defend- 
ants and Levi Baxter remained the sole proprietors of the 
lands purchased. These twenty-five lots were worth in 
cash, at the time of the sale, under a good title, (and we 
have no evidence that Platner'^s title was not good,) 28,95(^ 
doUars, and on credit, 57,900 dollars ^ and in 1818, on cre- 
dit, 173,700 doUars. The defendant W., in his answer, 
gives tlie same account of the sale, and says that he had, 
previous to the sale,, searched the clerk^s office, and believed 
that many of the Platner lots ^^ might become an object 
worthy of attention.^ He says further, that afler making 
the said purchases, he had been enabled, ** agreeably to his 
original expectation, to have several of the lots settled, and 
the titles adjusted and quieted." 


Benjandn Tucker appears to be a witness of very fair and 1830. 
imimpeachable credit, and be attended the Cai/vga sales, 
aod gives a more detailed account of the transactions that 
took place. He says, the place of sale was much more re- 
tired and secluded than other places in the same town, and 
that he attended to redeem a lot, and part of another lot, 
which were held under Plainer, and were considered 
to be bound by the judgment* That he purchased in thai 
lot, and the half of another, amounting, in the whole, to 
900 acres, for a nominal sum, and that the defendant W. 
porcbased all the other lots that were sold, and gave not 
more than a dollar, for each lot of 600 acres. That the de« 
feodants were not disposed to come to any terms of accom- 
modation with biffi, in respect to his land ; and afier three or 
fiKir lots bad been sold, he declared, in the bearing of the 
defendants, that in order to save his lot, be would bid to the 
amount of the execution, on the next lot that was set up $ 
that the sale was then stopped, at the instance of the defend- 
ants, and the witness was called aside by one of them, and 
told that tbey would not bid on his bt, if he would engage 
Bot to bid on any other lot ; that he agreed to this proposi- 
tion, and afier some other lots were sold, the lots of the wit- 
ness were set up, and he bid bis land off, without opposition^ 
for a sum less than two dollars, and took the sheriff's deed. 

These facts are conclusive upon the case of the Cayuga 
sales, and show that they were a mere mockery of jus- 
tice, and perverted to the total sacrifice of the rights of Plat^ 
ner. Comment upon them becomes useless. We cannot 
hesitate, for a moment, in pronouncing the whole proceeding 
an act of fraud. Here, also, if not before, the execution is 
to be deemed satisfied and discharged by the act of the 

5. The defendants, however^ giving credit on the eiecu" 
tion for the sum of 1 1 ddlars 28 cents, according to the 
sheriff's retorn, proceed next to the county of Ovumdaga. 


1820. It seems their ioteroperate avidity for specalation was not 
capable of being satiated with success, nor cooled by time* 
▼.""^ The Onondaga saks were not made until the 15th of Octo^ 



btTy 1806. The balance then doe had increased by the ad- 
Sales by the dition of interest, (according to an estimate on the part of 
i^'^^l the defendants,) to 117 doUars 6 cents. The defendant, S., 
^nduittumci ^^yh that he was present at the sales, and that twenty-two 
* lots, lying dispersed in eleven towns, were sold by a deputy 

sheriff, and purchased in by the defendant W. That no- 
thing was said, at the time of the sale, relative to the judg- 
ment, or the amount due thereon. The purchase money for 
these twenty-two lots, was 18 dollars 52 cents ; yet it is 
in proof that the cash value of those lots, at the time of the 
sale, was 19,800 dollars, and on a credit, 31,600 dollars; 
and when the testimony was taken, 94,800 dollars, at a cre- 
dit. The defendant fV. gives the same account of these 
Onondaga sales, and says, that the deed was executed by 
the deputy, on the day of ttie sale, to the three associates, 
being the defendants and Baxter, and that the people were 
deterred from bidding, under an opinion that the Plainer 
title was bad. 

This is all the information touching these last sales, and 
the facts admitted speak for themselves. 
^lei W the 6. The next epocha in the history of this case, is the sale 
^ro^ndlrttfe Ml Scncca county, on the 25ih of May, 1807. The de- 
fraudiiientaiid fendant S. says, his two associates attended, and a number 
^^**- of lots were sold for the benefit of the concern. The defend- 

ant JV, says, that 1 1 lots were sold for the benefit of the con- 
cern. The defendant W. says, that 11 lots, lying in five 
towns, were sold under the same judgment, and upon an 
execution issued for the remaining balauce, and bid off by 
him and Baxter, for 28 dollars. According to an estimate, 
made by a wHness, Humphrey Howlnnd, those 11 lots were 
worth, in cash, at the time of the sale, 14,750 dollars, and 
an;a credit, 29,500 9 and on a sale on credit, at the time 
4ie gave his testimony, 78,500 dollars. 


Bat the cupidity of the defendants was still iusatiable, 1830. 
and the two lots of the plaintiff, lying in the then county of 
Onondaga^ were afterwards seized and sold. The defendant 
S. says, that he claims a title to those two lots by virtue of 
i sale by the sheriff of Onondaga^ under tlie judgment, 
in the summer of 1807.. The defendant W. is more precise 
as to the time, and says, that the sale was on the 7th of Sqf- 
tember, 1807, and that the two lots, claimed by the plaintiff, 
were, tvith others, purchased by the three associates, at suck 
sale, under the aforesaid judgment of Bachman. He says, 
that in October following, he took possession of the two 
lots, as owner ; and afterwards, on the 30th of S^tember^ 
1812, sold them to the defendant S. On the same day, ac- 
cording to the answer of the defendant S., Baxter, also, re* 
leased his right to these two lou, so that the defendant S. 
is now the sole owner under the judgment title. He shows 
no other title, nor does he pretend to any other, and de« 
clares that he entertains no apprehension that the title de- 
rived under the said judgment is not good. 

It may here be observed, that the plaintiff shows a title to 
those two lots, derived from a purchase from Platner^ in 
May, 1792. 

The conclusion, from this review of the case, is, that the 
sale of the plaintiff's lots, in 1807, was fraudulent and void^ 
There are several acts in the progress of the proceedings 
under the judgment, between 1798 and 1807, from each of 
which the like conclusion might be drawn. 

The counsel for the defendants were so pressed upon the 
argument, with the weight of the proof, that they offered, in 
behalf of the defendant 5., to release all claim and title to 
the lots of the plaintiff, under the sale in 1807, but objected 
to a surrender of th^ possession, or to make a more general 
release. But the defendants do nqt set up, or produce, any 
title, or semblance of title, other than that derived under 
the judgment, and as the plaintiff received a deed of the 
lots froqi Platner^ ia 1702^ for a valuable consideration, thi? 


1820. necessary iotefidiiient of law, in the abssiice c( all proof to 

^•^"^"'"'^ the contrary, is, that the title of the plaintiff is a good and 

V. valid title. The defendants have precloded themselves froiA 


questioning the original title of Plainer, for they set up no 
title bbt ttnder him, and they certainly ought not to be peiv 
mitted to derive any advantage whatever from their fraud, 
oir to retain a possession so unjustly acquired. They are 
bound in equity to quiet the plaintiff'^ title, by every act in 
their power, as some compensation for the injory they have 
done him. They ought, tlierefore, to release all claim and 
pretension to the lots, and to account for the rents and pro* 
fits, and for ail intermediate waste. The defendants ought 
to be equally charged under the decree, for the acts of fraud 
were joint acts ; and though the one defendant has conveyed 
his right in the iQts to tiie other, yet this was an act done 
pendente lite, and more than two months subsequent to the 
filing of the bill. 

I might, perhaps, have rested the cause upon some one of 
the selected points, without examining the others, yet I have 
deemed it fit and proper, for the sake of example, to review 
every part of the history of the case which has been laid 
before me. It is not, however, without pain and regret, 
that I have felt myself under the necessity of using strong 
languiige of reproof and censure upon so many of the cir- 
cumstances that occurred. Such a case can never be per- 
mitted to pass without animadversion, and I hope that this, 
and many other instances of like abuses, which I have to 
deal with, may, by the correction they receive, teach a les- 
son of wisdom and accuracy, moderation and justice, on 
future occasions. ' 

Jkere^. The following decree was entered : " It appearing to 
the Court, that th6 judgment in favour of Abraham 
JBachmnn against Henry Platnerj mentioned in the plead- 
ings and proofs in this cause, wnn satisfied by a settlement 
made by and between the parties to it, in the year 1798 ; 




And k further appearing, tiiat the said judgMAt, on Iha 1820. 
MrppOBiiioD that it was not bo discharged, was not d«ly te^ ^^^SC^ 
▼ived by scire f&ciat^ after Henry Plainer had been convict^ v. 

ed of felony, and sentenoed to imprisonment in the state 
prison for life : And it Airthcr appearing, that the balance 
assamed to have been remainkig and due upon the said 
judgmenC in 1800, was satisfied^ upon the execution of the 
writ of tesiiiium fieri facias, also mentioned in the pleadings 
and proofs, to have been issued thereon to the sheriff of the 
county o( Delaumre: And it fuither appearing, that the 
subsequent execution issued upon the said judgment, lo the 
sheriff of the county of Cayuga, also mentioned in the 
pleadbgs and proofs, was fraudulently issutd and executed^ 
and that the sales under it were fraudulently made by the 
act and procurement of the defendants : And 4t further ap- 
pearing, that the subseqaent executions issued upon the said 
judgment to the sheriffs, respectively, of the counties of 
Onondaga and Seneca, also mentioned in the pleadings and 
prooft, were fraudulently issued and executed : It is there- 
upon ordered, a^'udged, and decreed, that the title ac- 
quired by the defendants and Levi Baxter, and afterwards 
vested in the defendant Samuel Sherwood, by sale, under 
the writ of testatum fieri fxuias, issued iipon the said judg- 
ment to the sheriff of the county of Onondaga, to lot No. 
33, in the town of Lysander, and lot No. 76, in the town of 
Solon, then in the same county, be, and the same is hereby 
declared to be fraudulent and void ; And it is further or^ 
dered, kc, that the defendants, respectively, within thirty 
days after notice of this decree, under the direction of one 
of the Masters of this Court, by good and sufficient deeds 
of conveyance, containing apt covenants against their own 
su:ts and deeds, release and convey to the plaintifi^ his heirs 
and assigns, forever, all their respective right and tide, claim 
and demand, to the said lots of land, with the hereditaments 
and appurtenances to the same belonging ; and that they, 
also, within the same time, deliver to the plaintiff, the full, 


peaceable, and actual possessioo of the said lots. And it 
18 farther ordered^ be. that the defendants pay to the plain* 
tiff his costs of this suit, to be taxed, and that thejr re- 
spectively account to and with the pldntiff, for the rents, 
issues, and profits of the said lots, and for the damages 
arising from any and all manner of waste committed there- 
on since the defendants, or either of them, or persons hold- 
ing under them, or either of them, obtained the possession 
of the said lots ; and that a reference be made to one of the 
Masters of this Court to ascertun and report the amount 
Aereof, and that when such report shall have been made 
and confirmed, the plaintiff may have execution for the 
amount thereof, together with his costs^ according to the 
course and practice of the Court." 

LuFTON and others against Cornsll and others. 

H* purchased a lot of laod of J. ;S^., and took f conreyance from hkOf 
and executed a morCg^e ioJ. secure a part of the parchase- 
money. The mortgage was duly recorded io the ooaoty of Onon- 
daga, where the lot was situated, bat IT. neglected to have his deed 
recorded, pursuant to the statute. The defendants, who had pur- 
chased the claim of a person tn possession of the lot, without title, 
afterwards procured a release and quit-claim from J. 5., for the con- 
sideration of ten dollars, though the lot was worth six thousand del- 
Ian, and had it duly recorded, before the deed to H. was put on r»- 
cord : Heldy that the record of the mortgage from H. to J. S. was 
sufficient evidence that «/. S, had not any title to the let ; and that 
the subsequent release and quit-clatoi of J. S. was fraudulent ; and 
the defendants were decreed to execute a release to H. of such their 
pretended claim, so as to qtdet the title of H. 

JVov. S2d, THE bill, filed ^pril 9th, 1817, stated, that the plainti^ 
^^^f°^ Abraham Herrings being indebted to the plaintiff, IV. Ltip- 


torij as trustee of Margaret Andtrson, an infant^ on the Ist 1820. 
of June, 1807^ mortgaged to L., to secure the bond of H. for 
1,000 dollars, lot No. 6. in CamiUtis, in Orumdaga coanty, 
containing 600 acres* That the mortgage was duly record-* 
ed on tbe 29th of J%dy, 1807 ; and that the principal and 
interest , amounting to 1,682 dollars and BO cents, remained 
doe an«l unpaid, on the 1st of March, 1817. H.^ on the 8th 
q( March, 1813, executed another mortgage of the same lot 
to the plaintiff, S. Jone^, jun«, to secure him against the en* 
dorsement of the note of i£, and which Jones was, after- 
wards, obliged to pay, for 2,500 dollars. That this morC* 
gage was duly recorded on th^ 13th of May, 1813. That 
N, Denise, who had, by sundry mesne conveyances from the 
original patentee, and which were stated in the bill, become 
owner of the lot, sold and conveyed the same to £f., on the 
23d of Jfovember, 1796, and H. sold and conveyed it, on the 
19th of Aprily 1797, to James Stewart, for 1,495 pounds. 
That /• S.f on tbe 1st of July, 1805, sold and conveyed the 
same lot to H for 3,000 dollars ; and on the 2d of July, 
1805, H. mortgaged the lot to J. S. to secure the payment 
of 2,000 dollars, which mortgage was duly registered in 
Ifovember, 1805, in Onondaga county ; and was afterwards 
paid off by JET., and the registry thereof cancelled on the 9th 
•f March, 1812. That all the deeds for the said lot, except 
the release of the 1st of July, 1805, from /. S. to A, were 
duly recorded, and that deed was omitted, by accident, to be 
recorded, until the 1 2th of May, 1815, having been duly ac- 
knowledged by J. S., on the 22d of July, 1805. 

The bill charged, that the defendants, Paul Cornell, Wal- 
ter Wood, and Giles Howland, with notice of the facts above 
stated, and having good reason to believe that /. S had con- 
veyed to Herring} but discovering that the deed had not been 
recorded, they, or one of them, on the 9th of A7;? nnbcr, 1813, 
under false and fraudulent pretence^?, and with the fraudulent 
design to defeat the mortgages above mentioned, procured 


1820, J. S^toit 109 doUurs, (the lot then being worth 6,0Q0 dollan^) 
IQ execute ft release and qait-claim of sJl hk right and title 
to ibe loft to the defeodant C, which the de&ndattU catued 
to be recorded in Onondaga county, on the 6th of Decern* 
6er, 181S. That the plaintiffs are desirous that the loft 
•bottld be sold to satisfy the mortgage ; and that the defend- 
ants tvfiise to give up the quit--claini deed from J. S. kc* 
Pratftr, that the defendant be decreed to deliver up the said 
release and quit-claim from /. S. to be cancelled, and to ne^ 
lease aH pretence of right and dde to the said lot, &;c. ; and 
that the mortgaged premises be d^reed to be sold to pay 
the sums due on ttie mortga^s, according to their priority, 
and the surplus, if any, paid to Herrings &ۥ 

The answer of th6 defendant C. stated, that the three de* 
fendants, on the 16th cfj^ovember^ 1809, for a valuable oon- 
sideratioo, purchased the lot in question of Parker Bumham, 
who pretended to be seised of the lot ; and the deed wa» 
taken in the name of C, though all the defendant were 
jointly interested. That the defendants took possession of 
ibe k>t, and have made improvements thereon. That in the 
aatamn of 181S, the defendant fVoed was informied, that {• 
Stewupi^ of th^ city of J^ewYerk^ claimed title to the lot; 
that W. bad the principal agency in the management of the 
)ot,and instNcted the defendant ffo2D/(»2<{ to purchase of XS. a 
release of his claim or title, if it could be obtained for a trifling 
consideration. That Howland^ accordingly, in the autumn of 
ISIS, procured from J. S. a release or quit-claim of the lot, 
for ten dollars, which was acknowledged and recorded. 
This defendant denied all agency in the purchase of /• S., 
further than conversing with W. on the expediency of ma- 
king it. He denied ail the charges of fraud, &c. He ad* 
mitte^ that the lot, in November^ 1813, was worth 6,000 

The defendant, Howland^ in his answer, stated, that W. 
informed him that he had found a deed for the lot, on record, 
from Herring to J. S., and could not discover that J. S. had sold 


the lot $ ami instrocted Hmland, who was going (6 th« l^ky «f I8M. 
^f»-ForXr, in Kovtmbtr^ 1813, to purchase the claim of/. ^S. 
lor a sum not exccediog 50 doUara. That Hotoland accord- 
ingly applied to J» Sr, and procured a release and quii-ciatniy 
4ated k^vtmber 9tb, 1613, for 10 dollars, to the defettd- 
ikut C, which he delivered to W., who procured it to be re- 
covdedontheatfaofZ^ecemier, liia That Utrhen lfo»/ani? 
called on J. S, to know whether he bad any claim or title td 
the lot, J. S. said, ^ that he had formerly purchased the loS, 
by which be had lost a coosiderabie sum of money, and bad 
net with other losses, in consequence of which, and his ad» 
vanced age, he should give himself no farther trouble alioat 
tbe lot." That be agreed to accept five dollars for a N<> 
lease ; but the next day, refused to leave bis work, to go and 
execnte the deed, for less than ten dollars, which the defends 
ant gave biro. The defendant denied all fraud, ice. He 
admitted tbalrtfae lot, in Mvember, 1813, was worth 6,000 

The defendant VTood^ in his answer, admitted that be Was 
jointly concerned in the purchase of the lot from Bumham^ 
and that on the 16tb of June, 1810, CL conveyed to him, W^ 
a aooiety of the lot He stated that he and C, some time 
previous to the fall of 1812, were informed that there was 
a deed on record for the lot to /• SL from A. Htrring* That 
they consulted about the expediency of buying that title. 
That the deftbdant W. had ''doubu as to the validity of 
the title of J* & to the lot." That in October, 1813, not 
discovering any deed or mortgage from J. S. <^ record, 
*^ though he does not at this time recollect that he searchedi 
or caused search to be made, in the office, relative to the 
r^istry of mortgages,'' he instructed Howland to buy 
the lot of /• &, for a sum not exceeding 50 dollars $ and H^ 
accordingly, procured, for ten dollars, a release and qnil^ 
claim from /« &, which this defendant had recorded on the 
0th of DeambtTf 181 3. That in £pril, 1817, be wrote ip a 

Vol. IV. 34 


ISaO. person {W. T. B.) m Mw-York^ to iDquire wbetber the dc- 
fendaot K had aoy iDformatioD, at the time he purchased or 
J. S., of a previous deed from J. S. to Herrings or to any 
other person ; and that he received an answer, dated June 
27th, 1817, stating, that J. S. said, that he was called on in 
1613, by a young man, respecting the lot, who was told that 
he, J. S., had sold it ; but being very urgent, J. S. gave 
faim a quit-claim, not supposing could affect his sale 
to Herring. The defendant W. denied all previous informa- 
tion of the deed from J. S. to Herrings or that he had any reaspo 
to suppose there was such a deed, except from the letter above 
mentioned. He denied all the cliarges of fraud, &c. He 
admitted that the lot, in JVoremier, 1813, was worth 4,800 
dollars. That on the 5th of JMb^, 1812, be conveyed 50 
acres of the lot to Jonas C. Baldwin ; and on the 13th of 
^pril, 1816, conveyed 50 acres of the lot to IV. for 400 
dollars, &tc. 

. The cause was beard on the pleadings and proofs, in 
Jtciie, 1819, when it was decreed, that the title of the de- 
fendants was fraodalent, and they were directed to release 
their pretended title to Herrings the mortgagor } and the 
mortgaged premises were directed to be sold, to satisfy the 
mortgages, &;c. 

The defendants petitioned for a rehearitig, which was 
JVbv. TStdj granted ; and tlie cause was, this day, argued, on the re- 
hearing, by if. Sedgwick, for the defendants, and S. Jones^ 
for the plaintiffs. 

J<m.4ih,tBas^. Thb Chancellor. The bill is to foreclose two mort- 
gages upon lot No. 6, in CamUbuj and executed by Mra- 
ham Herrings the one to the plaintiff. X«tiptoii, and the other 
to the plaintiff Joms. The title of Herring is spread oot 
«pon the bill, and deduced down from the original patentee. 
The cbaiA of title is regHlar and perfect, but there was a 


delay of nearly ten years in putting upon record the deed 1820. 
froiD Jawiea Stewart to Herring, of the 1st of July, 1805. In 
the mean time, the defendants fraudulently procured a re- 
lease and quit-claim from Stewart, for a nominal considera- 
tion, and placed it upon record before the prior and genuine 
deed from Stewart was recorded. The bill charges this 
fraad upon the defendants, and in addidon to the usual 
prayer for i sale of the mortgaged premises, the bill seeks 
to have the quit-claim deed cancelled, and the pretence of 
title, on the part of the defendants, released. 

The cause was brought to a hearing at the last June term, 
upon the pleadings and proofs, and the claim, on the part 
of the plaintiffs, appeared to be so just, and the fraud, and 
want of title, on the part of the defendants, so manifest, 
that it was almost, as of course, decreed, that the mortgaged 
premises be sold, in the usual way, tp satisfy the mortgage 
debts, and that the defendants execute to the mortgagor a 
release of their pretence of title, with covenants against their 
own acts. Two parts of the mortgaged premises of fifty 
acres each, were excepted out of the decree of sale, having 
been sold and conveyed by the defendants previous to the 
6Ung of the bill, but the defendants were directed to account 
for the proceeds of the sale of those two parcels. 

Upon this decree, a rehearing lias been asked for and obr 
tained, and the propriety of the decree has been discussed 
and considered. The defendants, by this re-examination of 
the merits, have made it incumbent upon me to discuss the 
transaction with an explicitness and freedom, whicli I wish- 
ed to avoid. 

That the quit-claim deed from Stewart to the defendant, 
CameOj for the joint use and benefit of all the defendants, 
'was fraudulently procured, cannot admit of any doubt,. 
The defendanu assume to be equally interested in the lot, 
and every act in relation to the "title seems to have been 
considered as an act equally affecting all of them. They 
set up no other title than a deed from one Parker Bamhanif 


182d* of the Ifitk of N^namher^ 1800. We sire to presttve faim 
to have been a mere occupant, for oo title io him is pretend-* 
ed ; and when the defendaau procared that deed, they meat 
have known, or were bound to know, be bad no title, for 
all titlef to the military lands bad, by a statute long pre* 
viously ousting, been required to be pot upon record. The 
deftadant, Wood^ resided in the coonqr of Cayuga^ aad wa8» 
BO doubt, well skilled in the law rdative to the nrililary tides. 
There was evidena| suikient upoo record to show, that the 
title was not in Bwnkam* The defendant Wood says, thai 
be bad discovered, ** at some period previous lo the iall of 
1813," that SUwart had a deed upon record from Htrrikf. 
How long before that period) be bad amde the discovery, 
does not appear. It is probable, he had made it 6^re be 
look a deed from JBamAma, as die deed from Herring to 
Steufort was recorded in 1797. Afier making that discoveryt 
be aad the defendant ComeUf consulted with each other as 
to the expediency of buying SieuiariU title, and be had 
^* doubts as to the validity of the title of the said Jaam 
l$iewarty to the said lot." These doubts coaM not havie 
arisen from any belief in the title of Burnham^ (for that 
tith appears not to have bad any source or foundation,), 
but from the plain and unerring language of the pub- 
lic records, which he was in the habit of searching- 
There was a mortgage duly registered on ibe 1st of 
^oeeM&er, 1805, from Herring to Siewart, and that registiy 
was evidence sufficient lo satisfy any man of common sense^ 
that the title which was in Stewart^ in 1797, had passed out 
of him, and was in Herring in 1805. Had not this de- 
fe«daat inspected that refp^Hyi He says^ indeed, that 
" he does not, at this Ume, rec<41«ct that lie searched, or 
caused search to he made^ in the office, relative to the regis- 
try of mortgages," when be instmcled the defendant How>* 
Imd, in October, 1813, to go lo Stemarty in J^euhYork^ aad 
boy the lot of him, for a sum not eiceeding fifty doUan.. 
Cm tfatfo be higher or mote decisive proof, that be then 


knew Uiat Stewart bad pmrted with bis Utk? He admitfl, 182Q. 
that be bad long before ditcoverad upon record the deed 
tromJBkrring to Stewart; and be admits, that the lot was 
then worth from 4»800 dollars to 6,000 dollars, and yet he 
seods an ageut to buj op Stewards title, for a sum oot ex* 
ceediag fifty dollars. Tbe propositioo imports fraud od 
the very face of it. He intended to defraud tbe real own^, 
who then beld tbe title derived from Stewart. Tbe manner in 
which this agency was executed^ appears from tbe answer 
of Howlandf one of tbe associates iii tbe purchase. 

Hatoland says, that in pursuance of his instructions, be 
applied to Stewart^ in tbe city of ^ewYork, and procured 
his release and quit-claim, for ten dollars, though tbe sum 
inserted in tlie deed, as tlie consideration, was 100 dollars. 
He says, that when be called on Stewart to know if he bad 
any claim or title to tbe lot, the latter said, that ^ be bad 
ibrmerly purchased the lot, by which be bad lost a consi- 
derable sum of money, and that lie had met with other 
losses, in consequence of wliich, and bis advanced age, be 
should give himself no further trouble about it/' Stewart 
then agreed to exeonte a release, for five dollars, buf on tbe 
next day, be refused to leave his work and go and execute 
the release, for less than ten dollars, which were giv'en 

Tbe story, as to the reply of Stewart^ is absurd. Tbe 
defendant, Hawland^ meant to be nndcrstood, that Stewart 
then considered himself as owuer of the lot, yet that he set 
no value upon it, though in 1797 lie bad given 1,495 pounds 
for that and three other military lots. Tlie true account of 
the interview is given by Stewart and his wife, who both 
prove tbe answer of Howland to be false, Tliey testify, that 
when tbe application was made to S. for tbe release, be 
told UifwUmd that be had before conveyed the lot to Her-^ 
ringf and be referred tbe applicant to him. Tbat Hotoland 
(whom be did not then know) repeatedly called upon him, 
and urged the execution of a quit claim deed, and represent- 


tSSa cd to him that it would injure no persoo. That fae/snp- 
posiDg that H. bad purchased of Herring, executed the 
deed. Howland says, he delivered the release so purchased, 
to the defendant Wood, and Wood admits he received it, 
and caused it to be recorded, on the 6th o{ December, 181S. 
The other defendant, Comdl, says, that Wood had the 
principal agency and management of the lot, and he admits, 
that Howiand was instructed by Wood to procure the re- 
lease, and that he and Wood had previously conversed re- 
specting the expediency of procuring it. 

Here was, then, a quit-claim fraudulently procured from 
Stewart, with intent to defraud the legal owner under Stewart, 
and it was procured on the joint consultation and act of all 
the defendants. One of them, who was the agent under 
Wood in procuring it, is detected in positive falsehood and 
fraud ; and are we not bound to conclude, from the over* 
whelming force of the circumstances, that Cornell, who ad- 
vised it, and Wood, who instructed the agent to procure it, 
for a nominal sum, and who received it immediately after- 
wards, and had it recorded, were equally guilty f I am 
entirely satisfied, that all the defendants are chargeable with 
actual fraud. 

Upon the ground of that fact, the decree in June was cor- 
rect. If the defendants had any good title, they should 
have put it forward. They have chosen to set up a claim 
under a third person, in whom no manner of title appears,' 
either from their own answers, or from the proof, and they 
have chosen to bring forward a quit-claim deed taken pur- 
posely to defraud the plaiutifi* Herring* The title of the 
plaintiff Herring, is deduced from the fountain head, and 
appears to be sound and unbroken. It is, therefore, just 
and equitable, that the plaintiffs should be quieted in their 
title against all claim and pretension in the defendants. It 
is the duty of the Court to clear the title, under the allega- 
tions and proofs in the case, before the mortgaged premises. 


are exposed to sale, and not leave purchasers under the de- 1820, * 
cree to be embarrassed and exposed to further litigation. 

The decree of the 23d day of June last is, in every re- 
spect, confirmed, together with the additional costs of this 

Decree accordingly. 

CoxE and others agairut Smith and others. 

When, on a bill for a partition, the legal title is dispnted and doabtAil, 
the course is to send the plaintiff to a Court oHaw, to hare his title 
first established. 

But where the question arises upon an equitable title, set up by the 
defendants, this court must decide on the title. 

Where a person having the legal title to lands, but in trust, as the de- 
fendants alleged, for them, sold and convejred his right and title, for 
a valuable consideration, to a dona fide purchaser, without notice, 
who remained in p o s se s si on of the land for eighteen years before 
his death, and devised the same by will : HM^ that after the lapse 
•f thirty years from the date of the deed, there being no evidence 
of its being fraudulent, the devisees of such purchaser were entitled 
to hold the lands discharged of the trust. 

BILL for a partition of a tract of land of 29,812 acres, ^bv. sma, 
lying m the counties of Twga and Broome* It appeared tth, 1820. 
from the pleadings and exhibits in the cause, that Col. Da- 
niel Coxej of TrentoUy Aew-Jer#cy, (grandfather of the 
plaintiffs, Daniel Coxe^ and Crrace Kempe^) who died in 
1739, derived from his father, Doctor Coxe, of London^ 
sundry rights under the crown of Great Britain^ to lands in 
the Korih American colonies. That some years after his 
death, his representatives, on relinquishing those rights, re- 
ceived in lieu thereof, an order of the king and council, or 
mandamus^ dated AprU 14, 1769, for 100,000 acres of land, 


lam tbbelafcmvpiofractiofiiottosttiiMi 1lf^fiO0mM%ki^ke 
then province of Aet0-79rX;, to iMnid Com^ plaiftdiT, WO^ 
lUm Cofcty ttbte deceased, RA^ecu Coxe^ since deceased, 
Otaee JTempe, late O. Coxe^ and her biisbatidi J^n TMor 
Kempe^ since deceased. That id ttiis mandamus^ D. C. had 
an interest of^i^e ihietntht^ W. C.fioe tixitenthsy R. C.fnur 
sixteenthi^ and O. £1, and her said husband, each one six* 
teenth. The parties located 47,000 acres in Tryan^ now 
Oneida coonty. Of the remaining 53,000 acres, i>. C, and 
K, and bis wife, were entitled to seven sixteenths, or 23,187 
acres and a half, and fV. C. and R. C, to the residue, being 
29,812 acres and a haUl W. C. and R. C, employed Dr. 
WiUiam Smith to locate their 29,812 acres, and covenanted 
that he shonid have, for his services, the one moiety of the 
share of If. C. Smiih^ accordingly, procured leave to 
locate at Owego^ near the north line of Pennsylvania^ and 
on the 3d of October ^ 1774, obtained a warrant of survey, 
for that purpose. JCempe, who bad acquired the share of 
D. C, and his wife^s right, and had made a location on the 
east side of Lake Champlain, abandoned that location, and 
through the agency and information of Smithy located the 
23,187 acres at Chenango^ in the vicinity of the location at 
Owego^ and obtained a warrant for that purpose. The two 
locations were separate and distinct, and for separate uses. 
Caveats were entered against patenting these locations. By 
the exertions of Strnth^ W. C, and R. C, the caveat as to 
the 29,812 acres was withdrawn, and a patent was issued, 
dated January 5, 1775, according to the practice and forma 
of office, to D. C, W. C, R. C, /• D., K. and Q. Ut 
wife, the original nominees in the mamdamut^ for the quan^ 
tily of land so located, being the same tract for the parti- 
tion of which the bill was filed. W. C, R. C, and Smithy 
alone paid for the expenses of the location <^ tlie S9,813 
acres, and paid all the usual fees on passing the patent, 
among which was the sum of 89/. 8«. to J. T. Kempe^ as 
^Attorney General, <br bi« official /<t^ to the patent* Ken ft 


•low. pMt all t\^ nfom% of ibe Igoation M GMlMlg^f 1899^ 
AHitr the puleiil idsoed, a sew agreeaieoc 1799 f ntevecl in(«i ^^'^^'^^ 
kotivom iS«ii<A, ff. C, and JR. C, dated the 9tb of /aaiMvyf v!^ 
1775, by which it was atipolaied, ihai Smth^ instead of ^j^ ^ 
half of the «baKe of W* C, should haTO, and ba entitled to» 
Ibird of the 39^19 acita, for bU share, be having pM 
tjiird of tlie aipeoses of obtaioing the patent. DamM 
Cave, one of the noaifiees in the mandamus, and naaied» 
also, in the patent, on the 2Sth otFebruaty, 1775, agr^ Iq 
joio in all necessary conveyances, kc to assure to SmUh 
(me third of the said tract so located at Owega. Kemfe 
hesitated and delayed, on various pretexts, to release his title 
to the Owego location ; and the caveat against the Chenangq 
location, continued until the revolutionary war commenced, 
wheu Emafe and J>. Coxe^ removed to England^ and %uA 
their rtsidenoe there. On the 29th of Sepiember^ 1783, 
fV» C., and B. C, released to Smith their right in law aji4 
equity, to an undivided third part of the 29,812 acres. Since 
tlie peace of 1783, D. C. refused to release his right to the 
representatives of W. C, R. C, and Smithy and said thai 
he had released it to Kempt* On the 9th of December^ 
1184, the representatives of W. C, and 12. C. entered , 
U osMMt in the secretary's office, against any patent issuing 
ibr the Chenango lands, until a release should b^ obtained 
fivm the other nominal grantees in the patent for the (hoego 
lands, to them and Smith. Rebecca Coxe died in 1802, and 
Smith died in 180a On the 26th of .iugust, 1789, for the 
consideration of 1,500 pounds,!). C. conveyed to his father- 
ia4aw, John Redman, all his right and title to the five undi* 
vided sixteenth parts of the said tract of 29,812 acres. The 
defendants, iu tbqir answer, averred, that this deed was not 
bona Jide, or for a valuable eonsideratioo, but upon some 
secret trust; but there was no proof of this allegation. 
In Murehj 1810, certam settlers on the said land, presented 
a petition to the legislature, suggesting, among other things, 
Vol. IV, 35 


1820. that the title of J. T. Kempt to two sixteeatb parti, in the 
said land, had, in consequence of his attainder, become 
vested in the people. The attorney general, to whom the 
petition was referred, reported, that tlie people bad no tide 
to any part of the land, and that the representatives of W. O., 
R. C. and Smithy ought not to be molested or disturbed in 
the enjoyment thereof; in which report the bouse of assem- 
bly concurred. In consequence of an act of the legislature, 
passed in 1784, or 1785, which declared all Bntisk or colo- 
nial warrants of survey, except to officers and soldiers, for 
military services, not actually executed, null and void, 
R, L. Hooper^ and his associates,- who had entered a caveaif 
prevailed. The bill alleged that the representatives of W^ 
Smiih were entitled to one third of the tract of 29.812 acres, 
John Redman Coxe^ to five sixteenths of the residue, D. 
Coxe and Ch-ace Kempe, each to one sixteenth, tberepre* 
sentatives of W, Coxe^ to seveA sixteenths, and the people of 
the state to the other two sixteenths. The answer denied 
that any person had any joint or equitable claim to any part 
or share in the said tract, but the representauves of )F]. 
Smithy William Coxe^ and Rebecca Coxe^ except such parts 
as Daniel Coxe and Grace Kempe might be entitled to, as 
beij» of Rebecca Coxe ; and that, in whomsoever the legal 
title to any part of the said land was now vested, they must 
be deemed, in equity, trustees for the legal representatives, 
of W. Smithy W. C, and i2. C, according to their several 
shares therein. 

jv'tfv. 29(A, The cause was brought to a hearing on the pleadingi and 
^"^- proofs. 

Harison^ Hoffman^ and B, Robinson^ for the plainlifis. 

Sampson^ for the defendants claiming under William and 
Rebecca Coxe. 


T. A. Emmety for the defendants, WQUam M. Smith and 1 82a 
Charles Smith. 

Burr, jfbr other defendants claiming under W. Smith. 

For the plaintiffs, the following cases were cited : 1 Bro. 
P. C. 200. 4 Ves, 667. 686. 5 Fes. 720. note. 12Si 
1 Madd. Ch. Pr. 198. 1 Fonb. Eq. 18, 19. 8 Ves. 143^ 
1 Fes, Sf Beames, 551. 236. 

For the defendants, the following cases were cited : 
2Atk.380. SAtk. 4. 2Bro. P. C. 261. Amb. 686. 
7 Ves. 341. 1 Johns. Ch. Aep. 117. 149. 3 Johns. Ch. 
Rep. 302. 3 Johns. R&p. 216. 9 Johns. Rep. 406. 

The cause stood over for consideration until this day. . Jm,m,\W^ 

The Chancellob. This is a bill for a partition of 
a tract of land, containing 29,812 acres, lying in the 
counties of Tioga and Broome. According to the allega* 
tions of the plaintifls, the representatives of WiUiam Smith, 
deceased, are entided to an undivided third part of the ' 
premises, the plaintiffi John Redman Coxe, to five sixteenths 
of the residue, the plaintiffs, Daaid Coxe and Grace Kempe^ 
each to one sixteenth of the residue, the representatives ef 
fFilUam Coxe, deceased, to seven sixteenths of the residue, 
and the people of this state to two sixteenths of the residue. 
• The defendants admit the right of the representatives of 
Smith, and the rights of Daniel Coxe and (Trace fempe, 
but deny the right of the plaintiff John Redman Coxe, and 
of the people, and claim fourteen sixteenths of two third 
parts of the premises, as belongitfg in equity to the repre- 
sentatives of fVmiam Coxe. The parties have gone into 
proof on the subject of the equitable title set up on the part 
of the defendants. 


1820. 1. The fiht point is, wbMier the defendinti ksA M up 

equitable rights in opposition to the legal dtle, and daUh 
partidon, according to those rights, by an answer. 

When the legal dde is dtspoted and donbtftil, the teonrse 
has been, to send the plaintiff to law to have that title es- 
tablished before he comes here Ibr a par'dtioh. (fPitttin v. 
JWSOmj 1 Johi^. Ch. Rep. 111.) But when the qdesddti 
Aii^s Qpon an eqaitable title Set up bn the part of the de»- 
fendants, this Court must decide the tide) for equitable titled 
belong peculiarly to this Court, and the parties cannot be 
Mnt to law. h is the proper protince of tbis CoArt to re- 
ct^ise and tupporl equitable tides, and there can be nd 
dllier objection to the inqairy, than the fbrm and olgect of 
the bilK If the Cdiirt cannot take cogdtsakice of the equit-^ 
able title upon this bill, it would only be to let the cause 
stand oVer antil the defendants, 6r such of them as ask for 
the recognition of their equitable tide, can file a cross bill, 
but CM that be necestary f In what way, Or from what 
Ifcausies, Ibe Conn of Chancery first acquired juri^ktion ifl 
partition, is not now material. The jurisdiction is settled, 
etnd recognised by statute. {Vide Act, eess. 56. c. IW. 
1. 16, n.) When this Court sustains a bill for a partition^ 
it acts as a Court of equity, and not as a Court of law^ 
end equitikbte rights are true and perfect rights, in the eon* 
teosplatiott of this Court. In CariwrigAJt v. Ptdtnetf^ (2 ML 
906.) the plalntiA* bid for partition was founded on an 
equitable title ; and Lord Htardmioke aaid, be most dettr* 
inifie it, though the objection there was, that it was an equit- 
able tide, not a legal one. He decreed a pardtsoo, and 
ithat the trustees, in whom the legal tMe resided, sboidd 

• If the plaintiff can cxnne into this Cooirt for a partitio% 
•pon an eqritable tide, the defeodants, who are brooghl 
tMre upon ^uch bill, can surely set up soch a title to be rt* 
cognised and protected upon the partition* 


Bl AMMlflg dM the aqoitable tide is protferty belbre 1630. 
flie Coliit for conrideratMH, the eridiuce is sufficient to sa-^ 
iU£y tne, that the 29,812 aeraS) at Ow^^ mete located and 
mrvejed accofdittg to the anderstanding and agreement of 
aH the parlies eooeenied in interest ander the mandamus^ for 
the eiclofiire use and benett of WiUum and Rebeectk Coxe* 
£Mipe> who tepreseoted Ae other interests of himself and 
his frife^ and 4( Dimid Co^e^ ander the mandamus^ made a 
separate tociAion) for their distinct interests) fi«st upon lake 
Ckmpiain^ and then on the GheiMngo* The eipenses of 
each location and survey, weie borne by the parties sepa- 
fm«ely, and die locations, by the various acts and declare- 
tions of the peitieBi were treated as locations of separate 
and detached inteiests* When the patent issoed, in 1775, 
tor the location of die 29,812 acres at Owgo^ for WUHuM 
^uid iZeiecea C<»«e, it issued according to the form and 
{wactiee of die government in each cases, in the name of 
all the nominees in the mandamus* But Damiel Coxe^ and 
£«^ and his wife, took the legal title in trust for WHUam 
had tUbima Cosoe^ and for William Smithy who bad been 
admitted to a share. The fact, that WiUium and Rebecca 
Coxe^ and WSIiam SiiMthy paid ail the fees of survey, and 
pariioalarly Ifab patent fees, of which 89^. S$. mere paid to 
jEoR^e, as Attoriiej Oeoeral, being a customary and full 
fte^ for giving bis jto to tiie patent, is decisive evidence of 
theemst; and this expenditure of money, with the know- 
ledge and aiflsnt of £ejv^, is evidence of part performiuMre 
of the original agreement, and ground for a decree for a 
apaaificfierliNinaace. I would refcr, also, partkalarly to 
Ibe fcMrs of /• T. EempCj of the 5th of Novmber^ 1774, 
smd of the 28th and SMi of /antiory, 1775 $ to bis iastrnc- 
tions for the survey of bis warrant, or looatieo^ for the 
25,188 acres, on the C^ienatigo ; to the ca/oeat of the 9th of 
Asedmisr, 1784 ; to the letter of WUHtm Co^e of February 
llthy 1775 ; and to the report of Vaaik Vechtmy the Attor^ 
ney Ctoncnd, to1heLe|pslatm, of die 2d of F$bmary, 181 1. 


1820. 3. But another question arisesi even o(]ton the assninplioo 

of the trust, and that is, upon the force and effect of the deed 
from Daniel Caxe to Dr. John Redman j of the 26tb of Aw* 
gust, 1789. That deed was proved before the Major of 
Philaddphiaf in Deceoiier, 1789, and purports to be a con- 
veyance, in fee, of his legal title to the five sixteenth parts 
of the patent, for the consideration of 1,500 pounds, and the 
receipt of the consideration is, according to the practice in 
conveyancing at that day, endorsed upon the deed. The 
bill then states, that Redman being seised onder that deed, 
made his will on the 9tb of Mbvember^ 1807, and speaks 
in it of '^bis purchase" by that deed, and devises the 
land to his grandson, the plaintiff, John Redman Core, and 
to Phineas Bond^ in trust, for the said DanM Coxe^ (hu 
aoo-in-law,) and his daughter, and their five children ; and 
that having made his will, he died seised, and that the plain-^ 
tiff, John Redman Coxe, claims under that wilL The deed 
and will are in proof. 

If that deed was received by Dr. John Redman^ bona 
fide^ and for the valuable consideration it imported^ he, and 
those who claim under him, took the leg^ right of Darnel 
Coxe^ discharged of the trust. The defendants, in theur an- 
swer, aver that the deed was not bona fijit; b«t there is no 
evidence in the case that impeaches it ; and after such a lapse 
of time, (being thirty years from the execution of the deed, 
during eighteen years of which, Dr. JoAn Rjedman is avei^ 
red to have remained seised,) and after soch new rights ac- 
quired under the purchaser, I am induced to think the pre-> 
sumption must now be taken to be in favour of the deed, 
and that it was incumbent on those who set up the tmst in 
Daniel . Coa^e, to give some evidence that the deed was not 
what it purported to be* 

Decree. The following decree was entered: **Inaimueh a»it op* 
peon to the court, that the letters patent under the great 
seal of the late colony of New^York^ bearing date the £lh 


daj ofJanuaryj 1775, by which the premises mentioned and 1S20. 
r^rred to in the same, were granted to Daniel Coxe^ WU^ 
liam Coxe^ RAecca Coxe^ and John Tabor Kempe, and 
fi^race his wife, were so granted, from conformity to thU 
fimns of office, and truly and in fact, to and for tlie separate 
use and benefit of the said WiUiam Coxe and Rebecca Coxe^ 
and that the said Daniel CoxCj John Tabor KempCj and 
Chraee his wife, became trustees for their proportion of the 
said premises, granted, as aforesaid, by the said letters pa- 
tent, to the said Wittiam Coxe, and Rebecca Coxe, in whom^ 
and in WiUiam Smiih, hereinafter mentioned, the equitable 
tide resided : and it further appearing, that fViUiam Smithy 
in the pleadings mentioned, was entitled to one equal undi"« 
vided third part of the said premises, in the manner set forth 
in the said pleadings : and it further appearing, that the 
said Danid Coxe being seised of the legal title und^r the 
aind patent, to five parts out of sixteen, in the remaining 
two third parts of the said premises, in tmst aforesaid, did, 
on the S0th day of Augwt^ 1789, by a deed duly executed, 
pnrportiog to be given for a full and valuable consideratioui 
convey in fee to John Redman, his said legal right and in- 
leresi in the premises, without any declaration or notice of 
ijbe said trust, and nothing appearing in the case to affect 
tbe presumption arising ftom the deed, the lapse of time, 
and the long seisin, and last 'Will of the stud John Red^ 
wnm^ in favoar of die said deed, as being'a bona fide pur- 
ebase, for a valaaUe ctosideratioo : and it further appear- 
ing, from the pleadings and proofs, and the report of the 
attorney general, of the 2d day of February, 1911, that the 
people of this state have no valid title to any part of the said 
premises, from or under the said John Tabor Kempe, and 
. the equitable rights of the parties being cognisable in this 
suit ; it is thereupon Ordered, &c. tliat the legal represen- 
tatives of the said WHUam Smith, being defendants in this 
cause, are entitled to one equal undivided third part of the 
premises, whereof partition is sought in and by the plain- 


tiff's bill ; anil tbut JoAn fUdman Cox^, qd6 of ibe |^w|t 
tifiy, as sarviviog trustee uo^er lh< last will sqc) 1e«tanfiit ^f 
/oAn JUdmaUf deceased, if entitled to fiv^ equal iwdivUcd 
partSf out of sixte«n of the mmaiqiqg two third parts of tki 
said premiifs; and that the plaintiff, Ikmid CMe, is e»T 
titled to one eqnal undivided sixteeutb part of the said two 
tbird paru of the premises, ai one of the heirs aA lav of R^ 
hicca Coxif deceased, in the pleadings mentioiMd; and 
that the plaintiff, Grau Kmpe^ is eptitled to ooe other eqaal 
undivided sixteenth part of the said two third parts of tiM 
premises, as one of the heirs at law of the said Rsimem 
Core ; and that the representatives of WUUam Cexe^ do» 
ceasedi being defendants in this caose^ are entitled |o nine 
eqnal parts out of sixteen, being the residue of -the said vc* 
mainipg two third parts of the premises, . And ^ is fnrtfaet 
Qrdtrtd^ &c. that it be referred to one of the masters of liiii 
Court, to enquire into, ascertain, and state to the Conrft, iImi 
9ubdivision and proportions of tbe rights and ioiefesls afore* 
^id, between the sevei^l representatives of WUUm^ SmM^ 
^nd of JVUlian Coise^ as aforesaid, and thiit the master tabq 
snch proof, and require the production of siicfa deedt attd 
papers as he may deem necessary, and wludi may be taken 
and required according to the course and practice of the 
Court, and that he report with all conveinent speed, to the 
end, that upon the confirmation of his report, a commissieB 
may issue to make partition accordingly. And ail ferther 
directions and questions are reserved until the coming hi of 
the report.'* 


W. S. Smith against W. Smith, jun. and others. ,— — — 

If a guardian, or other inuleey lends the mooej of the cestui que truiit 
without dne secnrity, he will be responsible, in case the borrower 
beoomes insolveiit 

in»t is doe lecmrity for monies loaned by a tmitee, appears to be a 
point not folly settled and established. It jsemt^ in general, that 
personal securitj is not sofficient to shield the t es t a toTf rom respon- 
sibility, in case of loss. 

Where a gqardian took promissory notes of persons solvent, at the 
time, and who continoed to be solrent to the time of takings the 
aocooitt before the master, oader a decretal order of the Coart» 
on a b&li filed for an accoont, and which noteo were allowed and 
credited the guardian in the account, and were ready to be deliver- 
ed by him,^the Court confirmed the report of the master ; the notes 
beingp for small sums, for rents, kc. and the credit and course of bosi- 
ness aocordiog' to the practice of the testator in his lifetime. 

A guardian^ or trustee, is not held to aoooont for any neglect or breach 
ofdtity notchaiged in the biU. 

TH£ bUl stated, that fV. S. the lather of the plaiotifi; by Jim.8(/k,l890. 
Us wQli dated October 18thy 1801, devised his personal es- 
tate, after payment of bis debts, to the plaintifiT, and his 
brother ^. S.^ equally ; and one part of his real estate to the 
plaiBtifi^ and the other to his brother A. S. describing them 
particularly, and the survivor was to take the whole, if the 
other died under age. J. Smithy and the defendant W. &, 
were appointed executors, who qualified, and possessed 
themselves of the personal estate. A, S. died an infant, and 
intestate, and the plaintifiT became his administrator. On 
the 27th etOctoberj 1804, the defendant W. S. and M. S. 
Wbodhull^ since deceased, were appointed guardians of the 
personal estate of the plaintifiT and his brother, and entered 
into possession of the Irents and profits of the real estate. 

Vol. IV. 36 







.1880. Jir. S. Woodhnll died the Sth o( November^ 1815, and made 
the other two defendaots, T. S. Strong and Mary fVoodhull^ 
his executors, who qualified, &c. That after, the death of 
M. S. Woodhullf the rents and profits of the real estate of 
the plaintiff and A. S» were received by the defendant W. S. 
The plaintiff came of age on the Sth of July^ 1817, when 
W, S, surrendered up the possession of the real estate to him. 
That the defendant W^ S. took possession, asguardiani of a 
dwelling house at Long Swamp^ Suffolk county, belongiog 
tolfae plaintifi^ of the yearly value of 250 dollars, under pre- 
tance that be woold occupy it as tenant, at a reasonable 
rent; and while he so occupied it, committed waste^ &c. 
Prayer^ that the defendants may account, and pay the ba- 
lance due to the plaintiff, and surrender up all mortgages, 
and other real securities, for money lent for account of the 
plaintiff, or his brother «4« S. and to make satisfaction for the 
waste, &e. 

The defendants having answered, the cause was brought 
to a hearing, and a decretal order entered the 7th of Odo- 
ber^ 1818, by which it was referred to a master to state and 
take an account, touching the monies received by the defend- 
ant W. S.f and M. S. W^odkuU^ deceased ; and an account 
of the rents and profits of the real estate of the plaintiff and 
bis brother, from die time they were appointed guardians, 
until the death of M, S. /f,j and touching the monies re- 
ceived by the defendant W. <S., for and on account of tlie 
said rents, issues, and profits, since the death of M. S. W.^ 
to tlie iSling of the bill ; and touching the monies paid by 
the two guardians, or either of them, or expenses incurred 
or charges made, or either of tliem, in the support and edu- 
cation of the plamtiff and A. S«, and in and about the said 
real estate* That the master report the balance/lue from 
either party on such accounting. That he report the fair 
annual value of the Long Swamp farm, during the period 
it was occupied by tlie defendant Smithy and that he alsa 
ascertain and report whether the defendant Smith committed 



waste wfaQe he dceilpied tfie ftaioe, iiiid Ibe amount thereof; 
if any. 

The miuter reported specialty ; and a balance of 861 dol« 
lars and 3 cents due from the defendants to the plaintiff. ^ 

Several excepdons were taken to the report by the piain- 
tUT; the fir$t and tk^d of which, with the opinion of his 
honoar the Chancellor opon them, are as fellows : 

Pirst exception* Because, it appears that the master has 
charged the piaintiff, and credited the defendants, with the 
amount of sundry notes %ind' obligations, some of which are 
said to have been taken by the defendant Smithy and M. S. 
PToodkuUf deceased, or one of them, for arrears of rent due 
to the plaintiff or his brother Apollos^ and others to have 
been taken for monies belonging to the plaintiff or bis bro* 
tber Apollos^ and loaned out or placed at interest by them, 
or one of them ; whereas the plaintiff ought not to be 
charged, nor the defendants credited, with the amount of the 
said notes, nor any of them. 

The Chancellor. There is not a single bad note taken 
by the guardians. It appears from the testimony, that every 
person to whom they had loaned money was a safe and re* 
sponsible person at the time of the loan, and remained so 
when the testimony was tak^n. It was the same case with 
the persons from whom notes were taken for arrearages of 
rent. The testator appears to have been in the habit of 
giving three months credit to the tenanu for arrears of rent, 
and the guardians gave the same credit. Notes so taken 
were usually at six per cent, which appears to be the cus- 
tomary rate of interest in Suffolk county. In a case, fike 
die present, where the sums were comparatively small, and 
the habit of dealing according to the practice which we have 
reason to presume was pursued by the testator, and espe- 
dally where'the debtors were originally sound, and continu* 
ed so to the time of ^taUm the account by the master, I am 


1820. induced to tbkik we inf^, coatiiliMitly witii^ die (Kdicy aad 
the doctrine of this Court, credit the gnordiaD with the notes 
which be hae ready to eprrc^den It ^Fould, oagbr aach dr- 
cumttaocei, he .unffeasoirable, and aendittr the traat of a 
guardian an ot^ect of uoDcicessary haaai^ dietruat, and a?er- 
sion, to chaise hiaa with the anomit of the notes iar cad^ 
and throw the future troabie aad risk of fBoBeetion upea him. 
I am not aware, that any cases carry the rule to this rigoroas 
extent Bui in adoptii^ tb»s<c^Brfe, I mean to be aaderw 
stood, that if a guaediaa or other trustee loaas faaaey with-* 
out due security, he oaist be retponsifale in case of insolveni* 
cy. This is the settled EnglUh rule^ and it ought to be fid- 
lowed* If any well grounded distrust had even been ead^ 
ted by tbe testinoay, as to the safety of tbedebis, or aay of 
tbefls,.^ should have held the giMnKaa reqioBsible, and mada 
hin take such notes to lumself* 

What is doe security for moneys loaned by a trustee, is a 
question I am not now called to discuss* The EngUA 
roles are exoeedingly strict on tbe sMbJect of truscs, and t^ 
pecially of inputs' moneys. Aa executor must not even 
rest on personiil security ^ aad if he does, it is at his. qwn 
hasard. {Terry v. Terry, Free in Ch. 2Z3. WUket v. 
Stewardf Cooper^a Eq* Bep. 6.) Lord, Kengim said, ia 
Holmes v. Dririgt (2 Cox^s Ca»e^ !•) that it was never 
beard of that a trustee could lend an infant's money on pri« 
vate security. If he does, antf lakes a bond, with personal 
security, he most be responsible, if the obligor^ beqeme in^ 
solvent, though they w^re in very ample circnaisuinoes at 
the time the money was lent. I have no doobt that it is a wise 
and excellent general rule, that a trustee loaning monejv 
must require adequate real eecurity, or resort to the publici 
funds. If be invest the trust moneys iatfae public fuad% ha 
is not liable to the fall of stocks; (3 jBro.434.) and, probity 
bly, the depreciation of the real security would come widua 
the reason of that rule. Bat personal seeurity is ahArajTa 
more or less prec^trioos \ piMr^eutorly wbea the credit ia 


gimi for a cooiidmibto kogtb of tioM^ or WhcD the liar- 1820. 
n>iv«v w hi8:swei^, it engaged ia meroaDtUe, or oiber ha* 
tardoiw panailt. Lard Jhrndrnf^ m Poureil ▼• JSraat, 
(5 Fea. 899.) held the executor responsible for a loss hy<MH 
solvencyi where he permitted, negligently, aad without good 
r eqe aa, wiomBy to rtmain io a gcr thta was absolutely aecies- 
saiy, i^gm f€r$ond Haoiiy uJcen by Ae te$taiQr,m kitUfr 
time. Tttts case ia a strong tUustradoe of the sMctoKs af 
the dcMtfine opoD which the general rale is ibunded. It is 
nol, 4iowevar, neoessaiy for me to say, whether the rule dcK 
clared by Lord Aenyoa, is to be taken, at all times, an^ 
under aU oircamstaocesi in so absolute and unqualified an 
extepu Possibly, them niay be cases in which the taking 
of paii^oal security would exonerate the trustee, if that secii* 
rity ^^s selected wkh diasselion, and according tc» the prue* 
* tiot (tf the testatier, in like cases. Tbfe lorriser cases wetn 
maM iadaigeat than the laller ones. The observations of 
l4SPdCh.£itrcear^fiolP» JFias. 241, and of Lord ^oti*^ 
wgUmy In Bapdem v. Panmu^ (1 £&a. 146.) seem to admis 
of flsare'latinida than the doctrine ia Sbdmes ▼• Dring. t 
a|a not, bowener, peepared to say whether any, and if any, 
what exceptions, may exist to the general rule on this point* 
I have not formed any absolute opinion on the subject, and 
most leave it to be di^ossed and considered when it shall 

Tbe first exception is, consequently, overruled. 

[The answer to tbe second exception was cbntained in the 
master's supplementary report, under the ordor of the 13th 
of Sq^Umber last, and the explanation is entirely satisfactgry. 
To allow the exception, would be charging the defendants 
twice for the same thing.] 

T^Mrd Exception. That the master has omitted to charge 
die defendants, and to credit the plaintiff, with the renu 


which ftccraed and became doe oo the Ist of March, 1804, 
whereas the defendants ought to have been charged with 
375 dollars, for the rents which accrued and became doe oo 
that. day. 

Tss Cbanckllor. It appears, from the supplementary 
report, that the rents for the year 1803, were accounted for 
and settled with John SmiA, as acting executor of WUUam 
Smkhj deceased, previous to the 27th of October, 1804, on 
which day, as appears by the bill, the guardians were ap- 

The only complunt, then, against the guardians is, that 
they did not collect this money of (he eiecntor, who duly 
received it. But there is no such neglect charged in the 
bill, and they are not to be aoswerable for breaches of duty 
not alleged in the bill. If it had been made a substantial alle- 
gation, they ndght, perhaps, have met and answend h Mly^ 
and excused themsdves comfdetely from the charge of thai 
neglect or default They are charged with specific breaches 
of duty, and are called to account generally for the assets 
received, and they are not bound to answer beyond the al-^ 
legations in the bill. 



The Execui<nr$ of Robert T* Liyinostoh t^aiaut John 


U H too late to object to tho jurndiction 6f tbe Covrt, at the heariog, 
after the defeodant baa aMwored* and pat himself on the merits, 
intftaad of deaiarrini^ to so nmoh of tbe bill as seeki relief. 

Reui may be recorered io equity, where the reoaedy has become diffi- 
cult or doabtful at law, or where there is perplexity or uncertainty 
aa to the title, or tbe extent of the defendant's responsibility. 

Uncertain damages cannot be set off in equity, any more than at la#. 

Thttrefote, on a bill of discorery, and for an account and payment oC 
arrears of rent, the defendant is not entitled to be allowed, by way 
of M^-^ damages for the breach of a corenant on tbe part of the 
grantor, to allow him sufficient common cf pasture and ettovers, 

LApse of time operates, in equity, only by way of eridence, as afford- 
ing^ a presumpition of payment. 

Tfaeraibfey wbere Che defandaat admitted tbe original oovenant to ftsj 
natf and did not, in hia answer, pretend to any payment; held, 
•that he could not insist on the lapse of time, being twenty years,, 
from the date of the covenant to the £ling of the bill, as pcesump* 
tive eridence of payment. 

THE bin stated, that Robert lAvin^gtotij propriet^ir of jm. tkh. 
the manor of Livji^i^on, on tbe 22d of Jcmutaryy 1722, 
executed a perpetual lease to Peter -Colt^ of a farm, of 
about 216 acres, at tbe rent of (me-ieath of the yearly pro- 
duce, four fat hens, &c. That by several devises, which 
were specified, A* T. £#., the testatpr, became seized, &c. 
and entitled to the rents, be., and died in 1814, having de* 
vised bis interest, &c. to tbe children of Mary^ the wife of 
Mexanier CrofU^ plaintifis ; (her son R. L, C excepted ;) 
and that, until the youngest cbiM came of age, the rents, 
be. should be taken by the executors, (plaintiffs,) upon 
trusty be. That the defendant, as assignee of Cole^ is in 
posseesion of part of tbe premises, and has been in posses- 


1830. sion since Nwembtr^ 1794, and has, during that timey re- 
ceived the rent of the residue of the premises, and applied 
the same to his own use. That R. L^ the proprietor of the 
Miid manor, was teiied of the CemiM iann, 90A two other 
pieces of land, in the sane nanpr, particularly described, 
which, by various devises, in like manner, became vested in 
R. T. L.f sutyect to the leases made of the same, by R. Zi., 
or his devisees. That R. T. L. died seized thereof, and 
the defendant had received the rents of those parcels of land, 
since the death of /2. T. L,, and for many years before. That a 
perpetual lease had been given of the Conine farm, reserving 
rent, &c., which had been assigned to the defeiklant, but no 
leases had beeq given of the other pieces of land. Prayer^ 
that the defendant may diicover his title to the farms and prei- 
mises described, and his right to receive the rents, and the 
deeds, leases, &c. by which he holds, or claims to hold, the 
same; and an account of the rents received by him, and 
how long he has enjoyed the same ; '^ to the end, that such 
relief may be given to the plaintiffs, as their case may re- 
qotre, and as shall be consistent with equity and good con- 

The answer of the defendant admitted the material all^ 
gallons in the bill ; and stated, that on the 6th of JuZy, 
1790, he purchased of R. T. L.\ all his right and interest 
to the rents of the Cole Farm^ fur the yearly rent of twelve 
pounds, for ever. Tha^ he purchased, in 1795, all the in* 
terest of /?. T. L. in the Conine'Farm^ for 500 pounds, and 
in the other two tracts, for 300 pounds ; and received the 
rents and profits since the death of /Z. T. L., and for several 
years before. The defendant demurred to a further dis- 
covery of his title, and refused to exhibit his deeds, as the 
plaintiff had not waived all forfeitures, &c., the bill being 
amended^ and the plaintiff having waived all forfeiture ari- 
sing from any covenants in the deeds, &u:. The defendant 
further answered, setting forth his deeds, &£c. ; in which 
there were covenants on the part of R. T. L., that the de- 


feodaiili hif bein and assigns, should have the privilege of 1820« 
cmnmon, for all coniroonable beasts and cattle, and liberty 
to eat and use sufficient timber and wood for baildiog, 
feneing, fire, and repairs of boases and fences, from toeh 
part of the manor of L. as was, or, from time to time, 
should be waste, or in common, or nnimproved* The. 
defendant averred, that when he received the deed of the 
Cde Farm^ Sec. JR. 71 L. owned large tracts of ccmmimf 
in the said manor, from which the defendant migiit bavcf 
taken common ofpoiture and et^oeers, for fencing, fnel, Sic. 
bnt that R. 71 L. soon after leased, or appropriated the 
common or waste lands in the manor, and thereby deprived 
the defendant of his commons j &c ; and the defendant pray* 
ed, that an account might be taken of the yearly value o^ 
the right of commons } insisting, that the liability for those 
commons exceeded in amount any rent due to the plaintiff) 
and, abo, that R. T. Xr., at his death, was indebted to the 
defendant for moneys paid, 8ic. 
The eause was heard on the bill and answer. 


Van Burent for the plaintiffs. 
E. WUliamtf for the defendant. 

The Charcvllob. This is a bill for the discovery of 
the title of the defendant to certain lands in the manor of 
Livingston^ chargeable with rent to the plaintiffs, or to those 
whom they represent ; and it seeks for relief by having the 
portions of the lands chaigeable with rent, located, and an 
account of the renu due, and for '^ such relief as the case 
may require, and as may be consistent with equity and good 

The defendant, in his answer, sets forth the chain of title^ 
and the agreements and deeds under which he claims th# 
lands therein specified and described ; aod he admin the 

Vol. IV. 37 


1890. amount of reot chargeable upon each piece of landi aott 
which be agreed to pay to the plaintiffs' tesutor, and insists 
upon damages^ by way of compensation, and set-off, against 
the rent in arrear, for the right of common pasturage, and 
of estovers, in the waste and unappropriated lands of the 
nanor, and of which he has been deprived by the acts and 
enclosures of the proprietor of die manor. 

No proof has been taken in the cause, and the case has 
been submitted upon the pleadings. 

Tlie defendnot appears to be indebted to the plaintiffs, as 
executors of iL T. Lmngston^ deceased, for the rent often 
pounds a year, fromtlie 1st of January ^ 1795, for the Co- 
3iMie farm, and the rent of seven pounds a year for the same 
period, for two tracts of land adjoining the same, and the 
rent of twelve pounds a year, from the 1st of Jtdy, 1796, 
for the Cok tkrta. There is no pretence that any part of 
this rent has been paid, but the defence consists of the fol- 
lowing particulars : 

1st. That the requisite discovery having been obtained, 
the bill ought to be dism'issed, and the plaintiffs sent to law, 
where their remedy is complete. 

2d. That if an account of the arrears of rent is to h^ 
taken, au account ought, also, to be taken of the damages 
for the loss of the common of pasture, and of estovers, and 
the same be allowed, by way of set-off, against the rent 

3d. That the rent is to be presumed paid and satisfied by 
tSie lapse of time. 

1. if the defendant intended to have objected to the ju- 
risdiction of i\\e Court, he should have demurred to so 
much of the bill as prayed relief. It is a general rule, that 
he comes too late with this otgection at the hearing, after be 
has, by his answer, put himself upon the merits. (1 Johfu. 
Ca$. 434. 3 Johns. Cas. 431. 10 Johns. Rep. 595, 596. 
% Johns. Ch. Rep. 369.) 

•R^t is recoverable in equity, where the remedy has be- 
come difficult or doubtful at law^ or where the premises are 


uncerlaia. lo the case of T%e Duke of Leeds v. Jfm Bad- 18M. 
Mr, (2 Bro. 336. 519.) ibe bill was for a fee-farm rent, and 
the answer admiUed tbe title, and the arrears, but insisted 
that the hind had not undergone any alteratioD as to bono* 
daries, and that the plaintiff's remedy was at law. The 

. Master of the Rolls thought it was not of coorse, for equity 
to interpose in cases of rent, and where the plaintiff has bis 
remedy at law, but he retained the bill for a j'ear. On ap» 
peal, Lord Thurlaw said, there were a great many cases of 
bills for rent, where the remedy at law was lost, or deficient, 
or tbe premises uncertain ; and as the defendants, by their 
answer, had admitted the right of the plaintiff, he deareed 
an account of the rent, with costs. The same doctrine was 
advanced in Benson v. BaUtoyn, (1 Aik. 598.) and in the 
early cases in Chancery, {CoUet v. Jaques^ 1 Chaneery Cos* 
120. Davy v. Davy, 1 Ch. Cos. 144. Codes v. Foley, 
1 Vem. 359. Steward v. Bridger, 2 Vem. 516.) In JV^^rtk 
V. Earl of Strafford, (3 P. Wm. 148.) there was a bill for 
qnit-rents, on the ground of uncertain and perplexed boun* 

, daries. There was a demurrer put in to tbe relief, because 
the remedy, for the arrears of rent, was at law ; and Lord 
^ King held tbe demurrer to be good, but observed, that if 
there had been no demurrer, the Court, on the hearing, 
would have relieved. The jurisdiction of the Court was 
discussed by Lord Talbot, in Holder v. Chambury. (3 P. 
Wms* 255.) That was a bill for arrears of a very small quit* 
rent by tbe lord of the manor. No difficulty was stated in 
the bill to the recovery at law, but the defendant, in his an- 
swer, said he was willing to pay. The ChanceUor said, a 
bill was proper where the lands, or the days of payment, 
were uncertain, but it was vexatious where tbe remedy was 
plain and easy at law. '^ However,'^ be observed, ^^ I do 
not see that it will be for the defendant's benefit lo dismiss this 
bill, as to this quit-rent, for then the plaintiff would imme- 
diately sue for it at law.'' He, accordingly, directed that 


dw arretrs of rem be competed by tke BtfpMer^ uA iImI 
Ihe plaiotiff's ri^i sboold be established vrkhout costs. 

la the present case, It is sufficient lo sustsMS fltm biU» aad 
decree ao aoeount to be taiieo of the arrears 9f reot» that 
ihe defcndaal has submitted to the jurisdiclioii, aiid has not 
demurred. But independent of that pdmissioo, I cannot 
(ocsisider the resort to thk conrt as vexatious and unneces* 
sary, considering the apparent perpkuty and uncertainty of 
the title, and of the evtwt of the defendant's responsibility* 
As the defendant has admitted the aaoount of rent payable by 
him for eaeh farmi and the time from which it was to be paid, 
what Qtiliiy or justice would there be in sending the plaioF* 
tifi, who are executors, to seeli a remedy .at law, under the 
covenants, or under the admissions in the answer i Accord* 
ing to the cases wliich have been referred to, this would not 
be pursuing Ihe established ceu^se and practice of the 

2. The nest point is, whether an account is to be taken of 
the damages for the loss of the commons. 

The answer to this objection is obvious and decisive. 

The Court would be obliged to direct an issue, to try whe* 
tfaer the defendant had a right of common, after the inclosure ^ 
and in^rovement of the waste and nocukivated lands of the 
manor, and if he had, then whether any> or a sufficient common 
bad been left, and if not, then as to the amount of damages. 
These are nice and strictly legal questions, and the course 
has been to refer them to a Court of law. {Weeks v. Stoker^ 
2 Kens. 300. Arthington v. Fawkes, 2 Vem. 366.) Nor 
is this a case of mutual debt or credit proper for an equita« 
ble set-off. It is a case of uncertain and unliquidated da- 
mages, even if the doubtfal legal right was established* And 
it is well understood, that uncertain damages are not a proper 
subject of set-off in this Court, any more than at law. ( JTtm* 
can V. Lyon, 3 Johns. Ch. Rep. 3£].} In Watts v. CoffiUf 
(11 Johns* Rep. 495.) it was held, that a violauon of aco« 
venant on the part of the grantor, to allow common of pas- 


tare, and of estovers, was do defence to an action for the 
recovery of rent. 

There never was a case of set-off in equity where the da- V. 
mages proposed to be set off against a clear and certain '^"°"^'' 
debt, were unliquidated, and depended upon an unsettled 
legal right, of doubtful aspect. 

3. The last objection is of no force. How can the lapse • 

of time be brought in as presumptive evidence of payment, 
wheD the defendant, in his answer, admits the original cove* 
nant to pay, and does not pretend to any payment? Time 
operates in equity only by way of evidence, and here is only, 
as to one deed, ivienty years and a few months, between the 
date of the covenant and the filing of the bill ; and it is short 
odwerUy-two years, in the other cases. 

I shall accordingly direct a reference to a master to com* 
pule the arrears of rent, and the defendant may show, be- 
fore him, any actual payments of rent, if any have been 
made. I shall direct the compntatia« to b^ made without 
interest, for, as Lord JioUingham said, when be made a simi-. 
lar decree, in Bottler v« Massqf^ {Cases temp. Unch^ 241.) 
^* il was the plaintiff's neglect that he did not recover the 
Ant sopner." 

Decree accordingly. 






The Executors of R. T. Livingston against Henry LiviNCh- 
8T0N and others. • 

If a bill for discoyerj and relief be good as to the discovery, a general 

demurrer to the whole bill is bad. 
If relief, as well as discoveiyr be founded on the fact of a lost deed, there 

must be an affidavit of the loss* 
Where, on a perpetual lease, reserring an annual rent, no rent had 

been demanded for forty-four years from the date of the lease, on. 

bill for a discovery, on the ground of a loss of the counterpart of the 

.deed, it was hdd^ that the lapse of time was sufficient evidence that 

the rent had been extinguished by some act or deed of the party en- 


Jhnuary \4ih. THE bill, filed October SOth, 1817, stated, that Robert Li- 
vingston, Jan. proprietor of the manor of L., by a deed daied 
the lOih o( September^ 1773, conveyed a tract of land in the 
manor, containing about 500 acres, to bis son, Henry Living'- 
stoHf in fee, reserving an annual rent of seven pounds ten 
shillings, for ever. That by devise, be. R. T. Livingston 
became seised of the rents of the said premises, and devised 
the same to the children of Mary Crofts^ (except R. T. C.) 
and died in 1614. That the children are all infants, and 
the plaintifis are executors and trustees, &c« That the said 
deed is in the possession of the defendant H. L., and the 
counterpart thereof has not come to the knowledge or pos- 
session of the plaintiffs. That the premises are in possession 
of the other four defendants, who claim to hold as tenants 
under the defendant EL L, That no rent has been paid by 
either of the defendants, since the date of the lease, either to 
the grantor, or to any person, since his death, &c. Prayer, 
that the defendants may disciover whether jB. L. did not con- 
vey the premises, as stated, to the defendant H. L., with the 
reservation of (he annual rent mentioned ; whether the four 


cither definidants are not in possession of the land ; and whe- 1 820. 
tber the rent is not charged thereoni and the plaintifis enti- 
tled to the same : and that the defendants might set forth 
their titles to the land in their possession, respectively, be. 
That the defendant H. L. might set forth an account of pay- 
ments hy him, and of the arrears of rent due, &c. And that 
the plaintiffs may have such other and further relief as the 
case may require. 

Demurrer by the defendant H. L., because, the bill con- 
tains no matter of equity sufficient to afford any ground for 
a decree against him ; because, the children of Mary C. are 
not parties to the bill ; because, the rent claimed, if due, i< 
recoverable at law, and whether due or not, is triable at law ; 
and because, the lapse of time, since 1773, forms an equita- 
ble, as well as a legal bar, to the claims set up by the plain- 

The other defendants answered, and stated, that they oc- 
cupied distinct paru of the premises, by leases under the de- 
fendant H £., and had paid him the rent charged by him. 
That they never had been called on by any other person for 
renu. That the rent of 7/. 10^. nor any other refit reserved 
\y the grantor, had ever been demanded of them ; and that 
Ihey claimed no title to the premises, except as tenants under 
H Z«., and that they had no title deeds to set forth, be. 

Van Buren, for the plaintiffs. 

£. fVUliams, for the defendants. 

TflE Chancellor. The prayer of the bill is for disco- 
very^ and for relief consequent upon that discovery. 

The bill slates, that Robert Livingston^ jun., proprietor 
of the manor of lAvingiton^ conveyed about 500 acres of 
kund ie the mauor, to the defendant Henry Livingston^ by 
deed, on the 10th of September ^ 1773, and that he reserved 
ao annual rent of 7/. IQs. to him and his heirs, which 




,1830. ih^ defendtol eovepBoted to pi^, Tbe grantor died in 
1790, after having devised the rent to his soo^ Pettr JR. U* 
tinggt9Hi for life, aod ibtn to his grmidflODy Robert T«. 
Lmng9Um. P. R. L. died in 1794, and R. T. JU m 
1814. The latter devised the rent to hia children, but dtr 
jcected, by his will, that during their iorancy, the rent should 
be received by the plaintifls, hi» executors ; and the bill 
avers, that the children are still minors. 

The only fact alleged, as a reason for coming into this 
Court, is, that the plaintiffs are not in possession of the 
counterpart of the original deed, and have no knowledge of 
it It U stated, that no rent has ever been paid since the 
date of the grant, but it is not alleged, that any has ever been 
demanded. . The defendant, H. L., demurs generally io 
the whole bill, and assigns, among other reasons, that tlM 
bill has no equity to entitle the plaintiffs to discovery or re* 
lief, and he relies upon time as a bar to the claim. 

The rule with us, as settled in the Court of Appeals^ 
(iMght V. Morgan^ I Johns. Ch. Com. 429.) is, that if a 
bill for discovery and relief be good for discovery, a gene- 
ral demurrer to tbe whole bill is bad. Tbe Englith rule 
introduced by Lord TkurloWf is contrary to the ancient 
practice which we have followed. It is held, in Enghmdf 
that upon a bill for discovery and relief, if the plaintiff be 
not entitl^ to relief, he is not entitled to discovery, and 
a general demurrer to the whole bill will lie where tbe 
•plaintifi^ though entitled to the discovery, is not entitled to 
the relief. (17 Ves. 216. 2 Fes. ^ Beam. 238. 1 Swans- 
ton, 299. 9 Ves. 75.) There may be something said on 
each side of this point of practice, but we must follow the 
ancient rule as adopted here ; and we have no reason to be 
ashamed of the old rule, when we have such a sancdoa to 
it as the opinion of Lord Ch. B. Camyns^ (Com. Rep. 667, 
66S.) that ^^ it would be unreasonable to refuse tbe aid a 
party is in conscience entitled to, because he asks something 


more.* Tbe qnefllieB tfita b, wbttber ike fdiMtifi^ opoR' UM,! 
Ibeir b^l, be entitled to discovery f 

If relief be aoagfac, t» irell M discovery, Ibvnded tfpen 
the fact of n lost deed, nn^ affldafrt of the lose ought to bvrm 
been made. (Laigki v. Morgan, 1 /oAiu. Cos. 479») 

Id Cotfs/ ▼« y«?Me#, (1 Cases in Ckancery, IM.) the hill 
was for arrears of rent, on tbe saggestion, that the deeds by 
winch the rent was created w«re lost, and there was proof 
of the constant payment of it till tbe last twelve years. 
The Master of tbe Rolls decreed payment of the arrears 
and growing rent. Bat in Palmer v. WkMmkalj (1 Cases 
tn Chancsryf 184.) a different decree was made, under ehr** 
cumstances very analagoas to the present case. The pkio*' 
tiff, as heir to his brother, claimed a rent of seven poondr 
ptr amvum, and it was averred to have been paid by lb» 
owner of the land nntil within thirty years, and that tfao 
land charged with the rent had passed throogh eeverld pev« 
sons, and came to die defendant, and the bill piayed, th«t 
the rent and arrears might be decreed to be paid The de* 
fendant demurred, and alleged, that he, and those under 
whom he claimed, had enjoyed the land for thirty years, 
without any demand of rent, and that being so long unpaid, 
it was presamed to be extinguished. On debate, the do*' 
mnrrer was allowed by Sir Orlando Bridgman^ the Lovd 
Eeeper. Again, in Botder v. Massey^ {Rep, Temp. Fimehf 
241.) the Court supported a claim for a dormant rent, on ai 
bin founded on the loss of tbe counterpart of the deed, and 
so far the case resembles tbe one before me. But in that 
case the rent had been paid for many years, and until with- 
in twenty-three years of the time of pronouncing the d(K 

The case of Collins v. Ooodall, (f Pern. 235.) ia too 

brief to give much light on the subject The bill was to 

be refieved touching a rent charged upon lands, and tbe do* 

ftndant pleaded tbe statute of limitations, and t^at there had 

Vol. IV. St 


UOIL been no demuMl or payment ia forty years ; and tlie Gourl 
merely say, that the case in Coie, on the stotole of Hen. 
Vlli. did not apjdy to rent commencing by grant. What 
beenme of the case, does not appear; the note of RaiMf 
only saysy that afler demarrer the defimdant had been or* 
dered to ao^er, and thai the benefit of the demurrer wu 
9$md to the hearing. The decree, in Steward v. Bridgetf 
(^ Fem* S16« note,) contains a principle of maeb good sens^y 
and strongly applicable. It declares, that an aonnal reiH 
for certain copyhold lands, had been paid to the plaintiff al 
oiroer of the manor of Deon, for twenty4bur years, and 
aprards ; and that no demand had, in all that time, been 
nmde, of any annual rent out of the premises, payable to 
the manor of fyeing, (thoogfa it was admitted the copyhold 
was held of the manor of fyeing^) and that this was ^ a 
strong evidence of a severance of the said annual quit-rent 
from the said manor of J., by some grant or toweeyanee^^^ 
sttd the arrears were decreed to the pbuntiff. 

Upon the applicatbn of the doctrine contained in some 
of these decisions, to the present case, I am disposed to re* 
jeot this MIL Here has been no rent paid or demanded, for 
forty^foar years before the filing of the bill ; and this case is 
to be distinguished frooi all the others, in this peculiar cir«' 
dumstance, that no rent has ever been paid or demanded 
from tlie beginning. The presumption is very strong of 
no extinguishment of the rent, by eome grant or conveyance. 
The ori^nal grantor lived seventeen yearsaAer the execution 
of the deed, and no rent was demanded or paid. His son Kved 
four years after his father's death^^'and the same silence was 
preserved ; and his grandson, who was entitled to the rent, ^ 
if any existed, lived twenty years after he became so entitled, 
and there was no demand or payment At this late day, the 
representatives of the grandson call on this Gourt to help 
them to recover this rent, on the ground, that they can find 
no counterpart of the deed. The presumption is, that it 
has been surrendered or canaelled, and the rent extinguish* 


ed bjr unat act or deed <tf ibe party having a right to ex* JHSa 
tiimiiish it* I tbiok the deeision of Sir Orlando Bridge 
fnwt is applicable and jmL He allowed a demurrer to 
tach a bill afier thirty ye^rs, and here is a lapse of forty* 
four yean, and an assamed claim floating unheeded through 
three generations. Lord Hardwieke observed, in BmUan v. 
Baldmynj <1 Jltk. 69&) that Chancery interfered to help 
the. payment of a sleeping rent, ^^ upon the foundation only 
af payment of rent for a«long time, which bills are caUed 
bills founded upon the sefo." 

The diflereoce between this case and the one decided yea* 
teiday, is very material. Here is a demurrer to the whole 
bill| and the great lapse of time taken as one ground in sup* 
port of it, whereas, in the other case, the defendant, by Ms 
answer, admitted the covenants to pay, and put bis defence 
•D counter claims* Here is, ako» a lapse ^o{ forty- (0m 
years, and ihere were only twtoty or twenty-two years 
in the other casew Again, the claim here has passed through 
successive generations, and neither the grandfather, father, 
or son, as they were successively entided, ever applied for 
rent, but in the other case the covenants to pay rent were 
with the plaintiffs' testator* There is no case that would 
warrant a denial of assistance, under the circumstances dis- 
closed in the former case, but several that would require it ; 
whereas here we have, at least, one case sufficiently in point, 
and none that have sustained a bill under such strong pre- 
sumptions against it. 

I shalli accordingly, decree that the bill, as to the defend* 
ant, Henfjf LivingiiQn^ be dismissed, without costs. 

Decree accordingly. 

cises IK cHANcsar. 


ftossB aod otbersi auigneei of C. Skow, againtt C. Rufir 
and others, repraentaiives of A. Rust. 

Where t eapse waa set iowa for a hearing, od the hitt and answer, aoft 
Hie Ml was disaniased wlCh costs, becavse ne person i^ifMaatedf^ 
ihm^oiUSt aad Ibe decree was eaeolled^ ttkedecret wat ksMtehe 
no bar to another suit for the same mMler. 

M. ISA. TH£ bill, in tbU cause, vUdi wae filed Ae iMkof w%ri4 
1814^ was SMiietaatially ibr the same matter Ant which a MX 
wae filed on tbe9tli of Jime» 1810« byJEfkfmm Sm^ 
against JlvHusiah Rmt^ whiob cause was sec dowa Sut a 
htariag od the biU and anewer, the 10th of Sefiemberj 1819^ 
wheo na person apf>earing on the part of the plaiotifi| the 
ImII mm dismiesed with costej and the deeiee of dismissal 
wae enrolled. 

The defendants now pleaded the faraser smt^ aad daerea 
tbeeeia, in har. 

TWfar, for the plaintiA. 

GcK^ centra. 

Thb CHANCBLLoa. The present suit is fin* tha sane 
matter, in svbstance, as ibnt oontained ia the pleading* in the 
former action, and the qnestioa is, whether the dMM di»» 
missing the bill in the former suit at the hearing, (the cause 
having been set down for hearing by the defendant, upon 
leave previously bad and obtained on a previous default of 
the plaintifi*,) became no penen tgfpewred on ihepart of <Ar 
pUdni^, is a bar to the present suit 

The merits of the former cause were never discussed, and 
ao opinion of the Court has ever been expressed upon theni. 

CAsia m oHANOiaiT. asi 

it kf diei«f«re» sol a tate witbtDtbe rale reoderitig m itectee 18M. 
H iMtr to a turn wmu Th^ grwDd of this deSeate by plea 
is, tbat the tnaner bat be«D already deckled, and bcre has 
beea aa declshm on ike matltr. In BhmcSyft v. Ord, (1 
^tk. 511.) Lord Hardvncke said, «' tbat where the Aefeadaot 
ylsads a fcrmer sait, he aiiist show it was a res JMdieaiaj or 
abaolota deteminatioa of the Court, that the plainliff bad 
ife tMe, A bill dropfitd lor want of prosecittkni, is not t6 
be fdeadfd as a decree of dismissioo, id bar to aoocber bill.'' 
The same doctriM is stated io Lord ReJksdMt treatise. 
(JUb^ PL p. 19S.) The deeree in this caae was aqmraknt 
to 4 jfli^iMDt of Mtadt aA.lair* 

Plea ovemdedy ftad tbe dsfeodanti adgred Io aoswsr. 

BvtnwuL agaimt Habfobd and others. 

>Oaa MU filed sfsiiist the repreteDlatl^esor agrantee, to have a dead 
set aside and cancelled, od the ground of a frandnlent alteration, 
which was fnllj proved in this Court, aad had, aho, heen proved in 
an action of ejectment brought bj the defendants against the plain- 
tiff, at law, and a verdict found for the tenant in possession, but 
the defendants, afterwards, had the deed proved by an aged wit- 
ness* and recorded, and threatened to bring another action of eject- 
tsent ; this Court ordered the deed to be cancelled as fraudulent 
aad foM, and tbe defendants to be perpetually enjoined from using 
4km reeerd of it as evidence of title. 

Anfi the decree was declared to be biadhig on the infhnt defendanti, 
unless, on coming of s^e, they showed good cause to the contraiy, 
on being served with process for that porpose. 

The defendants, who were of age, and had not rested satisfied with 
Aie trial aad verdict at law, were ordered to pay costs. 

THIS was a biH to set aside, and to have cancelled, a jmuurifS&h, 
deM, purportiflfg to have been eXecoted on the 6th day of 


1830. F^ruary, 1790, by K Gorham aod O. Phelps to WiOiam 
Einngf in fee, for undivided parts of certain lots of land 
lying in the county of Genesee, aod r^orded in the clerk'i 
office of that county, on the charge, that it had been ia^ly 
and fraadulently altered. 

The- defendants were the infant children of Ewi$ig^ wiip 
was dead, and his wife, who had married the defendant fior- 
'fird. The cause was pot at issue, and proof was taken of 
the fraudulent alteration of the deed ; and the fraud was 
shown to be of a v^ry gross kind, and clear, beyond 
all contradiction. It appeared from the pleadings and 
proofs, that the delendanu, Harford and bis wifis, had 
brought an ejectment suit upon the deed, which was 
tried at the Oeaeiee circoit, where the Monioos alteration 
of the deed was made out to the satisfaction of the judge 
and jury ; and a verdict found for the tenant in possession. 
Since that trial, these defendants had procured the deed to 
be proved by a very aged subscribing witness, since dead, 
and to be recorded, and had threatened the proaecodon of 
a new action of gectment. 

The cause was submitted upon the pleadings and proofs* 

Henry, for the plaintiff. 

J. C. Spencer, for the defendants. 

The Chancellor thought it too. clear a case to need 
discussion, and directed, that the deed, which was in Court, 
should be cancelled, as beiog a fraudulent, forged, and vmd 
deed ; and that the defendants, and all persons claiming 
under them, should be perpetually enjoined from using the 
record of the deed as evidence of title, and that the decree 
. should be binding upon the infant defendants, unless tbey 
should, within six months after they respectively attained the 
age of twenty-one years, upon being served with process for 
that purpose, show to the Court good cause to the contrary: 


And ioasmaeh as the deiendaatoi Harford and. his wile, had 
not rested satisfied with the trial in the ejectment suit, bat 
had since procured the deed to be proved by a very aged 
snbscribing witness, since dead, without notice thereof to 
the plaintiff, and had caused the deed to be recorded, they 
were ordered to pay costs of this suit to the plaintiff. 

Decree accordingly. 

B&owN against W. & G. R. A. Rickets, Executori of 
Catharine Brewerton. 

An executor, or trustee, is Dot allowed to use the trust monej, and 
fetain tbe profits arising^ from it 

If be mixes it with his own money, and uses it in his business or trade, 
the profits of which are not known, he must pay ifUerett. 

But where there vas no direction in the order of reference to the 
Master, to inquire into the use and profit of the fnnd, and he had 
ohai)(ped the party with i$UereH^ tbe report, to prevent tbe effect of 
Mwrprue on the party, was reccnamitted to tbe Master, to take fur- 
ther proofs or explanations, and correct any mistakes. 

Where a plaiotiff claimed as legatee and as a creditor, and proved 
only his right as legatee ; and tbe defendants, executort^ had caused 
great expense and delay, by raising unfounded obijections, neither 
party was held entitled to costs, 

THE Master, in pursuance of the decretal order in this January ^ik. 
caose, {fAie S. C. vol. 3. p. 553.) by which he was direct*, 
ed, '^ to take an account of the proceeds of the food created 
' by the will of the testator, to pay legacies, and the amount 
of the debts and funeral expenses, and to make to the de- 
fendants all just allowances, and to examine the parties upon 
interrogatories, as he should deem necessary," reported a 
balance due to the plaintiff, out of the fund, of ]^936 dollars, 


1820.' 99 cents, an4 clmrged the defaidants Mtfa interest en liM^ 
net proceeds <^the sales by them, ef certain bonses and lots 


. RicKxrt. 

T. in the city of Mew^York. The Master stated, as reasoaa 

for charging the defendants with such interest, that the le* 
gacies were directed, by the U^il), to be increased or diori- 
nished, as the fimd increased or dtminisbed, and that the 
legatees had the same right to such increase as to the ori* 
ginal fund ; and because those proceeds arose from what 
was previously productive either in rents or interest, and 
because the defendants had made use of the moneys be* 
longing to the plaintifil 

The defendants were examined upon interrogatories before 
the Master, and stated, that as to the application and invest- 
ment of the 3,500 ddlars, bequeathed to the plaintiff, and 
to Wittiam Brovm^ deceased, whose right was claimed by the 
plaintiff as his administrator, " they had not made any par- 
ticular application or investment thereof. That the fund, 
applicable to the payment of the legacies, to the plaintiff 
and fT. J?., as it came into the hands of the defendants in 
money, was mixed with their own private funds^ and majF 
have been sometimes used by ihem in their business, though 
they were ready at all times to have paid the plaintiff oat 
of the said fund, as the same came into their hands in cash, 
if he would have relinquished bis claims upon the estate 
beyond the said legacy, and given the security required by 

Exceptions were taken to the report, in regard to the 
allowance of interest : 1. Because, the order of reference 
contained no authority to the Master to charge the defend- 
ants with interest, and the decree of the Court had not ta^ 
tablished the plaintiff's right to interest ; 9L Because, it waa 
not a case in which, by the ruleis of the Courts interest was 
chargeable against the defendants in fiivour of the plaintiff; 
3. That if chargeable, the mode of ealcolattog k was m^ 



Cl^f& IH CHAKCERT* 305 

There weie some olher exceptioni^ which it is utmeccMa* IS20. 
ry to state* ^^^'^'^^^ 

S. Janes^ ia support of the exceptions. 

Burr J contra. 

The Chancellor. It is the established doctrine of 
the Court, that an executor, or other trustee, cannot be per* 
asitted to convert trust funds to his own use, without being 
responsible for the profits of the money. He is not to make 
any gain to himself from the use of the funds, but it must 
all be accounted for to the cesiuy qtte trust. So, if an exe* 
cutor, or other trustee mingles the trust moneys with hi^ 
own, 80 as to answer the purpose of credit, or if he puts the 
money in jeopardy, by involving it in the risk of his trade, 
be must answer for what it may reasonably be supposed to 
have made. I have had occasion frequently to lay down 
this rule ; {Dunscomb v. Dunscombj Manning v. Mannings 
and Schiefflin v. Stewart^ 1 Johns. Ch. Rq>. 61(1 535. 
623 — 629.) and it may be declared to be a principle of 
universal law, tliat a tutor, curator, or trustee, shall not 
make a profit of the trust money, and then retain the pro- 
fits. Whatever interest the trustee made ought to be paid. 
Though it should even be proper to keep the money in de* 
posit, yet if he did, in fact, make interest of it, he ought to 
pay it. He most not, in any event, be a gainer by his em* 
ployment of the trust fund. 

I am surprised, that this point should be again drawn into 
question, afier what has been said and ruled in this Court, 
and considering how fully and explicitly the doctrine hat^ 
been established in the English Chancery. 

In Ratdiffe v. Graves^ (1 Fern. 196. 2 Ch. Cos. 152.) 
as early as 1683, the Lord Keeper said, it was reasonable 
that executors, in all cases, should answer interest, if they 

Vol.. IV. ^9 


1820. had used die money of the testator in trade, or recetVd^ any 
interest for it, and that they should not turn the same to their" 
own private advantage. He ruled, that the administrator, in 
that case, should account for interest, unless he made out 
that he had kept the money by him. Afterwards, in 1706^ 
in the case of Lee v. Lee, (2 Vem. 548.) the Lord Keeper 
decreed, that though a trustee, or executor, was not direct- 
ed to place money at interest, yet, where he made interest, 
be should be accountable for it. 

The practice, before the earliest of these decisions, had 
been different, and so it was stated in that case ; and some of 
the observations of Lord Hariwicke {Adams v. Oahj Sw^idb. 
106. Child y. Oibson, 2 Mk. 603.) would seem to be in con- 
tradiction to this salutary doctrine. He gives an extredie!y 
lax and dangerous license to executors, if we can possibly 
give credit to the accuracy of the reporter. But from 
the time of Lord ThurloWf we find the true doctrine of the 
court asserted with uniformity and precision, and placed 
uponihe soundest principles of policy and justice. 

In Mewton v. Bennett (1 Bro. 359.) the executor had mo- 
neys remaining, from time to time, in his hands, which' he 
used in common with his own moneys, in the way of trade, 
and the question was, whether he should pay interest Lord 
Thurlow admitted there were many sayings in the books, 
to prevent its being laid dowp as a general rule, that an ex- 
ecutor should pay interest for money used in the course of 
his trade, and that he was required to say that an executor 
might keep the testator's money, and apply it to the uses of 
his trade, without being liable to interest. But, he said, « it 
was impossible this should have been laid down as the law 
of the Court ;^' and he charged the executor with interest, 
who had called in money, and made profit of it, in the way 
of his trade. In the subsequent case of Perkins v. Baynton^ 
(1 Bro. 375.) the administrator had received money, and 
kept it, for five years, in his hands, and it was referred to a 
master to inquire whether he bad made interest. The mas- 


^mr xqji^rMt tbit be had mixed it witb bis owd money, and 
ik^m. time to timey had laid out the mixed AiDd ia govern- 
meat ^ecm^iues, and had, therefore, made some interest, 
though he could not report what, in particular. The Lord 
Cb^acellor decreed, that he be charged with interest at four 
per GQOl^ from the time the money came to his hands. 
Again, ia Treves v. Toumsendj (1 Bro. 384. 1 Cor, 50, 
S. C.) Lord Loughborough charged the assignee of a bank^ 
rapt with interest, when the money lay at his banker's, and 
be jiad been negligent in making a dividend* He observed, 
Ibat the money of a merchant at his banker's, does not lie 
idlfi^ it is p^ft of his stock in trade; and when this cause 
c^me ,^ to be beard before Lord ThurlotOf it was moved 
for .a. reference, to inquire whether the assignee had made 
any, and what interest ; but the Chancellor said the inqui-» 
ry was to^illy out of the case, for the answer adn^^tted suf- 
ficient, when it admitted that he used the money in his oum 
iroiki in. common with his own^ and he charged him witb 
interest at five per cent. The same point was ruled in 
the C9^ of 7%e Bankruptcy of HUliard; (1 Ves. jun. 89.) 
mi.iu FranUin v. Frith^ (3 Bro. 43S.) the Chancellor 
charged an executor, with interest, who kept money idle 
a^ his banker's, and observed that ^' keeping money at 
his banker's9 was no proof that he did not make interest 
of it" 

. In a recent case, before the House of Lords, (4 Dow^s F. 
A|i. 131.) Lord Eldon declared the rule of the English law 
in a very eniphatical manner. A^ trustee can make no profit 
to himself of the trust money; and if he offered to pay a 
certain rate of interest, the cestuy que trusty might say ^^ Nc|| 
you must account to me for all the profits you have made of 
my money, and 1 have a right to know from you what pro- 
fits you have actually made of it, and if you have made ten 
per cent., 1 am entitled to it. If the use you made of it, was 
to make any particular rale of interest, then you must pay 
me that interest. If you have mixed my money with your 



1820. own, so that you catioot distinguish what ts yoM, Mri'VlM 
is roiue, and cannot tell what profit yon have inade oC*wty 
money, less than the legal interest, you sbaH pay me-jols*' 
rest at five per cent/' 

In the case before me, the defendants were mercihanls. 
They are so designated in the testator's will. Tbey od»> 
vert into cash, in .May, 1816, in pursuance of die directions 
of the will, several houses and lots in the city of AetP-Forfc, 
and in answer to the question, what was done with that 
money, they say, ^^ It was mixed with their own private 
funds, and may have been sometimes used by them ia their 
business.'' There can be no doubt, from thai admission, 
and from the cases which have been referred to, that iftey 
were properly chargeable with lawful interest; and dwonly 
difficulty that can arise in the case, proceeds from the wait 
of a direction in the decretal order, to inquire into the use 
and profit of the fiind in their hands. The defendants may 
have been talien by surprise, and not have been prepamd to 
^ve more precise explanations on the sub^eet. Lord 
Tkurhw, in the case of Treves v. Twmsmul, after haviAg 
charged the defendant with interest, offered to his eoulisel m 
reference to inquire into the rate of interest to be made by 
money so employed ; and I think, that under the circum- 
stances of the case, it would not be unreasonable to have 
the cause sent back to the master, to give the defendants all 
the opportunity they may want for explanation. The omis- 
sion of any direction concerning interest in the former 
order, is the only reason for a further reference. 

The question of costs may sdll be reserved, though I 
think that neither party has just claims to any. The plain* 
tiff has united with his demand of his legacy, a claim as a 
creditor, and has failed to establish it, and tlie defendants 
have caused delay and expense, by raising objecdons, in the 
course of the cause, without foundation. Though an exe- 
cutor may have a claim to costs, as far as goes to the taking 


the aoecNmt, jnet^ as Lord Thurlow observed, in Newton v. 1836. 
Benmetj oo tUs point, it b difficalt ^< to separate the ex- 
pensesi^' and be refused cosU to other party. 

The IbUowipig order was entered; "tmesmiKih as the 

qoestion of interest, with which the master has charged die DecnM «r- 
defendants, aod irith wUeh Ihey ought to be chaiged •opon 
the fiicts stated in the report, may have operated as a sur- 
prise upon the defendants, the same not being expressly 
mentioned in the decretal order directing a reference to the 
jmaster in this case ; to the end, therefore, that the defend- 
ants may have an opportuoity to give further explanations, 
if any they have, tolichiog tlie question of interest; it is 
Orieni^ &e«, that the said report, for that purpose, be re- 
commttfed to the master, and that he take such other and 
farther proo^ touching interest, chargeable to the defend- 
ants, as may be offered by either party, and that he allow 
' or dieallow interest, as the same, upon such farther exami* 
nation^ shall appear to be just and equitable. And if inte- 
rest be allowed, that he, at the same time, revise the mode of 
^alcnlatiag it, and correct any mistake, if any shall appear^ 
in sncb mode, &c." 

3ia ^ CASE8 IN CHiNCfiRT. '^ : 

J^ ■•■''* 

SUAVER • ■ ' 



■ Sbatvr aad others fi^mtuf Rai>l«t and ofbers. 

• » 

If » IttMtee by im p ik a tkm , it to be •Ifcftted by — «i«ily, that v^iy- 
mi^t be p«need wilbja « veaimuible time* 

Wbere the defiuMlant, a bommfidc porcbtMr withQUtiuitioeraiid iboft 
under whom he claimed, had been in poMeaaioD of land, above /wen^y* 
fix yean, before the plaintiffs filed their bill to enforce their claioi^. 
founded on an implied trust, the bill was dismissed, but witfiout 
eoiU, under the oireoBietaiicfls of the case. 

A dtfeadaat wb6 •aurered ao origiad hai» atof a daeige B[piiiithi«^ 
petitioiMd ibr a rekmringf which was granted, and th4^.p)fia(i||a 
filed a bill ofrevwor and wwpfUmejA^ to which the defendant aa- 
swered and ditdamedy he was held entitled to comU^ on the dismis- 
sal of the bill. ^ , 

mnmjf M. THE origina) bill, filed March 8th, 1799, stated, that 
Andrew Makaus was seized of eighty acres of land in the 
yan Baal patent, in the manor of Rensselaer. That A,Ml^ 
by his will, dated August 15th, 1749, devised one half of his 
land to his son Peter j in fee, and the other half to his daugh- 
ter Annaiie. The testator died, and his son, also, died, soon 
after. Annatie married John Radley^ and their children, 
and the children of another daughter, JVartVte, who married 
Abraham Bradt^ were plaintiffs. ElizoAeAj another daugh- 
ter of the testator, died intestate. A dispute arose about 
the boundaries of the Van Baal patent, which was a»b- 
mitted by the proprietor of that patent. Van Rensselaer^ 
to commissioners, in 1774, who awarded the said farm to 
S. Van Rensselaer^ the proprietor of the manor, who was 
bound by a stipulation in the submission, to confirm the 
title of the grantees under the Van Baal patent, subject to 
the like rents and conditions used in the manor leases^^ 
In pursuance of the award, the proprietor of Van 
BaaPs patent, on the 14th of Marchj 1789, assigned the 
counterpart of the lease to the testator, in fee, to the pro* 





pri«tor of die manor of R. The original lease to tiie tes* 1820. 
tator, was dated Oetaber 19tb, 1732. The two devisees 
took possession of the farm, and enjoyed it, until the death 
of Peters foA Animdie contiotted in possession until her 
death, which was long before the filing of the bill. Her 
luttbandv John RaHey^ who survived her; married a second 
wife, by whom he had issue, and who are the defendants. 
The Utt fbrther stated, that John Radkjff having obtained 
the title deeds and will of A. JM., destroyed them. That 
he cQiuinued in possession until his death, in 1785, and that 
the defendantSi or some of them, have since continued in 
posBessieo; That J. A, or his last wife, or the defendants, 
al^r thehr death,, by false suggestions that they were the 
legal possessors, obtained from the proprietor of the manor 
of A., a deed, in fee, for a tract of land, including the 
eighty acres^ subject to an annual rent, &c. ; and under that 
deed keep possession of the said eighty acres, and refuse to 
produce or to admit the title deeds and the will of A. M.^ 
so that the plaintiffs are unable to recover the farm or rents 
at law. Prayer^ for discovery and relief. 

The four defendants, on the 2d of September^ 1799, put 
in their answer, stating, among other things, that they did 
not know, or believe, that A. M. died seised, or made a 
will, &c. and ^t /orth their title as derived under the will 
of their father. 

They denied the suppression of the will. They admit, 
that in 1773 the widow of the proprietor of the manor of 
R., gave a lease to their father, of 100 acres of land, in- 
cluding the eighty acres, for thirteen years \ and that, in 
1791) the present proprietor of the manor, gave 4o their, 
mother a new lease, for 220 acres, including the eighty 
acres, in fee, subject to an annual rent of thirty skipples of 
wheat, Szc. They denied, that any false suggestions were 
made, &c. 

Witnesses were examined, and publication passed, and 
the cause brou^t to a hearing, before the late Chancellor, 

1830« in 1813) when k was decreed, that the dcfeodanH, and their 
wives, should release to the plaintiA^ two nodivided third 
parts of the eighty acres, and deliver possession thereof;, 
and a r^ereoce was made to a Master* to state an ascti^Dnt) 
of the rents and profits received hy the deiendai|ts« 

On the 19th of Sqitmber, 1814, three of the defendants,, 
one havioff died in the mean time, presented a. petition for a 
rehearing, in which, among other things, they stated^ that 
the property in the eighty acres of land, were vested in the 
defendant, William Badley^ and the other defendants had 
no interest, be. 

A rehearing, was ordered, and the defendants bad leave 
to amend their answer, and the plaintiffs had leave to file a 
UU of revivor and svpplement; the depositions taken, to be 
evidence, and the motion as to costs of the petition reser- 
ved, kc. 

On the Ist of August^ 1816, the plaintifTs filed their bill 
of revivor and supplementy stating additional plaintiffs, and 
various changes by death and marriage, and deducing title 
to the plaintiffs. They repeated the charges in the original 
bill, kc. 

William Radley put in his separate answer to the bill of 
revivor, &c. And the other two defendanu answered, an<| 
disclaimed, and prayed for costs. 

The material facts appearing in the pleadings and proofs, 
which were very voluminous, are sufficiently stated in the 
opinion of the Court. 

Van Vechten^ for the plaintiffs. 

J?urr, for the defendants. 

The Chancelllor. 1. If the land in question had be- 
longed to the Van Bad patent, and not to the manor of 
Rejusdaer, and Andrew Makaui had been legally seised 
in fee, at the time of his death^ the plaintifis, who are chil- 



iren ot Jnnaiie Radley^ would have shown a title to a iS20* 
moiety of tbe prentses. 

By the willofJIfaAM^^njf, (aadofthe antbeoticity of which 
there cao remain oo doubt,) tbe one half of the farm wag 
devised to his son Peter^ and the other half to his daughter 
Annatie. There is no evidence that Annatie ever parted 
with her right, but there is ground to presume that Peter 
conveyed his interest to Jokannis Radl^y^ the husband of 
•Aino^e, and father of the defendants. There is a certificate 
signed by Mary and Elizabeth^ the two other daughters of 
the testator, and dated in 1759, by which they and their 
husbands acknowledge to have received of J ohannit Radleg 
their' full demand upon the farm, and they assign over all 
their right and title to him. By the will, those two daugh- 
ters were entitled to a legacy of ten pounds each ; tbe pne 
Icgsicy paj^ble by Peter, and the other by Annatie. These 
legacies, which were paid by Radleyj in 1759, were paid on 
behalf of Pe^er, and of his wife Annatie^ and how came he 
to pay the legacy chargeable upon Peier 9 We find, also, 
by a receipt dated in 1756, that Johanma Radley paid a 
«maU debt of jl. Lansing, against P^ Makame; and 
by another receipt, of the date of February ^ 1763, he paid 
to Dow Fonda, a debt due from Andrew Makanse ; and by 
a receipt, of May, 1763, he paid another such debt to Mary 
Beit ; and by a receipt of 1768, he paid another such debt to 
A. Yates ; and by another receipt, of 1777, he paid another 
such debt to Jotcob Roseboom* A number of aged witnesses 
testify to traditional information and belief, that Jokan- 
nis Radley acquired the farm by purchase, and assumed 
the debts of the testator; ad|^ though they do not speak 
with precision, their testimony shows that there was an an- 
cient and generally received ipipression in the neighbour- 
hood, to tl|at effect. It appears,* also, that Johannis Radley 
continued in possession, from the time he first entered, not 
long after the death of Makanse, until his death, in 1785, a 

Vol. IV. 40 


1820. period of upwards of thirty years. I think we might sa&Ij 
presume^ under these facts and circumstaoces, that a convey^ 
ance of Peter^t moiety of the farm, was made to him, and 
that the deed has been lost. As to tlie moiety of Annaiie^ 
his continuance in possession until his death, would be per* 
fectly consistent with her right, and that of her children, in- 
asmoch, as he was entitled to such possession, as tenant by 
the curtesy. 

Assuming, then, the Makanse title to have been good, I 
should be induced to think that the plaintiffs, who are the 
children or descendants of wfnna^ie, have shown a title to a 
moiety of the premises, and that the plaintiffs, who are the 
children or descendants of Marta^ have failed in establish- 
hig any title, legal or equitable. 

2. But it appears, from the case, that the Makanse title 
was without foundation ; that the lands in question belonged 
to the proprietor of the manor of Rensselaer^ and that the de- 
fendant, fVUliam RadUey^ is lawfully possessed of a lease, 
10 fee, under the true owner ; and the only point in the 
case is, whether the facts will raise a trust, by construction, 
as to a moiety offjuf premises, in favour of the representa- 
tives of Annatie Radley. 

. The charge in the bill, that the parents of the defendant, 
William Radley^ suppressed tlie will and title deeds of An* 
*drew MakansBy and obtained a title under Van Rensselaer^ 
by false suggestions, is not supported by proof. It appears 
that disputes and controversies existed between the proprie- 
tors under the Van Baal and Van Rensselaer patents, and 
•ejectment suits had been brought on each side. In JtUy^ 
1774, the proprietors submigifd the dispute to arbitration, 
and by tlie award of the re&rees, in May, 117 5 j the lands 
now in question were declared to belong to the manor of 
Rensselaer, It is suggested, that, by the terms pf the sub^ 
mission to arbitration, the title of the grantees under the Van 
Saal patent was to be confirmed, under the like rents and 
conditions, in case tbo^e grantees should fall within the 


munoT of Renudaer. But neither the defeDdantSy nor their ' 1820. 
parents, {Johannis Radleyj and his second wife, Caiharinei) 
were parties to that sobmission, and there is no evidence 
that ttie knowledge of such a stipulation ever came to them, 
or either of them, and the fact of such knowledge is denied 
in the answer. When Johannis Radley obtained a lease, in 
1773, from Mrs. Fan Renssdaer, for thirteen years, he ac- 
quired a title by purchase from the true owner, upon the 
nsual covenants and conditions contained id the printed 
leases, and upon a yearly rent of fifteen skipples of wheat* 
This appears to have been a fair purchase, and without any 
ground upon which to raise a trust, in favour of the plaintifis, 
under Makatue. The tide under Makanse was denied, apd 
resbted, and proved, afterwards, to have been null and void 
from the beginning. It was a safe and necessary purchase 
under the rightful owner; and the suggestion of a fraudu- 
lent attornment Is not supported. If there was any fraud, it 
was committed against the proprietors of the Van Baal pa- 
tent, who were seised of the rents under the original lease to 
Makanse ; and they would be concluded from the sugges- 
tion, since they submitted their title to a tribunal which de- 
cided that they had none. The taking a lease under the 
true owner, was a tabula in naufragio. His tenancy by 
the curtesy was unsound and worthless ; and the mere fact 
of his being an occupant under such a pretension, would 
not render him a trustee under the new lease. The claim- 
ants, under Makanse^ had no title, in law or equity, to a con- 
firmation of thieir lease by the true owner, unless under some 
covenant to that effect, and to that the Radleys were strangers. 
It does not appear that the lease was given to Johannis 
Radley^ upon any other ground than that of his being a per- 
son in actual possession, which, of itself, gave him no legal 
or equitable right to the lease.' He died in possession, 
before the expiration of the lease ; and sometime after his 
death, his widow, Catharine Radley, procured from Van 
Rensselaer J in 1791, a lease in fee, subject to a variety of 


1^0. covenants and conditions; and among others, to the pky^ 
ment of an annual rent of thirty skipples of wheat This 
lease, in fee, to Catharine Radley^ was not in parsoance of 
any stipulation in the snbmission to arbitration. There is 
a great difference, both as to the quantity of land, and as to 
the rents and covenants, between this lease and the ovve in 
1732, to Makonse, the counterpart of which had been 
assigned to Van Rensselaer , in 1789. There is no analogy 
between them. This is to be considered, not as the con- 
firmation of the same grant, but as a new and original pur- 
chase made by the grantee, in good faith, and without know- 
ledge of any legal obligation in Van Rensselaer- to give it. 
She. afterwards, conveyed the premises to Ryiert Radley^ 
and he to the defendant, William Radley, who holds as a 
bona fide purchaser, without notice of any trust arising from 
the terms of submission to arbitration, and without being 
chargeable with any fraud that might have been imputable 
to bis father. 

The interval between the time when Johannis RaSley took 
a title under Van Renssdaer, and the filing of the bill, was 
twenty-six years ; and during all that time, the land was 
held under Van Rensselaer^ without notice of any ecj^uitable 
claim, which the grantees, under the Van Baal patent, might 
have had, arising from the submission to arbitration. I do 
not see that there is any principle of the Court to warrant 
the deduction of a constructive trust, to be enforced against 
the defendant. If a trustee by implication, is to be affect* 
ed by an equity, that equity must be pursued within a rea* 
souable tipe. {Townshend v. Townshend^ 1 Cox*s Caset^ 
28. and see, also, the cases referred to in 3 Johns. Ch» Cas. 
216.) Here the defendant stands in the character of a bona 
fide purchaser, without notice, and he sets up such a pur- 
chase, and the occupation of the land by himself, and those 
under whom he holds, for a period of twenty-six years be- 
fore the filing of the bilL I am of opinion, that he ought 


not now to be disturbed, under the peculiar and extraor- 1820» 
dioary circumstances of the claim. 

The bill must, accordingly, be dismissed ; but consider- 
ing the protracted nature of this litigation, arising from the 

acts and laches of the defendants, and the circumstances of On disDiimi 
bardsbip and misfortune which characterise the lost claims denied \o^- 
and equity of the children of Annatie Radleyyl shall follow tbe %toatA oT 
the precedent of tbe case just cited, and dismiss the bill |wrt,'aShBrd- 

•^t ^ ^ ■hip OD the 

wubout cosu. p«^ .of ^« 

Tbe two defendants who have, in their answer to the bill ^ ^"defendant 
of revivor and supplement, disclaimed all interest in the "^ "JJI7*2a 
premises, might have been entitled to costs, if that last bill ^*"* •Aer a 
bad been tbe commencement of the suit. But when it is htm, petiboned 

for avtfwonNC'. 

recollected, that in their answer to tbe original bill, there which was 

ffraottd : and 

was no such disclaimer, and that a decree, after a bearing uie piaiatiib 
on the merits, had been pronounced against them, and that rvmNranrfn^ 
on their petition for a rehearing, they were indulged with which the de- 
the privilege of amending their answer, and might justly be itrered a^d 
chargeable with costs of the preceding part of the suit ; they m^^'^M'^ 
can.hfkve no just right to the costs of the last stage of the ^^u^f^a t£ 
suit, if they are permitted to be exempted from the payment fhe^'buu but 
of the costs of ihe/ormer stage of iu The bill, therefore, JJ^Jj^cSu^'wl 
^s to all the dqfend^its, is dismissed without costs. ^^*^"*^ 

Decree accordingly. 




^°"' C. Ddmond, surviving Administrator of A. Dumond, against 

Magee and others. 

A Conrt of equity will lay hold of the property or money of a wife, 
which may be within its power, for the purpose of prondinf^ % 
maintenance for her, when she it abandoned hf her hnsbond, or 
preyeoted from cohabitation with him. by his ill-treatment* 

Where a husband abandoDed his wife, and married another woman, 
with whom he had contiqued to lire for twenty years, he was held 
to ha?e forfeited all just claim to the wife^s distributire share to 
personal estate inherited by her. The Conrt directed the prin- 
cipal of such share to be brongbt into Court add placed at interest, 
and the interest to be paid to the wife, for her support, during life ; 
and after her death, the principal to go to her children, by her lat^vl 
husband, or to their representatives ; (she baring, after being so 
abaodooed by her husband, upon report and belief of his death, 
married another.) 

Feb, im. THE bill, filed August, 1816, stated, that Anthony Du- 
mond died, unmarried, and intestate, on the 3d of Notem-- 
ber, 1814, possessed of a considerable personal estate, &c. 
leaving a mother, Catharine Dumond, and two sisters of the 
half blood, Maria (the assumed wife of Samuel Magee^ of 
Catskill) and Catharine^ the wife of Thomas Harreti^ residing 
in the state of Ohio. Administration was granted to the 
plaintiff, and to Catharine^ the mother of the intestate, who 
died in Jlfay, 1816, having devised her share of her son^s per- 
sonal estate, to the plaintiff and others. (And this third the 
plaintiff was ready to distribute among the parties interest- 
ed, and as to which there was no controversy.) The bill 
further stated, that Samuel Magee^ defendant, claiming to 
be husband of Maria^ defendant, had applied to the plain- 
tiff, for one third of the personal estate of the intestate. 
That the plaintiff knew that the defendant, then Maria Du- 
mondy married John Burhanse^ defendant, by whom sht hadi 


three, children, one of whom died without issae, and the 1820. 
other two were living. That the defendant, John BurhansCj 
who was living, had, by his trustee, Jabez D. Hamnumdj 
defendant, demanded of the plaintiff, the one third of the 
personal estate, as lawful husband of the said Maria. That 
the defendant Magee pretended to have married the defend- 
ant MariUf in 1799, and she has cohabited with him since. 
That the defendant, John J?., has always lived in this state, 
and was deserted by the said Maria^ in 1792, and that the 
marriage between the defendants Migee and Jlfam, was 
unlawful. That the defendant Magee^ set up a release of 
an the right and interest of /. £., but that J. J?., and his 
trustee, Hammond^ averred, that the assignment to Ham- 
mandf in trust, is prior in time, and that the assignment to 
JUagee was procured by duress and fraud. That T. /ior- 
rM^ who married Catharine Dumondf resides in Ohioj and 
they have two children ; that their son, by virtue of a power 
of attorney from his mother, claimed her share. That the 
plaintiff was lately cited before the surrogate of UUter 
county, to account and distribute, at the instance of the de- 
fendants, Magee and Marian and A. Hurrett^ as attorney of 
Catharine H. That the plaintiff cannot safely distribute, 
until the claims of Magee and Maria, and the other defend- 
ants, are decided ; it being uncertain, also, from contradic*- 
tory reports, whether Thomas H, was living. The plain- 
tiff asked for the decision of the Court on these conflicting 
claims, and for its protection and indemnity. Prayer, that 
the surrogate of UUter may be enjoined from proceeding, 
&c. and for general relief, and an order for distribution, as 
this Court shall decide and settle the rights of the parties 
claiming, &c. 

The defendants, Samuel Magee, and Maria, in their an- 
swer, stated, that she was lawfully married to John Bur^ 
hansCf at Kingston, in Ulster county, in 1781, and lived with 
him until 1786. That Burhanse then left his wife and her 
two children, destitute, and she was taken home to her father's 


1 820. house. That they, afterwards, lired together for two j^ean, 
at Brooklyn, but that he behaving io an adolterons and 
omel manner towards her, she returned again to her father's 
house, with her two children. That she was, afterwards, 
persuaded to live with liim in Scohariej but he again ne- 
glected and abandoned her, and she again returned to her 
father's house, in 1792, which was their final separation. 
That several years, afterwards, and before her marriage 
with Magee, she was informed, and believed, that her hus- 
band B. was dead ; and in 1799, she married the defendant, 
Mageej with whom she has since lived, with the two children, 
she had by B. That they never heard that B. was alive, 
until about five years ago. That about twenty years ago, 
(and before the marriage of the defendants, Samud Mqgee 
and Marioy) Burhanse had married another wife, by whom 
he had a daughter, now seventeen years of age. These de- 
fendants then stated facts relative to the two deeds of assign- 
ment by BurJian$e to Magee^ and to Hammond^ which, from 
the decision of the court, it is unnecessary to notice. The 
other defendants having answered, the cause was put at 
issue, and proofs taken. The material parts of the evi- 
dence are stated in the opinion of the Court. 

Sudam for the plaintifil 

M. L Cantine, for the defendants, nS. Uarrett, and Magee 
and wife. 

J. D. Hammond^ for the other defendants. 

The Chancellor. This is a bill filed by the plaintifly 
as administrator, for direction to whom to pay the two 
distributive shares of the personal estate of his intestate, 
which descended, by law, to the next of kin, being the de- 
fendants Maria and Catharine^ the two sisters of the half 


There can be no doubt that the defendant, Caiharine Bar* 1820; 
rettj is entitled to her share, in her own right ; for it is verjr 
cfear from the proofs, that her husband, Tkotnaa Harretty is 
dead, and was so when the share descended to her. The 
course of duty, on this point, was so plain, that there seems to 
hav^ been no sofficient ground for delay, or for application 
to this Court* But the conflicting claims as to the other 
share, were of a nature to create reasonable doubt and diffi* 

I place entirely out of view all pretensions of the defend«> 
ant MageCf as the assumed husband of Maria Burhanstf for 
her lawful husband, John Burhanse^ being living, and she 
having never been divorced from him, her cohabitation with 
Jttagee is adulterous and unlawful. If he has any colour of 
claim to he^ distributive share, it is derived from the act 
and deed of her husband, Burhanse, But it appears^ from 
the circumstances of the case, that Burhame has no right oar 
title which the Court can recognise and protect, and, eonse* 
quently, he bad none which he could impart to another. I 
am, therefore, relieved from the necessity of discussing and 
deciding On the (brce and effect of the two deeds executed 
by Burhanstj and to which a great part of the testimony is 

It b manifest that Burhame behaved extremely ill to hii 
wife before their final sepanltion. The separation was ren* 
dered necessary on her part, by his omission to treat her 
with that kindness and fidelity, and to afford her that pro* 
tectioB tind support, to which she was entitled. Though 
I am obliged to condemn her subsequent connection with 
Magte^ as altogether inadmissible, her situation is one tbdt 
entitles her to tenderness and compassion. She says, in he^ 
answer, that she did not marry Mag$e, until several years 
after her separation from Burhanse, and until she was 'm^ 
formed, and believed, he was dead. It was her misfortune 
to have been deceived by siioh information ; and though ik 

Vol. IV. 41 


1820. may be safficient to exempt her from guilt, it cannot give 
any validity to the second marriage, which was, and is, of 
course, null and void. The case affords too much colour 
for the inference, that the defendant Maria did not take pro- 
per pains, nor make due and requisite inquiry, to ascertain 
the fact of her husband's death, whom she had left residing 
in a neighbouring county. I am very apprehensive that 
she reposed with too willing a disposition, and in too care- 
less a manner, upon some loose, and certainly groundless 
report, without that vigilance of examination which was re- 
qdired in a matter of such interesting moment to her cha- 
racter and conscience. 

On the other hand, the conduct of Burhanse has been 
such as to deprive him, in equity, of all just claim to his wife's 
distributive share. The separation between him and his 
wife, was owing to his own misconduct ; and he has married 
another woman, and lived in unlawful and adulterous con- 
nection with her, for the last eighteen or twenty j^ears. 
To allow him to come in and maintain his claim, as husband, 
to tl^e personal estate inherited by the defendant Maria^ as 
hte as 1814, after he has ceased to maintain her or her 
children, ever since their separation, in 1792, and has, for 
that long space of time, wholly abandoned his connection 
and duties, as husband and father, would shock the moral 
sense of mankind, and be equally repugnant to the establish- 
ed principles and practice of this Court. It is the settled 
doctrine, that equity will lay its hands on the property or 
money of the wife, which is within its power, for the pur- 
pose of providing a maintenance for her, when she is aban- 
doned by her husband, or prevented from cohabitation by 
his ill-treatment. 

In JVickolls V. Da fivers f (2 Vem, 671.) the wife was ill- 
used by her husband, and she parted from him. The wife's 
mother died intestate, by which one third of the personal 
restate came to the wife. A bill was filed by her and her 
brother, to have that portion paid to her, for her use and 


maiotenance. The husband had, on the marriage, made a 1820.. 
SDitabie settlement upon her, and by a cross bill, he claimed 
this distributive share. The Lord Keeper decreed that the 
principal should be paid to a master, and placed at interest, 
and the interest paid to her for life, for her maintenance, and 
after her death to her husband, for life, and then the princi- 
pal to their issue, and if no issue, then to the survivor of 
husband and wife. The cosu of all parties, except the hus- 
band, to be paid out of the fund, but no costs were allowed 
to the husband. 

This case is, in some respects, analogous, but there was 
not such a total and permanent abandonment of the wife, 
by the husband, as to deprive him of all claim upon the pro- 
perty. He was, nevertheless, postponed to the wife, as to 
the use of it, and to her issue, as to the principal. In the 
case of WiUiams v. CaUow^ (2 Vem. 752.) the husband 
had used the wife cruelly, and the Court decreed that the 
interest of a trust bond given for the wife's portion, should 
be paid to her for her separate maintenance ', and it ordered 
the principal to be brought into Court, and to be paid to 
the survivor. So again, in JSTewsome v. Boioyer^ (3 P* 
Wm»* 2il.) the control of the wife's portion of personal pro- 
perty, which came to her by inheritance during coverture, 
was taken from the husband, whose crimes had forced him 
to abandon her, and was appropriated to the use of the 
wife. The case was this ; the husband had been attainted 
of felony and pardoned, on condition of transportation, and 
the wife became entitled to some personal estate, as orphan 
to a freeman of London^ and it was claimed by the bus- 
band as being, by the pardon, capable to take. Lord Ch. 
JSng', though he thought it not a case of abjuration or ba- 
nishment, ordered the money to be laid out in government 
securities by a master, and the interest and dividends paid 
to the wife, for her maintenance, until further order; and after 
the husband's death, he ordered the principal to be paid to 



1820. the seeond faasbimd of the wife, who, with the wife, had 

^"fT^^"^^ made application for it. 
B011O11D ' 

T. Here the doctrine is fully asserted and maintained, that 

the faosband, by his abandonment of the wife, may Ipse all 
claim to the use and to the principal of her separate pevsonal 

The case of Cecil v. Juxon^ (1 Aik. 278.) contains thesame 
principle. The hnsband left the wife and two infiint chiU 
dren, and went abroad, and deserted them, for fourteen years. 
The wife was entrusted by her mother, with goods proper 
for the business of a milliner, and permitted to take the pro- 
fits, tor the support of herself and her children. The money 
she earned by her business, she loaned ooC The husband 
retorned and took away the proceedb of the stock lent to the 
wife ; and a bill was filed against the husband for the amomit 
of die money loaned, and for a re-delivery of the gooda taken. 
Sir Josq[>h JekyU,' the Master of the Rolls, was of opinion, 
that as the desertion was proved, the Court would regard 
the acqntsitiona of the wife, in his absence, as her separate 
property, and not liable to the disposition of the hosbaad, 
and th^t she wa^^ entitled to the goods ukeo, and to the 
money loaned ; and he directed a reference, to ascertain 
what was due on the loan, and that the defendant should 
relarn the goods taken, or the value, if disposed of, without 
costs on either side. This cs^se was eked in 3 Burr. 1779, 
and Lord Mansfield observed, that it was a case securing the 
wife's property, and that the wife's separate property bad 
been secured, by a Court of Equity, in several cases. 

I shall, accordingly, declare, that the two sisters of the 
half blood, Maria and Catharinef were each entitled to a 
third part of the personal estate of the intestate, and that 
Catharine^ or lier attorney and son, the defendant, Anthomf 
HarreUf is entitled to her share, when ascertained, on giving 
the usual security to refund in case of debts. It may be a 
qnestion whetter the plaiuttff ought not to pay interest and 



cosU ID tke defendant, Catharine^ for so long withholding 
her share, upon pretences that were not solid ; and I shall, 
therefore, direct the master to ascertain the amonnt of the 
two shwres, and what use or disposition has been made of 
the property since it was payable and due/rom the plaintiff. 
I shall further declare that the defendant, John Burhame, 
has forfeited all right and title, as husband of the defendant 
Maria, to her distribotive share, and that the same ought to 
be brought into Court, and placed at interest, so that the 
interest may be paid to the said Maria ^ (or her support, and 
the principal reserved for her children by Burhamef after 
her death, on giving the like security to the plaintiff against 
debts of the intestate. It may, also, be a question whether 
the plaintiff ought not to have costs out of Mortal portion, 
by reason of the resort to this Court, to settle the various 
and conflicting claims upon that portion ; but the defendants, 
Migee and Burkantej are not entided to costs for setting up 
and urging an inadmbsible claim. Nor, on the other hand, 
has the plaintiff any such equity against them as to entide 
him to costs from them. The most I can do is to disnuss 
die bill, as to them, without costs* Whether the defendant, 
Hammandf who defends the suit as a trustee for BurhanH, 
and to whom, as such trustee, the plaintiff, by his agreement 
of AVwemier, 1815, promised to pay Marians share, may not 
be entitled to costs, either from the plaintiff, or from the 
fund, I shall reserve until the coming in of the report. 
Hie following decree was entered : 

** The cause having been heard upon the pleadings and Deme, 
proofs, be : it is declared, that the defendants, .MmaBt^Aan^e 
and CkUkarine Barrett, are each entitled, as sisters of the half 
blood of the intestate, Jlnthony Dumond, deceased, to an 
equal undivided third part of the personal estate of the said 
intestate, after payment of debts, and the legal charges of 
the administration, and such cost^ of this suit, if any, which 


1820. ihe Court may hereafter direct; and that the defendant, An- 
thony Harrettf h entitled to ask, demand, and receire, by. 
virtue of a power of attorney, for that purpose given him 
by the said Catharine Harrett, (and who is the widow and 
survivor of Thom€u Harreit^ deceased,) the share aforesaid, 
belonging to his mother, the said Catharine^ after the same 
shall have been ascertained, as hereinafter mentioned, on 
his giving the security hereinafter mentioned, and subject 
as aforesaid : And inasmuch as the defendant, John Bur- 
hanscj has lived separate and apart from the said Maria^ his 
wife, and by his improper conduct compelled her to leave 
him, in the year 1792, and has not contributed to her sup- 
port and maintenance, nor to the support and maintenance 
of his children by her, since that period ; and inasmuch as 
he has, for upwards of sixteen years past, lived in adultery 
with another woman, under the assumed character of her 
husband, knowing his lawful wife, the said Maria, to be 
living : it is thereupon further declared, that the undivided 
third part of the personal estate of the said intestate, which 
came to the said Maria Burhanse^ by descent, in the year 
1814,is, under the circumstances of the case, to be adjudged 
and taken as her separate estate, free from the disposition, 
control, or debts of her said husband, and that all his assign- 
ments and releases thereof, are inoperative and void. And it 
is ordtredy adjudged^ and decreed^ that it be referred to one 
of the Masters of this Court residing in the counties of Alba- 
ny, Columbia^ Dutchess J orNew^Yorky (unless the solicitors 
or counsel of the parties shall agree on a Master residing 
elsewhere,) to take and state an account of the personal 
estate belonging to Anthony Dutnond^ deceased, and which 
has come to the hands or possession of his adminbtrators, 
or either of them, or to the hands or possession of any 
other person, for their use and behalf, or for the use or be- 
half of either of them ; and that be, also, inquire and report 
the situation, disposition, use or employment of the said e»* 


late, or any part thereof, in the hands of the plaintiff, since 1820. 
the first day of December j in the year 1815 ; and that he 
have power to examine, upon oath, the plaintiff, or any per- 
son not already examined, in respect to the premises, and 
that he report with all convenient speed. And it is further 
ordered^ that the question, whether the plaintiff ought to pay 
interest on the share belonging to the said Cathaiine Har» 
retti and the costs of this suit, incurred by the defendants, 
Anthony and Catharine Harrett, or either of them, be re- 
served until the coming in of the report. And it is further 
ordered^ that upon the coming in and confirmation of the 
said report, and after the net amount of the said shares, 
subject as aforesaid, shall have been established, the plain- 
tiff, on the offer of the security hereinafter mentioned, pay 
to the said Anthony Harrett^ the net amount of the share of 
the said personal estate belonging to his mother, the said 
Catharine Harrett^ and that he, also, bring into Court and 
pay to the register, the net aniiount of the share of the said 
personal estate belonging to the said Maria Burhanse, and 
that the register place the same at interest, by investing it iii 
the public funds, or loaning it on adequate real security, as 
shall hereafter be deemed best, and that the interest thereof, 
as the same shall from time to time be received, be paid, 
until further order to the contraVy, to the defendant Maria 
BurhansBf for her separate support and maintenance, and 
that the principal of such share or fund, after her death, be 
paid over to her two children by the defendant Johh Bur'- 
Aaitte, in equal proportions, or to their lawful representa- 
tives. Mnd it is further ordered^ that the question, whether 
the plaintiff be entitled to the costs of this suit, as respects 
the defendants, Samuel Magee^ Maria Burhanse^ John 
BurhansBj and JcJfez D. Hammond^ out of the said fund or 
share, belonging to the said Maria Burhanse, be reserved, 
until the coming in of the said report, and that no costs 
of this «uit be allowed to the defendants Samud Magee 


1820. aod John Bwrhjme^ as against Cbe plaiotiffi and tfaac the biU 
as to tbem shall stand dismissed without costs ; and that the 
question, whether costs be allowed to the defendant Han* 
mandj as against the plaintiff, or the share of the said MariOf 
be reserved. And it is further ordered^ that the defendant, 
Anthony Harrett, at the time of payment to him by the 
plaintiff, of the share of his mother, Catharine Harreit, give 
a bond to the plaintiff in double the sum of such share, 
with two sufficient sureties to be approved of by one of 
the Masters of this Court, conditioned, that if any debts 
owing by the said intestate, shall afterwards be recovered 
or duly made to appear, and which there shall not be other 
assets to pay, that then the said Catharine Harrett^ shall re- 
fund the share so paid, or such rateable part or proportion 
thereof, with the other representatives of the intestate, as 
may be necessary for the payment of the said debts, and the 
costs and charges duly incurred by reason thereof; and that 
before the share belonging to the defendant JUarta Burhame, 
be paid into Court, two persons on her behalf^ to be ap- 
proved of as aforesaid, *shall give a like bond to the plain*' 


Parker agaimt RocpesT^R ai|d others. 

.ildmittiog that the UUcd Inmranee Company^ by their charter, have 
no power, as a bank, to discount notes, &c., and that all notes and 
securities for the payment of money to them, as a banking associa- 
tion, are void by the act ; (sess. 36. c. 71. 3 JV*. It L, S34.) Tet 
a bond, «nd a jud^ent confessed thereon, by the makers of a note, 
discounted by the company, for the mdenmUy and security of the 

t endorser, hekkg tonafide^ and without a fraudulent intent to erade 
the law, are Tal^d : and this Court will not, at the instance of a 
purchaser at a sheriff's sale, under an execution on a subsequent 
judgment, against the same defendants, interfere to prevent the 
surety frdm obtaining payment, under the prior Judgment, from the 
original debtors ; especially when the parties to the notes so dis* 
counted, raised no objection« and consented to the judgment, and 
the execution against them, to obtain the money actually advan* 

BILL for an injunctioD, filed July 17tb, 181 &, and an Feb. S6/A. 
injunction allowed. The defendants put in their answer, 
denying all equity in the bill. The material facts in the 
bill and answer, mil be found in the opinion delivered by 
the CJourt. 

JET. Neeeker^ for the defendcnts, now moved to dissolve 
the injunction. He cited, 1 Term Rep. l£3b iJohne. CK 
R^. 385. Vin. Abr. tit Uewry, 308. pL 7. Str. 1043. 
2 Johns. Ch. Bep. 418. 581. 1 Evem* Poth. on Oblige 
?83. 20 Fin. Abr. tit. Surety, (D.) pi. 7. (E.) pL 1, 2. 
2 P. Wm. 542. 7 Johns, i^p. 102. 

J. C. Spencer, contra, cited 2K. R. L* 234. 15 Johns. 
Rep. 219. Str. 1155. Doug. 744. I Ld. Raym. 87. 
Cath. 356. 3 Johns. Cos. 66. 213. 12 Ves. 371. 3 Ves. 
373. 1 Madd. Tr. 325. 3 Johns. Ch. Rep. 497. 

Vol. IV. 4« 


1820. The Chancellor. This is a motion to dissolve the in- 

junction» The defendant, Roehater^ was the endorser of 
certain promissory notes, for the payment of money, given 
to the UHca Insurance Company^ and he became such en- 
dorser as a surety for the house of Band ^ Hakh, who 
were makers or endorsers, and interested in the notes. Thb 
was on the 1st of August, 1817. To indemnify and save 
him harmless from that respoosibiiity, B, fy H. gave him a 
bond of the same date, conditioned for the payment of 
7,000 dollars, with a warrant of attorney io confess 
judj^ment thereon. The judgnrlent was confessed, for the 
better security of tiie defendant A., and docketted on the 
5th of Jugusty 1817. The notes so endorsed, were re- 
ceived by the Uiica Insurance Company y io payment of 
debts previously due, being in effect the renewal of former 
notes then due ; and the manner in which the renewal was 
made, was the same as that by which regularly incorpora** 
ted banks usually discount notes. When the notes so en- 
dorsed by the defendant i2., fell due, they were protested 
for non-payment, and actions at law were brought against 
the drawers and endorsers, and judgments obtained in Jar 
nuary term, 1819. These judgments are stated to have 
been jnsily obtained for moneys loaned by the Utica In^ 
surance Company to the drawers and endorsers of the notes, 
and by them expended in their business. After the judg- 
ment against the defendant A., he sued out an execution on 
the judgment so confessed to him, in ./ftigti^t, 1817. This 
was done in pursuance of an express understanding between 
him and B. ^ H., that when judgment should be obtained 
against him upon all, or any of the notes, he had endorsed, 
he might issue execution, and collect the same under the 
judgment so confessed for his indemnity. This has been 
done, and B, fy Jff., who are not parties to this suit, have 
never complained, and we are to presume, are satisfied* with 
the proceeding. The Utica Insurance Company have no 
control over the judgment obtained by the defendant against 


£. ^fiL, or over the execotion issued under it; but it is the 1820. 
vnderstaodiog ofali the parties to the judgment, and to the 
loRjiSy that the moneys, when collected under the execution 
of the defendant R.^ are to be paid to the Utica Insurance 
Company f towards the judgment so obtained against the de- 
fendant £• 

The charge now is, that the plaintifT, who is a stranger 
lo all these antecedent proceedings, and has no interest in 
them, having purchased certain lots of B. fy H., in the vil- 
lage of Rochester^ under a junior judgment, of the SOth 
of January^ 1818, against B* 8f If., the defendant R* 
is now about to seize and sell those lots, under his prior 
judgment of the 5th o( August^ 1817. And what then? 
What equity has the plaintiff to enable him to come forward 
and interrupt the prosecution of the prior legal right and 
title of the defendant 22. ? His ground is, that the notes 
which were endorsed by the defendant, and given to the 
Utica Insurance Company^ were null and void, because, that 
company vgere not authorized by their charter to issue bills, 
discount notes, receive deposits, and carry on other opera- 
tions as a bank. In August term, 1818, the Supreme Court 
declared, that the company, by such acts, had usurped 
a franchise, and on an information in the nature of a quo 
warranto^ judgment of ouster was rendered against them. 
{The People v. Utica Insurance Company^ 15 Johns, Rep* 
358*) If the company were not authorized to exercise these 
banking powers, then the provision of the act, restraining 
unincorporated banking assodationSj {Laws, vol. 2. p. 234. 
sess. 36* c. 71.) is i^upposed to apply, wliich declares, that 
^' all notes and securities for the payment of money, or the 
delivery of property, made or given to any such association 
or company, not authorized, &ic., shall be null and void." 

Without discussing the question, how far a want of power 
in the Utica Insurance Companyy to discount notes in the 
manner they did, might have been a good defence in a suit 
on the notes, I apprehend that the plaintiff has no right to 


1820. come here and raise that oli^tkiD agatnst the Judgriaecit 
coolewed iipoa the bdnd of indeioiiity. The panied to the 
original Dotes so discomitedy were not oMiged to. raise the 
objectioD; and it certalttiy vaa not an imisocal or qii|iisC 
act, fer the hiakers and endorsers of those noiei& 4o vaiw the 
plea of the statute, and consent to jodgmenu agaiti«l-cbt0» 
to secure the repayment of moneys actually advanced. It 
is not to be supposed that third persons dealing wMi a ttnar 
pany duly incorporated for certain purposes, and eiercising 
banking powers, under colour of law, and with good 
credit, could have acted with atiy fraudulent intent^ or 
with a design to violate the law. Thei« h no groatid for 
any improper imputation, in this case, npoti any^ of the par* 
ties to the notes ; and if the drawers and endorsers have 
omitted to plead the statute restraining vnincorpordted 
banking companies, there is no good reason why the 
judgments against them should not be deemed valid and 
binding. There can be no doubt that the makers and en* 
dorsers of the notes, are holden in equity and* good con* 
science, to pay them, for they were given fer a fair and va- 
luable consideration* The case is not analagoas to that of 
ttsury, for there the bargain is corrupt, and made intention- 
ally to evade the law, and to extort unlawful gains ; yet it 
is settled, {Peterson's case, Cro. Eliz, 104. Geang v. 
Swaine^ 1 Luiw. 464. Fisher v. Banks, Cro. Eliz. 25.) 
that if the defendant misplead the statute of usury, he is 
held by the plea, and if be omit to plead it, he is bound to 
pay the debt, even though the usury sh9uld appear on tfie 
face of the bond. If A. becomes surety for B. in an usu- 
rious bond, and takes a counter bond from B. for his in- 
demnity, and be is then sued on the tisurious bond, and a 
recovery had against him, he can prosecute on the counter 
bond, and a plea by B. of usury in the original bond, 
would be bad, on demurrer. Tlie usury act declaring the 
original bond, contract, or assurance, void, does not reacli 
Hhe counter bond of indemnity. (Basset v. Prowe, 2 Leoiu 


M6« tBMMim Y. Afby, do. Eik. BBS. Oouldtb. R^. i«^ 
174. & G. Aftt9fi V. DamUrnn, CVou EKz. 643. Afaemi 
398. S. C.) if there be. «ii eicc|>ti<Ni to this rule, it is wbea 
tbe ttrefgr was i>ruy. to.the luluryy and neglected to plead 
it i» barcp aa aclioii on the origisal jiote or bond; and tbis 
is apppoied tobe tbe adMNifil otPotkmU case, (3 Le<m.e^) 
and tbe olily distinction by which it can be reconciled to 
tbe 5H|belr xases, Tbe defendaiit JEL cannot justly be said to 
have been iprivy:to an illegal .conimst» so as to bring faim 
within the equity of tbb exeeptian. k is very proba* 
ble, that tbe parties to tbe notes weee Mt conscious that they 
were dealijjg with ja company who bni no right to disconnti 
in the character of a bank* The constroction of the act in- 
corporating the UHea Imuranoe CofnfMny, was susceptible 
of much doubt, and of great dtilereaee of opmion, and gave 
rise to profound legal discussion^ There is no colour or 
ground for imputing any conseioui wrooig, or any undue 
Btf^ect to tbe defendant, in (Hnittiag to plead tbe restrain- 
ing act, in bar of the suit i^^st .bim as endorser ; and the 
obHgors to the bond of indemni9,'i»aQld not, themselves, 
be permitted to set up the act in bar of a suit on that bond. 
The words of the act .do not reach 1ms case, or touch his 
bond, and if he is damnified by being endorser, as he cer- 
tainly is, by tbe recovery against him on tbe note, he has a 
just right to sue out execution upon bis jntigmcnt. 

The case is much stronger, when wo- consider that B. 
and JET. are pot in Court interposing the restraining adf 
in bar of a recovery against them. They have confessed 
judgment, and consent to the execution. It is the plaintiff, 
who comes in undec them, with knowledge of tbe prior judg- 
ment of the defendant, who raises Ae objection $ and. it ap- 
pears to me, that 'there' is scarcely sufficient ecjuity on the . 
iace of his bill, to support the injttnction, and ihe answers 
put an end to all pretension to it. 

ll is all^d (in tbe^bill, that tbe^eftndani is aotidbfloaiiied ; 
but the aaswer states u. judgqient against him as endtianar u 


1890. nad if that judgmefit had not been obtabed^ he woidd, oe- 
vertbelessy have beeo entitled, as surety, ta have asked die 
aid of thifi Court to compel B. and If. to pay the debt and 
release him. (i Vem. 190. 3 Johns. Ck. Ap. 56K) 
Since he has a judgment fairly obtained, and not quettioiied 
by the principal debtor, it is impossible lor the Court, upon 
any just principle of equity, to deprive him of the beneft 
of his judgment and execution* They are, to him, juat 
and lawfid means of indemnity, by which ho may coerce 
payment of the xlebt out of the property of the original 

Motion granted. 

Campbell against Mesier and Ditnsta^. 

The doctrine of cotUridution is not so nwich founded oa oouttact, as 
on the principle of equity and jattice, that wbere tbp intoiest if 

common, the burden, also, should be common; and this principle, 
that equality of right requires equality of burden, has a more ex- 
tensive and effectual operation in a Court of equity, than in a 
Court of law. 

Thus, where there was an old party wall between two owners of 
houses, in the city of J>rew^Y(frk, and one of them being dasifeos 

. to build a new hoose go his lot, palled down the old bouse, and 
with it, the ps^y wall which was ruinous, and rebuilt it with his 
new house, the owner of the adjoining house and lot, is bound to 
contribute rateably to the expense of the new wall of partition. 

He is not, however, bound to contribute to building the new wall 
higher than the old ; nor, if materials more costly, or of a different 
nature, are used, is he boand to pay any part of the extra expense* 

lyhere one of the defendants dies after the aigumeat of a cause, and 
before judgment, the decree will be entered, so as to have relation 
back, as of the day of the final hearing, 

THE bill was fiM in AprU, 1809. In 1803, the plaintiff 
and Peter Mesier, deceased, were, resjpectivdy, owners of 


two houses and lots adjoining each other, in (be city of Nevh- 1620. 
York. The hotises were old, and the plaintiff deteroHned 
to poll down his hoase, and erect a new one on its scite. 
There was a piirty wall, standing equally on each lot, which 
dkided the two houses. The plaintiff employed the city 
•orveyor, and- two master masons, lo examine the party 
Trail, and to ascertain whether he could safely build a new 
iiouse, without pulling down the wall ; and they certified 
their opinion, that it would be impossible for the plaintiff to 
rebuild on his lot, without taking down the party wall, to its 
foundation, it being decayed and ruinous, and incapable of 
being partially removed and repaired. The plaintiff deliver- 
ed this certificate to the defendant JIf., the son and agent of P. 
Jm, then the owner, and requested that his father would unite 
in the expense of rebuilding the wall. The defendant and 
P. JIf. refused to accede to the plaintiff's proposal, and for- 
bade him to pull down or injure the wall, for, if he did, he 
should be made responsible as a trespasser. The plaintiff, 
notwithstanding, proceeded to pull down his house, and with 
it the party wall ; and he built a new house on his lot, with 
a new party wall, sixteen inches thick, above the stone foun- 
dation, on the scite of the old wall. He, afterwards, appli- 
ed to the defendant, as son and agent of his father, to have 
the new party wall surveyed and appraised, and that P. M. 
should pay to the plaintiff, the one half of the appraised 
value* The bill further stated, that after the plaintiff's house 
and new party- wall were built, P. M. devised his house and 
lot to his son, the defendatit, who, afterwards, sold the lot to 
the defendant D., and in the deed, expressly conveyed 
the use of the party-wall, for building, &c., and covenanted 
to indemnify the defendant P., for so using it. That D. 
puHed down the house so purchased by him of M., and erect- 
ed a new house on the lot, making use of the party-wall, 
built by the plaintiff, as thb side or end wall of bis new 
house, and made holes in the wall in which the beams were 
jput and fastened. That the house of jD. is higher than the 


ISae. ' bouse of the plaiiittC That the plaliitii' canaad the paiiy^ 
wall to be agaiD raireyed and appraised, ahd the mafter 
RiasoQs declared the one half to be woith 353 dollars fiad 
20 cents, which the plaintiff demanded of the defendant H., 
with half the expenses of the survey, && ; which thedelSNMl- 
aot D. refused to pay. That the plaintiff bronght an B3> 
tion in the Supreme Court against D. lo recover the 
amount ; and was nonsuited at the trial, on the ground ihat 
be had no remedy at law. The bill prayed^ that the detmih 
ants be decreed to come to a setdement with the plaintifl^ 
touching the building of the party- wall, and to coatriiMite 
and pay the one half of the value thereof, and half of the czr 
penses of survey and appraisement, with interest f or that 
the wall be again surveyed and appraised, and thedefi^d- 
ants decreed to pay a Just eompensatioD to the pla«atifl^ £>r 
the one half, 8icc. 

The defendante answered, admitting most of the Acts 
stated in the bill, but denying that the w«H in qvtstioo was 
a party-wall, or ruinons, and alleging 4>^ ^ whole was 
on the lot of P. J(f ., and snlBcient for his puspose, ice* 
They denied that they had any notite of the survey anditp*- 
praisement, which were ihade exports. ... 

Proofs were taken en both sides in the «ause; and the 
evidence supported all the material aliegatitms In the:bifl» 

Jfw. 2SfA. The cause was this day brought to a bearing. 


Wdb and C. Bddufin^ for the plaintiff. 

SlossMy for the defendanu. He cited 5 TamU^ Ay. 3fk 
2 Taunt. Rep. 62. Cro. Eii». 289. 

Thc CHANCELLbn. From the proof in this case, it is 
manifest, that the wall in questien was a party waH^ lo 
which the owners of the two houses and lots had an equal 
interest. AU the witnesses who examined the lots und 


bousesy and have expressed any opinion on die snbject, 1820* 
unite in establishing that fact. Three of the witnesses were 
master builders, or masons, and skilled in questions and 
observations of that kind* It is, also, a fact, equally well . 
ascertained, that this party wall, in 1803, when it was taken 
down by the plaintiff, was in a state of rain and decay, aiul 
dangerous, and utterly incapable of being partially cut down. 
It was impossible for the plaintiff to rebuild on his lot 
without taking down that whole party wall to the fonndadoOr 
The plaintiff had the wall examined in JprU, 1803, bylbe 
«ity surveyor, and a master carpenter and mason, and they 
united in a certificate, that the wall was unfit to stand, and 
incapable of being repaired, and that the plaintiff could not 
build on his lot with safety, without taking it down. This 
certificate was served upon the defendant Mesier^ as agent 
for bis ftither, the then owner, with a proposition from the 
plaintiff, that the owners should unite in the expense of re* 
building tlie walL The answer to this proposition contain- ' 
ed a refusal to have the wall taken down, or to unite in the 
topense of rebuilding it, and forbiddint; the plaintiff to pull 
down or injure die wall, under the pain of being respokisi- 
ble as a trespasser. The wall was taken down, and a new 
wall rebuilt by the plaintiff, on the scite of the old one, with 
all reasonable care and diligence ; and the question now is, 
whether the defendant, Jfeiter, as heir and devisee of the 
original owner, who sold the lot to the other defendant, after 
the 'new wall was erected, ought not to be held to contribu* 
don for a moiety of the expense. 

I have not found any adjudged case in point, but it ap-> 
pears to me, that this case falls within the reason and equity 
of the doctrine of contribution, which exists in die common 
law, and is bottomed and filed on general principles of jus* 
dee. In Sir WiOiam Harbert's case, (3 Co. 11.) and in 
Br<K Mr. tat Suite and ContrUmiiofh many cases of con* 
tribuiioo are pot, and the doctrine rests on the princi|de» 
that where the parties stand in eqmiijure^ the law reqnires 

Vol. IV. 4S 


1820. «iuality, which is equity, and one of them shall not be 
obliged to bear the burthen in ease of the rest It is stated 
in F. ^. B. 162. b., that the writ of contribution lies 
where there are tenants in common, or who jointly hold a 
mill, pro indiviso, and take the profits equally, and the mill 
falls into decay, and one of them will not repair the milt 
The form of a writ is given, to compel the other to be con- 
tributory to the reparations. In Sir WUliam Harbert's caw, 
It was resolved, that " when land was charged by any tie, 
the charge ought to be equal, and one should not bear all 
the burden, and the law, on this point, was grounded in 
great equity,"*' Lord Coke illustrates the rule of law re- 
quiring equity, and, consequently, contribution, by a case 
from 11 Hen. VII., and in reference to this most just and 
reasonable doctrine of contribution, he breaks out into an 
animated eulogy on t!ie common law, as being, *• tlie |)€^ 
fection of reason, and not according to any private or sriS- 
den conceit or opinion." The doctrine of contribatiott is 
founded, not on contract, but on the principle, that equality 
of burden, as to a common right, is equity, and the soRdhy 
and necessity of this doeirine, were forcibly and learne^y 
illustrated by Lord Ch. Baron Eyre, in the case of Dering 
V. Earl of Winchdsea, (1 Cox'$ Ccmm, 319. 2 Bo5. "^ 
Full. 210. S. C.) 

In the case. before me, the parties had cqualhy of right 
and interest in the party wall, and it became absolutely life- 
cessary to have it rebuilt. It was for the equal benerfrof 
the owners of both houses, and the plaintiff ought not to be 
left to bear the whole burthen. The inconvenience of the 
repair was inevitable, ahd as small and as temporary as the 
nature of the case admitted. TRis is the atftotmt of the 
proof. The case of the mill, stated in FtUsherberi^ is analo- 
gous, and no reason applies to the one case, but wbiit will 
equally apply to the other. In England^ the statdte of i4 
Geo. III. c. 78. has made special and very ample {^oviston 
on this subject, in respect to booses and partition walk in 


the ci^ of London; but in the absence of statate regula- 1820. 
tion^ we. are obliged to call up and apply the principles of 
.the common Jaw. As was observed by Ch. B. Eyre^ the 
doctrine of equality operates more edectually in this Court 
than in a Court of law. There is more difficulty in enfor- 
cing contribution at law, and this was felt in the case in 
Coke, There the parties were put to their audUa qiterda^ 
or icire. facias. Contribution depends rather upon a prin- 
ciple of. equity, than upon contract. The obligation arises 
not. from agreement, but from the nature of the relation, or 
quasi ex contractu; and as far as Courts of law have, in 
modern, times, assumed jurisdiction upon this subject, it is, 
as Lord Eldon said, (14 Ves. 164.) upon the ground of an 

' implied assumpsit* The decision at law, stated in the plead- 
ings, may, therefore, have arisen from the difficulty of de- 
ducing a valid contract from the case ; that difficulty does 
not exist in this Court, because we do not look to a con- 
trs^ty but to the equity of the case, as felt and recognised^ 

.according to Lord Coke, in every age, by the judges and 

' sages of the law. 

. Papinian (Dig. 17. 2. 52. 10.) states it as a rule of the 
civil law, .that if one part owner of a house in decay, 
repairs it at his own expense, upon the refusal of the others 
to unite in the expense, he can compel them to contribute 
Ibeir .proportion, with interest, or upon their default, at the 

. end of four months, the house, at his election, becomes his 

.sole property* Thb unreasonable penalty, or forfeiture, 
has, in modem times, gone into disuse, but the claim to 
contcibution remains. {Voet ad Pand. b. t sect 13.) 
The rules and doctsines of the French law, may be re* 

. feroed to by way pf iUui»tration, and to show the prevailing 
tqo^f and justice of the rule of contribution, in respect to 
party walls. . 

A epmmoQ, or party wall, by that law, is, when it has 
been built at common expense, or if built by ,ope party, 
when the other has acquired a common right to it. Every 


1820. wall of separation between two buildiDgg, hpraumed to be 

CiMPBEL^ * common or party wall, if the contrary be not fihowo^ 

V. and this is not only a rule of positive ordinancei bot ife a 

'"'^ principle of ancient law. {Code CivU^ No. 653. F<mr» 

nel Trade de Vomnage^ edit. 1812. torn. 2. 217. Fo- 

th%er*$ Contract de Soditi^ Premiire Appendice^ No. IW. 

203.) If the common wall be in a state of ruioi and 

requires to be .rebuilt, one party can compel the other, by 

action, to contribute to the expense of rebuilding it, bat the 

necessity of the reparation must be established by the jtid^ 

ment of men skilled in the business, and made on due prff* 

\ious noAte ; and if the new wall is made ii^der of higfaeiv 

&c. the party building it most bear the extra effpenae*' 

(Pothier, tt&i eup. No. 214—222. Foumd, ubi etfi p« 236^ 

237. 239. 242. Code Civil, No. &6S.) 

The customs of Paris and of Orlean$y have Special v 
and minute regulations on this subject, and the previoiB 
view and judgment of skilful men, and the judicial proeels . 
in these cases, to ascertain the state of the waH,- and to cool* 
pel contribution, resemble the provisions of the stadMe'Of 
13 Oeo. III. in respect to the city of London. Either.neigb^/ 
bour may, in certain cases, dischaige himself from the diit^l 
of contribution, by abandoning entirely his right ia tfat aiid* 
4le wall; {Foumel, torn. 1. p. 2. Gnl Code, No. 6M^) 
Bud there is another principle in tbe Frendk law, which ap« 
plies direcdy against the claim set up on thopart of ihe de^ 
fendant Meiier, to damages for the annoyance of therepajirs* 
^* If I, necesssarily,'' says Pothkr, '^ dq^ri ve my neighbour ef 
ihe profits of his buuness arising from the use of his sk}e of 
the wall, during the time of the reflair of tbe party-wall, I 
am not bound to indemnify him for his lossi beoause I am 
only in fbe exercise of a lawful right, unless I consume nn* 
necessary time in the reconstruction of the wall." 

In tbe present case, the defendani M. had not previous 
Qotioe of the examination of the wall, in Aprils 1603. it 

CASES IN chancery; 341 

was »ltogedier txpatte. Bat the derendant, in bis answer, 1820. 
pm bimsetropon the denial of the right of the plaintiff, and 
refiised iAiM>hitely to unite in a friendly arrangement. The 
rninoos state of the wall, and the necessity of taking it down, 
and the character of the wall as a common or party-wall, 
depended then upon the proof to be exhibited in the canse; 
and, in all these respecu, the plaintiff has supported the 
changes in his bill, and the defendants have foiled in proof 
to the contrary. But the estimate of the expense furnished 
by the plaintiff, does not discriminate between the expense 
of the wall op to ihe former height, and up to the height to 
whicbthe new wall was carried by the plaintiff; and'on this 
point « reference may be necessary. 

l%e materials of the new wall were better than' those of 
the former wall, but they were such as are usual, and pro- 
per, and beneficial, and they were of the same natmne. If 
the new materials bad been of a different and unusual kind, 
such as marble, for instance, then, undoubtedly, the plaintiff 
ought to have borne the eastra expense of the new and rare 
materials, and this, according to Poihier^ is the rale in the 

lam vefy forcibly struck with, the equity of the demand. 
The houses on each side of the lot were old and almost un- 
tenable; and it would be the height of injustice to deny to 
the plaintiff the right of pulling down such a common wall, 
and of ereedng a new one suitable to the value of the tot, in 
the most crowded part of a commercial city. It would be 
equally unjust Co oblige him to do it at his exclusive expense, 
when the lot of the defendant was equally benefitted by the 
creclioo, and much'enhaifced in value. Persons who own 
lots in the midst of a populous city, must, and ought to sub- 
mit to the Um offndnagt^ which applies to sach cases, and 
flows from such relations. 

I sbaH, accordingly, declare, that the wall in question 
was a party-wall : that it was minoosy and diat the plain- 


1820. tiff was in the exercise of a lawful right when he took it 
down and erected a new one ; and that the defendant M.^ as 
heir and devisee of his father, P. JIf. (and it is admitted in 
the answer that for the purpose of this case, he represents 
his father,) ought to contribute rateably to the^ipense of 
the new wall, and that a reference be had to ascertain the 

Decree accordingly. 

ifoneof ch« N. B. One of the defendants, Meaier^ having died after 

dfirao^? ar- the argument, the decree was ordered to havexeblioa hack, 

VZ^^ iX' and to be entered as of the 26th of JVoMm&er, last, when 

^^rm\m ^ cauie was finally heard. This was done under thede- 

I^b^te^^J c«i<>n <>f •'^»« ^- ^ ^««^**^» >° ^^ Exchequer, in 1791, 

SB*fiSll2ijf cited in 2 Fowhr'M Excheq. Prac. p. 169., and which case 

>BS* was cited and adopted by Lord Eldan^ in Davits y, i>atr»ei, 

9 Vei. 461., where the death of one of the defendants in the 

interval, aAer the cause had stood some time for judgment, 

was held not to prevent the judgment. In Maddodt^t TV. 

(vol. 2. p. 398.,) a case in MS. of AsKbvmhwn v. 2%omp- 

soni to the same effect, is cited. 


B. WiGBTMAN against J. Wiohtmak. 

Tbongli a pmrrias^e with a hinatic, is abaolntely Toid ; yet, at well 
for tbe sake of the gfood order of society, as the quiet and relief of 
the party, its nollity shoald be declared by the decisioa of some 
Court of competent jurisdiction. 

And this Court, possessingp an esclnsire jurisdiction orer cases of 
hmacy and matrimonial cauaety is the proper, and indeed, since 
there are no EccUrioMiical Courtt haying cognisance of such 
oatses, the only tribunal to afford relief, in such a case, and sustain 
a suit instituted to pronounce the nnHity of the marriage* 

nerefbre, where a person, insane at the time of her marriage, after 

. her return to a hxcid interval, reliised to ratify or consummate it, 
and filed her bill to annul it, this Court decreed the marriage null 
and Toid, and the parties absolred from ita obligations. 

So, where a marriage is unlawful and void, ab iniHo, being contrary 

' to th^ law of nature, as (between persons, ascendants or descend- 
ants, in the Sneni line of consanguinity, or between brothers and 

« sisters, in the ooUateral line* this Court will declare such a mar- 
riage) in a suit instituted for that purpose, null and void. 

Whether this Court, there being no statute regulating marriages, or 
defining the prohibited degrees, which render them unlawful, will 
go further, and declare marriages void between, persons in the other 
degrees of roUoteraf consanguinity or affinity ? Qucere, 

THE bill, which was sworq to, stated, that the plaintiff Feb. 2M. 
was married to the defendant, on the 5th of Jvlyy 1814. 
That, at the time she was married, she was, as she is now 
informed, and believes, in a state of insanity and mental 
derangement; and that she should never have consented to 
the marriage, if she had been in possession of her reason. 
That she continued insane, as she has been informed, and 
believes, and so she charged the fact to be, for six months. 
That she has never lived, or in any manner cohabited with 
the defendant, as his wife, and can never consent to ratify 
the marriage. That she has since remained sole, on account 


of the said supposed marriage ; and she cannot, in con- 
science, contract marriage with any man, until that marriage 
'^v^* is legally declared void. The plaintiff prayed, that the 
WioHTMAw. mm^age between her and the defendant, might be declared 
null and void. 

The antwer of the defendant, which was sworn to, ad- 
mitted the marriage, and that the plaintiff was, at the time^ 
in an actual state of insanity and mental derangement, as 
the defendant discovered immediately after the marriage* 
That the plaintiff refased to live or cohabit with the defend- 
ant, and has ever since refused to do so ; and he consented 
that the marriage should be declared null and void, on ac- 
count of such insanity of the plaintiff. 

S. Fordj for the plunUfi| and the defendant, in proper 
person, after signing his acknowledgment before a Master, 
for that purpose, submitted the case to the Court, on the 
bill and answer. The case was ordered to be referred to a 
Master to examine into the truth of the allegations in the 
bill, and to report the testimony taken by him, with bis 
opinion thereon. 

In pursuance of the order of reference, one of the Mas^ 
ters of this Court reported the proof taken before him ; and 
tfiat the defendant had notice of the time and place of the 
examination, and was present during part of the time. 
That from the testimony of several witnesses, among whom 
were the mother and stepfather of the plaintiii^ the Master 
was of opinion, that all the material all^ations in the biQ 
were fully proved and established. 

The cause was subinitted for a final hearing, on the re- 
port of the Master, without argument. 

The Chancellor. The fact of insani^ of the plaintifl^, 
at the time of the marriage, as cbai^^ in the bill, and the 
fact that the parties have never since lived together, or in any 
manner cohabited with each other, are proved to my satis- 


foetioQ. It ibllawh at % oe^eiscivy coDM^neocei frotti ib^it MSA. 
facta, ibat the marriiigie vras null aad voidy firom the be- 
ghi^i/lg^ by reasoQ of tbe want of capacity in the plaintiff 
to contract, and has never shice obtained any validity, be* 
cause tbe plaintiff has never, since tbe retarn of her Uicid in* 
lerval, ratified or coosammated it. 

It is too fkun a proposition tp be qnestioned, that idiots 
and lunatics are iocapabk of entering into the nmtriiBonial 
cootrai;t. In Morriion^B case, belbie the Deleg^ote, (cited in 
I BL dm. 439. and 1 CoUinsen on Lutuuy^ £64.) it was 
held, .ibat tbe marriage of .a kmatic, bot being in a locid 
interval, was absolateiy void. I cite this dass^ not so much 
for tbe rule which it declares, as to show, that diough such 
manriages be, ipso faeiOf void, yet that It is proper that 
there should lie a judicial decision to that eflect^ by some 
Court of aomp^tent Jurisdiction ; and that, in Bnghmd^ tha 
^riimd Court is the appropriate trifauhaL I should pre* 
aume, that this was all that could hiive been intended by the 
conunon law judges, in StiUs v. Wiut^ (cited in Sid. US.) 
wbene it was sakl| that if an idiot contract marriage, it n^as 
food* In Jiih's casei iJPree. in Ch. 303. 1 Eq. Cm. Mr. 
378. pi. 6.) tbe marriage of a lunatic was cOotrovened in 
the Spiritual Goiirt, and tbe Lord Keeper declared, in lliat 
caae, that if a party contracted marriage wben a lanatici 
and 9g^eBd to it, and conanmmaled it, in a Incid interval, it 
wmM be good. In Simri v. Taylor, (9 Jbd. 98.) before 
Iiord Ch» Macele^fiddj it was taken for granted, and as^ 
snmed as a settled proposition, that marriage by an idiot, 
(tod of coursb by a lunatic) wa* to be impeached in Doe* 
(art' Commoni. And in the laie ease, ex parte TVirtiif , 
(1 Fes* Sf Beam. 140.) it seemed to have been thought ne* 
cessary, notwithstanding tbe act of 15 Geo. U. c 3D. de» 
daring every marriage of a lunatic void, that there should 
be a sentence of tbe £ccl^iastical Court to that eflect. 
^bis statute could not have been introductory of a new 
. Voh. IV. 44 


1^8201 role, for every tnarriage of a lanatic, omst have been void 
at commoii law, and by the law of reason ; {Furor contra^ 
hi matrifiumiufn non sinit, quia contenm cput e$U Dig. 93. 
2. 16. 2.) and Blacksiane, (1 Cam. 439.) considers it, 
rather in the light of a declaratory law, and made on ac- 
count of the difficulty of proving the exact state of the par- 
ty^s mind, at the marriage, and, also, on account of some 
private family reasons. 

The fitness and propriety of a judicial decision, pro- 
nouncing the nullity of such a marriage, is very apparent, 
and is equally conducive to good order and decorum, and 
to the peace and conscience of the party. The only ques- 
tion, then, is, to what Court does the jurisdiction of such a 
case belong ? There must be a tribunal existing with us 
competent to investigate such a charge, and to afford the 
requisite relief; and the power, I apprehend, must reside in 
this Court, which has not only an exclusive jurisdiction 
over cases of lunacy, but over matrimonial causes. The 
Chancery powers, in cases of lunacy, have never been ap- 
plied to this case, because, there existed in JEJfig^Jancr, an- 
other and peculiar jurisdiction 'for the case ; but as such a 
jurisdiction does not exist here, the case seems to belong, 
incidentally, to the more general jurisdiction of this Court 
over those subjects. Whatever civil authority existed in 
the Ecclesiastical Courts, touching this point, exists in thta 
Court, or it exists no where, and all direct judicial power 
over the case is extinguished ; but that is hardly to be pre- 
sumed. For the more fhU examination of this very in- 
teresting point of jurisdiction, let us suppose the abominable 
case of a marriage between parent and child, or other per- 
sons in the lineal or ascending and descending line, is there 
no Court that can listen to the voice of nature and reason, 
and sustain a suit instituted purposely to declare such a mar- 
riage void ? If a man marry his mother, or bis sister, they 
are husband and wife, say the old cases, until a divorce, and 
the marriage be judicially dissolved. (39 Edw. III. 31. &• 


9 Ben. VI. 34. 13 Hen. VI. 32. Bro. tit. Bastardy, pi. 1820. 
23. 1 Ron. Ahr. 340. A. 1. 4. 357. A. 3.) Are the 
principles of natural law, and of christian duty, to be left 
heedless^iid inoperative, because we have no Ecclesiasti- 
cal Courts recognised by law, as specially charged with the 
cognisance of such matters ? All matrimonial, and other 
causes ' of ecclesiastical cognisance, belonged originally to 
the temporal Courts ; {tUt the case of Legitimaiian and 
Bastardy, Sir /. Davies* Rep. 140. and his argument in 
the case of Prcsmunire, ih. 273.) and when the Spiritual 
Courts cease, the cognisance of such causes would seem, at 
of course, to revert back to the lay tribunals. I apprehend, 
then, that the power is necessarily cast upon this Court, 
which has, by statute, the sole jurisdiction over the marriage 
contract in certain specified cases. The Legblature has, in 
that respect, pointed to this Court as the proper organ of 
such a jurisdiction. 

We are placed in a singular situation, in this state, and^ 
probably, one unexampled in the christian world, since we 
have no statute regulating marriage, or prescribing the so- 
lemnities of it, or defining the forbidden degrees. It re- 
mains to be settled^ not only where the jurisdiction, in some 
of these cases, resides, but what are the sound and binding 
principles of common law, under which that jurisdiction is 
to be exercised. 

It was said by VanghaUy Ch. J., in Harrison v. ButweU, 
(Fatigf. 206. 2 Vent. 9. S. C.) in delivering the opinion, 
which he declared to be given upoq consultation with all 
the judges of England, that by the ancient common law, 
some marriages were within forbidden degrees, and unlaw- 
ful, and that the cognisance of such questions belonged to 
the Spiritual Courts. But he objBcrved, that if it were not 
for the statutes of Hen. Vill., (and which we have not re- 
enacted,) it would be difficult to prove, that they were civiU 
ly bound by the Leviticid degrees, in respect to the lawful- 
ness of marriage connections, unless the prohibition was, 


1820J also, clearly dictated by tlie natoral lavr. He beld^ that 
marriages, in the ascending and descending line, te b0twe«» 
parents and cfaildren, were monstrous connections, and re* 
pugnant to the law of nature, and that, so &r, the LetfMad 
wafi a reoral, as contradistinguished from a positive, prohi^ 
tion to the Jews, and binding upon all mankind. 

Divorces a vinculo^ says Lord Coke, (1 Inst. 3R5. 8») are 
tausa meiuSf causa impotentio^^ cenaa affinitaiUy, canfiaeov^ 
sanguinitatis, &c. be {Vide also the case of the Eart of 
Eaexj divorced in the Court of Delegates, and B^*$ case/ 
1 St Tr. 81 5« 10 St. TV. App. 38. Harg. edit.) These 
cases, and that of lunacy, are not within the statute, giving 
to this Court jurisdiction cooeerDing- divorces, for the sta- 
tute, in respect to divorces a vincuio matrimemi^ only ap« 
plies to adultery. All the causes for dhforce specified itf 
mr statute, are those which ariae $ubtequeni to the marriage, 
and suppose it to have been lawAil in the beginning. But 
{'presume every one will readily admh, that there are other 
causes which reoder the marriage unlawful, a& initioj sucb 
a» lunacy, idiocy, duress, consanguinity, &c< ; and the qoet* 
iiep is, whether we have not a Court which is competent, 
not merely collaterally, but by a suit instttuted diruUff, aodi 
for the sole purpose, to pronounce a divorce, in sucb casesir 
The principles of qanonical jurisprudence, and tlie rules of 
the common law, are the same, in respect to soooe of thosa^ 
istroog Instances which I have mentioned, and there must 
be a tribunal to apply them. If it were otherwise, there 
would be a most deplorable and distressing imperfectioQ in 
the administration of justice. 

Besides 4he case of lunacy, now before me, I have, by- 
pothetically, mentioned the case of a marriage between 
persons io the direct lineal line of consanguinity, as clearly 
unlawful by tbe law of the land, independent of any church 
<€anon, or of aey statute prohibition. That such a marriage 
is criminal and void by tbe Law of Nature, is a point nui* 
venally conceded. And, by the Law of Natare, I uaderK 


Stead tboee fit aad just rukt of cooduet whkh the Creator igan 
has prescribtd to Maii^ as a dependeot and social- beiag; 
and wkich ave to be ascertained from the dedoctions^of 
right feasOR, tbongb they may be more predsely knaw% 
and moie explicitly declared by Divine Revelation. There 
is one other case, iti irMeh die marriage would be eqoally 
Toidi canMT eommi^gaimtaiiit and that is the case of bmtfaeD 
and sifttar ; and, stnoe it naturally arfees, in the considera* 
tioft of this .satiety I wiU venture to add a (sm incidental 
observations* I am aware, that when, we leave the lineal 
line^^and come to < the relation by Uood or affinity in the 
collateral line, it is not^so «isy to aseertain the exaet point 
at which the Natural Law has ceased to discouiotenaoce the 
union. Though there may be some difference in the theo<> 
l^iee of different writers, on the Law of Nature, ia regard ta 
this* snbjeet, yet the general current of authority, and the> 
practice of civilized nations^ and certainly,, of the whole 
christian worlds have condemned the connecdon in the ser- 
cond case which has been supposed, as. grossly indecent^ 
immorali and incestuous, and- inimical to the purity and 
happiness of faorilieS) and as fbrbidden by the Law of Na* 
tare. {Qratim de Jyre^ ixc lib. ». c. 5. & IS. PffBfknd.^ 
de Jure Qeat. lib. 6. c. 1. s. 34. Id. de off. Ifem. lib. 2.^ 
e. 2. s« & Heinec €p. torn. 8. pars 2. p. 203. Taf/l0r^s 
Mem, CK9. Lawj 336. Mmtesq.-E^. des Loiw. Fiv. 36.. 
c; 14. Fuyley's Mard PhilUmphy^ b. 3. part 3. e. 5.). 
We, accordingly, find such connections expressly prohibited* 
in difierenlCodes* {B^. lib. 23.^ tit. 2. 18. lib. 23. dt. 3. 
1. 14. si % lib. 45. tit. 1. 1. 35. s. 1. Just, Inst. lib. 1. 
tit. 10. De JfupiHs. VinniuSj h. t. Hein^. ubi supra. 
Code CwUe de France, n. 161, 162, 163, 164. Inst. ^ 
Menu, by Sir JVUliam Jtmes, c. 3. s. 5. Staunton's ZV 
Tdi^Leu-Lee, s. 107, 108. Sde's Koran, c. 4. Jtfori- 
den^s Sumatra, p. 194. 221.) And whatever may have 
been the practice of some ancient nations, originating, as 
JMbn^eiiTtcJett observes^ in the madness of supersti^n^ the 


1820. objection to such marriages, is, undoubtedly, founded in 
reason and nature. It grows out of the institution of fami- 
lies, and the rights and duties, habits and affections, flowing 
' from that relation, and which may justly be considered aft 
part of the Law of our Nature, as rational and social beings. 
Marriages among such near relations, would not only lead 
to domestic licentiousness, but by blending in one object, 
duties and feelings incompatible with each other, would 
perplex and confound the duties, habits, and affections pro- 
ceeding from the family state, impair the perception and 
corrupt the purity of moral taste, and do violence to. 
the moral sentiments of mankind. Indeed, we might infer 
the sense of mankind, and the dictates of reason and 
nature, from the language of horror and detestation in 
which such incestuous connexions have been reprobated and 
condemned in all ages. {Plato de Leg. lib 8. Cic. Orai^ 
pro J(f3. 27. Hermion. in Eurip. Androni. v. 175. Byblis, 
Ovid. Met. lib. 9. Tacit. Jinn. lib. 12, c 4. VelLPaterc. 
JBist. lib. 2. cb. 45. Com. Acp. ExceL Imp. Prefat.) The 
general usage of mankind is sufficient to settle the question, 
if it were possible to have any doubt on the subject; and it 
must have proceeded from some strong uniform and natu- 
ral principle. Prohibitions of *the Natural Law are of ab- 
solute, uniform, and universal obligation. They become 
rules of the Common Law, which is founded in the common 
reason and acknowledged duty of mankind, sanctioned by. 
immemorial usage, and, as such, are clearly binding. To 
this extent, then, I apprehend it to be within the power and 
within the du^ of this Court, to enforce the prohibition. 
Such marriages should be declared void, as contra bonos 
moret. But as to the other collateral degrees, beyond bro- 
ther and sister, I should incline to the intimation of the 
judges in Harrison v. Buiwell^ already cited, that as we 
have no statute on the subject, and no train of common law 
decisions, independent of any statute authority, the Levitical 
degrees are not binding, as^ a rule of municipal obedience* 


Marriages oat of the lineal line, and in the collateral line» be- 1830. 
yond the degree of brothers and sisters, could not well be ^^^^''^"^^ 
declared void, as against the first principles of society. The r. 

laws or usages of all the nations to whom I have referred, ^'<^"^*'^* 
do, indeed, extend ibe prohibition to remoter degrees, but 
this is stepping out of the family circle ; and I cannot pat 
the prohibition on any other ground than positive institution. 
There is a great diversity of usage on this subject. J^eque 
ieneoy neque dicta refeUo* The limitation roust be leA, until 
the legislature thinks proper to make some provision in the 
case, to the injunctions of religion, and to the control of 
manners and opioionr 

I have been led further than I, at first, intended, by these re-* 
marks, which have been made merely by way of argiunent, 
and in illustration of the question touching the power ^d 
duty of the Court to declare void the marriage of the lunatic 
in the case before me. I trust I have shown that there must 
exist such a power foe this and other cases; and I, also^ 
trust that this Court will never be under the painfiil necesrir 
ty of making a more solemn and direct application of the 

I shall, accordingly, declare the marriage null and void, 
and that the parties are free from the obligations of mar- 
riage with each other. 

Decree accordingly. 




^^^^!^^^, Lb Rev and oihera 4igmmt Tn Maitor, Aldbbmsv, A9» 
— — — OoKMOivALn of the City of J^em^TvrJu 

This Gonrty has no power to interfere with, or to set aside an a«fetf- 
mt%t on the proprietors and occupants of lots, to defray the expense 
of a common ««ioer, made by commissioners, under the direction of 
(he Mayor, Aldermen, and Comfnonalty of the city of JfeuhToHt^ 
pnnaantto an act of Che liesisl8Etiire,for fhat pwpose, ob tte fffrdnM 
merely ef « nistalle «m jed^eiit of •the cimniiiionefS 4>f tetnate 
and assessmeot, in not including all theoifBersorocbi^nts intend- 
ed to be beoefitted by the sewer ; there being no allegation of bad 
faith or partiality in the commissioners, in making the assessment, 
which, after being ratified by the Common Vounctl^ is declared, b)r 
the act, to be final and conclusive. 

The only remedy* if any, for ^he party aggrieved, israt iaw. 

Feb. i«&.and *^^^ plniili& filed their li^Il for neiief agaiott Im ^ 
^^''^ ^' meat aiade to defireiy the expense of a 'commdod ^wer^ in tka 
citjr of Mtff-Fprft, and for an iojanctioii la reftrain the de- 
fendants from collecting the assessment, or taking any iliea^ 
fiures for that purpose. 

The material frets slated in the bill will be fimnd in the 
opinion delivered by the Court 

Feb. loth. S. Jone^i Jan. for the plaintiffs, after reading the bill, 
moved for an injunction. 

Edwards and H. Bleecktr^ contra. 

* The Chancellor took the bill for consideration. 

March \tt. ^HE Chancelllor. The object of the bill is, to be re- 
lieved against an assessment made under the direction of 
the corporation' of the city of New-York^ to defray the ex- 
pense of a large common sewer, in Canal-street^ in the said 


^. Tki^fS9mom% wa^ dirfct«d a^ w^ vvder tlpe pro-. 1 fiad. 
leMm cQinaii^ed in tbe ^l^tb sectioa of ibe a^t of the legisls^- ^^^b^^ 
tQf^ p9S8id the 9th of AprU, 1813^ enxitled, ''w ^ct to v. 
wdAce several lawfl idaiiog particiilaiiy lo this, city pf .^ejK^ ^^^t^l^f 
Torkf into ooe act," _. 

By the prpvisiops of th^ ac^ it is declared t^ \^ lawfid f<W 
the corporauoo ta pause, among other iinproveiDents, '* coiq- 
loon sewers to be made in aay part of the city, aod to can^ 
iSiKtimates of the expense to be made^ and a just aod equiti^- 
ble assessment thereof anu)Bg the own^s or occupants of 
i|U the houses and lots intended to he benefitted thereby, ii|w 
proportion^ as near^ as ppssible^ to the advantage whicb^ 
each shaU be deemed to acquire, and to appoint skilful an4 
eompeieat disinterested persons to make every such estimate 
and assessment; and ihose persons shall take an oatbto^ 
make the same faii^ly and impartis^lly, and having madp 
4uch estimate i|nd assessment, shall certify the same to tha 
common council, ^od beiog ratified by it^ s^ial) be UadiA^ 
iind conclusive ^po^ the owners and occupants of such lots» 
so to be a^ses^." The biU states, that all these provision^ 
qf the act have h^m complied with, except, that ^e assess*^ 
ment has not embraced a su^ciently extensive district of ii^ 
city, to include all the owr^rs and occupiers of lo^ intende4 
to be benefitted by the sewer. It is contended by the bil|| 
that the owners and occupiers of all the lots from whencfi 
by the permanent regulations of the corporation, the waste 
water is carried off into Canat-^ireetj are, and were intended 
priginaUy to be benefitted by the sewer, and that they ought 
to bear a rateable proportion Qf it9 expense. There may 
be an error of judgment upon this point, both in the persons 
who made the estimate and assessment, and in the common 
council who heard the objections of the plaintiffs, and yet 
ratified the assessment 5 but the greater difficulty with me i« 
as to the question of jurisdictioq. I cannot find that the 
Court interferes in cases pf this kindj. where the act com* 

VpL. IV. 45 


1820. plaioed of was done fairly and imparliaUy, according to the 

^^^^^^^^^^ best jadgmeot and dtscredon of the assessors ; and a prece* 

V. dent once set, would become very embarrassing and exten- 

OT*N^Y^™r Mve in its consequences. If the power under this statute 

bad been exercised in bad faith, and against conscience, I 

night have attempted to control it; hot a mere mistake of 
judgment in a case depending so much upon sound discre- 
tion, cannot properly be brought into review, under the or« 
dinary powers of this Court. There must have been a thou- 
sand occasions and opportunities for the exercise of such an 
appellate jqrisdiction, in the history of the jurisprudence and 
practice o( the English JCouri of Chancery, if such a juris* 
diction existed, and yet we find no precedenu to direct us. 
A mistake of judgment in the assessors, upon the matter of 
fact, what portion or district of the city was intended to be, 
and actually was, benefitted by the common sewer, can 
hardly be brought within the reach of that bead of equity 
jurisdiction which relates to breaches of trust. Here is not, 
strictly speaking, a violation of duty. No bad faith or par^ 
tiality in the assessors is pretended. The aid of this Court 
might as well be asked to review every assessment of a land 
tax, or a poor rate. I apprehend, it would require a special 
provision by statute to authorite Chancery to interfere widt 
these assessments. Instances are numerous in the English 
law, in which jurisdiction is given to the Chancdior, under 
local or private acts; and the cases imply that a statute was 
requisite to give the jurisdiction. 

Let us examine the case ex parte Coxatt^ (3 A(k. 639.) 
which concerned the dty of London tithes^ and it will afibrd 
some instruction, as to the extent of equity powers. The 
statute of 32 and 23 Charles II. directed that certain per- 
sons in each ward and parish, should assemble in each pa- 
rish, and should *^ proportionally assess upon all houses, 
shops, warehouses, and cellars, Sec. the whole respective 
sum by the act appointed, in the most equal way, that the 
said assessors^ according to the best of their judgment, could 


it'' Tbe act fnrtfaer provided, that if any ditferetioe 1890. 

sboold arise in ibe assessineDti and a parishioner sliould 
find himself aggrieved by tbe assessmenty an appeal lay to 

Lb Rot 


the Lord Mayor, and Court of Aldennen, who were to sum- of^?y^r!? 

moD all parties concerned, and bear and determine the same, 
in a summary way, and tbe judgment by them given was to 
be *^ final and without appeal/' After the assessment was 
made and settled, the Lord Mayor, upon refusal of any of 
the inhabitants to pay their assessments, was to issue bis 
warrant of distress. Tbe act further provided, that if the 
Lord Mayor or Court of Aldermen should refuse to perform 
any of the duties required of them, tbe same should be per- 
formed by the Lord Chancellor with two of the Barons of 
tbe Exchequer. Upon this act, Lord Hardwicke observed, 
that the authority of tbe great seal did not extend to every 
case under the act^ but only where there had been a refusal^ 
by the Lord Mayor, $*e., to execute the powers ; and be, also, 
observed, diat in case of any variance or difference between 
the minister and the parishioners, as to the assessment, the 
Court of Chanceiy had no jurisdiction^ unless tbe Lord 
Mayor refused to take cognizance. 

Lord Uardwicke^s opinion equally applies to the case be- 
fore me. If Chancery had no jurisdiction, when an assess- 
ment had not been proportionably made, in the most equal 
wayy as the English statute directed, and if the only reKef 
was in tbe review of tbe Lord Mayor and Court of Alder- 
men, whose decision was declared to be ^* final and without 
appeal ;*' we are equally required to say that Chancery has 
no jurisdiction here, for an unequal assessment, because the 
Mayor, Aldermen, and Commonalty, in Common Council 
convened, are here, also, to ratify the assessment, which in- 
cludes a review of it, and a power to correct it, if not duly 
and justly made ; and their decision is declared to be *' bind* 
ing and conclusive.'' 

In the case of The Attorney General t. The Foundling 
Hospital, (4 Bro. 165.) a bill was filed, and an injunction 


'^dfib. liitt«d,'to l«itirmtin(he defetidliffiB Hmn iboMio^ *on ) 
"^^"^^^ loDgitigtothefaosp)taI. lAMCkmtttkAiiMrEyT^^lmr^ 

V ^iitirtet^iriistees or gf^eniorsaAMided 'their tra^ 
"^^S^ii^ -OMdd ttrtie notice ^ef it, but ^faere the fKotrngeaieDt of it 
'tlMHty 'vMi iitotradted (to f^oveMbrs itr guttMHMs, by Mtttl»y 
^itiey littd a 'rl^bi )|6 ^enercite their dMti^litffi, aiiid <lbm^h «fe 
"^GbiH^t^duld 0)6 df n ^iffer^flft ofrinion, ^'t "WooM >iim «et'^ 
'tfmt'Opiitiotiag&iiiVttbedUcihetidli oftbe^lvtiite^. TfeeOtber 
HWo Ooitfihissidnei^^cdbdlirred, Md the (motion 4br ati'injdfllc- 
^6d Ms dieted. Tbe 'stitiib ^ititiple was •adttiiHed «fid 
rMif>ported 4n J%it^ v. Bat/. (1 iTdAtt^. CA. jRq>. (8.) It 
*iMy'besflid, thitt the asse^iors in this-eatse'bad no didore- 
*tion,^biit wiire 'bound 'to malce the assessnient'in just propor- 
tions ainong ditfae ofwners arid occopents benefitted hy^ttt 
•ewer. Tbe dtscfetton in these cases, means the^efeerci^ 
bf sound jadgihedt^HSCording to eqaity-^<&cre^ est seire 
^er iegim quid ^ jusUim ; the assessors certainly ^haU 
'^hat diseretion, in deteribining the extent and value of (lie 
-^benefit, and their case oomes within the Inihienee and priiH 
'ctple of those decisions. 

If tbe plaintifis are truly aggrieved, their ifemedy, if Btty 
tbey have, must be in tbe Supreme'Court, by certioran. In 
fVildy V. WaMum, (16 Jokne. Rep. 60.) the Supieme 
Gonrt say, that whenever the rights of an individaai are. 
idfriDg^ by the acts bf persons clothed with aiithorily to 
act, tod who exercise that jurisdiction illegally, abd to the 
injdry of an individual, the person injured may have redress 
by eertioraru The same general jurisdiction of thai-Goort ' 
•has been asserted and declared in other cases ; {'Kmderhoidk 
V. Clmvy 15 Jahm. Rep. 538. Lmoion v. CambrUge, 
3>'Caine9^ Rep. 119.) and seems to be supported by tbe 
ffowers acknowledged to belong to the Court of K. B. A 
certiorari lies (1 Sdk. 1 45. Anon. Holt^ Cb. J., in 1 Ld. 
Raym. 469.) to that Court, to correct a mistalie made by 
commissioners of sewers ; and though the K. B., in The 
iBng V. King and others^ (2 Term i^p. 234.) refascd thit 

m/km WMMe tbe <bl6MMiikoc cf tbe lamdftas, tbey (fkffied I8W. 
^e ^nSmaH mi^Mie gPM«d «f the gvettt pUMic inconvenieHee ^|^|^^C^ 
^=the'«lep;ftDdforthe*8aiiie reason *tfaey%avef«f^ •▼» 

•tte -cttse '4if a'podTTitte. Bin It does not MImigto me,^ •' 

^iiit *eat tnr 'vtndiefllte tbercfBrady tit law. ^tt'is tnffioicfnt, 
'tfpm'ftepreiient'iDdtion, to saj, that the remedy, if any, h 
"at law, and 'that Itdoes not'ifatil within -the ordinary jnris- 
dicdOD ofihis Oouit. 

Wotroo doried. 

^tomrKKNBim and others ag%iti»^'L. 'ELtfEimORF, im- 
pleaded with Others* 

*A ^tvuff %4U*nnsi be ^iileB btfi»n pubUcation ^mased 'in "the oaiginal 

It 16 not « matter of eoone to Btey.. procee^iq^, •r«iilaasge.pBbUoajU«o, 
in tbe oiiginil came, until an answer ia pnt in to a crois bill filed 
after proceeding, or answer, in the original cause; but it depends 
on special circumstances. 

^hen there faas'been very great delay and negligence cm the part of 
{ihedefeifiafit,JM will-not be-i^wed totftje-aefocabill, aor^aiiiend 
Iu6 answer* aor to.ile afi^pplemenlal aasirer,inor to.issae n i iiMiiiii 
sion^ so as to delay the plaintiff 

THE plaintiffs filed a bill, in 1810, to foreclose a mort- Jkforc^ u. 
gage executed by the defendant to them. 

The defendant put in his answer, on the 12th of Jfovemher, 
ISIO, in which he admitted the execution and forfeiture of 
the mortgage, and that he' had paid only 360 dollars towards 
interest, in the spring of 1805. He stated, that the conside- 
ration of the mortgage was a deed from the plaintiffs to him, 
df the date of the ISth o(May, 1804, in which, as executors 
of J{ich6las GouvemeuTi deceased, they conveyed to him, 
for the consideration of 8,000 dollars, " land office trea- 
mry warrants vfVirginia^ dhied I5th of October, 1779, /or 


1820. hmdt^ &c.| and ihat they were isHied in tbe name of Samnd 

^^^^^^^^ BeaUf who placed them in the hands of John May^ to be 

T. located and surveyed for Robert S. Bxenis^ and they were 

MUPOBT. ^jj^ sabpect to the reservations contained in tbe warrants, 
&C.9 and subject to the claims of John May^ and Humphrey 
MarihaU^ by reason of agencies, in respect to the same, so 
as such claims did not exceed, in quantity or value, one 
fourth of the lands. The grantors in the deed agreed, for 
tbe heirs of their testator, that the defendant might bdd and 
possess the premises, without the interruption or denial of 
the said Blends^ or his heirs, and that the heirs of A*. O. 
would warrant the land against the heirs and assigns of 
Samud fieofi, and Robert S. Bimd»:' This was tbe sub- 
stance of tbe deed referred to in the answer. The defend* 
ant further stated, that he paid 3,000 dollars when betook 
tbe deed, and gave a bond, and the mortgage in ques* 
tion, for the residue ; that be went to Kentucky^ in 1803t 
after the contract was made, and discovered that tbe land 
warrants bad been, in part, located on 10,812 acres, and 
that the legal estate was in tbe heirs of J. and JV. Oouoer^ 
nettr, and that the residue of the land warrants were located 
on lands of which the legal estate was in tbe beirisof Samnd 
BeaUf and tbe heirs of tbe testator had only an equitable 
interest, if any. That all the lands, aforesaid, were adverse- 
ly possessed, and entangled with interfering claims and lo- 
cations. In this answer, the defendant prayed for two years, 
at least, to discharge the mortgage, on paying the interest 

In an affidavit made by the defendant, on the Ist of Jl%, 
1811, and presented to the Court, he stated, that the lands 
so conveyed to him, amounted to 19,350 acres, and that he 
bad applied to this Court for a commission to examine wit- 
nesses in Kentneky^ and fmled in his motion, because no no- 
tice of it was given to the opposite solicitor. That such a 
commission was necessary for him, to show, that the plain- 
tiffs were not seised of such an interest as thev undertook to 


convey in the lands, inasaittch as they owned only a moiety 1820. 
of the 10^512 acres, and the legal estate in the residaei or ^^^^>^^^^ 
8,500 acres, was m the heirs of Jseow. v. 

That from this time the plaintiffs rested in the suit, from ^^^^^^^' 
hidalgence to the defendant, antil 1818, when they gave him 
notice that they should proceed. 

A decree was taken by default, in S^tmber^ 1818, and 
, a reference made. In NwembtVy 1818, an order of sale 
was entered. The defendant drew a cross bill in the au- 
tumn of 1818, but never filed it; and on the 3d of JVbvem- 
fier, 1818, he went to Kentucky^ and was absent for a year. 

On an application of the defendant's solicitor, on the 9th 
of December f 1811, to set aside the rule for publication, of 
September preceding, and the subsequent proceedings, the 
proceedings were stayed, and leave given to the defendant to 
apply, for the purposes aforesaid, at January term, 1819. 
No application was made, nor any further step taken on the 
part of the defendant 

On the 17th of September, 1818, the plaintiff voluntarily 
vacated the order oi Sepiemlber, 1818, for passing publication, 
and entered another rule, that the defendant show cause, in 
three weeks, why publication should not pass. On the 4th 
of (ktcber^ 1819, on application on behalf of the defend- 
ant, the time for publication was enlarged to the 22d of JVb- 
vernier^ 1819, and on the 23d of November, the rule for pub- 
lication passed, and the cause was noticed for final hearing 
in January term, 1820. ' 

The above is a brief account of the proceedings in the 
cause. The affidavits of two of the plaintiffs, and of the 
solicitor for the plaintiffs, went to deny several of the alle- 
gations of merits, and of excuse for the delay set up on 
the part of the defendant. A letter, also, from the de- 
fendant, to one of the plaintiffs, dated January 3d, 1807, 
was produced, in which the defendant speaks '^ of the claims 
which be has been so unfortunate as to take from off the 
shoulders of the plaintiffs. That he meant to have paid 



36» C49e» iN GHANCBRT. 


befijre, and bad doae bU atmoBt^ bat had wai beea able (a 
raise ibe ittoaey^ That h« had DOi, as yet reaUzed a cent o£ 
V, property from the claims^ and natfaiog to assiure bian of btt- 
^J!^J^^^ ter proq^cts, so daaX oat of that fuod be bad neti^^ig. 
That be had he»vy law snila to carry on during the pttec^ 
ding summer, the expense of which bad pveveuited bin. from, 
doing any thing effectually with the plaintiffs. That the 
law suits bad all been settled^ and he expected reunbur^e-* 
meats that wioier, out of which he would pay a& much aa 
possible. That he hoped the plaintiffs would be content 
with receiving interest, until he could effect a sale of sonac? 
real property. That be bad already made one journey to 
Kentucky^ and thought it would not he much of «^ laveiwr for 
the executors to wait for the principal of their deaaadv uftitt 
he was able to dispose of property, to drscliarge it.'* 

The defeodent gave notice of a motion for Jomuury tenn^ 
lS30y founded upon his jfetition^ detailing the proceedings 
in the cause, for a rule to set aside all the proceedings sub* 
sequent to the joining of issue in the cause ; arntf also^ for 
leave to amend his answer, or to file a cross bill against the 
plaintiffs and others ; and that the proceedings en the part of 
the plaintiffs be stayed, until such cross bill shall have been 

The Defendant^ in propria penona^ ii| support of the 

W. A. Duer^ for the plainti&. 

The Chan€eli:/>iu The defendant is dearly too la4e 
to stay the proceedings by a cross bill. A cross bill OMigt 
be filed before publication is passed in the original cause. 
This has been understood and declared to be the invariable 
rule on the subject of a cross bill. {Sterry v. Ardeuj 1 
Jahns. Ch. Rep. 62.) The practice, as stated by Jjord 
Hardwicke^ was not to stay proceediags, bat only to stay or 



viAwrge publication id the first cause, nntil the answer to the 1820U 
cross bill came in; and he said it was never of course, ^^^"^^^ 
but depended upon special circumstances, whether publican .▼. 
don should be enlarged on filing a cross bill, if filed after 
Ae original cause was proceeded in, (1 Atk. 21. 291. 2 
Ves. 336.) It is, tlierefore, most manifest that the cross 
bill must be filed before publication in the original cause. 
Id Cooky. Bro&mhead, (16 Ves. 133.) across bill was filed 
tfier the rules for passing publication had issued in the. ori- 
ginal cause, and a motion that publication in the original 
cause, be enlarged, until a fortnight after answer to the 
cross bill, was refused, with costs, as being against the prac- 
tice. A motion to enlarge publication, until answer to a 
cross bill, filed after the answer to the original bill, was, also, 
denied in Ddton v. Carr, (16 Ves. 93.) 

This case presents a series of acts of indulgence on the 
part of the plaintiffs, and of gross and obstinate delays on 
the part of the defendant, that are extremely rare ; and to 
allow the cause to be delayed any longer, by a commissioDi 
or by a cross bill, would be doing great injustice to the 
suitor, and a very serious injury to the practice of the Court. 
The defendant knew that a commission was wanted, in 1811, 
for he had then already applied for one. He had then visit- 
ed Keniuckyy and discovered all the difiiculties and embar* 
rassments attending the title under the land warrants, which 
he had purchased. Why was not this commission sued out 
in doe season i The plaintiffs, and their solicitor, deny every 
charge that the delay was justly imputable to them. And it 
is worthy of notice, that though the defendant, as be admits 
in his answer, went to the state o{ Kentucky^ in 1803, and 
discovered the impediments of which he complains ; yet in 
his last letter of 1807, he sets up no such excuse for non-pay- 
ment of the mortgage debt Unfortunate as he states his 
speculation to have been, he, nevertheless, seems to admit 
his obligation to pay, and promises to use his efforts t« 
do it. 

Vol. IV. 46 


1B9DL ' There is no jast pretence to question tbe reg^Qlarity af the 
^^^"'"'^^ proceedings, on the part of the plaintiffs, or to stay tfa^ ml 
▼. 4intil the defendant can sue out and execute a eommissioii 
jtMKWBOEF. ^^ Kentucky, or ile a cross bill, and compel answers to it. 
fie has lost the opportunity to annex such a conditioo 10 
irither of those measures, by bis inexcusable laches^ The 
most ttiat can be granted is to allow a commission to go at 
the peril of the defendant, and without .delay to the plain*- 
tiffs. Nor is there any sufficient ground disclosed for allows 
ing the answer to be amended, 0r, according, to the more 
modern practice, of granting leave to file a supplemental 
finswer. There ought to have been an extremely clear and 
strong case made out, after what has passed in this caus^ 
ffaowing the mistake in the answer, and the new and a)ate«> 
rial discoveries since. There is no such ground laid for the 
allowance of so delicate and dangerous an indulgence. 
The answer was filed many years after a journey to fen* 
tuekyj and when all the facts alleged by way of defencei 
might, with due diligence, have been sufficiently known. 

I shall, accordingly, declare, that mdtmueA as the answer 
was filed in JVbeem&er, 1810, and no specific or material 
mistake therein is shown or alleged ; and inasmuch as t^ 
the defendant's affidavit of the Ist of May^ 1811, he speaks 
of an application already then made for the examination of 
witnesses in Kentucky^ and stated, that a commission was ne^ 
Pessary to take proof, to show that the testator of the plain* 
tiflb had no interest in the landf^ which they undertook to 
convey ; and inasmuch as the rules for publication pasatd 
in September, 1818, and were voluntarily relinquished by 
<lie plaintifis in September^ 1819 ; and inasmuth as publica- 
tion again passed on the 23d day of November^ 1819, after 
tile same bad been enlarged for several weeks, at the in- 
"Stance of the defendant ; and inasmnch as the plaintiffs have 
prosecuted this cause, since the filing of the bill, with for- 
liearance and indulgence, and the defendant has been gufhy 
cf negligence, without excuse, in not filing a cross bill, and 


ia aot iaiog out a eoammftkni daring this loag period of I890L 
tf oie, and to delay the canie further in iu present state, for 
either of these objects woald be onreasonable, and contrary 
to the rules and practice of the Court, and injnrioos to the 
credit of the administration of justice ; therefore, the motkn 
to set aside or stay proceedings, or to*aniend the answer, is 
denied, with cosu ; but the defendant may sue out a com- 
mission, on the usual terms, at his peril, and upon condition 
that the cause is not to be delayed thereby. 

Order accordingly. 

Tbom and another agamit Gxbmand. 

Before the plaintiff, after repUeatioD, will be allowed to amend bi» 
bill> he imitt obtain leave to withdraw his replication ; and the ma** 
teriality of the aaiendoaent, and the reason why it was not stated 
before, must be satisfactorily shown to the Court. 

Bat if a witness has been examined, the pleadings cannot be altered 
or amended, unless under very special circumstances, Or in conse* 
quence of some subsequent erent, except merely for the purpose of 
adding parties. 

The proper Gourse, when the plaiotitT cannot amend bis bill, is to 
apply for leave to file a supplemental bill. 

MOTION to amend the bill, by adding new and material juanh 2dL 
charges, after issue joined, a rule to produce witnessesi a 
commission to take testimony sued out, and one witness «t- 
amiaed. The petition stated, that after issue joined, and 
while the solicitor for the plaintifi was preparing to take 
testimony, the matter proposed to be introduced by way of 
amendment, was discovered. The affidavit, as to the above 
facts, was sworn to by the solicitor for the plaintifis. 


1820. To oppose the motion, ao affidavit of 6. B., a third per- 

son, was produced, stating, that before the filing of the bill, 
he communicated to one of the plaintiffs, the material face 
proposed by way of amendment, vii. the entry of a judg- 
ment in the Supreme Court. 

/. TallmadgBj jun. for the motion. 

P. Ruggles^ Contra. 

The Chancellor. The application should have been 
for leave to withdraw the replication, for the purpose of 
amending the bill. No amendment can be allowed, going 
to the merits, while the replication remains. (1 Atk. 51. 
1 Ves. jun. 142. Mwland^s Pr. 82.) And if that had been 
the motion, the materiality of the amendment, and why the 
matter was not stated before, must have been shown, and 
satisfactorily explained. {Braum v. Ricketts^ 2 Johns. Ch. 
Rep. 425. Turner v. Chdmn^ cited in 1 Fotvler^s Ex. 
Pr. 113.) 

In this case, it is proved, on the part of the defendants, 
and it is not denied by the plaintiffs, that they, or one of 
them, knew the existence of the matter now sought to be 
introduced into their bill, before the filing of the bill. It 
is, therefore, not new matter, that is to be added by way of 
amendment, but matter before resting in the knowledge of 
the party. 

Tijere is another fatal objection to the motion. Here 
has been a witness already examined in the cause. If no 
witness had been examined, an amendment, otherwise pro- 
per, and when the omission was duly accounted for, might 
have been permitted, for it has been permitted after publi- 
cation. [Hastings v. Qregory^ cited in Mitf. PL 258. and* 
1 Fowler^s Ex. Pr. 111.) But after the examination of 
witnesses, the pleadings cannot be altered or amended, ex- 
cept under very special circumstances, or in consequence of 


some siibseqaent event, UDless U be for the sole purpose 1820. 
of adding parties. This is the established rule of practipe 
on the subject. {Mitf. PL 258, 259.) The only course 
for the plaintiff, in these cases, when he cannot have per- 
mission to alter his original bill by amendment, is to apply 
for leave to file a sopplemental bill. {Shephard v. Merril, 
3 Johns. Ch. Rep. 423.) 

Motion denied with costs. 

LnrxNOSTON and Thompson, Jls§igneesj inc. agaimt 


Where, on the aervioe of the tubpcana, the defendant's solicitor wrote 
a letter to the solicitor of the plainti£&, requesting him to caose the 
appearance of the defendant to be entered, and to send him a copy 
of the bill ; and the plaintiffs' solicitor sent a copy of the bill ac- 
cordingly, but neglected to enter the defendant's appearance, and 
proceeded to hare the bill taken pro cot^esso^ and a final decree 
entered in the cause : Heid, that the sending a copy of the bill, 
and requesting that an answer might be put in, ?ras to be deemed 
an admission of an appearance, or a waiter of the formal entry of 
it, and that the defendant was, therefore, to be considered as in 
Court, and entitled to be served with a rule to put in an answer, 
before the bill could be taken pro corfesto ; and the order for taking 
the bill pro confesto, and all subsequent proceedings, were set 
aside, for irregularity. 

MOTION to set aside a decree by default, and subse- Maro^ sd, 
quent proceedings, as irregular ; 1. Because, the defendant's 
solicitor was not ruled to answer, before the entry of the rule 
taking the hiH pro confesso ; 2. Because, the defendant died 
immediately after the entry of the final decree, and before 
the Master received the decretal order to sell the mortgaged 


109B« U «(»peiired, that apon service of ihe mbpamaf the solnri"' 

tor £Mr the plwwkiff wm le^pKtied, by ieiler, oir bebaU* of 
tlic fdieitor of tbe deleodant^ to enter the appear«ace of the 
dflfimdwit, and to eDclos^ to Urn a copj of the bill ; thai 
die tolicitfir for the defendant, soon after, reeeivrd by letlee 
a eopy of the bill, with, a re<}tte8l, that an aniver mighl he 
pot in as soon as convenient ; that the solicitor £ef the 
deftiMiaot relying upon this correspondence, presumed the 
appearance of the defendant had been duly entered, and 
not being ruled to answer, was prevented, by the removal 
of the defendant's /amily, and by his sickness, from putting 
in an answer until after the bill had been taken pro confesso, 
and within a few days prior to the time that a final decree 
was ealered, by defiHati. No actual appearance was eaiered 
nntil tbe answer was filed* After the entry of the final de- 
cree, the defendant died, and the solicitor for the plaintifis* 
proceeded* notwithstaadiiig, to cause tbe mer^aged pfeaiv« 
i«f, wUcb Ibe bitt was filed to foreclose, to be advertised 
and sold, and they were purchased in by the solicitor fiir 
the plaiotiflfs. Tbe knowledge of these latter proceedings, 
did not come to the heirs of the defendani* until after the 

The answer of the defendant went to deny, wfaoHyv the 
equity of the bill ; and tbe above facts were not contradict- 
ed, except that the solicitor for the plaintifi^ denied any re- 
quest or suggestion to him, to enter the defendant's appear^ 
ance, and denied the truth of the matter set up as a defence 
in the answer. 

S. A. Feote, for the motion. 

G. £. TTtomfian^ contra. 

• Thx CaiLNCBLi.o&. The fact, thai a copy of tbe bUl 
waa enclosed by letter to the solicitor of the defendant, and 
an answer to the bill requested, lis an admissioa of the 


appearance of the defendant^ or, at least, a waiver of the tHib. 
formal entry of it with the clerk, and, consequently, the de- 
fendant was to be deemed rectus in curia, and entitled to be 
mled-lo pntin an anwmer, beftire the biU wai taken pro oM- 
fessOy against him. The subsequent proceedings, on the 
part of the plaintiffs, were, therefore, iivegular. As Lord 
Harduddee observed, in Flaifd v. Jiangk, (SJiik. MS.) 
** If there is an irregularity in the proceedings of tbe pl^n^ 
fiff, and the plaiirtiff insists upon the strict default of (be de- 
fendant, as the Courts of law say, it is very necessary a per- 
son insisting upon the rigor, shovid hit the Inrd in th$ eyeJ^ 
Bat if this irregularity itid not exist, it weakl foUow» that 
Ae proceeding in July last, to advertise the land -for sale, 
and the sale in Stptcmber^ and the coafirolatioii ^ the re* 
port in October^ were all irregular^ because the defendant 
died in /ime, and the soit had not been r^vifved agaitlBt bi& 
<abiidren and beirs. 

The motion is, accordingly, granted^ so Gir as to set aside 
the order taking the biH fro confesso^ and all the subsequent 
ptoeeediogs ; and the answer is to be deemed duly put in 
at (he time it was filed. No costs of the prooeedii^ set 
aside, or of this motion, are allowed to eiiter party, as 
against the other. 

Motion granted. 





JfaTM VM* 

Bbbobb and Icard, ExteiUors of Icabd, ij^aiiut Duff. 

Where a power is giren to execuiori to sell the estate, or certain parti 
of it, it is a persooal trast and oonfidence, and they cannot sell bjr 

Tbas, where A. authorized his executors, B. and C, to tell certain 
lots of land, iU under the circumstances of the times, they should 
deem it prudent ; and C. having^ gone abroad, sent a power of attor- 
ney to B., his co-executor, to sell the land, on such terms as he 
should deem expedient : HM^ that an agreement for the sale, en* 
tered into by B., for himself and C, was not valid, and a bill filed 
lor a specific perf[>nnanoe of it, was^ accordingly, dismissed. 

THE bill staled, that Joseph leard^ by will, authorised the 
plaintiflsy as his executors, and the survivor of them, to sell 
two lots of land in the city of JVetr* ForA;, if imperious cir- 
cumstances of the times, or the extreme hazard of deprecisr- 
tion in value of that property, should, in the best judgment 
of the plaintiffs, render it prudent to sell the same. That 
after the death of the testator, the plaintifis assumed the trust 
as executors, and the plaintiff, Icardf went to Dranee^ where 
he resided when the bill was filed. That on the 10th of 
October^ 1818, at Paris^ he, by power of attorney duly exe- 
cuted, authorised the other plaintiff, as his co-executor, to 
sell the said lots of land, upon such terms and conditions 
as he should deem expedient. The bill stated the great 
depreciation and daily diminishing value of the property, 
and that it was best to sell it, and that the plaiotifls agreed 
to sell to the defendant one of the lots, being No. 308 
Broadway f with the buildings thereon, for 15,500 dollars, 
and that the defendant now refused to accept a deed, or to 
pay, &c. Prayer for a specific performance of the agree- 

The defendant, in his answer, admitted all the material 


facts; but stated, that the agreement was made with the 1820* 
plaintiff Berger^ and with the understanding, that the plain* 
tifls were to give a good title ; and he insisted, that the 
plaintiff Icard^ who is in France, cannot, hy letter of attor- 
ney, authorize the plaintiff Berger^ to execute the deed, and 
that the sale ought to be made by both of the executors in 
person, and not by attorney ; and he submitted to the Court, 
whether a valid deed can be given, which, however, he was 
ready to accept. 

The case was submitted upon the pleadings, and on the 
points raised out of them. 

7. T. Irvingj for the plaintiffs. 

D. S, JoneSf contra. 

. The Chancellor. The executors cannot sell by attor- 
ney. The power given to them, by the will, was a person- 
al trust and confidence, to be exercised by them jointly, 
according to their best judgment, under the circumstances 
contemplated by the will. One executor in this case can- 
not commit his judgment and discretion to the other, any 
more than to a stranger ; for, delegatus noh potest delegari. 
The testator intended, that his representatives should have 
the benefit of the judgment of each of the executors appli- 
ed to the given case, so long as both of them were alive. 
The agreement to sell was not valid, being made by one exe- 
cutor, without the personal assent and act of the other. 
The power was not capable of transmission or delegation 
from one executor to the other, and the rule of law and equi- 
ty, on this point, is perfectly well settled. (9 Co, 75. 
Combos case. Ingram v. Ingram^ 2 Jltk, 88. Sir TTiomcu 
Clarke^ in Alexander v. Alexander^ 2 Ves. 643. Lord 
Hardwickej in Attorney General v. Scott^ 1 Ves. 417. Lord 
RedesdaU, in 2 Sch. if Ltf. 330. Hawkins v. Kmp^ 
3 East, 410. Svigden on Powers^ (2d edit.) 167.) 

Vol. IV. 47 


1820. The agreement was not, therefore, a dae execntioii of the 

S-^^v^^ power under the will, and the bill must be dismissed with- 


Bahk out costs. 

NoBTH. Bill dismissed. 

The S[lv£r Lake Bank, (in Pennsylvania^) against 
G. North. 

A foreign corporation, or incorporated bank of another state* may sne 
in their corporate name, and may file a bill for the sale of land in 
this state, under a mortga|re taken to secure money lent. 

If the loan and the mortgage were concurrent acts, it is within the 
reason and spirit of the act of incorporation, by which the plaintiffs 
are authorized to take mortgages, &c., for the secnrity of debts 
previously contracted. 

But it seems, that this Court would not, in this collateral way* de- 
cide a question of tnUuaer^ by setting aside a honafidt contract. 

If an incorporated bank of another state lends money, and takes a 
mortgage in this state, it is not a violation of the act of the Legisla- 
ture of this state, passed April 21, 1818, relative to banks, ^., for 
restraining unincorporated associations from carrying on banking 

Where a mortgagee was compelled, for his own security, to satisfy an 
execution on a prior judgment, in favour of another, he was held, 
by right of suhstilutioo, to stand in the place of the judgment cre- 
ditor, and entitled, oo a sale of the morfgaged premises, to receive 
out of the fund the amount of the judgment, as well as the mort- 
gage debt. 

^orcAlfiCA. THE bill stated, that on the lOth of November^ 1817, 
the defendant mortgaged to the plainttfls lands in the coun^ 
ty of Delaware^ in ihis state, to secure the payment of a 
bond of the defendant and B. North, to tliem, for 3,000 
dollars, which was given to secure such sums of money 
as should be thereafter lent by the plaiatiJTs to the^ obli- 


gora, or either of them. That on the 13th of Abvem&er» 1S17, 
the plaintifi lent to H. JV*« 2,000 dollarSi on this security, 
and on the 19tb of March^ 1818, the further sum of 525 
doflars. That a judgment had been obtained by the Cats^ 
kill bank, in this state, against the defendant, in October^ 
1817, for 1,083 dollars and 3 cents, on which the defendant 
and B. X had assured the plaintiffs there was only the sum 
of 400 dollars due. That this judgment liad been assigned 
to M. and P, with whom the defendant and B JC had com- 
bined to procure a sale, on execution, under the judgment, 
so as to defeat the plaintiff's security ; and the plaintifls were, 
therefore, compelled to pay to the sheriff, the amount of the 
debt and costs on the execution, being 1,129 dollars and 
92 cents. Prayer^ that this sum, with the interest thereon, 
might be added to the sum due on the bond and mortgage^ 
and that the plaintiffs might retain, on the sale of the mort- 
gaged premises, the amount so paid on the judgment, toge- 
ther with the mortgage debt, and costs ; and that the mort- 
gaged premises might be sold, and the equity of redemption 
foreclosed, &c. 

The answer of the defendant admitted the material facts 
charged, and set up several grounds of defence : 1. That 
the plaintiffs, being a corp<H^tion, created in the state of 
PmniylvaniOf by virtue of an act of the Legislature of that 
state, passed March 21, 1804, which was set forth, this 
Court will. not recognise their capacity to sue here as a 
banking corporation. 2* That by the act of their incorpo- 
ration, the plaintiffs were not autboriied to take a mortgage^ 
except to secure a debt previously contracted, in the coarse 
of its dealings ; and here tlie money was lent after the bond 
and mortgage were executed. 3. That the mortgage was 
a fraud upon the act of this slate to reiirain unincorporated 
banking associations. 

The cause came on to be beard on the pleadings and 



1820. Sudam, for the plaintiffs. He cited 1 JiAm. Com. ISSL 

8 Johns. Rep^ 378. 16 Johm. Rep. 43. 

Van Vediten and Sherwood, for the defendant They 

cited 1 Johns. Rep. 432. 3 Term Rep. 464. 4 Term Rep. 

466. 1 Bac. Mr. 559. tit. Corporation. 4 Intt. 20. 1 
Black. Com. 43. 2 //. BL 410. 1 Bay'« 5ou<A Carolina 
Rep. 46. IPaim*' tau» TracU, 312. 354. 2 CrancA, 168. 
^ Johns. Rep. 114. 1 Cranch, 259. 3 CrancA, 323. 1 
Ld. Raym. 562. 2 Johns. Cos. 324. 16 JoAiw. Rep. 7. 
Sanders on Uses, 63. 

The Chancellor. There are several objections raised 
by the answer, and by the counsel, at the liearing, to the 
right of the plaintiffs to a foreclosure or sale of the mort- 
gaged premises. 

1, It is objected, that a foreign corporation cannot be re- 
cognised as such, and entitled to sue in our Courts* 
A «ff«ign cor- It appears, by the pleadings and proofs, that the plaintiffs 
•aTin^^sl^r^ are a banking corporation, created by an act of the Legis<- 
mlbAs Cmrt, lature of Peniuylvania, and that they took the mortgage in 
CwnoiUw^ question to secure a loan of money made at their banking 
house in that state. There is perfect justice and equity in 
their demand, and 1 cannot see, that the objection is even 
plausible. It is well settled, that foreign corporations may 
sue here in tlicir corporate name, and may prove, as a mat* 
ter of fact, if the same were denied, that they were lawfully 
incorporated. The Bank of the United States have sued in 
our Courts. (1 Johns. Cas. 132.) In Henriques v. Dutch 
West-India Company, (2 Ld. Raym. 1&32. 1 Str. 612.) 
« suit was brought by a Dutch corporation, and sustained, 
both in the K. B. and in the House of Lords, though it was 
ol^ected in that case, that a foreign corporation could not 
maintain a suit. Tliis Court ought to be as freely open to 
Mich suitors as a Court of law, and it would be most Horea* 


•onable and rnijost, to deny ihem that {Nrivilege. They 1820« 
might wdl exclaim^ 

Qjuod genui hoc hominum ) 

Silver Lakt: 

9 prokibemwr areiML North. 

2. Another objection is, that the plaintiffs had no right 
to take a mortgage concurrently with the loan, in order to 
secure it, and that their charter only authorized them to 
take mortgages for '' debts previously contracted/^ . If this 
objection was strictly true, in point of fact, I should not 
readily be disposed to listen to it. Perhaps, it would be This Court 
sufficient for this case, that the plaintiffs are a duly incor- collateral wair, 

,.,,,,, - , decide a qaei- 

porated body, with authority to contract and take mort- tionofmuiuer 
gages and judgments ; and if they should pass the exact line corporation! 
of their power, it would rather belong to the government 
of Pennsylvania to exact a forfeiture of their charter, than 
for this Court, in this collateral way, to decide a question 
of misuser, by setting aside a just and bona fide contract. 
But if we were driven to that necessity, we might, on co- 
lourable grounds, consider this to be a mortgage to secure 
a debt previously contracted, for it is in proof, that '^ pre- 
vious to the date and execution of the mortgage, the plaiur 
tifis had agreed to loan the money,'' and it was loaned and 
paid when the mortgage was delivered. The debt may be 
said to have been contracted for at the time of the agree- 
ment, and the mortgage taken for its security. But I do 
not rest on any verbal criticism of the kind. If the loan 
and the mortgage were concurrent acts, and intended so to 
be, it was not a case within the reason and spirit- of the re- 
straining clause of the statute, which only meant to prohi- 
bit the banking company from vesting their capital in real 
property, and engaging in land speculations. A mortgage 
taken to secure a loan, advanced bona fide as a loan, in the 
course, and according to the usage of banking operations, 
was not, fiurely, within the prohibition. 

3. It is further said, that to support and enforce this 
mortgage, would be repugnant to the act restraining unin- 


1890. corporated banUng assodmtions. Tliere is no allegation 
or proof of any fraudulent intent against the statute, and, 
certainly, none is to be intended or presumed. The act 
was made to prevent banking operations here, toil&tn this 
itate ; whereas, in the present case, the loans were made, 
delivered, and received, and the securities delivered at the 
banking house of the plaintifis, at Montroie^ within the 
commonwealth o( Penmyhania. 

There is no solidity, nor justice, in either of the ob- 

I shall, accordingly, decree a sale of the mortgaged pre- 
mises, and the plaintiffs will be entitled, according to the 
prayer of their bill, to retain out of the surplus moneys, if 
any arising ou the sale, the amount, with interest, of the 
moneys advanced by them to discharge the prior judgment 
on the land. The payment of the money was an act which 
they were compelled to do for their own safety, and the 
coercion was increased by the act of the defendant and the 
other parties to that judgment. The claim to indemnity 
out of the surplus funds is most manifestly just. The 
equitable doctrine of substitution applies to this case ; and 
the plaintiffs must, for the sake of justice, be deemed to 
stand in the place, and to partake of the rights, of the judg- 
ment creditor. They have, under the circumstances of the 
case, and in the view of equity, his lien upon the fund. 

Decree accordingly. 




BowEN against E. Cross, impleaded with L, Cross. ^^^*' 

Where there is a clear mistake in an answer, and proper to be cor- 
rected, the praotioe is to permit the defendant to file an additional 
or auppUmeniai answer. 

But this is allowed with g^eat caution; and only where there is a mis- 
take, properly speaking, as to a matter of fact. 

THE defendant filed bis answer on the 13th of December, ^t^ 1^- 
1819. In January term, 1820, he moved to dissolve the in- 
junction heretofore issued in this cause, on the ground that 
the answer denied the equity of the bill. The motion was 

Cmhman, for the defendant, now moved for leave to file 
a supplementary answer, or afiidavit of the solicitor, that an 
account containing the items, or particular charges of the 
debt alleged to have been due from Lymaii Cross, to this 
defendant, in June, 1818, was handed to the solicitor at the 
time of drawing the answer, and that the solicitor omitted to 
attach it to the answer, from a belief that it was unnecessa- 
ry ; and the answer only stated that Lyman Cross was jusdy 
indebted to this defendant in 1,121 dollars and 49 pents, 
without stating particulars, or referring to the account. 
And further, that the words or in favour of B. JIf. were 
omitted by him in drawing the answer, by mistake, and that 
be did not discover the omission until after the answer was 

J. £• Wendell, contra. 

Ths Chancellor. The former practice in the English 
Chancery was, that where there was a clear mistake, proper 
to be corrected, the answer was taken off the file, and a new 




1820. answer put in. Dot Lord ThurUno adopted a better coursei 
^''^^'^^^^ by permitting a sapplemental or additioDal answer to be 
filed, thereby leaving to the parties the effect of what had 
been sworn before, with the explanation given by the supple- 
mental answer. The latter is the settled course now pur- 
sued in the English Equity Courts, (8 Ves. 79. 10 Vet. 
235. 401. 1 ffightwick, 32. 3 Price, 83.) and it is the 
safer and wiser practice. But to obtain this permission, 
said Lord Eldon, (10 Vet. 402.) the defendant must state, 
by affidavit, that when he put in his answer, he did not 
know the circumstance upon which he applies, or any other 
circumstances upon which he ought to have stated the fact 
otherwise. In the subsequent case of Livtsey v. WUson^ 
(1 Ves. fy Beam., 149.) Lord Eidon showed the great cau- 
tion with which these amendments to an answer ought to be 
allowed. In that case, tlie defendant moved for leave to 
file a supplemental answer, upon affidavit, as to a mistake in 
a material point, and that it arose from bis not stating the 
fact to his solicitor, or conceiving it at all material to be in- 
troduced into his answer, and that the omission was not by 
design, but arose purely through ignorance. The motion 
was, however, denied, on the ground that there was not the 
mistake of a fact, and that it was necessary for the defendant 
to have stated in his affidavit, that he meant to swear to his 
original answer in the sense he then desired to be at liberty 
to swear to. In subsequent cases, (2 Ves, fy Beam*, 163. 
256.) the Chancellor said, that the supplemental answer 
must be held strictly to a mistake clearly sworn to, and 
that ^' the Court did not yield to such an application with- 
out the most careful examination," and that an additional 
answer was alwa^'s admitted with great difficulty, if prejudi- 
cial to the plaintiff. So, it has been held in the Exchequer, 
that an amendment is only allowed where a mistake has 
been made, in the true sense of the word, and not where a 
defendant has mistaken the nature of his defence. (I Fou;* 
7er'5 JBTcA.Prac. 390.) ^ 


The cases, both ancient and modern, in which the answer 1820. 
bad been permitted to be amended, are generally those of 
mistake or surprise ; (Chvte v. DacrCy 1 Ch. Cos. 29. Mul- 
tins V. Simmondsy Btmb. 18&. Ely v. James, Bunb. 295. 
Gainsborough v. Clifford, 2 P. Wms, 424. Foster v. jPo5- 
ter^2Bro. 619.) and, sometimes, it has been allowed where 
new matter had been (fiscovered since the original answer 
was put in. {Patterson v. Slaughter, Dickens, 285.) A new 
fact has, likewise, been permitted to be added to the answer, 
ander special circumstances ;( fFAar^on V. Wharton, 2 Atk. 
294.) and, in some cases, a dangerous admission of assets 
in an answer has been allowed to be restricted. (JDagley v. 
Crump, Dickens, 35. 2 Bro. 619. note. Roberts v. Ro^ 
berts, cited in 1 Fowler^s Ex. Pr, 390.) There is no pre- 
cise and absolute rule on this subject; the question, as 
Lord Eldon said, is always applied to the discretion of the 
Court, in the particular instance* It has been allowed, after 
issue joined, on payment of costs of opposing the applica- 
tion, and withdrawing the replication, {Fouderh Ex. Pr. 
vol. i. 383—5.) 

There can be no doubt that the application ought to be 
narrowly and closely inspected, and a just and necessary 
case clearly made out. In the present case, the defendant 
mores to make sundry amendments, but there is no ground 
for the indulgence, except as to the mistake sworn to have 
arisen on the ingrossment of the answer, and not discovered 
until after it was filed, and as to the omission of the solicitor 
to make the schedule referred to in his affidavit, a substan- 
tive part of the answer. The defendant handed the docu- 
ment to the solicitor when he was to prepare the answer ; 
and, no doubt, it was his intention that it should have been 
used in a way the most fit and proper for his defence. The 
omission to annex it may be imputed to a mistake in the so- 
licitor ; and, after some hesitation, I am inclined to permit a 
supplemental answer to be filed in respect to those two omis- 

VoL. IV. 48 


1820. sions, and a* to them only. lo Bryan v. Truman, cited ivt 
'^-•^^''^^ 1 Fowler* 8 Ex. Pr» 389. an answer was amended by annexe 
WniTAKKK ing schedules ibereiii referred (o, and re-sweariag to the 

same. This, seems a case very considerably in poiot» 

I shall allow to the plaintiff his costs for resisting tbisappli* 
cation, and direct that the defendant furnish him with an 
office copy of the supplementary answer gratitj and that 
the plaintiff have the usual time to except thereto. The al*- 
lowance of costs is agreeable to the order in several cases, 
on the equity side of the Exchequer , cited in 1 FinderU Ex.. 
Pr. 38^—8. 

Order accordingly. 

In the Matter of A. Whitaker and his wife. 

The act conceroing infants, of the 9th of Aprils 1814, (sess. 37. 
c. 108.) and the act of the 24th of March, 1815, in addition 
thereto, (sess. 38. c. 106.) authoriiing the Bale of an infant's 
real estate, under the order and direction of this Court, do not 
apply to the case of a female infant who is nsarried. It is not 
the usual practice of the Court to appoint a guardian to an infant 
feme covert : nor can the husband be a guardian for his wife^ in 
such a case. 

The acts were intended for the better education and maintenance of 
infants, and for their special benefit ; not that the proceeds of the 
sale should be placed at the disposition of the husband of the io- 

It seenu, that a female ward of this Court, is not of course discharged 
from its protection, by marriage ; or without an order of the Court 
for that purpose. 

April iUi. PETITION Stating, that BeUey W. was seized, as heir, 
to an undivided moiety of 208 acres of land, in the town 
of Buffdoj and county of Magara. That the lot is un* 
productive, and could not well be divided without lessening 


itt value. That she is seventeen years of age, and married 1820. 
to Alan$<m fT., who is twenty-three years of age. That ^^^^^^'^^ 

.. . ..^. Matter OS' 

they have not much property, except the interest of the Wb.takxr. 
wife in the said land, and which is subject to the claim of * 
dower of her mother, who is a widow. The petition, which 
prayed for a sale of the land, was accompanied with a 
Master's Report, under the 88th role of the Court, 
which stated the land to be worth six dollars an acre, and 
that the facts stated in the peUUon were true. The Master, 
also, stated, that in his opinion, the prayer of the petition 
ought to be granted, and that the husband was a proper 
person to use and dispose of the proceeds. No security was 

A. Rice^ for the petitioners. 

The Chancjbllor doubted whether this case came with' 
in the act of the 24tli of Jtfarei, 1815, entitled, '< an act^ 
in addition to the act concerning infanu," or within the act 
of April 9th, 1814, to which the other was an addition. 

The authority to sell the lands of infants, under these acts, 
was intended for the better education or maintenance of in** 
fiints, and for their special and sobstantial benefit. The 
infant, in such cases, is declared to be a ward of the Court, 
and a guardian is to be appointed for tliat particular pur-* 
pose, who is to give a bond to the infant, with competent 
security ; and all sales by the guardian are to be reported 
to the Chancellor, to the end, that he may make order for 
the investment and disposition of the proceeds, '* so as to 
secure the same to the infant, in such way and manner, as 
may seem most for his or her benefit and advantage." 

It seems to be clear, that the husband cannot be such 
guardian, for he cannot give a bond to his wife ; and, pro- 
bably, the provisions of the act were not intended to apply 
to the case of a female infant who is married } for it bos 


1820. pever been the course and practice of the Cofirt tq apppiqt 
^"^"^^"^^ a ffuardian to an infant feme covert The guardianship of 

Matter of ^ . , , . T . u 

Whitaxrr. a daughter determuies with her marriage. It was so neld, 

--■ in Lord ShaJUbury^s case, and.there is no instance, as Lord 

Eardmcke observed, (1 Ves. 160.) in which a guardian had 
been appointed to a female infant after her marriage. If 
there be any doubt in the case, it is not, that a guardian can 
be appointed, but whether a female ward be necessarily dU" 
gorged, upon her marriage, from the protection of the 
Court, without a spedal order from the Court« {Mender v. 
Mender, 1 Vea. 69. 91. S. C. 3 Aik. 625. Roach v. 
Oarvm, 1 Ves. 157—160. Belt's Supp. 86, 87.) Lor(| 
Eldon thought it did not. (Belfs Svpp, ibid.) 

In the present case, the husband seeks to be the guardian, 
without surety, and the object is to turn the land of his infant 
wife into money, and to appropriate the use of it to himself. 
This is a purpose not within the intention of the act, and 
^be power to sell cannot be given until a guardian be ap- 
pointed with sufficient surety ; and the husband cannot be 
such guardian, nor would the proceeds of the sa^e be 
placed at his disposal, until the wife became of age. 

Without, however, declaring, that the Court cannot, in 
any case, or under any circumstances, authorize the sale of 
the lands of an iufantyeme covert^ the petition in the present 
case is denied. 

Petition, denied. 


Watson and Harbottle against Renwick. 

To entitle the plaintiff, before bearing', or publication, or issue joined, 
to call for the lOBpection of papers, &c. it is not sufficient, that there 
has been a general reference to them in the answer. They must be 
dcfcribedi with reasonable certainty, in the answer, or in the schedule 
annexed to it, so as to be considered, by the reference, as incorpora* 
Udinthe annoerf which must admit them to be in the po^iesnon or 
power of the defendant : And it must appear that the plaintiff has an 
iiUereH in the production of the papers, books, or instruments sought 

PETITION of the plaintiffs, stating that they, as as- 
signees of Benjamin Gray^ of Manchester^ in England, a 
bankrupt, filed their bill against the defendant, as adminis- 
tratrix of William Renzcick, late of the city o{ Jiew-York, de- 
ceased, for discovery and account of an unsettled copartner- 
ship, and the dealings between JB. G. and W. R. as partners 
in trade. That the bill required the defendant to set forth 
all the books, papers, accounts, &cc. relative to the matters of 
the bill, and such as have been burnt, or destroyed by her. 
That the defendant, in her answer, has not set forth such a 
list or schedule of the books, &c. though she, in her answer, 
makes frequent reference to the books, accounts, and papers 
of W. R.J deceased ; and alleges, that certain accounts and 
papers of W. R. were sent to England in IS 15, aijid that 
many of them were destroyed by fire in 1817, though the 
answer does not distinguish which were sent to England^ 
which were destroyed, and which are still in her possession 
That no replication had been filed. The plaintiffs prayed 
for an order, that the defendant deposit, under oath, with, 
an officer of this Court, all the books, papers, letters, ac- 
counts, memoranda, vouchers, and writings, as called for by 
the bill| as far as the same are in the possession or power of 

May 10^&« 


1820. the ddendanl ; and that the plaintiffs may cross-examine 
'^-^^^'^'^^ her touching the same, and may have leave to examine^ take 
^v.^ copies, and make extracts from the same. 


Wells f for the plaintifis, in support of the petitios. 

, Henryj contra. 

The bill, filed February 2d, 1819, and the answer, filed 
September 13ib, 1819, were referred to by the counsel. 
Such parts of them as were material on this motion, are no- 
ticed by the Court. 

The Chancellob. This is an application for a very 
sweeping order, touching the production of books and pa- 
pers, referred or alluded to in the defendant's answer. 

The bill is for discovery and account, and the prayer m 
it is, that the defendant, who is sued as administratrix of her 
late husband, Jfilliam Renwick^ deceased, may set forth *< a 
list or schedule of all such books, papers, letters^ accounts, 
memoranda, vouchers, and writings, in her custody, posses- 
sion, or power, relating to the matters set forth in the bill,, 
and a like list of all such of them as have been burnt or de- 
stroyed by her,'' &ic. The petition states, that she hfiis not 
by her answer set forth such list or schedule, but has ne- 
glected so to do, although her answer makes frequent refer- 
ence to the books, accounts, and papers of i2., and of JS.4^ 6. ;. 
and alleges, that certain accounts and other papers belong- 
ing to R. were sent to England^ and others of them were de- 
stroyed by fire in ISIT. The motion is, that she be order- 
ed to deposit, under oath, for the inspection of the plaintifis,. 
** all the said books, papers, letters, accounts, memoranda^ 
vouchers, and writings, as called for by the bill, so far as 
Che same are in her possession or power, or under her coo^ 


The answer bas been in for some months, and was not 1820. 
excepted to. If it bad not met sufficiently the inquiries in 
the bill, the plaintiff should have taken exceptions. It must, 
upon this motion, be taken to be a good and sufficient an- 
swer ; and the question, then, is, whether the answer has 
laid a proper ground for the present motion. The answer 
does, indeed, as stated in the petition, frequently, but in a 
very general manner, and without particular specification, 
refer to the books and papers relating to the firm of R. ^ 6., 
and alleges certain facts as appearing from the said books 
and accounts. It speaks, in one or two places, of books, 
papers, and writings of /i., in her possession ; and, in another 
place, she denies that it appears by the said books of the for- 
mer firm of JR. ir G., that either of the two ships therein men- 
tioned, were purchased with joint funds or on joint account ; 
" but for greater certainty, she refers to the books of account 
of the said partnership, in case the same shall be ordered to 
be inspected by the plaintiffs.^' The answer has not, how- 
ever, laid a sufficient foundation for the motion, according to 
what is now understood to be the settled doctrine and prac- 
tice in Chancery.^ To entitle the plaintiff, before*hearing, or 
publication, or issue joined, to call for the inspection of pa- 
pers, it is not sufficient, that there has been a general refer- 
ence to them in the answer. They must be described with 
reasonable certainty, in the answer, or in the schedule an- 
nexed to it, so as to be considered, by the reference, as in- 
corporated in the answer, and they must be admitted by the 
answer to be in the defendants possession or power ; and it 
must also appear that the plaintiff has an interest in the pro* 
duction of the papers, or books, or instruments sought after. 
A voluntary offer of the defendant to produce a deed, may 
dispense with some of those safeguards which the practice 
gives to the defendant ; but without such an ofier, I appre- 
hend the rule to be, that these circumstances must appear by 
the answer to entitle the plaintiff, in ordinary cases, to the 
efiect of his motion. There may, indeed, be special cases, 


18S0< (but of which I am not dow speaking,) in which it would be 
deemed necessary, in the exercise of the discretion of the 
Coart, to require the production of papers upon easier 
terms ; hot there is nothing, in the present instancey that en- 
titles the plaintiffs to any relaxation of the rule. 

It will b^ useful to look into the cases, and to note the 
history of the practice on this point. 

In Herbert v. Dean aad Chapter of Wiuimimier^ (1 P. 
fVnu. 773.) Lord Maccle$fidd granted an order, that the 
defendants in a cross cause, should produce the vestry books 
before a Master ; and he allowed the motion, on the ground, 
that the defendants had, in their an^er, inferred to them^ 
" for fear of a mistake, and by that means bad made them 
part of their answer ; and for that reason, the Court ought 
to let the other party see them ; otherwise, there would be 
no relying upon the answer of those who are thus guarding 
themselves by references, for fear of a mistake, and to avoid 
exceptions to their answer.*' 

Here it is to be observed, that the books sought for, were 
considered as incorporated, by means of the reference, into* 
the answer,- as part of it. 

So, in BeUieon v. Farringion, (3 P. Wvn. 363:) on a 
bill for discovery of title, the answer showed, that a certain 
lease and release were executed, referring to the deedr in 
his custody. Lord Talbot confirmed an order on the de* 
fendant for the producdon of the deeds, and observed, that 
'< at the hearing, it was admitted, the Court would make 
such an order, and that the defendant, by referring to the 
deeds in his answer, had made them part thereof?^ 

This decision was placed upon the same ground as the 
former ; but the learned editor, Mr. Coxe^ adds a qamre^ 
whether the bare referring to a deed, without setting it forth 
in hmc verba^ will make it part of an answer. Lord Roms^ 
lyn (4 Ves. 71.) thought the expression in the case, ^' at 
the hearing," must have meant at the trial at law, for there 
is no hearing upon a bill of discovery ; and Lord EUm 



imM, lliat iubseqiieiyt cases appeartd to question tie iae* 1820. 
trine of this case on both its points. It had, also, been ^^ ^^^ 
admttledy in a case prior to this, {Hodson v. Earl of War* ^ v. 
fvngUm^ 3 F. Wtm. 35.) that a deed was not part of a de- 
position, unless mentioned therein in htec verba^ and that it 
was not sufficient to refer to it in the deposition. 

In Oardiner v. Maicn^ (4 jBro. 479.) Lord Rosilyn or« 
dered that a paper, specifically rrferred to in the answer, and 
admitted to be in the defendant's custody^ be produced for 
the plaintiff's inspection ; and in Shc^bury v. Jirrowsmithf 
(4 Ves. 66») he made a Hke order, that the defendant give 
inspection of certain deeds which he had set out in the sche- 
dule to his answer. 

The cases of Smith v. Duke of Northuwberland^ (1 Cox^s 
Casein 363.) and of Burton v. Neville^ (2 Cox*s Cases, 
343.) admit that the plaintiff must show, or make it appear, 
that be has an interest in the papers called for, to entitle 
him to the production of them. 

The reference, in the case before me, to certain books of 
stccounts, when produced^ is quite analogous to the case ot 
Darwin v. Clarke^ (8 Ves. 158.) where an answer admitted 
«uch a deed was executed, craving leave to refer it to when 
produced. But Lord Eldon said, that such an answer would 
, not do, as there was no admission that it was in the poS' 
session or power of the defendant 

In Atkyns v. Wright, (14 Ves. 211.) Lord Eldon ob- 
served, that the practice formerly was, that where the answer 
did not describe, either in the body of it, or by schedule^ 
which is part of the answer, the deed or paper sought to be 
produced, there was no order made for the production; In 
that case, as in this, the answer referred to divera deeds, 
acconnts, and papers, and did not describe them. It admit- 
ted possession, but did not offer to produce a particular 
deed ; and an offer to produce a deed, as the Court should 
direct, or if the Court should require it^ was held to be a 

Vol. IV. 4^ 



1820* qaalified, oot a voluntary offer which ought to fix the 
^^' ""^^ defendant. It was only a submission to the discretion of 
the Courty and oot a dispensation from the exercise of that 
discretion, as to the propriety of a rule for the production ; 
and for these reasons, the rule upon the defendant for the 
production of papers, was denied. The opinion of Lord 
Eldon upon the last point, seems to have been according to 
the case of Stanhope v. Roberts^ (2 Jtk. 213.) where a like 
offer only bound the party to produce the paper, if the 
Court should think it necessary. The Court, upon such a 
qualified offer, will enter fully into the merits of the appli- 
cation ; and an order upon the defendarit to produce papers 
«ipon such an offer, was denied in the case of The Attorney 
General v. The City of Coventry, {Bunb. 290.) 

The cases which I have referred to, suflkiently establish 
the geneml doctrine which I have declared, and do not 
afford any just ground for the motion in the present case. 

The practice to be deduced from the preceding cases, is 
still more explicitly announced in two recent cases before 
Lord Eldon. In Evans v. Richard, (1 Swanston, 7.) there 
was a motion to produce letters and other documents re- 
ferred to in the answer, and the Lord Chancellor observed, 
that the answer must contain an admission, that the docu- 
ments in question were in the custody of the defendant, and 
that the rule for producing papers rested on the principle, 
that those papers were, by reference, incorporated in the 
answer, and became a part of it. And in the still later 
-case of The Princess of Wales v. Earl of Liverpool^ 
(1 Swanston, 114.) be said, it was necessary to the success 
of such a motion, that the defendant admitted in bis answer, 
that the papers were m his custody or power, and which 
admission was not made by merely referring to the papers. 
Nor would the mere reference make documents /?ar^ (^an 
answer, for the purpose of production, though, perhaps, by 
amending the bill, and addressing further questions, the de- 
fendant might be compelled to malie the documents part of 


bis answer for that purpose, and to make sach an admission 18S0. 
of possession as would authorize the order. The possession 
of the deed roust be, by tbe answer, fixed in the defendant; 
and tbe reason is, that if the defendant should refuse, under 
the order, to produce the instrument, the Court could not 
apply process to enforce obedience, because no constat ap- 
pears on the pleadings, that the instrument is in possession 
of the defendant, and that l\e has the power to obey. Ad- 
ditional, if not better reasons, are assigned by tbe Court of 
Exchequer, in Er$kine v. Biztj (2 Cox^s Cases^ 226.) for 
the necessity of a direct admission in tbe answer of the fact 
of possession, or control of the paper, befoce a rule can be 
made to produce it. 

There is wisdom in the cautious policy of the Courts on 
ibis head, and which is alluded to by Lord Eldfin. A de- 
fendant, in his answer, accompanies the production of a 
deed with an explanation of all the circumstances, but a 
compulsory production under an order, deprives him of the 
security which the answer affords. 

There are so many objections raised in the answer, in the 
present case, to the general equity of the bill* and in bar of 
any right or title whatever on the part of the plaintiffs, that 
I should not feel disposed to depart from the strict practice 
on this occasion, until these objections had been discussed 
and removed. The plaintiffs will be in season to demand 
an inspection of books and papers relating to the partner- 
ship transactions between JR. and G., when an account shall 
be directed to be taken. It cannot be reasonable to give 
them, in the first instance, an inspection of the books and 
documents in possession of the defendant, and belonging to 
her husband's estate, merely to see if they cannot discover in 
them some ground of action. 

Motion denied, with costs^ 


Rmuis and others, Exemtcn of HnrDsasow, ogainM 
Rosa, Execuific of Ross» 

9/ adef ise of eUl the re$t and vendue qfihe rtol eeUtle of tbo teitalnri 
the renU and profiU^ from the testator's death to the time of vestios 
the estate, will pass : and whoever takes the legal estate, in the 
mean time, will be responsible for the profits ; for the rents and pro- 
fits, as well as the eltate itself, may be giiren, by way of executory 

The heir at law raey be caotidored as % trtutee, where it becomes ne- 
cessary, to carry the intention of the testator inte effect. 

The rents and profits may accumulate in his bands, for the benefit of 
the executory devisee, until the resting of the estate. This Court 
may, if nedbssary, appoint a recewer of them for that purpose. 

And where the executory devisee was illegitimate, and it did not ap- 
pear that the testator left any lawful heir, and no person appeared to 
^laim the inheritaooe, the executwr of the testator who had taken 
possession of the real estate, aad was appointed guaniiao of the de- 
visee, and received the rents and profits from the death of the testa- 
tor, to the happening of the event on ^hich the estate vested, was 
Bold accountable for them, to the executory devisee. 

Me^im. THE original bill was filed, March 2Sth, 1819, (Cgain$r 
Robert Ross, tbe testator. The plaintiffs' testator, William 
BendersMt died the 19tb of January, 1812, having, by his 
last will, appointed the plaintiffs his executors. Alexander 
Amder«o», the father of W. H., made his will, in December^ 
1804) by which, after directing his debts to be paid, and 
giving certain legacies, he devised attthe residue of his estate^ 
boih red and personal, to his son, W. H., (then living with 
him,) tdlen he should arrive at the age of twenty-three years ; 
and he appointed John Cortius, of London, in the kingdom 
of Great Britain, and John Waits, and Robert Ross, of the 
coun^ of West Chester, in this state, his executors. The 
testator died soon after making his will. Robert Ross 
alone proved, and took upon himself the execution of the 


wtU. W. Henderson^ at the death of his father, was seveil- 1820. 
teen years old, and Robert R08t was doly appointed, on the 
lltb of January f 1805, guardian of his person and estate.* 
Hb father left a hyrge personal estate, more than sufficieni 
to pay all the debts and pecimiavy legacies. 

In the latter part of the year 1 810, or 181 1, R. JR. render- 
MfBoW.H. then being above twenty-one years of age, an 
aecoant of his executorship and gtiardimiship, by which it 
appeared, that after dedacting debts, and legacies, and ex- 
penses paid as gaardian, there wad a balance due fV. H. of 
462 doliara and 90 cents. Though, about that time, there 
was an acquittance or discharge execoted by W. H. to 
R. R. for that suasy yet the plaintifi charged that no part of 
the money was paid, but the whole remained doe to W. A 
at hia death. 

The bill further charged, that there w» due to wf . H: or 
W. jBF., a htfge sum of money, in Ccleuitay which R. R. had^ 
or might have received, and which be had not accounted 
for as executor or guardian. That j^. H. died seised of a 
valuable farm at Pdham, in the county of We^ Chester, and 
wUch passed to W. H. by the will of A, H. That R. R., 
soon after the death of A. H. entered upon, and took poe- 
session of the farm, and received the rents and proiis,* 
until JV. H. attained the age of twenty*three years ; and 
that the yearly value was 1,000 doHars. The plaintifis 
prayed for an account and payment of the sum o(4A2 dol- 
lars and 00 cents, with interest, from the time the account 
was rendered by R R., and the Calcutta debt, and the rents 
and profits of the Ihrm at tdham. 

K R. died before answering the bill ; and a bill of rmpor 
was filed against Ann Sharp Ro8s, bis executrix, who put in 
her answer to both bills. The defendant admitted the 
making of the wills of ^. H. and of ^. H., and their deaths, 
and the appointment of R. R. as guardian of IF. H. That 
the account was rendered by R* R* to W, H., and was not 
pidd when Che discharge was executed; that it was rendered 


1820. about the 21st o( February y 1811, when W. H. was twenty- 
three years of age. That the balance was retained by R. R. 
with the consent o( W. H. ; that the same was to be ad- 
vanced to W, H. from time to time, as occasion might re- 
quire, and that R. R. had, accordingly, advanced to him the 
amount of 159 dollars and 8 cents ; that W. H., by his will, 
bequeathed to R. R. a legacy of 400 dollars, which had 
not been paid, and which she set off against the balance be- 
longing to the estate of fT. H. The defendant denied all 
knowledge or belief of the debt alleged to be due in Cat" 
cutta. She admitted that A H. died seised of the farm at 
P. which passed by the will to W. If., on his attaining the 
age of twenty-three years. The defendant averred, that fV. 
H. was the illegitimate son of .^. i/., and not his heir at law, 
and, therefore, not entitled to the rents and pro6ts of the 
farm, which accrued previous to his attaining the age of 
twenty- three years; and she submitted whether she was 
bound to account for such rents and pro6ts. She admitted 
that, as execulriz of JR. R. she had received assets to the 
amount of 20,000 dollars. 

A replication was filed, and witnesses examined, and the 
cause was brought to a hearing on the pleaditigs and 

The cause was argued by T. A, Emmct^ and P. J. 
MinrOj for the plaintiffs, and by Harisan and Welb^ for the 

For the plainiiffSf it was contended, that admitting IV. H, 
to be the illegitimate son of w2. JET., it confirms the intention 
of the father, who had no heir at law, to give to the ob- 
ject of his bounty and affection, as expressed in the will, 
**all the residue of his estate, both real and personal." 
There is a peculiar hardihood in the claim set up by the 
defendant. R, JR. without any pi]^tence of title, but as guar- 
dian of W. H,y received the rents of the real estate, firom the 


death of ^. H. until W. H. arrived at twenty-three years of 1820. 
age, and his executrix now refuses to account for them to 
4he person, in whose right they were received, under the 
pretence that she may possibly be made to account for them 
to the heir at law, though there is no such person in exist- 
ence, or to the people of the state, who have never taken a 
step towards an escheat, and whose title can commence only 
•after an office found. 

This is a sufficient answer to any objection as to the want 
'of proper parties ; for there is no known heir at law, and 
the people have no interest, and the estate itself not having 
cscheatedy and no office having been found, the people could 
not now acquire any interest in the rents or profits. Be- 
jides. the party who received the rents, or his legal represen- 
tative, never having filed a bill of interpleader, but contest- 
ing the right of die plaintifis, all necessary parties are before 
the Court If the plaintiffs are entitled tp the rents and pro- 
fits, they can recover them from the legal representative of the 
person who received them as a trustee ; and if the defendant 
is not accountable for them to the plaintiff, she is accounta- 
ble to no person. 

It is true, that if the testator had devised, specifically, the 
farm at Pelham to W, H. when he attained the age of twen- 
ty-three years, he being an illegitimate child, the devisee 
would not, by force of the words, be entitled to the inter- 
mediate rents and profits, but they would descend to the 
lieir at law, if not otherwise disposed of by express words 
er necessary implication. {Bullock v. Stones^ 2 Vea* 521. 
Stephens v. Stephens^ Cases lemp. Lord Talbot^ 228. Gih^ 
son v. Lord Montfort, I Vts 485.) Suppose, then, that 
the testator, after a specific devise of the farm, in fee, to his 
son fV. H,, on his arriving at twenty-three years of age, had 
devised all the rest of bis estate, real and personal, to a 
third person, would not the rents, intermediate the death of 
the testator and the vesting of the executory devise, have 
passed to such third person, under the authority of the case 


1820. o{ Stephens y. Stephens P Suppose, after a specific detile 
of his farm, and giving specific legacies, the testator had de« 
vised all the rest and residue of his real aad personal estate 
to his son W. A, when he should attain the age of twenty- 
three years, would not those rents and profits, under the 
authority of Gihstm v. Lord Montfort^ pass, by these 
words, accumulate in the mean while, and vest in W. BL 
when he attained the age of twenty-three years ? The 
position, both as to real and personal estate, that a de> 
vise of ** aU the rest and residue" will pass the rents and 
profits, from the testator's death to the time of the vesting of 
the executory devise, has not only been decided, but if 
clearly recognised by the best elementary writers. {Fean/U 
on Ex. Dev. PowelPs ed. 435, 436, 437. BiUler^s td. 544, 
645, 546. eCmse'* Dig. 520. lit. Devise^ ch. 20. s.40. 
and the cases there referred to^ especially Rogers v. Gibson^ 
1 Ves. jun. 485.) « Then what more is wanting to entide 
the plaintiff to the rents and profits f Though trustees 
were interposed in the case of Gibson v. Ltord Montfort^ 
yet Lord Hardwicke decided on the general principle wiHch 
has been stated. 

As to any supposed difficulty, for want of any person 
bound to receive the rents und profits, the same difficulty 
would exist as to the farm itself. The law allows this kind 
of devise, and it is not afiected by any consideration of who 
is, or whether there be, any heir at law, to whom the estate 
might, in the mean time, descend. There is no principle of 
law which establishes, that an executory devise of an estate 
in fee simple would not take effect, if the testator had no in- 
heritable blood. Whoever takes the freehold estate itself^ 
before the executory devise vests, takes the rents and pro- 
fits, in the same way, sucgect to their being devested, and ac- 
counted for, on the happening of the contingency : or, if a 
trustee is wanting to carry the intention of the testator into 
effect, this Court has full power to supply the deficiency ; 
and on an application for that purpose, a receiver might 


have been appointed, to take the rents and profits, and put 1820. 
them out for accumulation, to be ultimately disposed of to 
the devisee, if he lived to the age of twenty-three years ; 
and if he died before, to be accounted for to such person as 
might show himself entitled to them. The defendant's tes- 
tator, indeed, took that office upon himself, without any 
appointment by this Court ; but he is not the less account- 
able, according to the rules of this Court. If the testator 
had devised his farm to his son, as he has done, and had 
expressly devised the rents and profits accruing in the in- 
termediate time, to him, could it be argued, that the latter 
devise would not pass any thing, for want of a person, other 
than the heir at law, to take the legal estate f There is 
not any ground or reason, after the decision of Lord Hard" 
wicksi in the cases cited, for saying, that they would not 
pass by the general and sweeping words of the residuary 
devise. By the words, '* all the rest and residue of his real 
and personal estate,'' the testator devises every thing not 
specifically devised, and which he could dispose of by will, 
at the time of its execution. Will it be said, that the testa- 
tor had no power to dispose of the intermediate rents and 
profits ? Or that be has specifically devised them } If not, 
they must necessarily pass by the residuary devise. It is not 
easy, perhaps, nor is it necessary, to ascertain the object of 
the testator. He may, probably, have intended, that his 
son should have no control over the property, until he ar'- 
rived at the age of twenty-three years ; and in endeavour** 
ing to impose this restriction, he has inartificialty, and in- 
cautiously, perhaps, deprived him of the rents and profits, 
for his education and maintenance, in the mean time, and 
made them to accumulate, as a fund for him, when he should 
become possessed of the estate. It is clear, that he meant 
that all should go to that son, if he arrived at the age spe^ 

The observation of Lord Hardioicke^ that the real and 

Vol. IV. 50 


182d. |i6i'soosd Mate being comprised in the samb tweeping dause, 
is a strong argument against a resulting trust to the heir at 



^. law, b certainly of great force, when used to show the 
intention of the testator, in cases where no decisions have 
filed a contrary rule ) and it applies in all its strength to 
Uie present case. 

Far the defendant, it was argued, that if the devise to W. 
H. Was an executory devise^ which was admitted, it was only 
to take effect when the devisee arrived at the age of twenty- 
three years. The limitation was of the substance of the 
gift, and if he did not take at that age, it would be void. 
The question, however, as to the intermediate redts and 
profits, may be one of some difficulty. As the testator's 
real estate consisted only of the farm at Pdham, it will not 
be contended, that if he had specifically devised it to his 
illegitimate son, when he attained the age of twenty-three 
years, and then to him and his heirs, that the son would 
have been entitled to the intermediate rents and profits. 
IFeame an Ex. Dev. PatoeU^s ed. 434. Cases temp. Tat*- 
bat, 44. Hapkins v. Hopkins.) In Bullock v. StoneSj 
(2 V^es. 522.) Lord Hardwicke says, " Where there is an 
executory devise, whether of a legal estate, or of a trust 
estate in this Court, the rents and profits go to the heir at 
law ; because the legal estate in the one case, or the trust 
in the other, descend, in the mean time, to the heir at law.^ 
It is true, that from a clause in the will in that case, direct- 
ing his trustees to have the executory devisee well brought 
up and educated. Lord H. ob^rved, that ^' the son's edu- 
cation must come out of the rents and profits, at least, as 
far as his maintenance and education goes.'' This, how- 
ever, depended on the particular provisions of the will in 
that case, and shows, that the general doctrine was thought 
otherwise. It must be admitted, that the testator may, by 
express devise, or necessary inference, substitute a person 
to take the intermediate rents and profits in place of the 


lieir. And it is true, tb«t tbe language of the elementary 1890. 
irriters, cited by the plaintiffs' counsel, is, that a devise of 
;dJ the rest and residue of real estate, will pass as well the 
profiu from the testatojr*^ deaths to the time of the estate 
vestiog, as from theidetermiuing of the first estate, to the vestr 
4ng of a subsequeut one. But this language may well be 
^nsidered as referring only to an. absolute and immediate 
devise of ^ uch rest and residue, or such devise as must take 
efiect, at all events, in some person or other. In the case 
o{ Siq^hens v. Stephens^ there was an absoltUe devise of 
all the residue of the testator^s real estate to bis 8on-in->Iaw, 
T. S., (who was not tlie executory devisee,) which took 
effect immediately on the testator's decease. He, therefore, 
was substituted to the heir at law, to whom nothing could 
descend. The executory devises took efieot, in succession, 
as soon as the devisees came in being. But the rents .were 
not made to accumulate^ in the mean time, for the benefit of 
the executory devisee, if there, afterwards, should be one. 
This case, therefore, does, by no means, establish the doc* 
trine ^o broadly laid down. In tbe case o( CHbson v. Lord 
iMtmtfortf the legal estate, by the will, was immediately 
vested in trustees ; and there was not only a residuary ewe* 
cutiny devise taking effect, as soon as the daughter had -a 
child, or children, but an absolute devise, in case of their 
failure, to other persons. Besides, there were other circum- 
stances in the will, plainly indicating the testator's intention 
to have the rents and profits accumuhtte, and on which 
Lord Hardvncke appears to lay great stress. It b true, 
that he, also, lays stress on the real property being coupled 
with the personal ; and, therefore, thinks that the doctrine 
peculiar to the personal property, is to govern the construc- 
tion as to the real, which would have been different, if it 
had stood alone. With all deference to so great a man, 
the necessity of determining, as to one species of property, 
by a rule applicable to property of a different description, 
seems not^to be very apparent. If it was so, why should 


1820. he ibink it necessary to fortify his opinion hy other con8h> 
derations. And why should he, in other cases, think k' 
proper to understand the same words in a different sense, 
when applied to real or to personal property ? In the cases, 
however, just referred to, and in cases of a similar nature, 
there is a person, other than the heir at law, who takes the 
legal estate, or who, having it, is bound, as a irusteti by the 
terms of the devise, at the death of the testator. In the pre* 
sent case, there is no trustee ; and if the devise is e>recti<ory, 
the legal estate must go immediately to the heir at law, if 
there is one, for the freehold cannot be in abeyance. Now, 
no case can be found of this description, where the heir, 
necessarily taking an estate, for want of a person immediate* 
diatdy entided to it, has been converted into a trustee. 
No provision is made in the residuary devise, for any person 
to take the rents and profits, until W. H. should come of 
age. The devise of the residuary estate to him, was as 
much executory as the devise of the land itself; and the 
executors, as suchj had no right to interfere with the real 
estate, unless to sell it for the payment of debts, in the way 
which the law has prescribed, upon failure of personal 
assets* Hence, probably, the solicitude of Lord Hardwicke 
to show, in the case of iSibson v<. Montfort^ that the trustees 
took an immediate fee. 

This objection, at first view, appears fatal to the present 
demand* If the heir at law alone could rightfully receive 
, the mesne profits, he, or those who stand in his place, ought 
to have been made parties to the suit. W. if., or his repre- 
sentatives, could not lawfully receive the rents and profits ; 
for, at any rate, it can never be maintained, that he was en- 
titled to the mesne profits, if the devise was executory ^ before 
he arrived to the age of twenty-three years, when he took 
possession of the iarm. From that time to the commence- 
ment of this suit, neither W. H. nor his representatives, took 
-any l^al measures to obtain the rents and profits, but have^ 
«ntil a short time before the bringing the suit, acquiesced in 


the possession of them by R. Ro8$j and by this defendant, as 1820. 
his legal representative, for whoever might be legally enti- 
tled to them; and after such a lapse of time, this Court is 
trailed upon to decree in favour of the plaintiffs, without bring- ^ 
ing the proper parties, or those who may be so entitled, be- 
fore the Court 

The Chancellor. This case has been very well argued, 
and the main question is, whether the plaintiffs are entided 
to an account of the rents and profits of the real estate de- 
vised to their testator, accruing between the death of Alexan- 
der Henderson^ and the arrival of the devisee to the age of 
twenty-three years. 

The words of the will of Alexander Henderion^ on which 
the question arises, and which follow some pecuniary be- 
quests, are these : " I give and bequeath all the residue of 
my estate, both real and personal, to my son, William Hen- 
dersofif (now residing with me,) when he shall have attained 
the age of twenty-three years." He attained that age, and 
died. His father was seised of a real estatein the county of 
fVest Chester J and the rents and profits previous to the time 
that the estate absolutely vested in his son, W. A, were 
taken by Robert Rosi^ the sole acting executor of the father's 

If IV. H. was the lawful heir of A. H. there would be no 
doubt of his right to the rents and profits, for in that case 
he must have been entitled to them either in the capacity of 
heir or of devisee. But the defendant has questioned, and, 
I think, successfully questioned, his right to those interme- 
diate profits, as heir, by showing that he was an illegitimate 
offspring of his father, by a woman of Bengal. 

The inquiry is then confined to his claim as a residuary 

A devise of all the rest and residue of the real estate, will 
pass the profits^ from the testator's death to the time of the 
vesting of the estate ; and whoever takes the legal estate in 


laao. 4ke neM dime, Jiriil be m|H)nsible for ihfKse profit!^ mi 
tbey, as w4\ as the <estale iteetf, fQey he giyeo tiy way of ep^r 
«ciilQry de/rise. 

One lof the earlieBt cases, aad « Jeftdbig one m Ibe 8iib«' 
jcct, is that of Siefkew w. SUg^hem, {C<ms temp. TdlhH^ 
228.) It was a case sent to the K. B. for their opiaioD, ab4 
Lord Chancellor Tclbot decreed according to that opinion, 
.and expressed his satis&fctioo With it. 

The facts were simply these : S^ by wiU, devised to his 
.grandsra A.^ bis lands in fee* Ssc ; bat in case bis grandsoa 
^«, dionld liappen ;to die before be attained ibe age of t«eo> 
tly'One,itbea he devised bis lands to bis grandson jB.^ w iee$ 
and if he should die as aforesaid^ then be devised bis buids 
io suchgiher 4(fH of kie dewgiUer Mnry^ a$ ilwuid happen to 
0^ain ihfiage oftpfe^jfy^Qne^ In fee ; ;and for default of «iidi 
issue, then be devised the <sao»e to his graaddaught^ns hy 
Jus daughter Mary ; and for wa»t cf such issue, .tbeo be de^- 
(vised the same to .his brother C ; and oil the rest anji red* 
due (/Ms estate, real andpersaml^ he bequeftjthed ip kU siw 
J)^ in foe. 

AUikd grandson daimed the estate as xesiduaiy devisee, 
and Mary^ the daagbter, claimed it as heir at law. 

The CiMirt of iC. B. held that the devise to such unborn son, 
&IC., was good by way of executory devise, and that the subse^ 
quent limitations were,.of course, good ^ and, if one failed, dhe 
atbeis would iake place in succession ; and iflbey all failed, 
the 'estate woiild go toC^ by virtue of the last remainder, i» 
fee. And that, with .respect to the profits received since the 
death of the grandson .^2., or to be received until the estate 
should vest in some one person, by force of die executory 
devise, or go over to tbe remainder man, they belonged to 
2). by virtue of 4be residuary devise in the will, as -an inte- 
rest not before disposed of by the will. 

This case establishes the position, that the intermediate 
profits arising on an estate given by way of executory de« 
vise« will pass by a devise of all the residue of the estate. 


Tlie n^it important cmde on this point is Oibtan v. Lard IffSO. 
Manifortf or^ as it is sometimes cited, Rogpr$ v. CKbson* 
(1 Fes. 465. Jlmb. d3. S. C.) The testator devised all bis 
•state to trustees, in trost, to pay legacies, be., and then, 
** as for and concerning all the rest, residue^ and remainder^ 
rftht reai and personal estate^ after provision made for the 
payment of the legacies, be gave to such child or children 
as his daughter should have lawfiiUy begotten^ be. ; if his 
daughter should die without such issue, then to two other 
persons, to be equally divided between them." 

One question in the case was, (Concerning the disposition 
of the surplus r^nts and profits of the real estate, after satis- 
laction of the charges, till such time as the executory devisee 
tame in esse ; and whether they went tp the first taker of the 
tesidue, or to the heir at law f 

It was said, on behalf of the devisee, that though, general- 
ly, the intermediate profits of an estate, to take efiect on a 
future contingency, as well as the estate itself^ would de- 
scend, yet that here the testator intended to comprehend all 
th^ profits under the term residue; that as it was admitted that 
giving tiie personal estate gave the profits of it, so by mixr 
Ing both estates, the testator showed his intent, that the in- 
termediate profits of the real estate should go the same way. 
It was urged, on the other hand, in favour of the heir, that .^_ 
here was an omission to give the intermediate rents and pro^t/C^ 
;4u for by a gift to one not in esse^ nothing passed interme- 
diately, and the estate, in the mean time, descended ; that 
though the whole accumulating profits of the personal estate 
would go by the devise, by reason of the word residue, yet 
the same rule of construction was not applicable to the real 
estate ; and that if ever favour was shown to an heir, it ought 
to be in the case of an illegitimate daughter amply provided 

Lord Hardwicke said, the question was, whether the surplus 
profits were included, and went by the devise of the residue, or 
were to be considered as part of the real estate undisposed of; 


1820. and be admitted the heir would take the intermediate profits, 
if not sufficiency devised. They are thrown upon the heir by 
the law, as Lord Talbot said, in Hopkins v. Hopkins, {Cases 
temp. Talbot, 44.) for want of some other person to take. It 
was rightly admitted, that the profits of the personal estate 
passed by the residuary devise. Where the residue of the 
personal estate is disposed of, it will always take in the in- 
termediate profits. He said, it was also admitted, that the 
testator might, by express words, dispose of the rents and 
profits of the real estate, accruing before the contingency 
happened, either to the chUd when bom, or to the person to 
take when she died without issue ; and the only question was, 
whether, by express words, or necessary implication, they 
were, by the will, given away from the heir, and he was of 
opinion that they were. The testator had plainly declared 
an intention to dispose of his whole estate, and it was 
^' pretty hard to say, that in any case, where one devises 
all the rest and residue of his real estate, the heir should be 
enabled to claim any thing out of it ; for how can he claim 
or take these intermediate profits .^" He adverted to the 
case of Stephens v Stq^hens, as material to the construe-* 
tion of the words rest and residue, and as determining, that 
those words would take in the intermediate profits of the 
real estate devised on contingency, or by way of executory 
devise, and which would otherwise go to the heir at law, to 
whom the real estate would, in the mean time, descend* 
The construction given in that case, meets, more probably, 
the testator's intention, when the devise is to a person in b^ 
ingy than when to one not in esse. So, also, when both real 
and personal estates are comprised in tlie same sweeping 
clause, it is a strong argument against the claim of the 
heir, since it is admitted, that the surplus profits of the per- 
sonal estate will pass by the devise. The surplus renta 
were, therefore, in this case, to be received by the trustees, 
and accumulated and laid up. 


This case approaches much nearer than that of Stephens 189Q. 
V. Stephens^ to the one before me, for here the devise of the 
profits, as well as of the estate, passed to the executory de- 
visee by the same residuary clause. 

The same construction was given to the disposition of the 
residue of the real and personal estate, in the case of the 
Duke of Bridgwater v. Egerton^ (2 Ves. 122.) That was a 
devise of real estate to the wife during widowhood, and then 
to the eldest son, who should attain twenty-one years of age. 
The wife married during the minority of the son, and Lord 
Hardwicke held, that the intervening profits, or those arising 
between the determination of the wife's interest and the ma- 
jority of the eldest son, would fall into the residue of the 
real and personal estates respectively. 
. The case of Bullock v. Stones^ (2 Ves. 521.) shows, thai 
the testator may, by implication, as well as by expresa 
words, substitute a person to take the intermediate profits, 
of a real estate descending to the heir, pending the contin- 
gency of an executory devise. The testator in that case 
devised all his real and personal estate in trust, and after 
debts and legacies paid, then to the first son of A.^ (who 
was his heir at law, and under age, and had no child,) 
when he should attain twenty-one years, and with a direct 
tionfor his proper maintenance and education. It was held, 
that the profits of the personal estate would accumulate and 
not go to the heir, and that the rents and profits of the real 
estate would descend to him, for where there is an executo- 
ry devise, whether of a legal or trust estate, the rents and 
profits go to the heir, with the legal estate, in the one case, 
and the trust in the other. But the heir^s son, under this 
direction in the will, would be entitled to the benefit of the 
rents and profits /rom his hirth^ so far as the same were re- 
quisite for his maintenance and education. 

Upon the doctrine of these cases, there would seem to be 
no doubt, that the intermediate profits of the real estate 
Vol. IV. 6! 


1820. woold gO| by the general and sweeping w6rds of the will, 
as well as the estate itself, to the son, W. H., upon the 
vesting of the executory devise at the age of twenty-three, 
and that they would accumulate in the mean time, in the 
hands of the heir, for bis benefit. It is pretty evident, that 
the testator did not intend to leave any part of his estate 
undisposed of. He has coupled together the disposition of 
his real and personal estate ; and it is admitted in all the 
cases, that the profits of the personal estate go with that 
estate, under the word residue^ to the executory devisee. 
This is an argument, according to Lord Hardwicke^ for 
giving the same construction to the whole clause, and the 
construction presses the stronger, if the disposition, as here, 
be to a person in being at the time of making the will. In- 
deed, the case of CHbson v. Lord Monifort^ would be per- 
fectly analogous, (for there, also, was an illegitimate child 
who was the object of the devise,) if here had been a special 
trustee created to take the estate. The counsel for the de- 
fendant seemed to place reliance upon this ground, and it 
was said, that there is no case in which the heir necessa- 
rily taking an estate, for want of a person immediately 
entitled to it, has been converted into a trustee of the 
profits for the devisee. It was, also, said, that there must 
be an absolute devise of the intermediate profits depending 
on the contingency of an executory devise, to some person 
who can immediately take. But in Gibson v. Lord Mont- 
fortj there was no such absolute and immediate devise of the 
profits. They were given by way of executory devise, as 
well as the principal estate, and, as Lord Hardwicke ob- 
served, they were to be " received by the trustees, accumu- 
lated and laid up," to meet the evefit of thevesting of the 
estate. And why cannot the heir be considered as a trustee, 
when it becomes necessary to carry the intention of the will 
into efiect ? I presume, this Court might have appointed a 
receiver of those rents and profits, for the purpose of accu- 
mulation, and to abide the termination of the executory 


Revise. It will do it in many cases for the security of the 1820. 

fund, before any decision as to the right. The heir may be 

a trustee for those holding beneficial interests under a will. 

If a mortgage debt should pass, by a will of the mortgagee, 

without conveying the technical legal estate along with it, 

the heir of the mortgagee would be a mere trustee of the 

legal estate to the person to whom tlie debt was bequeathed. 

It is admitted, in Gibson v. Lard Mentfortj that the profits 

<>uiy be given, by way of executory devise, to ike very per^ 

son to whom the estate is given on the like contingency. 

This doctrine of accumulation is q«iite familiar in the 
practice of the English Chancery, and was well and most 
elaborately disciissed, in the great case of Thelhtsson v. 
Woodford. (4 Ves. 3270 It seems to be entirely settled, 
that the profits of an estate may lawfully, under a will, be 
made to accumulate, for the reasonable period allowed for 
an eiecotory devise to vest. In the last case referred to, 
the learned Judges who were called in to assist the Lord 
Chancellor, seemed to agree, that an accumulation till the 
contingency happens, may be given to the executory devisee, 
who was to take the thing from whence the accumulation 
^as to arise ; and that a tendency to perpetuity was not in- 
creased by giving the intermediate profits with the subject 
whicli j>roduces them. The value of the thing devised was 
enlarged, but not the time. The words of Lord Rosslyn^ in 
that case, are deserving of notice, as they admit, that the 
land may descend to the heir in the intermediate period, 
wjdiout bis being entitled to the rents and profits. *' The 
Court," he observes, " has never considered it as an essential 
condition afiecUng the validity of the devise, that the rents 
and profits should attend the estate during the time it is ta 
go doum^ before the absolute property is given." And, iiv^ 
deed, the difficulty raised by the counsel for the defendanf^ 
is not to be met with, as a suggestion, in any case in which 
the subject has been d'lscussed, nor has it been assumed any 
where, that some person, other than the heir^ must be vested 


189(K with the legal estate, to. eoable the testator to give the pro- 
fits along with the estate, cootingeotly, to the executory de* 
visee. The testator^s intention is the only subject of in- 
quiry, and when it is sufficiently ascertained, it must pre- 
vail, and be carried' into effect; and the Court would never 
suffer that intention to be defeated, for the want of a mere 
formal trustee of those profits. Whoever takes the land 
during the intermediate period, either as heir or devisee^ 
takes it subject to the trust created by the will. Suppose 
the will had expressly declared, that the real estate was 
given to the son on his attaining the age of twenty-three, 
and that the intermediate profito of the estate were given to 
him on the like event, could there be any doubt in such a 
case, whether the lawful purpose of the testator was to pre- 
vail ? To deny it would be to deny him the power, which 
seems to be every where admitted, of creating a valid exe- 
cutory devise of the profits of the estate. And if the inten* 
tion of the testator can as well be ascertained by the words 
which have been used, the same conclusion must follow; and 
1 am not able to perceive, that there is any solid foundation 
for the objection. 

It is further urged, that the heir ought to have been a 
party ; but when it does not appear from the case, whether 
the testator left any lawful heir capable of inheriting ; and 
considering that no hdr has ever appeared to claim the in- 
heritance, and that the defendant's testator took possession 
of the estate, and received the rents and profits as the exe* 
cutor of ^. if., or as guardian for his son, I am not dispo- 
sed to listen to this objection. 

I shall, accordingly, decree, that the defendant account 
for the rents and profits of the real estate mentioned in the 
pleadings, with interest after one year from each period, 
and, also, that she generally account for the property re- 
ceived by her testator, as executor and guardian, subject to 
all just allowances ; and I shall direct a reference accord- 
ingly, to:. 

Decree accordingly. 


BoncK AND Macomb against Wilber. — — .— — . 

This Court will correct a mutake of an extra judicial nature, in an 
award of arbitrators, and decree a performance of it in specie. 

At, vhere there was a dispute between the plaintiff and defendattt, a* 
16 fifty acres of land, in the possesion of the defendant, and tbe pav* 
ties agreed to sttbroit the matter to arbitrators, who were 'to ap- 
praise tbe value of the land, and the defendant was to pay the 
amount of the appraisement to the plaintiff, who was to execute a 
release of the land to the defendant ; and the arbitrators, in their 
award, haying appraised the fifty acres in the possession of the de>^ 
fbndant, through a mere clerical mistake and inadrertenDe, in de^ 
ioribjng the land, stMed the bounds errooeoisly, so as ^to iadnde 
about one acn only, i>f the land in the defendant's possession: 
Decnedy that the award be corrected according to the truth of the 

; fact, and a specific perfonnance thereof accordingly. 

TBE bill, filed Auguai 4, 1819, stated, among other Mp^^, 
tbiBgs, that the plaiotifls were owoers of several lots of land 
in Lamnfer and Gimmer^s Patetsij in Schoharie county, and 
luinong the rest, of fifty acres, part of lot No. 1, in the first 
allotment of tbe patent. That, in 1811, an action of eject- 
ment was brought by the plaintifls against the defendant, 
^bo was in possession of tbe fifty acres. That when tbe 
suit was ready for trial at tbe circuit, the defendant, and 
others, on tbe 92d of Sqftembur^ 1813, entered into an 
.agreement, by which the l^gal title of the plaintifis to the 
4and was admitted : and it was agreed, between the parties, 
4hat Archibald CroaoeU^ John Adams, and Jabez D. Hamr 
mondf or any two of them, should appraise in writing, on or 
before the 10th of June next, the sum which the defend*- 
ant, and others, should, under all the circumstances, pay to 
the plaintifis for tbe lots so occupied, and for costs ; and the 
appraisers were authorized to decide on equitable as well a^ 


1820* legal principles; and the 8OID8 so ascertained were to be 
paid in four annual instalments, secured by bond and mort- 
gage on the land. And the plaintiffs agreed, on their part^ 
in consideration of the sums so ascertained and secured to 
be paid| to convey the lots to the defendant and the others. 
That the arbitrators, after hearing the parties and their 
proofs, on the 19th of Jlfay, 1814, made their award under 
their hands and seals, by wiiich they appraised the sum 
which the defendant was to pay for the fifty acres in his pos- 
session, at 33T dollars and 50 cents, and for the costs of the 
ejectment, 68 dollars and 68 cents, making, together, 406 dol- 
lars and 18 cents. That the arbitrators, in discribing the fifty 
acres possessed by the defendant, hy mere mistake^ and inad- 
vertence, gave an erroneous description of the boundaries. 
That the plaintiffs being always ready to perform the award 
on their part, on the 30th of /une, 1819, executed a deed of 
conveyance of the fifty acres, to the defendant, and tendered 
the same to the defendant, on the 17th of Jtdj/j and de- 
manded payment of the sum so awarded ; but the defendant 
refused to pay the mone}', and receive the deed, and still 
continues in possession of the land, and has received the rents 
and profits. Prayer, that the defendant should be decreed 
to pay to the plaintiffs the 406 dollars and 18 cents, with 
interest and costs, &c., and for general relief. 

The answer of the defendant denied that the plaintiffs were 
owners of the fifty acres, and averred that he had the legal 
title to the land. That he entered into the agreement as to 
the submission, merely to avoid further litigation. He ad- 
mitted the award as set forth ; that in regard to the defend- 
ant, it includes only one acre, and twenty-two rods, of lot No. 
2, in the great subdivision of lot No. 1 ; and that No. 2 is the 
one owned and possessed by him. He admitted that the 
arbitrators might have appraised lot No. 2, it being occupi- 
ed and claimed by the defendant, and had, through mistake, 
and misapprehension, give a wrong description of it, yet he 


. did not know it to be so, tboagh be bad some reason to be- 182p. 
lieve it But, if tbat was the appraisement and intention ofthe 
arbitrators,' they ought to have inserted the true boundaries 
in their award. He admitted the tender of a deed, &c., and 
a refusal, on his part. He stated, that the plaintiffs brought 
an action at law against the defendant, on the award, to re- 
cover the amount, that the defendant pleaded the mistake, &x., 
and a verdict was found for the defendant, on which judg- 
ment was given in May^ 1819. That the sum at which the 
fifty acres were appraised was no more than the fair value ; 
and that he refused to comply with the award, because it 
was illegal and void. 

Witnesses were examined on both sides, and the cause 
was brought to a bearing on the pleadings and proofs. 

H. Hamilton and H. Bouck, for the plaintifis. They 
cited 2 Vernon^ 24. Kyd on Awards, 332. 334. 1 Jiik. 63. 
3 Atk. 494. 529. 644. 3 P. fVm. 186. 5 Fes. 346. 1 
Johns. Ch. Rep. 101. 2 Johns. Ch. Rep. 276. 

S. A. Foot, contra, cited 16 Johns. R^. 227. 1 Maid, 
Ch.Pr.65. 6 Fc5. 34. 

The Chancellor. It appears very clearly from the 
answer and the proofs, that the arbitrators did appraise and 
determine according to the articles of submission, the sum 
which the defendant, under all the circumstances of the case, 
ought to pay for the fifty acres of land which he occupied 
and claimed. They inadvertently made a mistake in setting 
out in the award a description of the land ; and the descrip- 
tion takes in adjoining land, with only a small part of the 
fifty acres. The mistake is too palpable to be denied, but 
it was a mistake only of a clerical nature in drawing up the 
award. The judgipent of the arbitrators was truly exercised 
and passed uponnhe object of the submission ; and the ap- 
pradsement is admitted to have been just and fair when ap- 



1 830» p'ied to the defendant's land* There can be no donbt, tbere* 
fore, that the defendant i» jbound, in good faidt, and in con- 
science^ to fulfil the award on his part, according to th^ 
^ jodgoient and manifest intent of the arbitrators ; and the mis- 
lake in the description of U>e boundaries of the land oogl^ 
to be corrected according to the truth of the case, and the 
intention of the parties concerned. Had the arbitrators apr 
praised a different tract of land, instead of the fifty acres posr 
sessed by the defendant, there would have been good ground 
for rejecting the award as dehors the submission. But here 
the determination was upon the very matter in dispute, and 
the judgment of the arbitrators is not questioned. The 
plaintiffs are only seekii^ the benefit of that judgment, 
and to be relieved from a plain mistake which impedes it 
They are certainly entitled to relief upon the plainest princi- 
ples of justice; and they can obtain it consistently with the 
general doctrine of the Court, and the language of all the 

In Norton v. MascaU^ (2 Fern. 24.) an award was made 
not binding, as the case says, by form of law. Each party 
had a duty to perform under it. The one was to pay and 
execute a release, and the other to assign secnrides. And 
though ^^ the award was extra judicial^ and not good, in 
strictness of law, yet the Lord Chancellor decreed it shQuId 
be performed in specieJ^ It seemed to be well understood 
in many of the cases referred to in UnderhiU v. Van Cort^ 
landtf (2 Johns. Ch. Rqp. 339.) that such mistakes of an 
extrajudicial nature, and not bearing upon the judgment of 
the arbitrators, were to be correcHd. It was assumed in 
that case, and in Shepard v. Merrill^ (2 Johns. Ch. Rep. . 
296.) that a mistake in a matter of fact attending an award, 
could be relieved \ and though the decree in the former case 
has been since reversed by the Court of Errors,(a) it was, 

(«; Vide 17 JoAnj^ hep. 400— 48dp 


as I understood, on the ground of misconduct in the arbi- 1820. 
trators or the party, and I believe I may venture to conclude 
that the whole law of that case remains sound and un- 

I shall, accordingly, declare, that the plaintiffs are enti- 
tled to the benefit of the award, according to the assessment 
of the arbitrators, and that the erroneous description of the 
premises shall be deemed to be corrected according to the 
troth of the fact. The decree must, accordingly, be entered, 
that the defendant, within thirty days, and on an offer of the 
deed tendel-ed in July last, or of another of like import, 
duly executed, pay to the plaintiffs the sum of 406 dollars 
and 18 cents, awarded, with interest, from the day of the 
tender of the deed, and costs of the suit to be taxed. 

Decree accordingly. 

W. b D. Seymour against J. Setmocr and others. 

A turrogate has concurrent jarisdictioo with this Court, to compel 
administrators to account, and make distribution of the estate. 

And where adminutratort have been brought before the turrogate 
who granted the letters of administration, for an account and dis- 
tribution of the intestate's personal estate, this Court will not, with- 
out some special and satisfieictorj reason, interfere with the pro* 
ceedings of the surrogate, by granting an injunction, and sustain- 
ing a bill for general relief. 

A ' bill for discovery t in aid of the cause before (he surrogcae, must 
charge certain facts within the knowledge of the defendant, the 
disclosure of which is material and necessary to the party's defence 
in that Court, and that he has no means of showing the fact8» 
without such discovery. 

But U ueuMy that where the bill is for discorery merely, and no in- 
junction is asked for, and there is a demurrer to the bill, the Court ' 
will not examine so nicely as to the materiality of the discorery. 
Vol. IV. 62 


1820. THE ^iH stated^ that the plaintift F^re s^doiiaiflirator^ 

of the goods and chatteh of Stephen Seymour^ d^ceasedi 



V. ^pd tha$ the defendants, claiming distributive shares of the 
estate, had applied to the surrogate of Ulster cdanty, firoDL 
Majf 27th. If bpm they received letters of administratioo, and sued out 
^ citation to th^ plainUiTs to appear before bioii oq a given 
day, aud account for th^ personal ^tate in their hands ta 
b^ administered ; that they ha4 appeared and offered U^ 
^M:count according to the inventory, but that the defeodaJila 
had insisted, dia; they should account, opt only for the per*- 
$pnal estate inventoried, but for personal property giveo 
and delivered by the intestate to the plajotifisi shortly ber 
fore bis death, and in contemplation of death, and whkb 
the plaintifis claimed as a gift, be. That the proceedings 
were postponed by the surrogate^ until the second day of 
June. That the plaintiffs ^* were apprehensive that they 
should not be able to make full proof of the material facts," 
requisite to protect the property so delivered to them, with- 
out a disalosure from the defendants. The bill prayed for 
an injunction to stay further proceedings before the surro- 
gate, and that the plaintiffs be permitted to settle their ac- 
count as administrators before this Court, as to all the per- 
sons who claim distributive shares. The bill, also, prayed 
process of subpoena, &c. 

P. Rugglesj on behalf of the plaintiffs, moved for the in- 
junction, according to the prayer of the bill. 

The Chancellor. The object of this bill, is not sim- 
ply discovery, but relief. It seeks to transfer to this Court 
the jurisdiction of the whole matter of account between the 
administrators and the next of kin ; and that too after the 
cognisance of the case has duly attached before the surro- 
gate. It is not to be disputed, that the surrogate is clothed 
with powers competent to settle the account^ of the estate, 

CASES IK cHaSceRIt. 4h 

m4 tb diteree and enfbrce d'utribatiofi $ and there i^ nd i^A- 
son asdigiied why bis jurisdietioo should be superseded, anfd 
tb^ entire cognisance of the case transferred to (his Couh. 
The act relative to the Court of Probates, &c. (1 JV. R. 
L. 448. 8. 11, 12, 13.) declares, ''that it shall ht law- 
ful for the surrogate granting administration, to call such 
administrators to Account, &c. c^nd upon hearing, and doe 
consideration, to order distribution, tic., and the same dis- 
tribution to decree and settlie, and to compel such admini^ 
tratord td observe arid pay the same, and to enforce such 
decree by imprisonment, Sa:., and to compel witnesses to 
attend and be sworn," inc. The surrogate has to far k 
concurrent jorisdiction with this Court ; and without sotdfe 
special reason set forth in the bill, I am not inclined 
to interfere with the ordinary exercise of snch a power ; 
because, I do not, at present, perceive, that such an inter* 
fer^nce would be warranted. There is nothing, in this case^ 
that would not apply to every case ; and it would be assu- 
ming exclusive jurisdiction over the subject matter. 

But if this be considered as a mere bill of discovery, in 
aid of the cause before the surrogate, it is essentially defec^ 
tive. There is not sufficient ground laid, for staying a trial 
at law, or a proceeding in another Court. The bill ought 
to have charged, that certain facts were within the know- 
ledge of the defendants, and that a disclosure from them 
was requisite. The bill or affidavit to support the injunc- 
tion, must state the belief of the plaintiff, that the answer 
would furnish discovery material to the defence, and that 
the plaintiff had not the means of obtaining the facts with- 
out such discovery. This was the doctrine of the case of ' 
GeUton v. Hoyt^ (1 Johns. Ch. Rep. 543.) and it is sup- 
ported by other decisions. {Appleyard v. Seton^ 16 Ves. 
223. Duvals v. Ross, 2 Munf. 290.) A general demurrer 
will lie to a bill, that seeks immaterial discovery ; (8 Bro. 
P. C. 161.) and it is not material, unless it really be want* 


1820. ed for the defence at law. In this case, the plaintiff is only 
apprehensive that he should not be able to make full proof 
of the material facts. This is too feeble an averment, a 
suggestion of too doubtful an import, and of too diffident a 
pretension, to justify an injunction staying a proceeding be- 
fore a competent tribunal. Probably, if the question on 
the materiality of the discovery sought, had arisen upon ^ 
demurrer to the bill, and an injunction staying the suit at 
law in the mean time had not been asked for, the materiali- 
ty of the discovery might not have been very nicely exa- 
mined. Lord Thurhw said, in such a case, upon demurrer, 
(Bishop of London v. Fyiche, 1 Bro. C. C. 69.) that 
'^ whether it was material or not, was chiefly for the plain- 
tiff to judge, for he must pay the costs of the application. 
It would remain with another Court to say how far it was 

Motion denied. 

Gray, Executrix of Grat, against J. B. Murray.' 

After a hearing and final decree in a cause, a witoess cannot be re- 
examined to explain or correct his testimony, taken on his examina^ 
tion in chief, and read at the hearing, unless, perhaps, under very 
special circumstances. 

A Tolantary ex parte affidavit of the witness, to explain and correct 
a mistake in his former testimony, cannot be read at a rehearing 
4>f the cause. 

jr«9f2M. ^T a rehearir^ of this cfliuse,(a) before the Chancellor, 
at his chambers, by consent, 

S. Jonesj for the defendant, moved for leave to read as 

(ff) Vide, 3. C. vol. 3. p. 167. 


evidence^ the deposition of Jama B. Murray ^ showing and 
correcting a mistaice in bis testimony^ taken on liis exami- 
nation in chief, and read at the former hearing. The de- 
position was talien before a commissioner, on the 2l8t of 
June^ 1819. He cited, in sapport of the motion, 1 Johm. 
Ch. Rep. 526. 2 P. Wms. 646. Dkkm$y 677. 2 Madd. 
Ch. Pr. 439. 10 Ves. 236. 

B. Robinson^ contra. 

TiTE Chancellor. The deposition now offered to Be 
read was not taken upon a re-examination before the exa- 
miner, nor founded upon a previous order, but is a volun- 
tary ex parte affidavit, made at the suggestion of the de- 
fendant, a year and a half after the hearing and decree, and 
nearly six months aflerthe coming in of the Master's report, 
consequent upon the final decree. The witness states, in his 
deposition, that the alleged mistake in his examination in 
chief, before the examiner, was not discovered until some 
time afler the former hearing, and that he was applied to by 
the defendant* That, upon that application, he proceeded to 
review his deposition, and having investigated the matters 
therein stated, he became satisfied that his former deposition 
was inaccurate ; and the deposition now offered explains the 
inaccuracy, and gives what he considers a correct statement 
of facts and circumstances, according to his recollection and 
belief. It strikes me that the admission of this deposition, 
as evidence in the cause,^ under all the circumstances, would 
be unprecedented and dangerous. An order of the Court 
ought to have preceded the taking of this deposition ; and as 
the alleged error lay not in one or more particular and pre- 
cise words, which might have been corrected in open Court, 
or before a master, the deposition or examination ought to 
have been taken in. the regular way, before the examiner 
upon the settled interrogatories ; or, at any rate, across exa- 


18^0. mtofttioQ ought to have been afforded to the pMotiff. This 
was the coarse in Kirk v. Kirk ; (13 Fes. 266. ;) and befeie 
any snch re-exaanmatton, there ought to haVe been an 
ioqairy into the circumstances attending the alleged mbtake, 
andy perhaps, it might have been necessary to have bad the 
examiner, as well as the witness, examined, <rt^ lentu, in 
Court. The existence of the mistake ought to have been 
made out previously, to the perfect satisfaction of the Chan- 
cellor, as a ground for the subsequent amendment and cor- 
rection of the. same testimony. It would be extremely ha- 
zardous, except in a very special case, to allow of such 
amendments, after the testimony has been heard, and criti- 
cally discussed in court, and the bearing and effect of every 
]iart of it understood and judicially settled. It opens a 
door to fraud and perjury, by holding out, or encouraging 
inducements te supply insufficient evidence, or to withdraw 
or explain away that which has been oppressive. In this 
instance, the language of the testimony proposed to be alter- 
ed is dear, distinct, and precise, and the mistake is disco- 
vered only upon the suggestions of the defendant,' after the 
cause has been heard, and decided against him. 

There are no cases that have permitted an interierenct 
with the testimony at such a late period, and under sacb an 
aspect of things. 

In Gridh v. Gansell, (2 P. Wim. 646.) Lord King aHow 
ed a deposition td be amended after pubUcatioa, and before 
hearing ; but it appeared to the Court that the witness bad 
made a mistake, and both the witness and the exasnitfer had 
attended and been examined in Court, as to the fact of li 
mistake. So, in Darling v. Stanifordy {Dickem^ 358.) the 
witness was examined in Court by the Master of the Rolls; 
and he was satisfied of the mistake, and how it arose, 
before the witness was permitted to amend his deposition* 
Again, in Rowland v. Ridley, (1 Cox^i Cases, 281.) a de- 
position of a witness was permitted to be amended upon a 
clear and material mistake, shown by his affidavit, and that 


•faDOther person; and Lord Thuriatv ohservedj that ^Mt 1B20. 
was a matter of great delicacy, to alter a deposition after '*»^^>^"^*^ 
publication, and nothing could justify it but the strongest v. 

conviction of a mistake having been made.'' The cases are ^''^"'*' 
those in which the application has been made after publica- 
tion, and before hearing ; (see Ingram v. Mitchdl^ 5 Fes. 
297. Kirk V. ISrij 13 Ves 285. Lord Abergavenny v. 
PotoeUj 1 Merivale, 130.) but in SandforcPs case, (1 Ves. 
jun. 398.) a witness was examined after the decree, and it 
was merely because he had been inadvertently examined 
before, without a sufficient release, which did not cover a 
very small debt against him ; and it is to be observed, that 
the application was not to correct a mistake in his testimony. 
It was only to retake the deposition, after he had been made 
competent by a better release. There never was a re-exa- 
mination permitted, merely to alter and correct testimony, 
after the cause had been heard and discussed, and decided 
upon the very matters of fact to which that testimony refer- 
red. It would be setting a most alarming precedent, and 
would shake the fundamental principles of evidence in this 

Motion denied. 

J. R. LiYiNosTON against D. D. Tompkins. 

A Court of Equity does not lend its aid to devest an estate, for thii 

breach of a cooditioo sabaequeot. 
It does not assist the recovery of a penalty or forfeiture, or any thin; 

in the nature of a forfeitnre. 
It will only interfere to protect the property firom waste and destruc- 

tion, or to pre?eiit its removal out of the jurisdiction of the Court, 

pending an action at law to recover the possession. 
Wheee the plaintiff having an exclusive right to n^Lvigate with H$tm 


1820. boats, the waten of the bety of JVew-ForAr, and that part of the 

Hudion river, south of the state prison, granted to the defendant 
the exclosife right of narigating steam boats betireen Jfew-York 
and the ^uaranHn* Ground^ on Siaten lelandy &c. ; and it was jpro- 
i ■ vided, that if the state or legislature of JVeuK/erMy should, at any 

time thereafter, obstract or preTent the plaintiff from navigating 
with steam boats, the waters of that state, that, thenceforth, the 
grant should cease and be ?oid : and on the application of O., a 
citizen of J^ew^Jertey, (against whom the plaintiff obtained an in«- 
junction out of this Court, to preTent his navigating the waters in 
this state, within the limits of the plaintiff's exclusive grant,) the 
legislature of that state passed an act, declaring, that if anj citizen 
of that state should be restrained, by injunction or order from this 
Court, from navigating with steam boats, the waters between the 
ancient shores oi Jfew-J ereey and Jfew-York, the plaintiff, in such 
iojunction, not being an inhabitant of JfeuhJereey, should be an- 
swerable to the party aggrieved, in an action of trespass, and by 
writ of attachment ; and that the Court of Chancery might issue an 
injunction to restrain him from navigating the waters of that state 
with steam boats : and O. accordingly, under that act, obtained an 
injunction, which was served on the plaintiff, who was thereby pre* 
vented from navigating the waters of ^ew-Jer»ey with his steam 
boat ; on a bill filed by the plaintiff against the defendant* on the 
ground of the grant to him being, therefore, void : Heid, that though 
the canu/cederii may have occurred, yet this Court would not in- 
terfere to restrain the defendant from continuing to exercise his 
right under the grant to him, until the plaintiff had established the 
fact tU iawo, and his right to resume the grant. 

Jiray26//iand THE bill Stated the different acts of the legislature, 
June 1j<. giving and securing to R. R. Livingston and R. Fulton, 
the right of navigating the waters of this state^ with boats 
or vessels moved by steam or fire, &c. (Vide, ante, 
p. 48. 95. 150. 174.) That R. R. L. and F., by deed^ 
dated August 20th, 1808, granted to the plaintiff and his 
assigns, all their right under the laws of this state, '' ex- 
clusively to navigate from any place in the city of Jfew^ 
Yorky \ying to the south of the state prison, to the Jersey 
shore and Staten Island, to wit, to Staten Island, Elizabeth^ 
town Ppinty Perth and South Arnhoy, and the Rariian river. 


with steam boats," &c. That the plaintiff, at great expense, 1820. 
caused to be built a boat moved by steam, and to navigate 
within the limits of the said grant. That on the 8th of 
January y 1817, the plaintiff entered into an agreement with 
the defendant, and granted to him and his assigns, the ex- 
clusive right of navigating steam boats ^^ from the city of 
NeW'Yorh to the Quarantine Oround^ and to any other 
point or place, within one mile's distance, on each side of 
the Quarantine Ctround, excepting the place called the dis- 
tillery wharf," during the residue of the term so granted to 
R. R. L. by the acts of the legislature. That the defend- 
ant covenanted that he would not, during the grant, without 
the previous consent in writing of the plaintiff, eitlier navi- 
gate, or permit by grant, or consent that any other navi- 
gate, by steam boats, '' upon any of the waters of the 
IGlls (except within the mile aforesaid) of Siattn Island 
Soundy Amboy J3ay, Middletoum Painty or the Raritan River j 
or to or from any place adjoining such waters^ or to or from 
any part of Staten Islandy except that part granted as aforc' 
said.** That the defendant agreed to pay to the plaintifi^ 
the sum of five thousand dollars, as a consideration for the 
grant. That it was further agreed between the plaintiff 
and defendant, *' that in case the state or legislature of 
New-Jersey should, at any time thereafter, obstruct or pre- 
vent the plaintiff, or his assigns, in, or from, navigating 
steam boats within the waters of that state, then, and from 
thenceforth, the agreement, and every thing therein, to cease 
and be void." That on the 3d of May, 1819, a bill was 
filed by the plaintiff against Aaron Ogden and Thomas 
Gibbons^ of JN'ew- Jersey, complaining of a violation by them 
of the said exclusive right of the plaintiff, and praying for 
an injunction to restrain them from so doing. That an in^ 
junction was, on that day, granted, restraining Gibbons 
from navigating, with steam boats, the waters in the bay of 
Vol. IV, fia 


1320. New-York^ or in the Hudson river, betwen Staien Island 
and PawUs Hook.* I'hat the injunction was served, and 
remained in full force. That the plaintiff had built a steam 
boat, called the Olivt Branchy with which he continued to na- 
• Vidt, anta vigatc onder the right of the plaintiff, the waters of this state 
^' between the city of New^York^ and the places mentioned 

in the said grant to the plaintiff, and not included in the 
agreement with the defendant. That on the 20th of J^e- 
bmary last, upon the petition of Thomas Ctibhons^ the legis* 
lature of MeuhJersey passed an act, by which it was enact* 
ed, that if any citizen of that state should thereafter be en- 
joined, or restrained, by any injunction of the Court of 
Chancery of Mw-York, from navigating with any steam 
boat belonging to him, in whole or in part, the waters be- 
tween the ancient shores of the states of New-Jersey and 
New-York^ the plaintiff, in such writ of injunction, shall be 
liable to the person aggrieved for all damages, to be re- 
covered, with triple costs, in an action of trespass, &c. or 
by a writ of attachment, in case such plaintiff, in any such 
order of the Court of Chancery of J^ew-Yorkf be a non- 
resident of New-Jersey ; and that it should be lawful for 
the Court of Chancery of Nexo-Jersey^ on a bill by an in»- 
habitaut of that state, to enjoin, by writ of injunction, the 
plaintiff in any such writ or order of the Court of Chance^ 
ry of New-York^ or any person claiming under him, from 
navigating with steam boats the waters within the jurisdic- 
tion of that state, and from transporting passengers to and 
from JVeti^-Fori, or Staien Island^ to J^ew-Jersey.{a) That 

(a) The act is as follows : « Ji further mppienteni to the «el, tniiiUd, on oef 
to preserve and support thejiurisdiction of this Male. 

« 1. Beit enacted, by the eoundt and general oMsembly of lAu ttate^ and U tt 
herelfif enaded by authority of the aame, That erery plaintiff in any prooeed* 
ing, judgment, or decree, which shall be bad, passed, or rendered, in pomi- 
ance of any process served or eiecuted within the slate of fCew'Jeney^ con- 
trary to the provisions of the act, entitled, an act to preserve and support 
the jurisdiction of this state, passed December 9^, \W1^ shall be Kable to all 
damages, espenies, and charges, to be recovered with triple costs, In aa 



unce the passing of that act, Oibboru^ on the 6th of .May, 1820. 
filed a bill in the Court of Chancery oi New* Jersey^ against ^^^''^^"^^ 
the plaintiff, praying for an injunction, by virtae of the said 



action of trespass, or trespass upon the case, to be brought by the parties 
aggrieved or injured, in the Supreme Coort, or any other Court of this state 
having cognisance thereof; or by writ of attachmenti in case the plaintiif 
in any such proceeding, judgment, or decree, shall not be resident in this 

'( 2. And be it enacUd, That In case any person or persons shall, under co- 
lour of any law of the state of JVetp- York, seize, or take into possession, any 
boat or vessel whatever, moved by steam or fire, belonging, or to belong, 
in part or in whole, to a eUisen or eUittens of JVeio- Jersey, for being employed 
or used in navigating any of the wattrt btttoeen the arwient thoret of the states 
ofJfew'JerseyandA'ew'York, without a license first had and obtaioed of the 
person or persons entitled to, or claiming to be entitled to, an exclusive 
right or privilege to navigate the waters of the state of Jfeto-York, (under a 
law of that state,) with boats or vessels moved by steam or fire, the person or 
persons so seising or taking possession of any such boat or vessel as afore- 
said, belonging, or to belong, in part or in whole, to a citisen or citisens of 
the state of JVewVeraey as aforesaid, shall be liable to the person or persons 
aggrieved or injured thereby, for all damages, expenses, and charges sustain- 
ed by occasion thereof, to be recovered with triple costs, in an action of 
trespass, or trespass upon the case, to be brought in the Supi^me Court, or 
any other Court having cognisance of the same, or by a writ of attachment 
In caae the person or persons making such seizure, or taking possession as 
sforesaid, under or by virtue of a law of the state of Jfeto- York, shall not be 
resident in this state. 

** 3. And be U erutded, That if any eitiaen of the state of JVetf-Jeney sftaU 
hereafler be enjoined or restrained by any torU of vi^vnetion or order of the 
C&wrt of Chancery of the state of New* York, by virtue, or under colour of any 
act of the legislature of that state, from naeigating with any boat or vessel 
moved by steam or fire, belonging, or to belong, in part or in whole, to himj 
ihe waters between the ancient shores of the states of J^ew- Jersey and Jfeto- Ybrkt 
the plaintiff or plaintiffs, in such writ or order, shall be liable to the person 
or persons aggrieved, for all damages, expenses, and charges occasioned 
thereby, to be lecovered with triple costs, in an action of trespass, or tres- 
pass upon the case, in any Court having cognisance thereof, or by a writ of 
attachment in ease the plaintiff or plaintiffs in any ^ch writ or order of the 
Court of Chancery of the state of Jfew-York, shall not be resident in the 
state of JVew-Jeriey. 

M 4. And be it enacted^ That it shall and may be lawful for the CouK of 
'Chancery of the state of JVew-JerMy»on a bill of complaint filed by any citi- 
zen or inhabitant of this state for that purpose, to enjoin or rf strain by a 


act, against the plaintiff, becaase of the injonetion hereto* 

fore granted by this Court, at (he instance of the p1ainti£ 

LiviNosTov . ^ , • • r -1 

V. against Gr., and because the plaintiff bad caused G. to be 


writ of iDJunction, the plaiotiffor plaintiffs, in any such writ or order of th« 
Court of Chancery of the state o( J^etp-York f or any person or persons claim- 
ing a right derived from or under such plaintiff or plaintiffs to navigate any 
of the said waters, from navigating with any boat or vessel moved by steam 
or fire, the waters within the jurisdiction of this state, and from bringing or 
transporting any passenger or passengers to and from the city of Jfetc-York, 
ttr from Stolen Islandt into the state of JCevB-Jtraey, whether such transpor- 
tation be effected directly or circuitoosly, or by meant 9f(meor more boats of 
uny deKripiian, or by shiAing from one boat to another at any intermediate 
point between the city of JVeiiN Korfe and Staien idand, and the shores of 
J^euf-Jeney ; Provided^ said passenger or passengers shall be conveyed part 
of the way from JVew- York in any boat propeUed by sttam or fire ; that then» 
and in such case, it shall be the duty of the Chancellor to enjoin end restrain 
tUt and eterypermm or perMons whatsoever, from aiding or assisting in any sueh 
trmuportation of passengers, daring the continuance in force of any such 
writ or order of the Court of Chancery of the state of J^tw-York, 

« 6. And be it enacted. That in case the party aggrieved shall proceed by 
virtue of this act, by writ of attachment, the proceedings shall be in liJce 
manner, as near as may be, as is directed by the act, entitled, an act for the 
relief of creditors against absconding and absent debtors, passed the 8th of 
Mardiy 1798, against an absconding debtor, excepting, that instead of the 
oath or affirmation required by the said act, the applicant for sucu writ of 
attachment shall, before the sealing thereof, make oath or affirmation, which 
shall be filed in the office of the cleric of the Court out of which the attach- 
ment shall be issued, before any judge or justice of the peace in this state, 
that the person or persons against whose estate the attachment is to be 
issued, b not, to bis knowledge or belief, resident at that time in this state, 
and of the nature of the injury sustained. 

« 6. Andbe it enacted, That it shall and may be lawful for the governor, or 
person administering the government of this state, to cause to be enforced 
endeffecluatedtbe just rights of the state, according to all the provisions 
contained in the act, entitled, an act to preserve and support the jurisdiction 
of this state, passed Duember 3d, 1807, to bring to a determination the juris- 
dictional riglits of the state of Mw-Jerny, in and over ail the territories and 
waters lying between -tlie state of ^f ew- Jersey nndihe state of J^ew^York: 
^end for the more speedy determination of the same, to cause to be prosectt* 
ted or defended any suit or suits which may now, or hereafter shall exist, ie 
"which either or both of the questions, as to the rights of this state, may i 
Provided, the party in such suit or suits who may be ioterefted in i 
jng the rights of the state a^frcc therete. 


fiestraiDed from nayigating, with steam boats, the waters in 1820. 
ihe bay of M'ew-Jeneyj and in Hudson river between Sta- 
ten Island and Potoles Hook. That an injunction was ac- 
cordingly issued by the Court of Chancery of New^Jersey^ 
and served on the plaintiff, injoining him from navigating 
€he«waters of that state with steam boats, and from bringing 
passengers from the city o( New-York^ or Staten-lslandj to 
JfeW'Jersey. That G., under that act, had caused the steam 
boat of the plaintiff to be attached and detained at JVetc^* 
Brunswick^ to answer for damages alleged to arise from the 
injunction so issued by this Court. That the plaintiff^ by 
ceason thereof, is prevented from navigating steam*boats 
within the waters of JVet^-Jersey; and that, consequently, by 
the terns of the agreement between the plaintiff and defend- 
ant, the grant to the defendant has ceased and become void. 
That the defendant, notwithstanding, continues to carry pas- 
sengers in his steam-boat NaviHuSj to and from Keuo-York 
and Staten-lslandj in the same manner as if that agreement 
remained in full force. That the defendant and Gibbons 
<:siixy >pas8eogers in the steam boats Mmtilus and BeUona, 
to and from Kew^York and New-Brunswick^ in the follow- 
ing manner: Gibbons transports passengers from JVeti;- 
Brunsmckf through the KUl and Sound between New-Jer- 

« 7. Md be it enodedt That it shall and may be lawful for the governor of 
this state to call to his assistance for advice and consultation in any of the 
proceedings on this or other acts in force on the subject aforesaid, the attor^ 
ney general, or a privy oouncil, or both, at the expense of this state, and he 
or they, or any of them, together with him, are hereby authorized and em- 
powered to do all things concerning the same, which, in their discretion 
may, by him, or with any of them, be deemed to be to the best interest of 
this state, to bring to a determination or final adjustment all differences be- 
tween Oie two states, by the appointment of commissioners, defending or 
prosecuting of suit or suits, or otherwise; and any report of commissioners 
Appointed shallbecome binding on this state and the state of J^ew-York, 
when confirmed by the respective legislatures thereof: Protidtd always, 
that nothing in this act contained, shall be so construed as to have any ope- 
ration against any patent right or privilege obtained under the constitatioa 
«r laws of the United Statttr 


1820. tey and SUnUn-Jbland^ to a wharf oa Stakif^JUaini^ .bdow 
the mouth of the £3Zf, and in the bay of ^ew-Tork^ as the 
plaintiff believes, and there lands them, to be taken on board 
the JVautUWf and carried to J^ew^York. That the defend- 
ant causes the XatUUtu to tonch at such wharf on Siatet^ 
Llandf below the mouth of the KiUsy and to take on board 
such passengers for ^ew-York, so that the whole passage, 
from JV*. B. to M F. is, by means of this concert and con* 
trivaoce, completed. That passengers are, in like manner, 
carried from JST. Y. to JV. B. That the wharf or dock be- 
low the mouth of the Kilhi is not the ordinary landing place, 
where the JSTauitlus lands her passengers, going to and from 
Staten-blandj but is about a mile therefrom, and the defend- 
ant causes his boat to go out of her usual and direct route, 
in order to touch at the said wharf at the mouth\ of the KUU. 
That the running of the said boats, in this manner, is one 
continued navigation between .AC B. and M Y. and is a di- 
rect contravention of the exclusive right of the plaintiff, in 
the same manner as if such navigation was made wholly in 
one of the said boats; and Gr. does, indirecdy, under the cover 
of the steam boat MiutUuSj what he cannot do direcdy with 
his own boat. That, by the joint operations of the MiuiUus 
and BeUona^ they are engaged in the very business exclu- 
sively belonging to the plaintiff, and the same is a violation 
of the injunction granted by this Court against Gibbons. 
The plaintiff prayed for an injunction to restrain the defend- 
ant from navigating with the Nautilus^ or any other steam 
boat, within the limits granted by R. R. Livingston and 
Fidton^ to the plaintiff, and from transporting passengers 
between JSTeto-York and Staten Island^ or to and from any 
point south of the state prison, and from shifting passengers, 
as above stated, with the Bellona ; and for general relief, and 
that the defendant may answer under oath to all and singu- 
lar the premises, &c. 

On filing the bill, the Chancellor ordered that eight days 

ooUce be given to the defendant of the motion for an in« 


Notice, accordingly, having been given, Van Veckten ' 

and T. Sedgvnck^ now moved for an injunction, pursuant to Ma^f SM. 
the prayer of the bill. 

Henry, contra, read the following affidavits and docu- 
ments: (1.) The aj^rir of the defendant: (2.) Articles ef 
agreement between the executors of R. Ftdtan and the exe- 
cutors and devisees of R. R. lAvingston, of the one part, and 
the defendant, Adam Brovm^ since deceased, and Noah 
Brown, of the other part : (3,) The agreement, dated the 8th 
o( January, 1817, between the plaintiff and defendant: (4.) 
Affidamt o( Benjamin Simonson: (6.) Copy of the act of the 
legislature of New- Jersey, of February last : (G.) The grant 
of jS. R. L. and R. F. to the plaiutiffin August, 1808 : (7.) 
The declaration and plea in suits at law, commenced in the 
Marine Court in the city of New-York, since the passing of 
the act of the legislature of New Jersey, against John i7e- 
forest, the captain, and Peter Qtitnn, the engineer of the de- 
fendant's steam boat Nautilus, for maliciously impeding the 
plaindff, in the enjoyment of his exclusive right, &c. The 
defendant, in his affidavit, stated, that no replication had 
been put in to the plea in those suiu, nor any trial had ; and 
that another suit at law had been commenced by the plain- 
aS against the defendant in the Supreme Court, to try the 
same quesdon as arises on the bill subsequently filed in this 
Courti and that no declaration had been filed in that cause. 

For the plaintiff, it was contended, that there was no ade- 
quate remedy but by an injunction ; for the injury to the 
plaintifi* would be irreparable. The counsel cited 6 Fes. 
149. 1 Vem. 130. 1 Ves. 476. 5 Fes. 555. Amh. 209. 
a Wooddez.A\n. note. 16 Ves. 173. 18 Ves. 72. 



1820. For the defendant, it was said, that this was, in effect, a 

motion for vl forfeiture, in consequence of an act wholly ex- 
trinsic, and over which the defendant had no control. There 
was no act, agency, or default, to be imputed to the defend- 
ant. The question arose under a patent right claimed by 
the defendant, and those with whom he was associated, over 
which this Court had no jurisdiction. (9 Johns. Rep. 239. 
7 Johns. Rep. 144.) The proviso in the grant from the 
plaintiff to the defendant, was applicable only to a total de» 
struciion of the plaintiff's right. It was the act of the 
plaintiff himself, in procuring the injunction against GibbonSf 
that caused the act of the legislature of Xew-Jersey tc» be 
passed, so that the plaintiff seeks to avail himself of a forfei- 
ture produced by his own act. There should be a de- 
cree in the Court of Chancery, in ^ew-Jersey, before this 
Court can interfere. If the law of this Court does not 
work a forfeiture, there can be no ground for the motion. 
Equity never decides on a legal forfeiture. It is for a Court 
of law, to determine as to the forfeiture, or whether tlie grant 
has become void. A Court*of Equity neither tries the ques- 
tion of forfeiture, nor enforces iu But equity will, always^ 
relieve against a forfeiture, if compensation can be made. 
(2 Johns. Ch. Rep. 526.) The effect of this motion is to pro- 
duce a forfeiture. If the plaintiff prevails, the defendant 
will lose his steam boat, and the 5,000 dollars paid to the 
plaintiff, the amount paid by him to R. R» L. and F.^ and w2. 
and JV. Brown, and the eipense of the Turnpike road. Ferry, 
Wharves, Hotels, he, or the whole establishment at Staten^ 
Island, connected with his steam boat. This would be a 
most enormous injury to the defendant ; it would be, in truth, 
a monstrous forfeiture. Suppose the legislature of .A/eur-Jer^^, 
should repeal the act to-morrow, coulcf the defendant reas- 
sume his grant f No. On the principle contended for by the 
plaintiff, the defendant's grant is forfeited and gone forever. 
It would be the highest injustice, to grant an injunction 
which goes to exact a forfeiture, and to extinguish a right 


Besides, all ihe persons associated with the defendant in his 1820. 
great and expensive establishment on Siaten-Island^ ought ^»^*>^*^^ 
to have been made parties ; for their interests will be deeply v. 

affected, if the injunction is issued. The cases which have ^Q^pgiwi. 
been cited are those in which the right was clear, and the 
mischief irreparable, and where public policy was concern- 
ed. This case is directly the reverse. (1 Vem. 175. 275.) 
Suppose an injunction should be awarded, and, afterwards, 
dissolved, what remedy would the defendant have for the 
damages which he must suffer, in the mean time? The right . 
of the plaintiff ought to be clear and manifest, either from 
the record of the judgment of a Court, or from the conces- 
sion of the defendant. There ought to be a defence, and a 
final judgment, in tlie Court of •ATetr* Jersey, before the plain- 
tiff can apply here. Besides, the act of the Legislature of 
New-Jersey^ affects only one of the remedies of the plaintiff, 
not to the right itself. The plaintiff is not, and cannot be, 
prejudiced by the defendant's going to the new wharfs which 
he has purchased of Lawrence ; for the plaintiff cannot go 

The Chancellor. The injunction is moved for on the Junt ^M. 
ground that the grant from the plaintiff to the defendant, 
has ceased, and become void, and that the defendant is now 
navigating the steam boat Nautilus without license, and in 
violation of the exclusive right vested in the plaintiff, as as- 
signee of Livingston and Fviton. 

Two questions present then^elves upon this motion : 

1st. Has the right or privilege heretofore granted to the 
defendant ceased, in consequence of the matters charged in 
the bill P 

2dly. If so, then is the remedy sought upon this motioa 
proper for the case, as appearing in the bill, and in the affi- 
davits and documents read on the part of the defendant ? 

1. In the articles of agreement between the parties, these 

Vol. IV. 44 


182d. wfts a condition or proviso in these words : <' Provided al- 
ways, and it is hereby declared and agreed, by and between 
the parties to these presents, that in case the state or legisla- 
ture of New-Jersey shall, at any time hereafter, obstruct or 
prevent the said John R. Livingston, bis executors, adminis^ 
trators or assigns, in or from navigating boats or vessels, 
propelled by the force or agency of steam, within the waters 
of that state, then and from thenceforth, this agreement, and 
every thing herein contained, shall cease and be utterly 
void." The question is, has the plaintiff been obstruct- 
ed or prevented, within the meaning of this covenant or con- 
dition f According to the language used in Lord CromwelVs 
case, (2 Co. 70.) this is a condition, by force of the proviso,, 
and a covenant, also, by force of the other words. 

The act of the legislature of Kew^Jersey referred to 
in the bill, (and of which a copy at large is annexed t6 
the defendant's affidavit,) declares, in the 3d section, that if 
any citizen of New-Jersey shall be restrained by injunction or 
order from this Court, by virtue *of, or under colour o^ any 
statute of this state, from navigating with steam boats "the 
waters between the ancient shores of the states of Aeu;-/er- 
sey and New-York,^^ the plaintiff in such injunction not be- 
ing a resident of New- Jersey, shall be answerable in damages 
to the. party aggrieved, by an action of trespass, and by writ 
of attachment. 

This section of the act of New-Jersey does not reach the 
case of the proviso in the agreement, for the plaintiff is not 
obstructed or prevented by it from navigating the waters of 
New-Jersey. He is only made liable to an action in that 
Mate for using a remedy provided by the laws of this state, 
for a violation of his right; and the same observation applies 
to the second section. 

But the 4th section of the New-Jersey act, makes it law- 
ful for the Court of Chancery of that state, on a bill filed 
by aoy inhabitant of it, to restraia the plaintiff in any such 


order of thii Courts from navigating, with steam boats, Ae 1829. 
waters within the jarisdiction of that state. W-v-v^ 

The pjaintm IS brought within the operation of this pro- y. 

visioui as appears from the facts charged in the bill, XgiM*JM.w. 

On the 3d day of May last, (as it is stated,) a bill wi^ . 
filed in this Court by the plaintiff, against w^aron Ogden and 
Thomas Gibhom^ of the state of Aeu^-/er«ey, complaining of 
a violation of bis exclusive right to navigate steam boal^ 
on the waters of this state south of the Mew-York state pri- 
son, and praying for an injunction to restrain them, and, 09 
the same day, an injunction was granted restraining Gfi&- 
bans from navigating, by steam boats, the waters in the bay 
of MeuhYork, and in Hudson^ s river, between StcUen-hlani 
and Powles Hook^ and the injunction was served, and con- 
tinues in full force. The bill further states, that under th$ 
act of Mew-Jersey^ Thomas W. Gibbons (in pursuance o^f 
whose petition the act of the Legislature of New- Jersey waf 
passed,) had filed a bill in the Court of Chancery of thi^t • 
state, against the plaintiff, praying for an injunction to re- 
strain him from navigating with any steam boat, the watery 
within the jurisdiction of that state, because of the injuncr 
tion heretofore granted by this Court against Gibbons, and 
that an injunction had, accordingly, been granted, in pur- 
suance of the provisions of the said act, and served upon th^ 
plaintiff; and his steam boat, called the Olive Branchy had^ 
also, been attached and detained at New-Brunswickf at the 
suit of Gibbons^ under the said act, and for the cause afore- 

The deduction in the bill from these facts, is, that the 
plaintiff has been obstructed and prevented, within the pur- 
view of the agreement, from navigating steam boats within 
the waters of Kew-Jersey^ and, consequently, that the c^se 
has occurred in which his grant to the defendant has be- 
come utterly void. 

I am rather inclined to think, that this question is a legal 
one, and properly cognisable in a Court of law. The affida- 


1820. vit of th^ defendant states, that the plaintiff has already 

^^■^^^^^^^^ commenqed an action in the Supreme Court, to try the 

V. question ; and I ought not to interfere with it any further 

ToMypyg. ^jj^ij ^|j^ consideration of it may arise incidentally, in the 

discussion of the motion for this intermediate and auxiliary 

process of injunction. 

If it appeared clearly, that there was no obstruction with* 
in the meaning of the agreement, there would, then, be no 
pretence for the motion, and I should at once be relieved 
from the necessity of examining any other point in the case. 
But I cannot deal so summarily with the subject, for it ap- 
pears that there is colour, at least, for the conclusion drawn 
by the bill. 

The agreement referred to the existence of a fact, whether 
such an obstruction did exist, and, probably, without re- 
ference to the validity of the statute creating such obstruc- 
tion, and without reference to any final decision in the 
* Courts o( New-Jersey^ on the provisions of the statute, after 
the matter had been fairly and fully litigated. The parties 
seem to have contemplated the possible existence of such 
an extraordinary act as the one which has been passed, and 
they made provision for the event, by making thexonditioa 
of the grant to depend upon the operation of the act, in 
actually obstructing or preventing the navigation of the 
plaintiff. The agreement supposed the case of an act to 
be passed, without the volition or fraud of the plaiotiff, 
and without the default or agency of the defendant ; and 
when the obstruction of the plaintiff exists under the autho- 
rity of such a statute, and is founded on grounds apparent* 
ly indefinite as to time, the coiui feederis would seem to 
have occurred. 

The act of the plaintiff, in suing out a writ of injunction 
under the laws of this state, in protection of his exclusive 
right over certain of its waters, does not, as was suggested 
by the counsel for the defendant, impair his rights, under 
the proviso in his agreement with the defendant, netwith^ 


standing that act is made the ground of the proceeding in 1820. 
ffew-Jersey. What the plaintiff did, was the lawful exer- 
cise of a right, and it cannot impair or affect his remedy 
under the agreement. His rights and remedies in this state 
were derived from a series of laws giving to Ldvingston and 
Ftdton^ for a limited time, the exclusive right of navigating 
steam boats upon the waters of this state. It is well 
known, that this navigation, so auspiciously commenced 
under the patronage of the legislature, on the waters of the 
Hudson, in 1807, has since rapidly extended itself over all 
the principal waters of the United States, and imparted 
honour and happiness to our common country. These 
state laws, upon which the plaintiff's rights were founded, 
were passed with liberal and patriotic views, and without 
the smallest intention or apprehension of violating the pri- 
vate rights of any individual, or the public rights of any 
community. They had nothing to do with the question of 
territorial boundary between this state and New-Jersey. 
The exclusive privilege was expressly limited to " the waters 
of this state, or within the jurisdiction thereof;^' and when 
this Court was called on to protect that privilege, by in- 
junction, according to the directions of those laws, it was 
bound to regard, as waters within the jurisdiction of this 
stcUtj " the whole of the river Hudson, southward of the 
northern boundary of the city of Mw-Tork, and the whole 
of the bay between Staten Island and Long Island ;" be- 
cause, the Legislature had declared those waters to be with- 
in its jurisdiction, and that such jurisdiction had been 
** hitherto actually and constantly exercised or possessed^' 
by this state, and that it was to be ^^ preserved, maintained, 
and defended by all lawful ways and means, until this state 
shall be evicted thereof by due course of law." 

If the jurisdiction of this state over the waters o( Hudson 
river, and of York Bay, be not well asserted, the error is in 
the Legislature, and not in the plaintiff, nor in the Courts of 
justice. Avd as this state is la the actual and constant exer- 


1820. cise of exclusive jurisdiction, there is ^remedy for the ires- 
^•^^^^^^^ pass or the usurpation, (if it be one.) which is obvious ef- 
V. lectuaJ, specific, and just The Supreme voort of the urn- 
TouPKiwa. ^^ States has original jurisdiction in all controversies be- 
tween two or more states ; and this state, as she intimate9 ijQ 
her statute, is ready to abandon her jurisdiction over those 
waters, whenever she shall be evicted by due course of law. 

I cannot but be of opinion, that this conslitiitional modf 
of redress, through the organ of the Supreme Court of tba 
United Stat^y would have been quite as wise and equilablci 
as the punishment of an innocent individual, for having pror 
tected his right under the laws of his own'state, by means of 
tlie Courts of justice of his own state; or as the restraining 
of " all and every person," from aiding in the transportatioo 
of passengers into J^ew^Jersey^ in boats ^' of any descrip- 
tion,^' provided such passengers have been conveyed "pan 
of the way" by means of the steam boat of such individual. 
Cicinns of I had, hitherto, understood and believed, that the citizens 
•sutied toVne of cach State were entitled, under the constitution of the na<- 
nlw^to* and tiou, to free iugress and regress to and from any otlier state^ 
ISS^y^lnd to and were entitled to all immunities of citizens in every state; 
nicies o!f"d(i^ that the government of the United States had sole and ex- 
sMu in ereiy ^]ugiye jurisdiction ovcr all disputes and differences between 
The Suprnne two or more States, concerning boundary, jurisdiction, or 
Vniud staiti Other causc ; and ttiat the law of reprisals permitted, in ex- 
Mid exclusive treme cases, by the law of nations, between independent 

jnrisdiction ... « , 

o?er all diffe- States, was m this country, and under our union, as between 
tween states, the Several states, entirely unnecessary, as well as absolutely 

all acts of re- , ^ , 
prisal between Hnlawful. 

unnecessaiT^ Thcse observations have been made to meet the objection 
'^ ^ of the defendant's counsel, that the act of the plaintiff was the 
procuring cause of the law of New- Jersey ^ and that he was 
now seeking to avail himself of the consequences of his own 
act. I shall, certainly, not visit that law upon him, nor per^ 
mit it to impair, in the smallest degree, the remedies he may 
be entitled to in this Court. Nor is the copstitutionajity of 


the act of J^ew- Jersey ^ a proper subject of discossion here. 1820. 
That question belongs, in the first instance, to the Courts of '""^'^^^^^^ 
that state, and ultimately to the Supreme Court of the Uni' ^. 
ted States ; and I entertain a confidence that the question, if ^^'"''"*- 
ever raised, will be temperately discussed, and justly decided, 
in each of those jurisdictions. 

2. But even if we were to assume that the defendant's 
privilege has ceased, by reason of the act of New-Jersey ^ the 
next question is, whether this Court ought to interfere and 
restrain the defendant from the further exercise of the privt- 
lege of which he is still in the enjoyment, until the right of 
the plaintiff, to resume his grant,, has been established at 

It appears to be contrary to the uniform course of the This Coart 
Court, and to its established principles, to aid in the devest*^ iu aid V de- 
ing of an estate, for breach of a condition subsequent The for ^^e breldi 
eases are fiill of discussions how far this Court can relieve snUequ^t^ 
Against subsequent conditions ; and the general rule formerly 
ivaff, that if the Court could make compensation to the party 
in damages, for non^performance of the condition, it would 
then relieve. {Popham v. Bampfidd^ 1 Vem. 79.) That 
relief seems now to be confined to cases wber6 the ibrfeitnr^ 
lias been the effiSct of accident, and the injuiy is capable of 
Compensatidn. {Rolfe v. Harris^ S Price Exch. ttep. 2fft, 
hate. Bracehridge v. Buckley^ 2 Price^ 200.) It may belaid it doef opt 
dov^d as a fbndamenul doctrine of the Court, that equity doe$ U!^^^/^ 
tiot asHst the recovery of a penalty or forfeiture, or any thing fJllS'rc, w m^ 
in the nature of a forfeiture. In the present case, there is no ^Jg^ %^ 
act done, or omitted to be done, by the defendant, which oc- 
casions the loss of his privilege. By the act and agreement 
of the parties, it has been made to depend Upon an even^ 
over which the defendant had no control. But the event, 
perhaps, equally occasions the loss of the right, as if it had 
been expressly forfeited by the act of the party. It is in the 
natul*e of a forfeiture, and produces the same penal result ; 


1820. and so far from aiding the plaintiff to devest the defendant of* 
his privilege, this Court could onlj interfere to protect the pro-* 
perty from waste, destruction, or removal out of the jurisdic- 
tion of the Court, pending the action at law to recover pos- 
session. There is no sort of analogy between this case and 
that of Livingston v. Van Ingen^ decided on appeal, in 1812. 
(9 Johns. Rep. 507.) The appellant, in that case, was, and 
had been, for some years, in possession of the statute privi- 
lege, and the opposition boats were a trespass upon his right, 
without colour of title. In the present instance, the defend- 
ant has been, for some years, in the lawful possession cmder 
, his grant ; and to suspend the exercise of that right, {and 
which would be equivalent to an ouster of possession^) before 
the question of failure of his grant, upon a condition subse- 
quent, has been legally tried, would be as severe as it would 
be unprecedented. 
A defendant There are numerous cases establishing the rule that no 
aiuwer, m u ouc is bound to answer so as to subject himself^ either direct- 
k1?(o apenS- ^V OF eventually, to a forfeiture or penalty, or any thing in 

io a penal- 
ty or Ibrttitnre. 

the nature of a forfeiture or penalty. {Smith v. Read^ 1 Atk. 
526. Harrison y. Southcote, 1 Atk. 528. Bird v. Hard- 
wicke, 1 Fern. 110. Sharp v. Carter^ 3 P. Wms. 375. 
WrottesUy v. Bendish, 3 P. fVms. 236. Chaneey v. Fen- 
houlet, 2 Fes. 265. BoteUr v. Mington^ 3 Aik. 45a 
Monnins v. Jlfonn»n#, 2 Ch. Rep. 36. Chauncey v. Tahour^ 
den, 2 Atk. 392. Fane v. Adee, 1 Eq. Cat. Abr. 77. pL 
15. Lord Uocbridge v. Staiveland^ 1 Fes. 56.) It is said, 
that there is a difference between a determination of the 
estate by the party himself, and by statute ; but in several of 
the cases the determination was to arise from the act of the 
party, as, for instance, a re-marriage, and yet a demurrer to 
the bill was allowed. So, it has been said, that there was a 
difference between a limitation over of the estate, en a cer- 
tsun event, and a condition working a forfeiture } but the dis- 
tinction does not seem to be supported. The great prin- 




pie 1S9 that equity " will not assist in the recovery of a pe- 1820* 

nahy or forfeiture, when the plaintifT may proceed at law to 

recover it." It will only stay a party from making waste, 

until it be seen whether he has any right to do so. This 

was said by Lord Ch. B. Comyns^ in Jones v Meredith $ 

(2 Com. /2^.671.) and the rule has been again and again 

repeated, and is the common language of the books, that iu 

no case, (unless under extraordinary circumstances,) will a 

forfeiture, or the devesting of an estate, be assisted in a Court 

of Equity. (3 P. fVms. 236. 1 Fern, 60. 1 Eq. Cas. 

Abr. p. 131. pi. 9. p. 77. pi. 16.) 

The Court has sometimes restrained a party from the 
exercise of a right, in a particular manner, and contrary to 
an express covenant; but this was held to be in the nature 
of a specific performance, and was consistent with the ordi- 
nary and legitimate enjoyment of the subject. This was 
the case in Barret v. Blagrave; (5 Vea. 555, 6 Ves. 104.) 
but in none of the cases which ( have looked into, do I find 
any assistance lent to a plaintiflT to enable him to recover 
at law, property alleged to be devested upon the breach of 
a condition subsequent. I am persuaded there is no such 
case, and especially, if the condition be several in its nature, 
and partaking of the spirit and character, if it does not of 
ihe name of a penalty or forfeiture. In this case, consider- 
ing the great and expensive establishments connected with 
the enjoyment of the defendant's privilege, an immediate 
restraint upon its enjoyment would be attended with very 
injurious consequences ; and, I think, there was much dis- 
cretion and good sense in the observation of the Lord 
Keeper, in HilU v. University of Oxford^ (1 Fern. 275.) 
when he denied a similar motion for an injunction. He 
said, that ^^ if the right should be found for the defendanu, 
they would receive a prejudice by the injunction which he 
could not compensate." 

Motion denied. . 
Vol. IV. 65 • 

434 c;ases in chancery. 

Mt£rs againit Bradford and others. 

There is no precise time for filing exceptions to the r^^porf of a Master 
on the insofficiency of an aoswery as it does not require oonfirma* 

On filing the report, the plaintiff may immediately sne ont a tubpcenOf 
for a hotter answer, and for costs ; and if the defendant does not 
file exceptions to the report, and obtain an order for setting them 
dovrn for hearing, within eigfU days from the senrioe of the sebpcs- 
na, the plaintiff may sne out an aUachmmt; after which> the de- 
fendant cannot except to the report 

jhnu iM PETITION of the plaintiff, stating, that the defendant, 
nndJuntldih. ^^ ^^^ .^ ^ separate answer, the 24th o( December^ 181», 
to the plaintiff's bill. That notice of exceptions to the an- 
swer was served on the agent of the plaintiff's solicitor, on 
the 14th of January last. Sixteen days having expired, 
and no notice of submitting to answer the exceptions being 
received, an order was entered on the 31st of January^ re- 
ferring the exceptions to a Master residing at Poughkeq^stt, 
in Dutchess county. That L Hooker^ the Master, sun- 
moned the defendant (who lives in the city of J^ew-Tark) 
to appear at the hearmg, on the 11th of February, which 
saromons was duly served on the defendant's solicitor, the 
4th of February. That the defendant not appearing at the 
day appointed, the Master proceeded to hear the exceptions 
exparte^ and decided that they were well taken. This re- 
port was filed four days thereafter, and a subpoena for fur- 
ther answer served on the 22d of February, On the 6th 
of Marchy the defendants, on petition, obtained an arder^ 
that the defendants have /our weeks, from the 3d of JlforcA, 
to except to the Master^s report, instead of answering the 
exceptions, and that, in the mean time, the question of 
costs, upon the etxceptions, be reserved. That this order 


was obtained without notice, and was irregular. That being I820» 
ignorant of the order o( the 6th of March^ the plaiotifi; on 
petition, which was served on the defendant's solicitor, ob- 
tained an order, on the 20th of March, that the defendant 
pay the costs of the exceptions, and the proceedings subse- 
qnent, to compel a further answer ; which order was taken, 
without any opposition, and the notice of taj[ation for the 
31 St of March, served. On the 25th of March, the plain- 
tiff's solicitor first received a copy of the order of the 6th 
nf March, which had not been served on his agent. That 
on the 90th of March, the defendant obtained another 
order, ex parte, without notice, enktr^ng the time for ex- 
cepting to the report twelve days. The plaintiff prayed that 
the orders of the Sd and 20th of March, obtained by him, 
might be confirmed ; and that the ex parte orders of the de- 
fendants, of the 6th and 30th of March, might be vacated, 
and that the defendants pay the costs of the application. 

After reading the affidavit of the defendants' solicitor, an J^ imh. 
order Was entered, April 18th, 1820, ordering that the far- 
ther consideration of the motion be postponed to the first 
day of the next term of this Court, *' to the end, that the 
hearing of the exceptions to the' Master's report may be 
brought on, and the same be considered in connection with 
this motion." 

The questions arising on this order, were argued by P. Jyne ISift. 
Ruggkt, for the plaintiff; and by 

Chriffin, for the defendants. 

The Chancellor. The orders of the 6th and SOtb of 
March last, were irregular, as they were obtained ex parte, 
without notice. The defendants were in default, (1.) In 
not appearing before the Master on the 11th of February; 
apd, (2.) in not excepting to Jthe Master's report prior la 


1820. Ihe 30th of March. The English practice appears to be, 
{Hinde, 272, 273. Hewland's Pr. 175.) that with respect 
to exceptions to a report which does not require confirma- 
tion, as on the insufficiency of an answer, there is no precise 
time for filing them. Upon filing the report, the plaintiff 
may immediately sae out a subpoena for a better answer 
and for costs; and if the defendant does not file exceptions, 
and obtain an order for setting them down within eight 
days from the service of the subpoena, the plaintifi* may sue 
out an attachment ; after which the defendant cannot ex- 
cept to the report. 

The exceptions to the report, assuming them to have been 
filed in season, were not well taken. The answers were 
not sufficiently precise and full, and did not meet and an- 
swer all the circumstances from whence a fraudulent com- 
bination was to be inferred. The exceptions to the report 
are, consequently, overruled, and the defendants must, with- 
in fourteen days, answer the exceptions to the answers 
which have been allowed by the Master, and pay the costs 
accruing to the plaintifi* since filing the said exceptions, or 
that an attachment issue. 

Order accordingly. 

Miller and others against Burroughs and others. 

On a bond, coDditioned to pay, widi irUereH at six per cent., for the 
security of which a mortgage has been taken, the plaintUEs, after a 
forfeiture, are not entitled to seven per cent., the lawful interest 
But interest is to be paid according to the contract, until it ceases 
to operate, by being merged in the decree. 

Jims Sfid. I^ the bond, for which the mortgage in this case was 
taken as security, the interest was expressed to be at six per 


cent per aniHun. The day of payment having passed, the 1820. 
bond and mortgage became forfeited. The question was, 
whether the plaintiffs were not entitled to seven per cent, 
interest, being the lawful interest, from the time of tlie for- 

RikcTj for the plaintiffs, cited 2 Dess. Rep. {South Caro^ 
Una,) 170. 

Per Curiam. Interest must be decreed according to the 
contract of the parties, until the contract ceases to operate, 
by being merged in the decree. 

Six per cent, only, is, therefore, to be allowed up to the 
time of confirmation of the Master's report. 

Hood against Inm an. 

Pleading9 abovld cooftUt of ayerments or allegations of facts, stated 
with as much brevity and precisioo as possible ; not of inferenoe or 

In^ertinence in jpleadingt, consists in setting forth what is not neces- 
sary to be set forth, as stuflBng them with recitals and long digres- 
sioos as to matters of fact wholly immaterial. 

Generally, the bill and answer ought not to set forth deeds in hcBc 
verba ; but so much of them only, as is material to the point in 
question ; nor oaght they to be argumentative or rhetorical. 

EXCEPTIONS to the defendant's answer : 1. That the Jmt 28tf. 
answer sets forth, in hose verba, a copy of the power of at- 
torney from the plaintiff to the defendant and fVUUam 
Lang, mentioned in the bill, though the defendant was not 
requested so to do, and though the substance of the power 
was fully stated in the bill, and when, by setting it forth in 




1820. hctc veria^ the seose awl legal etkci of it are not, in Che 
least, qualified or varied from the same iasUrumeot as set. 
forth in the bilL 

3. Because, the defeodant has, in his answer, from a part 
of the 17th page thereof, to a part of the 19th page thereof, 
beginning, &cc. stated matters not necessary to answer any 
allegations in the bill, to which he h not interrogated, and 
upon which no pertinent interrogatories can be framed, or 
depositions ^ven, and which are totally irrelevant, imma- 
terial, and highly scandidous. 

The exceptions having been referred to a Master, were 
allowed by him, and the defendant excepted to his r^art. 
And the question now came upon the exceptions to the re- 

CaineSf for the plaintiff, in support of the exceptions 
taken to the answer, cited Coop. Eq. PL 317, 318, 319. 
Mif. PI. 267. 1 Harris^'^Ch, 88. 101, 102. 303. 

H. W. Warner^ contra. 

The Chancellor. 1. It was not necessary to set 
ferth the power of attorney in fuee verboj in the answer. 
The substance of it was accurately stated in the biU, and 
to give it at length in the answer, was impertinent. Im- 
perdnence consists (1 Harr. Pr. 101. 303.) in setting forth 
what is not necessary to be set forth, as where the pleadings 
are stuffed with long recitals, or with long digressions of 
matters of (act which are totally immateriaL An janswer, 
or a bill, ought not, ordinarily, to set forth deeds in hae 
terba; ani if the pleader sets fivth only so much' thereof 
^ b material to the point in question, it is sufficient. They 
are matter of evidence 4o be shown at large tit the hearing. 
In AUager v. Johnsant (4 Fet. 217.) a bill of costs was 
given at large in the Mlkedule to the aaswer, when a re* 
fereuci to the biH of costs deliveced wooM have folly w- 

Ua/yrod(^^ ^X^v/^ 


swered tbe paq>Qse» and it was deemed iinpertinent The 1830. 
present case is not an instance of gross abuse of this rule 
of pleading ; but I am glad to see the exception taken, and 
tbe point brought up, for the opportunity it affords of lay- 
bg down the rule. I have frequently perceived the plead- 
ingSi and particularly the bill, incumbered with a recital, in 
IcBc verba^ of deeds, mortgages, and other documents, which, 
unless checked, will lead to great oppression of the suitor, 
4Uid to the reproach of the Court. Whenever 1^ proper 
case arises, I sliall certainly mark it with animadversion ; 
and sball endeavour to enforcis, by all suitable means, pre* 
dsion and brevity in pleading. The objection to unneces^ 
mryfolia^ may be takem on the taxation of costs. 

The ancient rules and orders of the English Court of 
Chancery, are very explicit, and powerfully monitory on 
this subject 

If any pleading should be found of an immoderate length. 
Lord Bacon declared, that both the party and the counsd 
under whose hand it passed, should be fined. And Lord 
Keeper Caveniry, with the advice of Sir Julius Obsot^ tb^ 
Master of the Rolls, in 1635, ordained, that bills, answers, 
Skc. ^^ should ndS be stuffed with the repetitions of deeds of 
writings in hcRC verba^ but the effect and substance of so 
mncfa of them only as was pertinent and material to be set 
dawn, and that in brief and effectual terms, &£C., and upon 
any default, therein, the party and counsel under whose 
hand it passed, should pay the charge of the copy, and be 
further punished as tbe case should merit.'' 

The same rule was, afterwards, adopted, or re-enacted, 
by the Lords Commissioners in 1649, and in Lord Claren- 
don's Digsst or SffsUm if Rtdes^ {BeameU Orders, 26. 69* 


'But we have a domestic precedent on this point, which 
is too interesting to be unnoticed. 
• In 1727, Governor Burnet, of the colony of J^eto-Yorkj 
exercising, in council, the powers of a Court of Chancery, 


1820. appointed five of the most distinguished coansel of the 
Court, as a committee, '* to consider and report on the fees 
and dilatory proceedings in the Court of Chancery, as true 
and great grievauces." This committee, consisting otArchi* 
hold Kennedy^ Rip Van Dam^ Cadwallader C olden, James 
Mexander^ and Abraham Van Uom^ reported to the coiuicil 
a number of abuses in the practice of the Court of Chan- 
cery, and the remedy. This report, which is inserted at the 
end oi Bradford? 8 edition of the Colony Laws^ is a curious 
and instructive document ; but my concern, at present, is 
only with wliat is termed the first abuse and remedy. It 
declares, ^^ as an abuse, the inserting, at too much length, 
in bills, matters of inducement only. Thus, \(A. has been 
entitled to the thing in question, who conveyed it to R, who 
«iMVpyed it to C, who conveyed it to the plaintifi*; after the 
thing is cenaAcJ;/ set forth in A.^ it is enough to say, he 
conveyed it to jB., antfMDhe to C, and be to the plaintiff, as 
by the deeds ready to be produced, will appear." No 
eounsdy say they, ought to set their .hands to any bill thai is 
unduly long, and if be does, he ought iu^ pay all the charges 
arising from such needless length. 

The exception to the Master's Report, aUii^ing this first 
exception, is overruled. ^^^ 

2. The same objection applies to the matter fotuning the 
ground of the second exception. It w^s matter arg^pnenta- 
tive, rhetorical, irrelative, and, consequently, impeWinent 
Pleadings should consist of averments, or allegations o^fact, 
and not of inference and argument. 

The exception to the report is, also, overruled ; and aA the 
fiittlt of the pleader was of a venial character, I an conArat 
that the costs of the exceptions, in this particular case^ sk 
abide the event of the suit. 

Order accordingly. 


EfRowER against Fisheh. 

Snie proMGiitor of a €hai|;e of bmacy, is Dot, of coarse, ordered to pay 
00MU9 wbefe the party is fimnd, by the ioquisitioii, to be of soand 
mind, if the prosecution has been in good faith, and upon probable 

A person deaf and dumb from his nativity, is not, therefore, an idiot, 
or non compog mentis ; though such, perhaps, may be the legal pre- 
snmption, mitil his mental capacity is prored, on an inquiry and 
cxaaunatioD for that purpose. 

IN JMbrcA, 1810, the (rfaintiff parcbased of the derendant June 88if; 
his right or share in his &ther^8 real and personal estate, 
which was subject to debts and incombrances, for 375 dol* 
lars. On receiving a deed of conveyance from the de* 
fendant, the plaintiff gave him a note for the consideration 
iBoney, payable in Jlfoy, ISll. The plaintiff being, after'- 
wardsi indebted to the defendant in the snm of about seventy 
dollars, he gave a bond to the defendant for the amount of 
the note and that debt^ making 479 dollars. The bill stated 
that the defendant, at the time of the purchase, was of lawful 
age. That he was born deaf and dumb, and had continued 
ao firom his nativity, but had sufficient intelligence to com- 
municate his ideas, by signs, to those who were intimate with 
him, so as to make himself well understood. That the de- 
fendant, at the time of the purchase, was assisted by his mo- 
ther and by W. Barker^ a friend of the defendant, and that 
the price agreed to be paid was a full and fair consideration 
for his interest, under the circumstances. That the plaindff 
was, at the time, advised that no valid legal objection could 
be made to-'the transaction. That the defendant has since 
brought an action at law against the plaintiff on the bond, 
and recovered a judgment for 666 dollars and 16 cents, the 
principal and interest due on the bond, which the plaintiff 

Vol. IV. 56 


1820. was wining to pay into Court, or io any way tbe Court 
might direct, as the plaintiff, having been advised that the 
deed of conveyance from the defendant to him was not valid, 
for want of legal capacity in the defendant to contract, did 
not feel safe in paying the money to tbe defendant; believ- 
ing that if the title should prove defective, he should be- witb- 
out redress against the defendant, who had become intanii- 
perate, and was wasting his property. That an execution 
bad been taken out on the judgment, &c. 

An injunction was issued to stay the execution, according 
to the prayer of the bill. The defendant answered the bill, 
admitting the facts and allegations it contained. 

On the petition o( the plaintijflf, neomnUssian oflunaeg was 
issued, to inquire whether the defendant was compos meiUis 
or not ; and by the inquisition returned, it was found that 
tbe defendant was born deaf and dumb, and bad continaed 
so from bis nativity; but that, notwitbstandtng, he bad 
sufficient intelligence for the management of himself and 
his property, and was capable of communicating, by signs 
and motions, with persons with whom be was intimate, m 
as to be well understood, and of understanding them ; that 
die jurors were of opinion that the defendant was not a lu- 
natic, unless tbe fact of bis having been bom deaf and 
dumbf in judgment of law, made him a lunatic, and that the 
defendant conveyd all his title and interest in bis fether's 
estate, to the plaintiff, for 375 dollars, which was a fair con- 
sideration for the same. 

On filing the inquisition, the injunction was dissolved, and 
the plaintiff paid the amount of the judgment, with costs. 
The cause was now set down for hearing on the bill and 
answer, no testimony having been taken by either party; 
and the only question was, whether the bill was to be die* 
missed, with or without costs. * 

A. Ji/fDmddy for the plaintiff. 


J. SmUk, for the defendant ISSSO. 

The Chahcellor. The sole question in this case is, 
whether ^he bill shall be dismissed with or without costs. 
The plaintiff claims no relief after the inquisition which has 
been retnmed. 

Upon the finding of the jury under the commissioni in 
nntnre of a writ de lunatico inquirendo^ I refused to appoint 
a committee^ and adjudged that the defendant was not to be 
deemed an idiot from the mere circumstance of being bom 
deaf and domb* This is a clear setded role, and numerous 
instances have occurred in which such afflicted persons have 
demonstrably shown, that they were intelligent, and capable 
of intellectual and moral cultivation. 

In EUioi's case, {CarterU Rep. 53.) Bridgman^ Ch. J. 
and the other judges of the C. B. admitted a woman bom 
deaf and dumb, to levy a fine, after due examination of her. 
He mentioned, also, the case of one Hitt, who was bom 
deaf and dumb, and who was examined by Judge fVarbur^ 
iorty and found inlelligent, and admitted to levy a fine. So 
Lord Hariwicke^ in Dickenson v. EUsiet^ {Dick. jRep. 268.) 
admitted a person bora deaf and dumb, upon being exa- 
mned by him after she came of age, to take possession of 
her real estate. 

Notwithstanding these authorities, .the bill does not ap- 
pear to have been filed vexatiously, but rather to obtain, for 
greater caution, the opinion of the Court on a point which 
had been left quite doubtful in many of the books, and which 
had never received any discussion here. It is stated, in 
Bractan^ {De Excepiiordbus^ lib, 5. cb. 20.) to be a good 
exception taken by the tenant : Si persona petentis fuerit 
surdus et mutus naturaliter^ hoc est^ nativitate ; for it is said, 
acqairere nan potest^ etper officium judicis invenienda sunt ei 
necessaria quoad vixerit ; and he takes it for granted, that 
such a person is placed under a curatory and that he must sue 


in assise, Mieut minor. So, it is said, in Brooke, {Esduie, pi. 
4.) that videtur qui surdus et mutus ne pod faire alienaiion ; 
and the distinction taken was, (Dy. 56. a. note 13.) that if 
deaf and dumb from his birth, he was non compos, but not if 
so by casualty.(a) By the civil law, it was also generally 
understood and laid down, that a person born deaf and 
4omb was incapable of making a will, and he was deemed 
a fit subject for a curator, or guardian. {InsL 1, 23, 24; 
and Femierey h. t. and Inst 2. 12. 3. and Ferrier and Vin* 
nttif , h. t) Perhaps, after all, the presumption, in the first 
instance, is, that every such person is incompetent It is a 
reasonable presumption, in order to insure protection, and 
prevent fraud, and is founded on the notorious fact, that the 
want of hearing and speech exceedingly cramps the powers, 
and limits the range of the mind. The failure of the organs 
requisite for general intercourse and communion with maa-* 
kind, oppresses the understanding; affigat kumo divinmpar* 
ikulam auroi. A special examyiadon, to repel the inference 
of mental imbecility, seems always to have been required; and 
this presumption was all that was intended by the civil law, 
according to the construction of the ^clesiastical Courts^ 
for a person born deaf ^nd dumb was allowed to make a 
will, if ii appeared, upon sufficient proof, that he had the 
requisite understanding and desire. {Smnb. part 2. s. 10.) 

I am satisfied that the plaintifi* is justly to be exempted 
from the cbar^ of a groundless and vexatious inquiry, and 
the course is not to punish the prosecutor of a charge of. 

{a) The author of FUta, (lib 6. c. 40.) supposes a person bom deaf or dumb, 
to be incapable of enfeoffing, &c. : " Competit etiam exceptio tenenti prop- 
ter deSsctum naturae petentis, vel si naturaliter a nativitate ntritu fuerit out 
rautos, tales enim adquirere non poterunt, nee alienare, quia non coateotira» 
quod non est de tai*de mutis vel surdis, quibus dandi sunt curatores et tutQres, 
&c. But Coke (Co Lilt 42. b.) says, a man deafe, dumb, or blind, so that he 
hath understanding and sound memory; albeit, be expresse his intention bjr 
signs, may infeoffe," &c.| though a man deaf; dumb and blind, from hit na- 
tivity, cannot 


lanaey with costs, ir the prosecution has been condacted in 1820. 
good faith, and upon probable grounds. (1 CoBinson on 
Lunaeifj 461. 4640 I sb^dl, therefore, dismiss the bill with- 
out covts. 

Decree accordingly. 

W. S. Smith against Smith and others. 

When the securities held by a trustee^ are directed by a decree coa- 
firming a Master's report, to be assigned to the ceatui que Irutt, the 
responsibilify of the trustee ceases ; and there having been no cul- 
pable n^ligeiioe or defeult od his part in taking them^ he is not to 
be chai|^ with them, on making a final decree, on the equity 
reserFed, though they may have been, perhaps, impaired by the 
delay of the litigation between the parties. 

If a decretal order of reference is silent as to the mode of calculating 
interest', and the Master does not allow annual restSf the plaintiff 
should apply, on the coming in of the report, for an order on the 
Master to report his reaaons for rejecting the claim ; or make the 
rejection a gr6«nd of excqfUon to the report If he does neither, 
and the report is confirmed, he cannot» on a final hearing, on the 
equiiy reserved^ make the objection to the report. 

In a suit brought by a ceUui que trusty against his trustees, for an ac- 
count, &c., no cotis were allowed the plaintiff, the conduct of the 
defeadanta being fair and honest, and the allegations of misconduct 

THIS cause came on to be heard, upon the equity reser- June 27//i, 
ved, in the decree overruling the exceptions to the Master's 
report. {Vide, antCy S. C. p. 281.) The points now raised 
and argued, are sufficiently stated in the opinion delivered 
by the Court* 

T. A. Emmet and D. B. Ogden, for the plaintiff. 

Wdl8y cootra. 

Thg CbjlNcellob. This caute coming 6u to be heafd 
upon the equity reserved, the plaintiff contends, 

!• That proviiion ought to be made in the decree for the 
indemnity of the plaintiff, in case any of the notes charged 
by the Master to the plaintiff, and credited to the defendants,* 
shoold prove to be bad. 

It is to be observed, that an exception was taken to the 
report by reason of that charge and allowance, and the 
same was overruled on the 8th day of Januaty last Ac* 
cording to the doctrine of that decision, the gnardiati was 
entitled to be credited for the notes which he had ready to 
deliver, inasmuch as the notes were of comparatively small 
amount, and were taken according to the course of dealing in 
that part of the country, and the testator's habits of business ; 
and especially as the makers of the notes were originaUy safe 
and responsible persons, and continued to be so to the time 
of faking the account by the Master. Under such circum- 
stances, it was not deemed proper that the trouble and risk 
of collection of the notes should be thrown upon the goar^ 
dian. It would seem, then, that this point fs, in a voasi- 
derable, if not in an essential degree, a r^tition of the 
former exception. If this point be well raised, then the risk 
of collection of the notes is placed upon the guardian; and 
that was not intended when the exception was overruled ; 
I only went so far as to say, that if any well grounded dis- 
trust had been excited by the testimony, as to the safety of 
tlie debts, or any of them, I should have held the guardian 

It is now upwards of two years and an half since tbis^ 
suit was commenced, and upon all the material g^unds rf 
litigation, the plaintiff has failed, and the guardian has vin- 
dicated himself. It may be, that the security of some of 
the notes has been impaired by the delay arising from this 
litigation ; and it would be more reasonable, that the loss, 


(if any there be,) dioiild be borne by the plaiatiff, who, as I820l 
it ai^ears to roe, has rather unkindly, and without due 
causey carried on this sharp litigation, than by the guardian, 
who has succetsfiiUy resisted the more injurious part of the 
allf^tioos. When the securities taken by a trustee, are 
«Urected to be assigned over to the ce$tui que trusty I appre- 
hend his responsibility ceases ; .and that there is no prece- 
dent of an order or decree continuing it, after he has been 
diiected to part with the securities, and when he has not 
been convicted of any culpable negligence or default in 
taking them. There is no middle course to be pursued. 
The notes ought to be absolutely charged or credited to the 
defendant; and I have already decided, when the exception 
was before me, that he was entitled to assign them. Though 
the learned counsel for the plaintiff appear to be dissatis- 
fied with the former decision on this point, I can only say, 
that thb is not the proper time and mode to question it ; 
nor have I been able, after a diligent consideration of the 
case, to partake of the\r dissatisfaction. I shall, therefore, 
not make any provision in the decree to continue the de- 
fendant's responsibility. 

SL The next point raised on the part of the plaintiff, is, 
that he is entitled to interest on the balances that remained, 
fiN>m year to year, in the hands of the guardian. 

The Master, under the decretal order of the 7th of Octo- 
ber,i I818t was directed to take and state an account touch- 
ing the trust of the guardian, and the moneys received and 
diiborsed, and ^^ the balance which on such account should 
be fimnd doe from either party to the other." It appears 
from the Blaster's report, that in taking the account, the 
plaintiff cllaoKd that a balance should be struck every year, 
on -the Isl day of March, and that the defendants should 
h0 chained with interest on the balance so found in their 
handA,aiid that the claim was overruled. The ground on 
which the cbum was disallowed by the Master, does not 
appear in the rc^rt, and the plaintiff offered to show upon 


1820. Ibe argument, by affidami^ that the Master evemled the 
claim, because the decretal order was sikot on 4h«t fiiint. 
The more regular way would have been, upon the Masing 
in of the report, to have applied for an order opoct the 
Master to have reported his reasons for rejecting that claim 
of interest; and so I once said in Comequa v. JPanmng, 
on a like point. (3 Johu. Ch. Bep. 366.) The plaiotiir 
did apply to the Court, and obtained an order, on the 13th 
of Sqpiember, 1819, calling on the Master to report the tes- 
timony taken before him, in reelect to certain other paints 
in the cause. . And the plaintiff might have made the re- 
jection of that claim by the Master one of his ezceptiou on 
the return of the report. I am inclined to think the ques- 
tion of interest was placed before the Master, by the gene- 
ral terms of the order of reference, and that the constraction 
put upon that order by the plaintiff, when he advanced that 
claim before the Master, was correct. Here, then, is a clear 
waiver of this objectipn to the report, by not .making it in 
due time and order. The further directions, if any, were, 
by the order of reference, to be called for and made ''on 
the coming in of the report." There was no such objection 
raised^ but other objections were taken to the repeat, and a 
call made upon the Master upon other points ; and now, 
when the discussions upon the report have ceased, and the 
report has been confirmed, and when the cause has been 
brought to a final hearing upon the equity reserved in the 
decree of the 8th of January last, an() which appears to 
have been confined to the question of costs, this olfaction, 
as to the disallowance of interest, is raised. I am satisfied 
the objection is out of season, and that the good sense.and 
convenience of the thing dictate this conclusion. The ob- 
jection goes to open the report, after it has been regularly, 
and in the usual order and course of practice, confirmed ; 
and it goes to open it on a point actually raised beforethe 
Master, and not noticed when the report was made upv nor 
when exceptions were taken to other partis of it. Whether 


cte gnaidiuis ought to have been charged with interest upon 1820. 
Atctnatiiig balances, that might have been, from time to 
rime, in their hands, is a complicated question, that would 
raqoire the re-tnvestigation of the merits of the case^ and of 
the accounts, and one which comes very unfitly before the 
Court, for the first time, in this stage of the cause. The 
equity of such a claim rests very much on the exercise of 
soend discretion, and depends on the character of the trust| 
the nature of the duties, the amount in hand, and the gene- 
ral conduct of the parties. Without giving any decided 
opinion on a point not properly before me, I may be per- 
roiited to say, from my knowledge of the cause, and the 
nature of the discussions which have taken place, that I am 
not very favourably impressed with the necessity or appa-* 
rent justice of the c)aim. 

3. The last point in the case, is the question of costs ; 
and I have no hesitation to say, at once, that it would be 
unreasonable and oppressive, to charge the defendants with 
costs, when their conduct has been fair and honest, and the 
allegations of misconduct unfounded. The most that I can 
do, (and h is not without some hesitation and difficulty that 
I have brought my mind to acquiesce in it,)Js to exempt 
the fund belonging to the plaiotifi* from the burden of a liti- 
gation which he has commenced and conducted with a 
temper not very becoming, towards the guardians of his 
youth, and the friends of his father. 

. The decree will, accordingly, be, that the defendant, with- 
in forty days from the service of a copy of this decree, as-^ 
sign over and deliver to the plaintifi*, or to his solicitor, the 
notes in the pleadings and report mentioned as being taken 
and held in trust for the plaintifi*, and, also, pay over to him 
as aforesaid, the balance of 861 dollars 3 cents, with in- 
terest, or 709 dollars 45 cenU, being part thereof, from the 
8th of Jfovember^ 1815, and with interest on 151 dollars 58 
cents, the residue thereof, from the 1st day of JMirrcA, 1817; 

Vol. IV. 57 


aod that the assignment and delivery be made tiiider the 
direcUon or one of the Masters of this Court, if the solicit 
tors or counsel of the parties cannot otherwise agree as to 
the form and manner of tlie assignment, and that no costs 
of this suit be charged by either party as against the other. 

Decree accordingly. 

Bayabd and others against Hoffman and others. 

A VoIaDtary settlemeDt, either of Unda or chattels, by a person ia- 
debted at the time, it void as ac;ainst creditors. 

Whether the statute of frauds, (13 Eiiz, c. 5. 1 JV. R. L. 75. IQ 
sess. c. 44.) apphes to a settlement of that kiad of property which 
could not be reached by legal process, if no settlement had been 
made, such as chose^ in action^ money in thefundt, stock 7 &c. Qucere. 

An assignment by a debtor of ** all his estate, real and personal, aod of 
all books, vouchers, and securities, relative thereto," in iruM, lar 
the benefit of all his creditors, passes all his estate and intei«rt» 
equitable as well as legal, and his rights in actioDi or as ceHui qfu, 
trusty and, therefore, includes stock of the United SiateSf before 
voluntarily assigned, when the debtor was insolvent, in trust for 
the benefit of his wife and children ; and the trustees under the 
voluntary settlement, were decreed to hold the stock subject to the 
order and disposition of the trustees of the creditors under the ge* 
neral assignment. 

July 5/A. WILLIAM OQBEN, one of the firm o( Murray ^ Og- 
deUf purcjiased public stock of the United StateSi to the 
amount of 11, 979 dollars and 22 cents, with bis own monies, 
derived from his wife's estate. The house of Jlf. fy O. were 
utterly insolvent, when the purchase was made, and the inte- 
rest of the stock was pledged to Mrs. Murray, his wife's mo- 
ther, for life, and the siQck was placed under her control, 


the better to secure the payment of that interest. After- 
Vards, on the 10th ofMatfj 1817, the stock was voluntarily, 
or without any valuable consideration, assigned by Ogdenj 
so far as respected his reversionary interest, to the defend- 
ants, McarAn Hoffman and JViUiam Creightcn^ in inutj for 
the benefit of his wife and infant children. The motive of 
this assignment was not impeached, as it was then supposed, 
that the estate of M. fy O. would be adequate to the pay- 
ment of their debts. On the 28th of January, 1818, M. fy 
O. proposed to make a general assignment of their proper- 
ty, upon trust, for the payment of their debts, and in the in- 
ventory of the property to be assigned and exhibited to their 
creditors, the above mentioned stock, subject to the life 
estate of Mrs. JIf., who was aged, was included, and the settle- 
ment, by O., of the/eversionary interest on his wife and chil- 
dren was not disclosed, or known to the creditors, as it was 
supposed the voluntary settlement would not be valid against 
that subsequent assignment. The general assignment was, 
accordingly, made on that day, to the plaintifis, William 
Bayard and Henry Barclay^ in trusty for themselves and the 
other creditors. The two defendants, who are assignees for 
the benefit of the wife and children, refused to recognise the 
title to the reversion of the stock claimed by the trustees for 
the creditors ; and they and the guardian ad liiem^ for the 
childira, submitted to the direction of the court, and claim- 
ed to hold under the prior assignment. 

There was no actual fraud suggested in the pleadings, 
and it was contended, on the part of the plaintifis : 

1. That the voluntary assignment of the stock, while 
Ogden was indebted and insolvent, was void in law : 

2. That the plaintifis, J3. and i9., are to be considered 
as bona fide purchasers, without notice of the trust created 
by the previous voluntary assignment, and that the volun- 
tary setdement is void, as against them. 

The defendants insisted that the stock, as a chose in action, 
is not subject to process at law, nor to the debts of credi-^ 


torgy and that the voluntary settlement of it, is not within 
the statute of frauds. 

T. L. Ogieuj for the plaintiffs, cited 1 Johns. Clu Re/^. 
26K 3 Johns. Ch. Rep. 481. 

D. B. Ogden, for the defendants, cited 2 Atk. 600. 1 
Fe5. jun., 198. 9 Ves. 189. 10 Fw. 363. Jtherky on 
Marriage Settlements^ 220, 221. 

The Ckancei^loii. The only difficulty in this case, 
arises from the nature or quality of the property contained 
in the setdement. It is the declared rule of tlie. Court, 
{Reade v. Livingston^ 3 Johns. Ch. Rep. 481.) that a vo- 
luntary settlement by a person indebted at the time, is 
void, as against antecedent creditors ; i consider the prin- 
ciple as equally applying, whether the property consists 
of lands or chattels ; and that the creditor may follow the 
property into the hands of the volunteer. This is admitted 
to be the general rule, but, as an exception, it is stated, 
{Atherley on Marriage Settlements^ 220, 221. Roberts on 
Fraudulent Conveyances^ 421, 422.) that the statute of 13 
Eliz. does not extend to voluntary settlements of property 
which a creditor could not reach by legal process, in case 
no setdement had been made, such as choscs in action, money 
in the funds, &c., and, therefore, a voluntary settlement of 
that species of property, must be good against creditors, even 
if made by an insolvent debtor. The settlement, it is said, 
cannot be injurious to the creditor, nor within the purview 
of the statute, since, if the settlement was set aside, the pro- 
perty could not be touched by the creditor^ as no process of 
execution in law or equity can reach it. The statute of 
13 Elis. did not enlarge the jurisdiction of any Court, by 
furnishing new remedies. It only avoided the voluntary 
transfer, as against creditors, and left them to pursue tlie 


property in the ordinary course under the existing reme- 1820. 

There is much plausibility in this reasoning, yet I 
should be sorry to find it to be the settled doctrine of the 
Court. It seems to be too encouraging to fraudulent aliena- 
tions ; and a debtor, under the shelter of it, might convert all 
his property into stock, and settle it upon his family, in de- 
fiance of bis creditors, and to the utter subversion of justice. 

If we look into the adjudged cases on this point, it will at 
once be perceived, that there is a great contrariety between 
those decided in the time of Lord Hardwicke^ ^nd his imme- 
diate successor, and those arising since. The subject is 
worthy of examination ; and even if the doctrine of the latter 
cases is to prevail, I apprehend that the settlement in the pre- 
sent case may be questioned, and the stock appropriated 
to the use of the creditors, without interfering with any of 
the opinions. 

The case of Taylor v. Jones, (2 Aik. 600.) decided by 
FortescuCf the Master of the Rolls, in 1743, contains the 
great and leading doctrine in support of the creditor. A 
bill was filed to have the debts of the plaintiff* paid out of 
stock comprised in a voluntary settlement, and vested in 
trustees for the benefit of the defendant, for life, of his wife 
for life, and then for the benefit of his children. The money 
so vested was a legacy left to the husband after marriage. 
The settlement was made in 1734 ; and in 1741, the defend- 
ant gave warrants of attorney to confess judgments, and 
there was a letter of license given to the husband, but by 
agreement, it was not to prevent the creditors from proceed- 
ing against bis effects. The Master of the Rolls held the 
settlement fraudulent and void, under the 13 Eiiz. as to cre- 
ditors, both before and after the marriage; and he decreed 
the trust estate (the stock) to be sold and applied to the pay- 
fnent of the creditors. 

This decision appears to be so reasonable and just, that I 


1820. should be very much iDcliDed to follow it, if it has not been 
directly and absolutely overruled. 

In King v- Dupine^ (cited in the note to Taylor and Jtmesy 
and decided in 1744,) Lord Hardwicke went further, and in 
an ordinary case, where there was no fraudulent setdement 
in the way, aided the execution at law, so as to enable it to 
touch stock, to satisfy creditors. The defendant was enti- 
tled to the reversion of four exchequer annuities, which were 
vested in trustees, and of which he was only a cestui que 
trust in reversion. The plaintiff had obtained judgment 
at law, and the sheriff under ^ Ji.fa. had seized the rever- 
»on of those four annuities, and made an assignment of them 
to W,j in trust for the plaintiff. But the proper officer re- 
fusing to register the judgment and assignment, the plaintiff 
filed her bill, and the point was, whether the sheriff could 
seize the reversion of these annuities, and assign them. 
Lord Hardwicke decreed, that the trustees and W* should 
assign their reversionary interest and estate in the annuities 
to the plaintiff, and that the requisite entries should be made 
at the exchequer, to entitle the plaintiff to the benefit of the 

This last case does not appear to have been known 
to Lord Thurloiv, or Lord Eldon, for it is not alluded to 
in any of their discussions ; yet Mr. Sanders^ the editor 
ofAtkinsj cites the register books for the decree. 

Indeed, this power in the Court to aid the creditor at law, 
in his execution against property not ordinarily within its 
reach, seems to have been the received and unquestioned 
doctrine in the time of Lord Hardwicke. 

Thus, in Horn v. JEfom, [Amh. 79.) a bill was filed to aid 
an execution at law, by subjecting stock belonging to the 
defendant, and standing in the name of trustees, to the pay- 
ment of the debt. The bill was dismissed withoxit cosis^ be- 
cause the plaintiff had, pending the suit, taken the defend- 
ant's person on execution at law. The l^ord Chancellor 
evidenUy assumed the right and propriety of granting the 


relief sought for, '* of extending ttie power of tlie Court to isaOw 
reach what the common law could not," had not that cir- 
cumstance intervened ; and the repoiter adds, in a note, that 
if the plaintiff had not taken out a ea. sa. the bill to subject 
the stock in the hands of trustees had been proper. 

Lord Keeper ^orthington^ in Partridge v. Oopp^ {Awb* 
596. 1 Eden. 163.) went a step further, and reached even 
money in the hands of the donee. An insolvent executor 
had given 500 pounds to each of his two children, and after 
argument, and much consideration, the gift of the money 
was declared fraudulent within the iSth of Eliz.^ and liable 
to be refunded. He declared the doctrine to be, that no 
man had such a power over his own property, as to be able 
to dispose of it, so as to defeat creditors, unless for conside- 
ration. That the statute extended to all cases, unless 
the alienation was bonajide^ and made upon good conside- 
ration ; and that blood was held not to be a good considera- 
lion within that statute. That the validity of the alienation 
depended on the motive of the giver, and not on the know- 
ledge of the receiver. That every man ought to be just be- 
fore he is generous ; and volunteers were responsible under 
the statute, to the creditors of the giver, though not to the 
giver himself. He concluded, that if the defendants had stood 
in the capacity of donees OTfUy, the gift would have been void, 
and they must have refunded^ at the peril of their liberty ^ if the 
tfioney had been spent ; but as they were legatees, as well as 
donees, they had a right to retain in part of their legacies. 

Here is a succession of three solemn adjudications, (with- 
out noticing the case of Horn v. Horn,) which establish, that 
property not tangible by Ji, fa,, at law, will be reached by 
this Court, and that too, whether such property does or does 
not rest upon a voluntary settlement, fraudulent and void 
under the statute of Elizabeth. It may now be pertinently 
asked, when and where have these decisions been overruled ? 
I have not discovered any thing weightier than a dictum or 
doubt of Lord Thnrlow, repeated in subsequent cases. 


1B20. In Dundas v. Dutens, (1 Va. jod., 196. 2 Cox, 235.> 

the bill, among other things, prayed that certain stock set- 
tled apon the wife might be sold, and the proceeds applied 
to satisfy the creditors, and Lord Thurloio asked, if there 
was any case where a man having stock in his own name, 
has been sued for the purpose of having it applied to satisfy 
creditors* If the Court was of opinion that there was jBiny 
lien upon the stock, by reason ofthe letter of license, in the 
case in jltkyns, by which it was capable of being aflfected, 
there might be foundation for it, but if not, it was quite new 
to him that Chancery could touch the stock ; and he said, 
that *' whenever it became necessary to consider the ques- 
tion what equity the plaintiff had against the fund or stock,, 
be should hesitate sometime before he followed the cases of 
Taylor \. JoneSy and Horn v. Horn.''* 

It may be here observed, that the Master of the Rolls, in 
Taylor v. JoneSf did not go, as Lord Thurlow intimates, 
upon the ground of an existing lien upon the stock. '' The 
great question was," he said, '* if this deed be fraudulent? 
For, if it is, whether the creditors have any specific lien, is 
not material." 

In Caillaud v. Estwick, (1 Anst. 381.) a bill was filed to 
assist a judgment creditor of Lord Abingdon^ who had as- 
signed his life estate in a lease subsequent to the creation of 
the debt, in trust, to receive the rents and profits, and pay 
a moiety to certain scheduled creditors, (of which the cre- 
ditor in that case was not one,) and the other moiety, from 
time to time, to Lord A. for his own use and benefit. The 
Court of Exchequer, under the circumstances of that case, 
refused to assist the creditor in reaching the share reserved 
to Lord jJ. and held in trust for him. The Court seemed 
to agree with the counsel for the trustee, that property or 
stock in the funds, or in the hands of a trustee, which could 
not be taken on a^. /a. at law, could not be taken by any 
process of equity to assist the execution, according to Lord 
Thurlow^s doctrine, in Dundas v. Dutens. The Chief Baron^ 


^aid, he once applied, on behalf of the crown, to have the ISaa. 
assistance of eqaity in aid of an extent^ to get at stock in 
the funds, and it was refused. 

In respect to this Exchequer case, it may be observed, 
that the question, whether the deed of assignment was fraa-* 
da]ent and void under the 13 Elizif had been decided in 
the K. B. in favour of the deed, as being neither fraudulent 
in fact, nor fraudulent in law, and the case is reported in 
5 Term Rep. 420. But the judges of the E. B. intimated, 
that after the scheduled debts were satisfied, equity would 
direct the surplus or moiety reserved to Lord A*^ to he applied 
towards satisfaction of the other creditors. The bill in the 
Exchequer was an injunction bill, to stay a recovery in tres- 
pass by the trustee against the creditor, for seizing the trust 
property in the bands of the trustee ; and, therefore, the 
question, whether equity would follow the intimation of the 
K. B., did not directly arise in that case. The opinion of 
the judges was evidently in favour of the equity power to 
reach such property ; and Ijord Somers^ in Lemkner v. JVee- 
marij (Prec. in Ch. 105.) sustained a bill for the surplus, in 
a similar case, in favour of a single judgment creditor. And, 
surely, a debtor cannot place his estate in trust, to receive 
the issues and profits to his own use, without any power in 
the creditor, by any process of law or equity, to reach it« 
I am not willing to admit such imperfection in the adminis- 
tration of justice. 

We have repeated dicta (but nothing more) of Lord 23- 
doit, (9 iTes. 189. 10 Ves. 368.) to the efiect, that Chan- 
cery does not give execution against stock, eo nomine, npoa 
which there is no lien ; and that stock cannot be attached in 
the life of the party, according to the language of Lord 
Tkurlow^ in Dundas v. Dutens. He said, that Chancery 
had no jurisdiction to give execution in aid of the infirmity 
of the law ; yet, that under the bankrupt law, stock is got 
at, and, also, in the administration of assete. The Master 

Vol. IV. 68 


1820. of the Rolh, in Taylor v. JoneSy got at stodc, through a 
doctrine which is very difiicoU to maintain, and which seems 
to have surprised Lord Tkurlnw. *^ If, therefore, the deci- 
sion was to torn upon the latter doctrine, (meaning that in 
Taylor v. Jones^) I should wish," says he, ** to look at 
diose aothorities." 

The last case I shall notice in ti\is series of jadicial ob- 
servations, and which are all to be traced up to the doubts 
of Lord nurlow, IS that of MCarthy v. Goold,{l BaU 
^ B. 387.) in which the plaintiff, under a decree for the 
payment of money, sought for an order upon sequestrators, 
to attach the dividends upon bank stock standing in* the 
name of the defendant. But this part of the application 
was abandoned without argument, and Lord Ch, JKam- 
ners observed, that it bad been very properly abandoned, 
fbr he had listened very attentively to Lord 'TAnrfeuf, in 
Dundai V. DtUenSy and he was clearly of opinion, that 
ehoses in aetianf of which description is stock, couU not ' be 
reached by the process of the Court of Chancery. 

The authority of the cases ofTay/or v. Jones'^ Esig 
V. l>ttj7Jiie, and Partridge ▼• Cropp^ may be considered as 
diaken, but they cannot be viewed as overruled by these 
subsequent doubts. The question was, also, much, and 
learnedly discussed, in Simmondt v. Lord Kimmrdj (4 Fe- 
iey^ 735.) whether a chote in action was liable to sequestra- 
tion on mane process in equity ; Lord Loughborough 
gave no opinion upon it, but observed, that he wished the 
process could go to the extent desired, when one consideif«d 
flie immense mass of property that might be supposed in 
die kingdom, answerable for nothing. *^ Suppose,^' be ob^ 
serves, ^ a great landed estate was converted into an annu- 
ity upon the consolidated fund, no process can reach it, 
unless this Court can get at it On the other band, I afti 
not aware of all the consequences of either impounding the 
money in the hands of the bariters, or making them pa)r 


ibe money. Why not against the bank ? Then it will go to 182Q. 
alt chartered oompanies." 

It is remarkable, that in all the discussions in this last 
case, not one of the cases already cited are referred to« 

If the case necessarily.tarned upon this point, I should 
not feel myself justified, from any thing I have hitherto seen, 
to abandon, without still more consideration, the authority 
of the analogous case of Taylor v. Jaries. But this case 
may easily, and with more safety, be decided npon its own 
intrinsic circumstances. The assignment of the 28th of' 
January, 1818, by ^ ^ O., to the plaintiiTs B. ^ B., in 
trust for the general creditors, was of all their estate, real 
and personal, and of all books, vouchers and securities re- 
lating thereto. All the interest of Jlf. ^ O;, legal and equi* 
table, as well as their rights in action, or as eeatuiquetrtuttf 
passed by such a general and sweeping assignment; and 
they exhibited the stock in question as property bdongiag to 
Aem in reversion, and intended to be passed by that assign-t 
ment. Unless we can say, that a debtor absolutely insol- 
vent, may voluntarily assign bis stock to bis wife and chil^ 
dren, in uttei exclusion of his creditors, and that such an 
assignment is valid in law, notwithstanding the statute, we 
ought to give effect to the claim of the plaintiA. Tbit is 
not the case of a creditor seeking the aid of the Court to 
satisfy his debt out of property not to be reached by pro- 
cess ; but it is the case of. general assignees of the estate 
seeking the recovery of all that estate, by virtue of the aa- 
signment made for the benefit of all the ereiHtors. It j» 
like the case put by Lord JSUon, when he says^ that ^ ns- 
der the bankrupt law, stock is got at." In short, here is 
the case of a voluntary settlement by an insolvent debtor, 
which is void under the statute, and liere are his general 
assignees seeking the aid tS this Court to recover property 
to which they have a tide. 

It is not necessary, therefore, to put the case vpewtiie 
other ground taken by the plaintiffi^ counsel, of a sutoe- 




quent purchase for a valuable consideration, without notice 
of a prior voluntary conveyance. I shall, accordingly, de- 
clare, that the assignment to the defendants, H. 4* C., is, as 
against the title of the plaintiffs, B. fy C, null and void ; and 
that the title of these plaintiffs, as trustees, for the purposes 
expressed in the deeds of assignment to them in the plead- 
ings menUoned, is valid; and the defendants, If. fy C, m- 
decreed to hold the stock in the pleadings mentioned, sub- 
ject, first, to the right of Mrs. Murray, to the dividend; 
daring her life, and then subject to the orders of the plain- 
tiffs, B.fyB^f and that neither party have costs as against 
the other. 

Decree accordingly. 

Holmes and others c^aintt Rebtsen and others, Executors 
of Clason. 

A debt doe by C ao American citizeo, to Af. a British subject resi- 
dent in London, was recovered by foreign attachment, and the judg- 
ment of the Mayor's Court of the City of London, in doe course of 
law, out of monies which had come into the hands ofCc. agents in 
London f — Held^ that the payment of the debt bj the agents oC C. 
being Qompalsoiy, i^ad by the judgment of a Court of competent ju- 
risdiction, was a bar to a suit brought here to recover the same 
debt, either by Jd. or by inulett of the creditors of M, against 
whom an attachment had been issued here, at the instance of ao 
wlmmcancreditorof AT. under the act giving relief against absent 
debtors, previoas tosnch process of foreigo attachment abroad. 

The sncoessioo to and distribution ofpemwU property is regulated 
by the hw of the owner's domicil, not by the lex loci rei titte. It is 
a principle of international law, to take notice of and gire effect to 
the title offoreign OMsigneei, And the assignees of a foreign bank- 
rupt may sue here for debts due to the bankrupt's estate, either as ' 
such assignees, or in the name of the bankrupt. 

AnoMiignimenthy the oommiMioaers of bankrupii in fnginaJ, of all 
the estate and cAoMt in octton of the banknipty passeiadeb^dae by 
a citiaen of this state to the EngUth bankrupt. 


And if sacb uMgnmeBt is prior m Hme to an aUach$n€nS of the 1820. 
game debt here, at the instaDce of ao «<dmmcati creditor of the baak- 
mpt, iasaed under the act for relief against ad»erU debtors^ 4rc. a 
subsequent payment of the debt to the foreign assigpiees in England^ 
IS a bar to a suit brought by the tnuteet appointed under the act, 
against the debtor here. 

A concwrreiit separate assignnieDt made by the bankrapt to the 
SMDe assignees, on the same trusts, though it may strengthen 
the ease before the Court, makes no difference as to the application 
of the general doctrine. 

ISAAC CL-iSOJV;ofthe City of ^ATcfo-ror*, merchant, /un« 13/Aand 

July 17("' 
died in February^ 1815, and the defendants are his exeC" 

tUors. In his life time, he was indebted to Frederick 
MvUett, o[ London, in the sum of 2,6652. Is. lOd. ster- 
ling, being the admitted balance of an account between 
them. On the 7th of August, 1816, a warrant of atiackment 
was issued against all the estate, real and personal, be. of 
JP. JIf. as an absent debtor, under the act for relief against 
absent and absconding debtors, passed the 27th March, 
1801 : (24 sess. c, 49. 1 A*. R. L. 157.) Notice of the at- 
tachment was published on the 8th of August, 1316 ; and 
the plaintifls, on the 27th August, 1817, were duly ap- 
pointed trustees for all the creditors of M. pursuant to, 
the act, and notice thereof publislied the next day. The 
plaintifis, as trustees, demanded of the defendants payment 
of the said debt, who admitted the demand, and that they 
had sufficient assets to satisfy it, but refused to pay* The 
plaintiffs having commenced a suit in the Supreme Court 
against the defendants for the recovery of the debt, the 
defendants obtained an order on the plabtifis to exhibit a 
bill of the particulars of their demand ; and the plaintiffs 
stated their demand to be for the balance of account as above 
stated, with interest from the 31st Dec. 1814, ; but the de- 
fendants obtained an order to stay the proceedings at 
law, until a further bill of particulars should be exhibited, 
which the plaintiffs stated they were unable to do, as tiM 


1890. defendants bad in their possession all tbe accounts and vouch* 
ers relative to the demand, and the books of ^. were abroad 
and out of their power or controul ; and that they had in vain 
applied to the defendants, for an inspection of the books 
and accounts in their possession, as executors. 
It was stated in the antwery and admitted, that Jtf. is a native, 
subject of England, and has always resided there, and 
for the last twenty years has been a merchant in London. 
On the 14th February, 1815, after the debt of C/fl«>n was 
due and payable, Jtf. was duly declared a bankrupt, ac- 
cording to the laws of England; and on the same day, 
an assignment of all his estate emd chases in action was 
duly made, by the commissioners of bankrupts^ named in 
tbe commission issued against him, to Henry Page, in 
trust for the creditors of M. On tbe 25th February, 
1815, the commissioners and Henry Page assigned and 
conveyed to Charles CampbeUy John Deacon^ and Ives 
Uurry, according to the laws of England, all the estate 
and chases in action, (so before assigned to Henry Page,') 
in trust for all the creditors o(M. On the 26th Februa- 
ry, 1815, M, by deed, in consideration of ten shillings 
sterling, Ssc. conveyed and assigned to the said C C, 
/• D., and /• H, all the debts, personal estate, and effects 
whatsoever, of him, the said M., now being, arising, or 
growing within England, which he, the said M., was enti- 
tled to, or is possessed of, or which any other person or 
persons was or were possessed of or entitled to, ia trust 
for him» in trust for tbe same purposes, as mentioned in 
the former assignments. 

In the life time of Clasan, a ship, called tbe &ar, belongings 
to him, was libelled, and condemned in the Vice Admiral^ 
Court, at HaUfax, JSTova Scotia, and C. appealed from lh{ 
sentence of condemnation to the High Court of Adimral^ 
ia England, and appointed Barings Brothers, fy Co^, his 
agents, in relation to the appeal. The appeal was pejidiaj; 
at the time of C.'« death, and the defendants, as bis execu- 


tors, appointed Barings Brothers, ^ Co., their agents in re- 18201 
lation to tbe appeal. On the 21 st of May, 1818, Baring, 
Brothers, ^ Co., with the consent and approbation of the 
defendants, compromised the appeal, and received a large 
sufp of money from tbe captors, for the use of tbe defend- 
ants, as executors of C In October, 1818, the assignees 
of MuUett, pnrsuant to the laiir and custom of Lortdon, in 
the Lord Mayor's Court of that city, exhibited their plaint 
against the defendants, for the money due from C. to M., 
with interest ; and, afterwards, procured an attachment to 
be issued out of that Court, by virtue of which, 3,167/. 
sterling, being part of the money so received by Baring, 
Brothers^ ^ Co., for the defendants, was attached in the 
hands of Baring, Brothers, fy Co., and such proceedings 
were thereupon had, that on the 1st of December, 1818, a 
judgment was rendered in the said Court, pursuant to the 
law and custom o( London, that the assignees of «^. should 
have execution for 3,024/. Is. Sd. sterling, of the moneys of 
the defendants, as executors of C, in the hands of Baring, 
Brothers, ^ Co. ; and in February, 1819, the assignees of 
M. had execution for that sum of money, and Baring, 
Brothers, ^ Co. were compelled to pay that amount to the 
assignees of M., out of the moneys of the defendants, as 
executors of C, in their hands. 

The plaintiffs, in their bill, prayed, that the defendants 
might he decreed to come to an account with the plaintiffs, 
respecting the sum due from C. to JK., and render an account 
of th^ assets of /. C, which have come to their hands, and 
dial they produce tbe accounts, books and papers between 
C. ^ M., and be directed to pay to the ptaintiffi, the sum 
which may. be due to them as trustees of M., and not actu- 
aBy paid to M., or to his legal representatives, before the 
dih of JlugM, 181«. 

The eaase came on to be heard, on tbe pleadings and ^une 13^. 


1820. CaineSf for the plaintiffs* He stated the followifig points S 

1. That the coaunissioners' assignment under the Eingluh sta- 
tute of bankrupts, being merely a statutory transfer uodef 
the munidpid laws and regulations of Crreat Briiainf though 
operative against the bankrupti and all Briti$h subjects^ all 
over the world, on the principle of the law of the domicil 
governiog the disposition of personal property, ts, notwith* 
standing, inoperative, null and void, as against an American 
citicen, a creditor of the bankrupt, and residing within the 
Unkid Staie$. 

2. That the assignment of the bankrupt himself, being 
made eodemjUUu et eodem ifUuiiu with the Gommissioners' 
assignment, is only a part of the same assignment, making 
together one single conveyance, of which the commissioD* 
ers' assignment is the principal, is, therefore, subject to the 
same laws, and follows the fate of the principal assignment. 
If it be .not a part of the same conveyance, it is an act of 
bankruptcy itself, and void by the law of the country where 
it was made. 

3. That the assignment of the bankrupt, if it stood alone, 
,would be void, as being in fraudem legis of the state of 
Jfeuf-York^ and in fraud of American creditors, with intent 
to subject to the distribution of another, and a foreign ^^mm, 
the property in this country to which the Amerieanaedh&rs 
gave credit. 

4. That the assignment of the bankrupt is void, being a 
mere voluntary conveyance, under the statute for the pie- 
ventioo of frauds ; the trust for the creditors created by it 
in foreign trustees, making no consideration sufficient to 
uphold it, as against wSmertcan creditors. 

5. That by the law relative to absent and absconding 
debtors, under which the attachment issued here, all pay- 
ments by the defendants, on account of the debt doe to the 
absent debtor, after the 8th otAugurt, 1816, when notice of 
its having been issued was published, were made in tWr 
own wrong. 



6. That the placing id London, on the 21 st of May, 1 81 S, 1820. 
the debt due to the absent debtor, in the hands of Baring, ^'^^^^^^ 
Brotkersj ^ Co., (some of the partners of which house were, v. 

ako, assignees under the English commission,) was, in ]aw, 
a fraud on the vested rights of the American attaching ere- 
fKtor, being, after notice of those rights, collusive jind vo- 
luntary, in order to subject the fond to the law of sittachment 
of the city of London. 

7« And, therefore, the subsequent payment, by judgment 
of the Mayor's Court of London^ was, in law, fraudulent, 
eollustve and voluntary ; and so, constitutes no valid defence 
to defeat the rights of the American creditor residing in 
Jfeiu^York, under the previous attachment sued and notifies* 
under the law of this state. , 

' But, should the Court be inclined to dismus the bill, it • 
ongbt to be without costs. Plaintiffs suing in auter droit, 
are not responsible for costs, unless under special circum- 
stances. {Ooodrich v. Pendleton^ 3 Joknt. Ch. Rep. 5^. 
I Mad. Ch. Tr. 173. J^ewland's Pr. 203.) He ciled^ also, 
6 Binney's Rep. 353. 6 East, 13K132. IL Bl. Rep. 409. 
412.55a CroncA, 302. dl^yiuA^ 'JO^ 

P.^A* Jayy contra, insisted on the following points: 
: I. That the assignment under the bankrupt )aw of Eng' 
landy vested in the English assignees all the personal estate 
< of the bankrupt, F. J(f«, in this state, as well as in £ngf- 
land; and, therefore, the right to the money now claimed 
by the plaintiffs, could not vest in them, by virtue of the 
subsequent proceedings under the act relative to absent 

iL If the personal estate of the bankrupt here, did not 
vest by the assignment under the bankrupt law of England^ 
k passed by the voluntary assignment made by F. JM., long 
previous to the proceedings under the act relative to absent 
flksbtafs. . 

Vol. IV. 69 


isao. 3. The defendaDts having been compelled, by due coorse 

of law, to pay the money in question to the assignees in 
England^ cannot now be compelled to pay it, also, to the 
plaintiffs. He cited 4 Term Rep. 182. 186. 190. 192. ^'$ 
Rep. 170. 1 JBoff, 15. 1 Johne. Cases, 5L 1 Johns. Rep. 
118. 2 Johns. Rep. 344. 1 Rose's Bankrupt Cases j 462. 
^RoM,B. 0.99.384.315. 

Thb Chancellor. This is a bill filed by the trustees 
of Mulletty an absent EngUsh debtor, to compel payment of 
a debt due to him from the defendanu, as executors of Cla* 
son. The defendants admit the original debt, and assets^ 
and the character of the plaintiffs, as trustees, duly ap- 
pointed under the act for relief against absconding and a&* 
sent debtors. But they set up in their answer two grounds 
of defence : (1.) That assets of their testator, in the hands of 
Barings Brothers^ fy Co. of London, to the amount of the 
debt, were attached in the Lord Mayor*s Court of London, 
at the suit of the assignees ofMuUett, who had been decla- 
ihe rtntuhet, red a bankrupt; and that the debt was in that way recovered 
mentaDdexe- by judgment and execution, and paid. (2.) That Jlfu/Zet^ 
jkrtign aiaek- was declared a bankrupt, under the bankrupt laws of Eng' 
don,' of a debt land ; and all his personal estate, and debts, vested in as- 
tixen of Nat!^ signccs, by assignment, prior to the institution of proceed* 
ditor*in jE^I uigs in this State, against MuUett, as an absent debtor, and 
UrS^' ln\c' ^^ ^^^ ^^t^^ ^o ^^^ d^^^ passed thereby to those assignees. 

tion bro\ 

'^til^e (^0 I^ibe defendants are bound to account to the plain- 
^^S^^T ^^^ A' trnstees of MuUett, for tlie amount of the debt which 
wfief'^aMilS *^'*«* testator, at the time of his death, owed Midlett, they 
thSSgh A^ 5' ^■" ^^^^ P*»* ^^^ ^^^^ ^^*^®' '^•*« ^^^^ ^^s already been 
i!MSr*b^w paid to the assignees of MuUett, under the process of fo- 
SS "°d£Lt2f ^^^ attachment, and it certainly cannot be recovered back. 
£^8 "!rf ^e '^ ^^^ * compulsory payment, under a regular judgment 
1Sfo^&^ and execution, and to the legally constituted assignees of 
Kign i^ch- MnUeti. There is nothing in the pleadings, or proo&, to 
Essiaod. si^)port the allegation of the plaintiffs' counsel, that the 




recovery in London was fraudnlent and collusive between 1830. 
the defendants and the assignees* The assets were not 
placed in the bands of the garnishees for any such purpose. 
It appears from tbe facto admitted, that the defendanto' tes- 
tator had, in his life-time, a ship libelled and condemned, 
at Halifax, and that be had appealed to the High Court of 
Admiralty, in England^ and appointed the bouse o( Barings 
Brothers^ if Co. his agents, in relation to that appeal. This 
appeal was pending at bis death, and his executors con- 
tinued the agency of it in the house where their testator had 
placed it. In Mayy 1818, the appeal was settled upon term* ' 
approved of by the defendants, and the ntoney due from tbe 
captors of tbe ship paid to the agents ; and in October fol- 
lowing, a portion of this money was attached by the as^ 
signees of MvUeU, for the debt in question. There is no 
just colour or pretence, from these facto, for saying, that the 
moneys of the testator were placed in the bands of Baring, 
Brothers, ^ Co. with any fraudulent views, in respect to the 
demand of tbe plaintiffs. 

The question now is, whether that recovery of the debt 
is not a conclusive bar to the claim set up by the bill f In 
my opinion the question cannot admit of a moment's doubt. 
The garnishees bad no means of retaining the money, so 
attached, in their bands. Tbe recovery is a good defence 
to them against any claim, on the part of the defendanto. 
A garnishee can plead the recovery, even though the plain* 
tiff did not prove his debt, and even though the original 
debtor had not notice, in fact, of the attachment If tbe 
proceedings under the foreign attachment be not void, tbey 
constitute a good defence. (MDanid v. Hughes, 3 JEotf, 
367.) Nor could the defendanto, by any means whatever, 
have repelled the suit in the Lord Mayor's Court. The 
debt had been acknowledged by their testator, and tbe Utle 
of the assignees was indisputable ; and to compel them tO' 
pay the debt out of their own monies, or to charge tbe debt 
a second time upon the asseto of their testator, would, in 


I S20. either view, be an act of injustice not to be endored. If 
money be duly attached in the hands of a party, and he has 
paid it, pursuant to the judgment of a competent foreiga 
Court, I am to presume omnia rite acta; and it may be laid 
down as a clear principle of justice, that a person compel* 
led, by a competent jurisdiction, to pay a debt once, shall 
not be compelled to pay it over again. The weighty 
observation of Lord Bacon, {De Aug. Sd. Ub, 8. c. 3. 
apb. 96.) is perfectly applicable ; ut CuruBj judida tilro- 
bique reddita (qtUB nil ad jurisdictionem pertinent) libtniar 
resrindanty intolerabUe malum, et a regibus, aut tenatu, out 
poUtia, plane vindicandum. This doctrine was understood, 
and explicitly declared by the Supreme Court, in Ewnbres 
fy Collins, V. Hanna, (5 Johns. Rep. 101.) where it was 
stated, that, if a debt had once been recovered of the debtor 
^ abroad, under the process of foreign attachment, the recovery 

was a perfect protection against the original creditor. la 
the present case, the debtor has been compelled to pay the 
debt once to his creditor, who called upon him in the cha- 
racter and name of his English assignees ; and now the 
debtor is called upon again for the same debt, by the same 
creditor, in the representative character of inA- American 
trustees. Which of these representatives would have the 
The (itio of better title to the debt, if it were still unpaid, may be one 
sigTMs^Mdof question ; but certainly, when the title of the assignees, and* 
trudter^bdnlr of the trustecs, IS equally valid, under the laws of their re- 
under theUws spcciive countries, the debt is well paid Co the party that 
ti?e^coantn!>s, usos the best diligence, and first recovers the debt. In the 
pald^to^thepar! case of Embree ^ Collins, v. Hanna, a prior pending at- 
ihrgroB?^^^^^^^ tachment of the debt, in another State, was held to be good, 
torecowT* ^y ^^y o^ P'®"> ''* abatement of a suit by the creditor; 
and a judgment upon a foreign attachment is held lo be a 
good plea in bar. {Savage^s case, I Salk. 294. 6 Taunton^ 

(2.) That the English assignees had a goodright to demand, 
sue far, and recover the debt from the defendants, in the man* 


ner Jbey did^ eaanot be denied. But puttiDg the proceed- 1820. 

iog under tbe foreign attachment out of view, the payment ^ 
6f the debt to tbe s^ssignees oCMuUett^ considered as a vo- v. 

luntary payment, was good ; for the entire and exclusive ^**'' 
right to the debt, passed by assignment from MuUeit to bis 
assignees, prior to notice of the attachment issued under our 
sUitirte. ! This brings me to. consider the other point raised 
by the case, vis. — whether the plaintiffs have shown any 
right to the debt, considering that MuUett was duJy declared 
a bankrupt, ' and his personal estate assigned, under the 
bankrupt law of England, prior to the time tliat proceed- 
ings were instituted against him, under our statute, as ao 
absent or absconding debtor f After the best consideration 
which I have been able to give to this question, it has ap» 
peared to me to be a rule of national law, that the proceed- 
ing which is prior in point of time, attaches to itself the dis- 
tribution of the fund* We have no direct decision upon that 
point, in this State ; though ia the case of Bird^ Savage fy 
Birdy y.Caritati {2 Johns. Rep. 342.) it was assumed to be '' a 
principle of general practice among nations to admit and 
give effect to the title of foreign assignees. This was done on 
the ground, that the conveyance under the bankrupt laws of 
the country where the owner was domiciled, is equivalent, 
to a voluntary conveyance by the bankrupt; and that the 
gjeneral disposition of personal property by the owner, in 
one coMiiry, will affect it every where ; because, in respect 
to tbe owner's control over it, personal property has no lo- 

That the succession to, .and disposition of personal pro- f^^ gaccea- 
perty, is regulated by the law of the owner's domicil, has jj,®" SstriSI? 
become a settled principle of internadonal jurisprud^ce, ^^i **proMj- 
foonded on public convenience and policy. This general ^'; ih^^l[^^. 
prijiciple is amply discussed and illustrated by Huber, under. !^^*i^ ^^• 
the well known title, de conflictu legum ; and that essay is ^^ 
every where received as containing a doctrine of universal. q. . . 
law; Hdnwcim (De Testamenii factione Jure Germamcc^ ^«*fr ^ **»»» 

^ •' ' questioQ. 


1820. s. 30. Operay tom. 3. 972.) cites that treatise*, and tbeiailie 
doctrine in Sirykiut, as the recetved law ifi Oermafiy. Tb^ 
same general law' that governs the marriage contract, and 
testamentary dispositions, and the saccessiim to intestates' 
personal estates, applies with equal force and convenience 
to the disposition of bankrupts' eftcts. This mitlnal re- 
spect of nations, as Hnber terms it, or courtesy of inter- 
national law, is founded on the credit which one country 
gives to the administration of jaadce in another, and die 
adoption of it wonderfully increases reciprocal conitdence 
The Mme aod Credit. It wonld seem to be peculiarly beneficial in 
^neiS^ law 'espcct to the property of bankrupts ; for the just and equal 
J^l^^ distribution of the funds of diat class of debtors, becomes 

^nteiyd?^ the common concern of tbt commercial world ; and the de- 
M^SSitSJ^to €»*■<>"» ^ *** subject now form a code, of what Mr. /bte 
SuteSflSSll «pdy terms "intematiooal bankrupt law." Tbepresumptioii 
to^IbB ''SStri' ^^f^^ ^ ^ ^^^ justice will be well administered in eveiy 
Mtite ^of ^ <^ivilised country ; and in tbe application of the law to batlk- 
bankntpt. mpts, that the foreign creditor sent to the bankrupt's domi- 
cil for his dividend, (and the inconvenience of such a resort 
is not very great, considering the fiicility and rapidity of 
commercial correspondence) will obtein the same measure 
of justice as the other suitors of tbe country. It is tbepre*- 
sumed will of every person dying intestate, that his movea* 
bles, which by fiction of law have no locality independent 
of his person, should be brought home, and distributed ac- 
cording to the law of his own place. A different rule, tayti 
Lord HardzDicke^ would be eitremely mischievous, and af^ 
feet the commerce of the country. So, it is equally to be 
presumed to be the understanding of the commercial world, 
that the funds of the bankrupt should be distributed accord- 
ing to the law of tbe place where he resided, animo numen* 
dif and where the credit was bestowed. 

It is apprehended, that there would be great tnconve* 
nience (and it has been frequently detailed) in allowing co- 
existing commissions upon a bankrupt's estate, to hove con- 


citveiit npftrnrimi^.jtn^ #rf ^"^Wi ** different coantries; 1830. 
msAewBj as Lord EUkn oiMenred, ibe one tiiat is Mibseqaent 
iQ point of dne, be osed merely as Ibe means of astisltng 
the dislribalioo of ibe funds under the other. It would be 

in the power of the bankrupt to throw his property under . iaconv«- 
tbe distribtttioo of either comaiission, at his pleasure ; audit existing^ com- 

ij 1. 11. ^ , . . missienson the 

would put creditors upon calculations of exclusive advan- estate of a 

m /» • bankrupt, io 

tages, and of running a race of diligence against each other, concurrent 
and of resorting to the one fond or the other, as circum- dlffenntcour 
stances might dictate. The perpleuties arising from the 
concurrent operation of distinct commissions would be ia* 
creased, if the commercial bouse had establishments io dif^ 
ferent countries, with joint and separate debts belonging to 
each firas, to be distributed. Such a stale of things, and 
such conflicting systems, would lead to great inconvenience 
and confusion, and be the source of fraud and injustice, and 
disturb the equality and equity of any bankrupt system. 

The principle of international law, in reference to this 
sntyect, which appears to be now incorporated into the ju- 
risprudence of every part of the united kingdom of Great 
Brikdn and Irda^dj and which is there uniformly asserted 
(and 1 presume, upon good authority) to be a reciprocal 
rtde of practice among the other nations of Europe^ is cer- 
tainly calculated to remove all collision and discord, and to The principle 

• 1 /• 1 I ■ . . t • of national law 

promote general confidence, harmony and justice. It is a onthitsubje/", 
rule of decision, and not a question of jurisdiction, and has decinon! not a 
no alarming effect whatever upon the rights of territorial nadk tioiM and 
sovereignty and independence. It is admitted, in all the the' rights of 
eases, that every country may, by positive law, regulate as ^ni^ty. ^' 
it pleases, the disposition of personal property found within 
it, and may prefer its own attaching creditor to any foreign 
asugnee, and no other authority has a right to question the 
determination, though, as Lord Loughborough said, they 
** must suppose that deteru^ination wrong." This was so 
ruled, also, by Lord Mamfidds in Le Chevalier v. La/nch. 


1820. (jDm^« 170.) I1ie true qoefttion is, whether it be not wife, 
and ptriitic, and jast, (where no positive law intervenes, and 
where it U not repngnant to the essential policy and insti- 
tutions of the coQutry,) to adopt the rule of international 
law which other nations apply to us, and which impairs no 
right, bat promotes general justice, and is founded on the 
motoal respect, comity and convenience of commercial na- 
menro/^e tious* HtAcT has placed this subject on proper grounds, 
^^"*'*®' when speaking of the effect of the law of the foreign domi- 
cil, operating upon property within another jurisdiction : 
Aott vi legis oHmw immediaia^ sed aceedente consenm potesia- 
iu nMMMs in altera civitate, qum kgHms aiiems in loco $uo 
exerdtii prcsbet effeetum ; rine suo suorttmque prmjudiciot 
mutua poptdorum vtilitatis respectUy quod est fundamentum 
omnis kujus doctrince. {Lib. 1. tit. 3. de conflietu legum^ s. 9.) 
&lwP"S!^ Marriage contracts, says Sir Wm. Scott^ in Gordon v. 
^^' Dalrymple^ must, in an English Court, be adjudicated ac- 

cording to the principles of English law ; and what are the 
principles o( English law applicable to such a case? They 
are, that marriage rights must be tried by a reference to the 
law of the country where they had their .origin. '' Having 
furnished this principle, the law of England withdraws alto- 
gether, and leaves the legal question to the exclusive judg- 
ment of the foreign law.^' 
irfrifcl't^^-" The decisions of Lord Hardwieke have applied the rule, 
Bion. iiijit mobilia non habent situm^ and that they are to be dis- 

tributed according to the law of the owner^s domicil, not 
only to the case of intestates' estates, but to the case of 
bankrupts' effects. In Pipon v. Pipon^ (Amb. 25*) and in 
Thome v. WaikinSf (2 Fes. 35.) the rule was applied to the 
d istribuiion of intestates' estates. Lord H. observed, that ta- 
king a oreign probate or letters of administration in tiie 
country where the property was sitoated, was but ^^ for 
form," and to enable the party to sue ; and that all debts fol- 
lowed the person, not of the debtor, but of the creditor to 
whom due ; and that it would be roost mischievous, if they 


were to follow tbe person of the debtor. He said, the same 1820« 
doctrine had been applied, in tbe House of Lords, in Morri- 
son^s case, which was a case of lunacy, and the rule would 
be tbe same on a question between a Court of France and a 
£ourt of England, The case of Captain WiUon^ an Er^* 
Uah bankrupt, which is cited by Lord Manafidd^ in Le Cheva- 
tier V. Lynchy but cited and more fully explained by Lord 
Loughborough^ in giving his opinion in SiU v. fVorswickj (I 
H. BL 691.) is the one in which the lex domkUii was ap* 
plied by Lord Harduncke^ to the distribution of a bank- 
rupt's estate. He said, that the Court of Session in Scotland, 
entirely concurred with Lord Hardwkke in that case. There 
were three sets of Scotch creditors who put forward their 
claims in opposition to the title of the English assignees. — 
Some of the creditors of Wilson had an assignment of spe- 
cific debts, with intimation or notice to the debtor, so as 
to create, under tbe Scotch law, a^specific lien, quoad that 
debt Other creditors had assignments, without any such 
intimation prior to the bankruptcy, and which, by the Scotch 
law, gave the assignee a right inferior to that of the creditor 
who had obtained bis assignment and intimated it. A third 
class of creditors had arrested or attached tbe debts, subse- 
quent to tbe bankruptcy. Lord H, and the Court of Session 
agreed, that the first class of creditors were to be considered 
as claiming by mortgage, before bankruptcy, and if they 
came in under the English commission, they must come in 
on the footing of other creditors, and were first to account for 
what they had received; and they further agreed, that the 
title of the second class by assigument, was preferable to 
the title by arrestment ; and that the arrestments, (which is a 
Scotch process for the recovery of debts,) being subsequent 
to bankruptcy, were of no avail, the property being, by assign^ 
tnent, vested in the assignees under the commission. 

I should presume we might rely upon the entire accuracy 
of Lord LovghhorougVs report of the case of Wilson. 
The state of this case, which is loosely given in Cleve v. Mils, 

Vol. IV. 60 


1820. {CooMs B. Law, 243.) decided by Lord Mamjidd, at Oie 
^•^'^'^^ Cockpit, 10 1 764, ismaDifesdy incorrect j and it rnrther shows, 
^^"" that the short note of the case of Cleve v. Mils, is not suffi- 
^'""' ciently anthentic to be regarded. This case of WUson is 
also cited by counsel in SeUcrig v. Davis, under the title of 
Assignees of WUson v. Fairhdme, as being decided in 
1765, and the account of it coincides with Lord Loughbo^ 
roughU report. The case of JIformon, mentioned by L^rd 
Bardwicke, is more fully stoted by Serjeant Hilly in his very 
elaborate argument in the case ofSiU v. Worswick. From 
these cases, we have full evidence that in the time of Lord 
Hardwicke, it was understood and setdad, as the rule of in- 
ternational law, that the effecu df intestates, of lunatics, 
and of bankrupts, were to be distributed, not according to 
the lex rei sitm, but according to the law of the owner^s 
domicil. It was also settled, that in the latter case, an at* 
tachment by a Scotch creditor, under the Scotch law, sub- 
sequent to bankruptcy, would not avail against the right 
of the English assignees ; and that in the second case, the 
committee appointed under a commission of lunacy, bad a 
right to sue for and recover his property in Scotland, equal- 
ly as if they held under his voluntary assignment.. 

If we follow the cases down from that period, we shall 
find the same principle equally recognized, but with the ad- 
vantage of being more matured, more fully developed, and 
better understood. 
^« £?'• In Solomons v. Ross, (i H. El. 131. note,) which, in 1764, 
*^'*' came before Mr. Justice Bathtarst, sitting for Lord J>forih- 

imgton, the parUes were merchants in London, and Messrs. De- 
n^ifoUles, o( Amsterdam, corresponded with them. In 1759, 
Messrs. D. stopped payment, and in 1760, the chamber of 
desolate estates, in Amsterdam, took cognizance thereof, 
and they were declared bankrupts, and curators or assign- 
's of their effects appointed. Ross was a creditor of theirs, 
and two days after they had stopped payment, and a few 
days before the curators were appointed, he attached, in 


the Mayor's Court, io London^ their money io the hands of 1820. 
their debtor, M. Solomons. In 1760, Ross obtained jodg- 
roent by default, and execution issued against S. the gar- 
nishee, who gave Ross his note for the debt. After this, /. 
Solomons, as attorney for the curators, filed a bill in chan- 
cery on their behalf, praying that the garnishee might ac- 
count as debtor to them, and be restrained from paying 
Ross. S., the garnishee, filed a bill of interpleader, and 
brought the money into Court; and it was decreed, that the 
money be paid to /. Solomons^ the complainant, for the 
creditors of the bankrupts, and ih^tRoss deliver up the 
note, to be cancelled. 

This is a strong and interesting decision, applying, in fa- 
vour of other nations, the rule which England asks for her- 
self. There can be no doubt of the general authenticity 
and accuracy of the report. "Lord Loughborough said, he 
was counsel in the cause, and that it was decided solely up- 
on the principle that the assignment of the bankrupt's ef- 
fects to the curators of desolate estates, was an assignment 
for a valuable consideration, and therefore acknowledged in 
England, agreeable to Captain WxlsonU case in the House 
of Lords. The principle of the case is valuable and im- 
posing ; but I think the application was pushed too far, if the 
dates are given correctly ; for the attaching creditor had 
commenced his suit, and so gained a priority in time, before 
the curators were appointed in Holland. Perhaps, howe- 
ver, the Court may have considered the title of the curators, 
as relating to the time when the bankrupt stopped payment, 
and on that ground, the decree was correct ; though it would 
seem, from proof taken some years afterwards, in the case 
next to be cited, that a bankrupt's effects in Holland 
vested only from the appointment of the curators. An er- 
ror on this matter of fact, does not in the least impair the 
value and authority of the case, as to the principle it con- 
Again, in Jolkt v* Dqfonthieumd BarUy which arose be- 




fore Lord Ch. Camden, in 1769, (I H. El. 132. note,) the 
DeneufiiUesy (but not those in the former case,) merchants at 
Amsterdam, stopped payment on ihedOthofJfdy, 1763. Or 
the 8/A of October following, the plaintiffs were appointed 
curators of their effects, and the bankrupts owed the defen- 
dant D., of London. On the 5^A of Jan. 1764, the defen- 
dant D., attached the money of the bankrupts, in the 
hands of B., one of the defendants, and a debtor of the 
bankrupt. Pending the attachment, the curators filed their 
bill for an account between the bankrupt B,, and that 
the balance might be paid to them, and the defendant, £., 
restrained from proceeding on the attachment. The de- 
cree was, that the plaintiffs recover the balance due, and 
that a perpetual injunction issue against proceeding on the 
foreign attachment 

Lord Kenyan, in Hunter v. Potts,{4 Term Rep. 182.) speaks 
of this and the preceding decision as correct ; and be says, 
that Lord Camden thought this last a very clear case ; and 
it establishes this great doctrine, that the title of the foreign 
assignee of a bankrupt's estate, under the law of the bank- 
rupt's domicil, was to be preferred to the subsequent attach- 
ment of the domestic creditor, made here under our own at- 
tachment law. 

The case ofJVeale v. Coitingham and Houghton, (1 H. 
BL 132. nete,) arose in Ireland before Lord Ch. Lifford; 
and Lord Kenyan, in reference to this very decision, speaks 
tw • ion b ^''^hat Chancellor, as a very respectable authority. 6?., a 
the Chancel- merchant in London, was indebted to the defendant C, a 
g— oUrtknd^ merchant in Dublin, and the defendant H, was indebted to 
G., and on the 27th of October, 1763, C attached the debt 
due from H. to G., for his debt. On this attachment, judg- 
ment was rendered, in 1764, and If., the garnishee, was taken 
in execution, and then paid the debt. On the 28th of Oc- 
tober, 1763, a commission of bankruptcy issued in Eng' 
land, against G., and he was on that day declared a bank- 


nipt. On the 10th of JVov. 1763, bis effects were assigned 1820 
to the plaintiffs, who, in Mbv. 1764, filed their bill in the 
Court of Chancery in Ireland^ against C and K, praying 
for an account of the monies received by C. from fll, for 
the debt due G. before his bankruptcy, and that C, might 
be decreed to pay it. The Lord Chancellor, (as the case 
was new,) called in the assistance of the judges, and after 
great consultation, he, with their approbation, decreed in 
favour of the plaintiffs, and ordered C. to pay the money he 
recovered of H. 

This case went farther than, I apprehend, the doctrine on ButtheUtieof 
the subject requires, for it gave effect to the title of the as- l^n^Tj^tekSi 
signees, by relation back, beyond the time of their appoint- ?hldate^J?2S 
ment, to the time of the act of bankruptcy committed, and SSls^JJSfVM 
so overreached the time of the attachment. This doctrine ".? ^koHim to 

, . , , the time of the 

of relation, IS a positive rule of mere municipal Dolicv. which *^' ^^ ^^i^- 

, .11 , r r j^ ruptcy com- 

no other country is bound to adopt, as it would lead to great "'■^^<^- 
inconvenience; and it is sufficient upon the rule of the inter- ^r>°®.of reia- 
national law, as now declared and understo<)d, to give ef- tobankrapS^iA 
feet to the title of the assignees, from the time the assign- ofmcre munu 
ment to them was actually made, as being a substitute aI&*thc?«ieVf 
for the voluntary assignment of the bankrupt himself; and, ^^^^^» 
perhaps, we may say that no concession is to be made to fo- adopuSu'^ '^ 
reign interests, which would materially disturb the whole 
order and policy of our internal arrangements. The rule is, 
that comitas is to be observed, quaienus sine prcejudicio indul- 
gentium fieri potest. 

The recognition of the title of foreign assignees had now 
become so well settled, and was so generally received as a 
rule of public law, that when Lord Thurlow was told, (in Lord 7%«r- 
JVbr. 1787.) in the case ex parte Blokes. (1 Cox. 398 ^ that ^'».ob*enra- 
m America, the interest of the assignees, under the English 
bankrupt laws, was not noticed, he observed, with surprise, 
that " he had no idea of any country refusing to take notice 
of the righte of the assignees,- under their laws, and he be- 
lieved every country on earth would do it, besides." 




In Hunter y. PoUs, (4 Term Rep. 1 82.) it was decided, that 
i( aAer assignmeDt of a banknipt's eBtate, a creditor, know- 
ing of it, and residing in tjnglandy attaches the money of 
the bankrupt abroad, the assignees may compel bim to re- 
fund it. As this case was decided between subjects of the 
same government, and equally owing obedience to the 
bankrupt laws, and on the ground that they must do no act 
to contravene them, it does not direcdy apply to the ques- 
tion before me. But it is a case well worthy of attention, 
as it treated, largely and liberally, the general subject under 
discussion ; and I think it may be considered as the acknow- 
ledged law of that case, that the representative character of 
the assignees of a bankrupt, is recognized by the general law 
of nations, which adopts the lex domicilii as the rule, in re- 
spect to personal property. It was held by the Court, that 
the personal property of the bankrupt, wherever situated, 
passed by the assignment in the same manner as if the owner 
had assigned it by his own voluntary act, unless there was a 
positive law of the foreign country, where the property was 
situated, directing a particular mode of conveyance; and 
Lord Kenyon took occasion to observe, that an assignment, 
under the bankrupt acts, might be taken to be an assign- 
ment for a valuable consideration. 

The case of SiU v. WortwuJc, (1 H. Blade. 665.) was 

decided shortly after in the C- £. upon the same ground ; 

that an English creditor, after an act of bankruptcy, cannot 

attach, in a foreign country, money due to the bankrupt. 

Lord Ltnt^h' Without being liable to refund it to the assignees. This 

bcnufk't ex- ...... i j. , . . . . , /. 

poticion of the casc IS distinguished for the precision, perspicuity, and force 
ject with which Lord Loughborough^ in behalf of the Court, 

declared the general doctrines of international law, on the 
subject of the operation of bankrupt laws, extra ierritorium* 
He observed, that it was a clear proposition, not only of the 
law of England^ but of every country in the world^ where law 
had the semblance ofsdence^ that personal property had no 
locality, and was subject to the law which governed the 



person, both with respect to the disposition of it, and to the 1630. 
transmission of it, either by succession, or the act of the 
party — that there was no difference in the cases on this sub- 
ject, if they were rightly understood, and righdy applied — 
that if the English bankrupt had personal property out of the 
jurisdiction of the law of England^ and which by the law of 
England^ was, upon the bankruptcy, vested in bis assignees, 
if the country where it lies proceeds according to the prind' 
pies of todl regulated justice^ there is .no doubt but that it 
win give effect to the title of the assignees — that the deter- 
mination of the Courts of England had been uniform to 
admit the title of the foreign assignees : he referred to 
the cases of Solomons v. Ross^ and of JoUet v. Duponthieu^ 
(which have been already cited,) as founded on general law, 
preferring the tide of the assignees to the title of the arrest* 
ing creditor, and declared that the principle he had stated, 
had a very universal observance among nations. 

He held, that an assignment, under a commission of bank- 
ruptcy, was for a just consideration, and was to be preferred 
to the claim of all creditors, wheresoever, who had not acqui- 
red a specific lien prior to the act of bankruptcy committed, 
though he admitted that, if by the law of a foreign country, 
a foreign creditor had been preferred, it could not be helped ^ 
and such preference, however repugnant to principle, could 
not be dbturbed. 

The same question decided in the two preceding cases, 
came before all the judges, in the Exchequer Chamber, on p'^^^JP"' 
error from the K. B. in PhUips v. Hunter. (2 H. Blacks. 
402.) All the judges who expressed any opinion, except one, 
concurred in the judgmeut of the K. B., and gave their 
sanction to the general doctrine contained in these cases. 
It was admitted, that, before bankruptcy, the bankrupt 
might assign his property abroad as absolutely as if it had 
been in his own tangible possession; and the assignees 
were entitled, by operation of law, to deal as he might have 
done with his property. The whole property of the bank- 


Adopted bj 





1820. fupt must be under their control, without regard to ite lo" 
cality, except in cases which militated against the particular 
laws of the foreign country* If the bankrupt laws were cir- 
cumscribed by the local situation of the property, a door 
would be opened to all the partiality and undue preference 
which they were framed to prevent, and property would be 
sent abroad, wi(b unjust views, by the bankrupt, imme- 
diately previous to his failure. It was, therefore, on wise 
principles, that foreign States acknowledged and acted ac- 
cording to the different civil relations which subsist between 
men in their own country. 
Lord EUenbo- But why need we go further with Enelish cases on this 
5 Kau, subject ? To recognize the laws of foreign countries as 
binding on personal property, in a variety of cases, has been 
so long setded in principle, that according to Lord £Z2en- 
borovghU expression, (5 East^ 131.) it is now IcAd up among 
our acknowledged rules of jurisprudence. 

We have two recent decisions in the Court of Session in 
Scotland^ (and one of them affirmed, in the House of Lords,) 
in which this great doctrine of national law has been pro- 
foundly discussed, and laid down and vindicated with dis- 
tinguished learning and ability. 
tiMpfild^s ^f Stein's case (1 Rose's Cases in Bankruptcy, App. p. 462.) 
the Court of ^^^^ decided in 1813, and it declared the law to be, that an 

Bewlon in ^ ' 

Scotland^ ia English commissiou of bankruptcy vested in the assignees 
all the property of the bankrupt, wherever situated, pre- 
cluding creditors in Scotland from subsequently attach- 
ing, by sequestration, their debtor's property in Scotland^ and 
from administering it in a course of distribution under such 
process of sequestration. It further declared, that a seques- 
tration in Scotland, would preclude English creditors from 
suing, or sustaining a commission against a debtor who was 
the subject of the prior sequestration ; and that, whether the 
English commission, or the Scotch sequestration, was to be 
preferred, as to the mode of administering the debtor's effects^ 
depended upon their priority. 


Lord Roberiionj in giviDg his opinion, observed, that it i&20« . 
was a qaestion of great importance, what was to be the 
ediect in Scotland^ of an English commission of bankrupt ; ^ 
that they had clear principles of international law to 
govern them, and to which they oqght to adhere, unless 
they were to throw into confusion the whole system of bank- 
rupt law. That the effect to be given to such a commis^ 
sion in every country where the true principles of interna- 
tional law were understood, was, that it must carry the 
whole efiects belonging to the bankrupt, and that the sub* 
sequent Scotch sequestration could not be permitted to con- 
trol the commission. That moveables followed the person 
of the owner, and their condition was governed by the law 
of his domicil, a fiction introduced upon the soundest prin- 
ciples of justice; and, in practice, attended with the most bene- 
ficial consequences. Ijord Meadowbankj who, also, gave 
bis reasons at large, concurred in the same doctrine, and 
declared, that after a commission, nothing remained of the 
personal estate, on which a sequestration could operate, any 
more than under a voluntary conveyance by the bankrupt. 
He admitted it was formerly a principle, that a judicial 
transfer only operated intra terriiwium^ and had no binding 
influence abroad ; but the new rule had now been so long 
recognized, that ii might be eonddered a prindph of the law 
of nations* A marriage operated as a legal assignment of 
the property of the wife tathe husband, without r^;ard to 
territory, all the world over, and he perctived the predomi- 
nant, the irresistible necessity, in point of expediency, of 
adopting the rule that Lord Hardmcke adopted in one 
of the cases, when a departure from it would be atteacttd 
whh inextricable confusion. 

All the other Judges of the Court of Session were of the 
same opinion, and expressed themselves to the same efiect. 
One of them (Lord BamMttyne) observed, that a prior £9^- 
lish commission did not, ipso jure, prevent the award of a 

Vol- IV. 61 


1830. seqaestration, though the effect of it would be an after ques- 
tion, depending on circumstances which might, perhaps, 
justly destroy the effect of the commission. But Uie Court 
reserved themselves upon the point, whether, in case they 
were satisfied, the party subjected to the commission was 
domiciled in S., and had not been duly domiciled in £,, 
where the commission issued, they were bound to give ef- 
fect to it* The Lord Justice Clerk held, that they were 
bound to watch, lest any such proceedings shonld be carried 
on by persons domiciled in Scotland, which might interfere 
with the application of their own rules of law. 

This decision of the highest Court of law and equity in 
Scotland, upon a point of public law, comes with much au- 
thority, after so full and elaborate an investigation of the 
question. Nor are we permitted to presume that it proceed- 
ed from a priiKiple of mere deference to the English law, 
or system of jurisprudence. We have several decrees of 
that sam^ Court, and by the same Judges, supporting Scotch 
decrees of English marriages between English subjects^ 
(see Fergiison^s Reports of some reftni decisions by the Consis^ 
iorial Courts of Seotlund, passimj) ia which the independent 
spirit of their administration of the law, in opposition to Ei^ 
lish law and policy, and m opposition to what was doMMd 
by the Consistorial Court, international law, is sufficieatli! 
demonstrated. They feel perfectly free, whequever they deeoa 
it proper, to vin^oate the siipremiu^y of the law of Scoikmi 
within itt own territory. 
The o inieiitof ^'^ ^^^^ ^^^ ^ "^^^^ ^ alloded, is that oi SOtrig r. 
s£S^h ^^^ ^"^ ^^'' (^ ^^^^ ^^' ^ ^^' ^^- ^* ^*) vlc^'ded 
fmrnSafathe *** ^ House of Lords in 1814, on appeal, and in afflrm-^ 
gjl^ ^ ance of the decree of the Court of Session.* The case was 
discussed very much at large upon the appeal, and a history 
given of the Scottish decisions on the question, from the 
year 1747 ; and I believe it is understood, that on such ap- 
peab the municipal law of Scotland is carefully observed^ 


Sy the decree, it was declared to be the settled law in Scot- 
landj founded on a principle of international law, that the 
assignment under an EingKgh commission of bankruptcyi 
vests in the assignees, withont the necessity of intimation, 
the whole personal estate of the bankrapt in Scotland, or 
wherever situated, and that the effect of all subsequent dili- 
gence by any Scotch, or other creditor, was thereby pre* 
eluded. In this case, a commiision issued in Englatid 
against a debtor, part of whose property consisted of sharei 
of Carron stock, and a creditor in Scotland afterwards ar- 
rested those shares, and it was held by the Court of Session, 
and, on appeal, by the House of Lords, that the title of the 
assignees was preferable. It was, likewise, held, that the 
commission did not affect real property in Scotland, nor 
impose any legal (though Lord Eldon thought it did, also^ 
a moral) obligation on the bankrupt to convey to bis as* 
signees ^ but the creditors had it in their power to enforce a 
proper conveyance of the real estate, by giving, or with^ 
holding the bankrupt's certificatew 

The counsel for the respondents obserined, (and their doo^ 
trine may well be assumed to be the doctrine of the Hons^ 
of Lords, which affirmed the decree,) that it had been re^ 
peatedly decided, that a foreign commission passed the et- 
Acts in En^€md to the foreign commission, and the pre- 
sumptbn was^ that such was the law of all the world. That 
when it was said, that the property of the bankrupt abroad 
mighi be attached, notwithstaadiog the commission, it meant 
wly, that the law of Eingland could not be administered in 
foreign co«iitrieS| and that the law of a particular slate 
might &rm an cfkception to the general rule among civilized 
nation^. That if two nations were at war, it might bp 
dpnbted whether a commission in one country, could pre- 
vent the efiect of an attachment in the other, where the at- 
taching creditor could have no remedy under the commis- 
sion, and that the only dbtinction was, whether the creditor 


1820* could have his remedy. That this role was not the resalt 
of doiqicil, but of the courtesy of international law. 

Lord Eldon^ in giving his reasons in the House of Lords, 
in favour of the decree, said, that StdnU case involved the 

TMEUkmu general principle; and he agreed that the iSco^cA cases, prior 
^^ ^ to that of Sroothers v. Reid, in 1803, exhibited a very dis- 

tressing versatility of opinion. Bat it was clear, that the 
English commission passed the personal property in Scot-^ 
land^ and in alt other parts of the world ; and there was no 
authority or dictum to the contrary. A general assignment by 
a bankropt, of all his effects, for the benefit of all bis credi-* 
tors, operated like a transfer by marriage, in England^ 
which rendered the Scotch property of the wife her base- 
band's, without the necessity of notice; and the Scotch law, 
as to intimation t)r notice, did not, and could not apply, 
without cuttmg up by the roots the use of an English com- 
mission in relation to Scoich property. 

We have now shown that the rule in question is firmly 
settled, and recognized as a rule of nationallaw, by all the 
Courts in England ; by the Court of Chancery in Ireland^ 
and by the Court of Session in Scotland. The opinion of 
so many tribunals, of such high character and great learn- 
ing, is certainly to be considered as very strong evidence of 
the existence of tlie rule, to the extent, and with the preten- 
sions under which it has been annotmced. 

I entertain no doubt that tlie same rule is known and ob- 
served among the other nations of Europe. It is embraced 
* by the general principle, so universally recognized by the 
civilians, that the distribution and disposition of personal 
property, are governed by the law of the owner's dontidt 
VkwotFrmve But in the appendix to Cooper^s Bankrupt Law, p. 2^. wtf 
«ithiasttbject. ij^^g ^ ^^^ of the case of Parish v. Sevan, decided in thte 
French Court, M Dunkirk, in 1790, which is perfectly in 
accordance with the preceding cases. Tlie defendantj H 
merchant at Paris, and a creditor of C. ^ C, English bank- 
rupts, had attached, at Dunkirk, a debt in the hands i^tDe 


GrameTf d