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JOHNSON'S 
CHANCERY   REPORTS. 

VOL.  IV. 


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REPORTS? 


O    A     S     E  ,S  *' 
COUkT  OF  CHANCERY 

NEW-YORK.  "^^^  . 

BY   WILLIAM  jqilNSONy,  > 

,  ^       .>  -    VOL/#.    jfjif,      >v  > 

COHJAINXatA^H*  •A8B8  |llO#'jA!||SkaT,   1819.  *      ^'  .  ?, 


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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. 


V   ' 


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*    ♦  **" 


'■n 


TABIE 


OF 


THE   NAMES  OF   THE    CASES 


Ktpontt])  nr  Tm  rouRTB  tohvuw* 


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


i^t 


AttfttY.  Thorp, 


B 


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, 


^, 


r.\ 


693 


118 

m 

651 
368 

'  m 

375 
405 

n4B4 

116 
22 
65 
671 
441 
303 
671 
682 
619 
506 
603 
436 
301 

> 


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 


Tl 


TABLE  OF  CASES. 


Elinehdorf  v.  Lansing, 

■ "    f  Gouverneurr. 
Enswocth  V.  Lambert, 


K 

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


144 


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, 

G 

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,  ' 


62 
26 
441 
1169 
166 
62 
606 


363 
671 
176 
649 
367 
170 
412 
38 


H 

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, 

608 

Hickco^,  Scribner  v.  630 

HofTmaii,  Bayard  v,  450 

Holmes  v.  Remsen,  460 

Hood  V.  Inman,  437 

Howell  V.  Baker,  118 


I 


L 

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 

170 
262 
673 
183 


Inman,  Hood  9. 


437 


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

M 

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, 


634 

*  669 
318 

^         21 

'166 

168 

'  666 
136 
#7 
334 
436 

173,  497 

*     183 

622 

412 


•^ 


K' 


*■  .■ 


TABl^E  OF  CASES. 


Til 


{-:: 


N. 


'it 


|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. 


480 


48 
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. 


R 


Ml 

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, 

•%iuaii,.^oodBiff. 

;,  Rogers  r. 
»t,  Rosser.     ]^^ 

^>     •  ■  s  '^ 

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

-^   '•         -i         ^ 


54d 
666 
140 

490 


-310 
460 
381 
303 
166 
329 
84 

388.608 
547 
300 

388.601 
300 


^  503 

I 

219 

,    '    630 

^  *         409 

^. Its.  497 


210 

^310 

J35 

006 

370 

38 

441.  445 

9 

649 

271 

607 

167 

21 

¥67 

687 


fiOt 
363 
693 
607 
619 
609 
604 
416 
228 


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 

w 

"Ward,  Hajes  r.  123 

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


1^ 


#^ 


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


TABLE  OP  GASES. 

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: 
682 


Sf 


V-, 


> 


.h 


4 


..'■. 


•    =f 


u  '*      " 


♦.'•. 


CASES 


ADJVWIKO  IV 


THE  COURT  OF  CHANCERY 

or 

NEW-YORK. 

JAHES  KENT,  Es^.  Chaitcbllor. 


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

Ham 

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. 


CASES  IN  CHANCERY. 

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, 


CASES  IN  CHANCERY.  3 

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. 


CASES  TN  CHANCERY. 

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. 


CASES  m  CHANCEKT. 

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 


CASES  IN  CHANCERY. 

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<* 


CASES  IN  CHANCERT. 

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 


CASES  IN  CHANCERY. 

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 
parties. 

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. 


CASES  IN  CHANCERY. 


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 


10  CASES  VS  CHANCERY. 

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 


CASES  IN  CHANCERY.  11 

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^ 


CASES  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY.  13 

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 


14  GASES  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY.  16 

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. 


16  CASES  IN  CHANCERT. 

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. 


CASES  IN  CHANCERY.  17 

1819. 


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 
satisfied. 

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 


18  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCBRT.  19 

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 


M  CASES  IH  CHANCERT. 

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

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- 
cution. 

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 


CAaSSTS  CaiANCEBT. 


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^ 


32  CASES  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY.  33 

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 


34  CABE8  IN  CHANCERY. 

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 


ae  CASES  IN  CHANCERY. 

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

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

'''SSor  0«I««cordlDgly. 

TURHPIXV  ^ 

COMFAHV. 


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

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 


CASES  IN  CHANCERY.  27 

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 


»  CASfcS  IN  CHANCERY. 

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 


CJI9IS  IN  CHANOfiRY.  » 

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  ytaiptift  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 
aniiii|aty% 

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^ 


so  CASES  IN  CHJkNC£RT: 

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 


CASS  IN  CHANCERY.  31 

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 


^^- 


38  OASES  IN  CBAMCfiEY. 

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 


OASES  IN  OHANCERT.  » 

\  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.  ^ 


84  CASES  IN  CHANCERY. 

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* 


CASES  IN  CHANCERT.  Sff 

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. 


CABB  or  CHaXOBUL  91. 

1818; 


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.  » 


CA8BS  IN  CHANCBRT. 

Van  Veekenf  for  the  defendwrta,  moved  to  diMoIve  the 
injnDction. 

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 


CASiS  IN  CHANCERT. 


fB  iajimotioft  againit  tb«  trtMtoe  fvondMpoBoir  oC  th«  tniit  proper-  1819. 
tji  and  that  a  racCTPcr  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 
bond. 

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 


CASES  IN  CIMNCeRT. 


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 


CASES  IN  CHANCERY.  41 

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- 
terest. 

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         , 


t  CASGS  IN  €HANCE&T. 

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 


CASES  IN  CHANCERY.  4$ 

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 


44  CASES  IN  CHANCERYv 

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- 


CASES  IN  CHANCERY.  45 

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 


MjAYTML 


46  CASES'  m  CHANCERY. 

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 


CEASES  W  CHANCBfiY.  49 

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 


48  CASES  IN  CHANCfiRY. 

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^ 


CMEB  Hi  CHMiOEHY. 


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 


60  CASES  IN  CHANCEKT. 

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 
&c. 

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- 


CASES  IN  CHANCERY.  51 

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.^* 


I  CASES  IN  CHANCERY. 

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! 


Vaiuck 

V. 
CoRTDAATfOll 


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- 
vatadatriat^ 

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 


S4  (iASES  IN  CHANCERY. 

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 
sustained. 

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 
proofi* 


CASES  IN  CQANCERT.  55 

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

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

CoRFORATIOlf 

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)ddi.is» 

^*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  forSsee 
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 


CASES  IN  CHANCE&T.  ffj 

1819t 

AfAi-nR  or 
Vanossbilv. 

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- 
York. 

Vol,  IV.  9 


M  CASES  IN  CHANCS&Y* 

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 
coBHniCled." 

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


CASES  IN  CHANCERY.  m 

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 


60  CASES  IN  CHANCERY. 

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 
Master. 

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 


CASES  IN  CHANCERT.  61 

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 
suggested. 


62  CASES  IN  CHANCERY. 

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 
diicbaMfML 


V. 


^^^  *^^  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- 


CiflES  IN  CHANCB&Y.  «3 

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 


€4  CASB«  IN  CHANCERY. 

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& 


CASES  IN  CHANCERY. 

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.    , 


t$ 


iftid. 


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 


66 


CASES  IN  CHANCERY. 


1819. 


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 


CASES  IN  CHANCERY. 


67 


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, 


1819. 


«a 


CASES  IN  CHANCERY- 


WJ9. 


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- 


Bbivcxsb- 


Lavuito. 


CASES  IN  CHANCERT. 

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. 


70  CASES  IN  CHANCERY. 

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- 
chaser. 


CASES  IN  CHANCERY.  71 

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 


7e  €ASES  IN  CHANCERY, 

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- 


CiaES  IN  CHANCSRT.  73 

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 


74 


CASES  IN  CHANCERY. 


1819. 


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. 


75 


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. 


Idl9« 


7B  CASES  IK  CHANCERY. 

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  redewy 

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 


enSBB  IN  CHANCeHT.  77 


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 


78 


CASES  IN  CHANCERY. 


1810. 


HOFF 
V. 

Lurmi*. 


Various  claims 
as  to  e^sts  set- 
tled. 


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

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 
pretensions. 

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    , 


CASES  IN  CHANCERY. 


79 


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. 


1819. 


Decree  accordingly. 


ao       ^  CiaES  IN  CBANCBAY. 

181*. 

ICattsi^  or 

WOLWTOIIB- 
CRAFT. 

.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 


82  CASES  IN  CHANCERY. 

^  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* 


CASES  IN  CHANCERY.  83 

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.^\ 


CASES  II*  CkANCERt. 


!lkoOElUl 
V, 


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 
V. 

^)  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 


86  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  87 

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 


r" 


88  CASES  IN  CHANCERY. 

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^ 


0ASE8  IN  CHANCERlr.  8» 

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 


90  CASES  m  CHANCERY. 

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- 
ants. 

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 


CASES  IN  CHANCERY.  61 

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 
mistake. 

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, 


f 9  CASES  IN  CHANCERY. 

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 


CASES  IS  CHilKCE&r.  93 


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 
other, 

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« 


CASES  IN  CHASCEBX. 

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 
cause. 

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


CASES  IN  CHANCERY.  95 

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. 


96  CASES  IN  CHANCERT. 

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, 


CASES  IN  CHANCERY.  OT 

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 


I  CASES  IK  eiMNesRY. 

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^ 


GlBSOlM* 


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^ 


"L^u^L^ 


100  CASES  IN  CHANCERY. 

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- 
ttaoce« 

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 


CASES  IN  CHANCERY.  lai 

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. 


MAriYKor 


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 


CASES  IN  CHANCERr.  >0S 

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     9mtmmm, 
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* 

aipal." 

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 


104  CASES  IN  CHANCERY. 


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 
testator's." 
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 


CASES  IN  CHANCERY.  103 

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  .^aiotenancey  kc. 

Order  accordingly. 


Vol.  IV.  U 


CASES  IN  CHANCERY. 


Matter  or 
WAiHstnur. 

""— """"""^  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 
jurisdiction. 
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. 


CASSS  r»  CHANCERY.  107 

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 
faini. 

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 


IM  CASES  IN  CHANCERY. 

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

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


•"■"—      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 
sta«e. 

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  criww:  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 


CASES  IN  CtlAKCKKT.  10» 

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  fMWPOBsr,  m  m  tbis  case,  be  a  sobyeot  of  the 
iomgm  oooniry,  the  iolBcierenee  imghi  meet  widb  less  re- 
pogaaoco* 

This  doctrine  is  sopposled  eqaally  by  wmb  and  autho- 
rity. 

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, 


no  CASES  IN  CHANCERY. 

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^ 


J 


CASES  IN  CHANCERY.  Ill 

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 
reprisals." 

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 


C6-<>cJ%/ 


r 


112  CASES  IN  CHANCERY. 

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- 


CASES  IN  CHANCERY.  11^3 

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 


114  CASES  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY. 


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, 
&c. 

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  ■  . 


116  CASES  IN  CHANCERY. 

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 


C ASIS  IN  CRANOEAT.  1  n 

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 
thepkMU 

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 
rale. 

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. 


CASES  IN  CHANCERY. 


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

Clark. 


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

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. 


Septemberith, 


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 


CASES  IN  CHANCERY.  119 

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. 


lao  CASiSS  IN  CHANCERY. 

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  agent.to  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." 


CASES  IK  CHANCERY.  132 

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  /^  / 


132  CASES  IN  CHANCERY.^ 

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^ 
execution. 

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 
aame. 

Decree  accordingly. 


CA3E8  IN  CHANCERT. 


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 
Creditor. 


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 , 


CASB8  IN  eHlNCBKV. 

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 


126  GASES  IN  CHANCERY. 

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  " 

A 


CASES  IN  CHANCERY.  121 

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 


138  CiSES  IN  CHANCERir. 

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, 


GASES  IN  CHANCERY.  1» 

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- 
latioft. 

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 
note? 

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. 

Thiiic  wewld  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 


130  CASES  VS  CHANCERY. 

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, 


CASES  IN  CHANCERY*  131 

%^.     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- 
mises. 

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. 


ISS  CASES  IN  CHANCERT. 

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 


CASES  IN  CHANC8HT*  iSS 

*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^'^^^  ^ 


134  GA8BS  IN  GHANCBflLY^ 

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- 


CASES  IN  CHANOBRT.  136 

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." 


CASES  IN  CHAMCERT. 


SSBrBBBO 
V. 

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 


-i-UTiAA^ 


M'EvxRs. 


CASES  m  CHANCERY.  13T 

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^ 
fief. 
Vol.  IV.  la 


ia» 

q^m  iH  curnQmr 

1819. 

ir««Aawii;(brt|i«pl|MntiA 

M'i^ 

B.B.QBin,fMtiie&amim. 

(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- 
sei^ved.-^^ 

'"'"  ,  Decrte  accordingly. 


CASES  IN  CHANCERT. 


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* 


r. 


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 


Duiw. 


bcewne  Ukt  p)iw4<C  wfoU  saI  rtifem  whn  aUoired  «mI      1819. 
fccctied,  ^hiw^,  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  •cti  ioim  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  roadefcd>-  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 


144  CASES  IV  CHANCERT. 

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. 


s^t^ 


KeiSSELBRACK  OgaiflSt  LiTINGSTON. 

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 


CASES  IN  CHANCERY.  145 

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 


146 


CASES  fN  CHANCERY. 


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 


CASES  IV  CHANCBRV*  Ht 

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 
deed. 

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^ 


148  CASKS  IN  GftANCERT. 

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 


CASES  IN  CHANCERT.  149 

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. 


CASES  m  CHJOrCERT. 


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- 
seb. 

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 


^//g/ 


CASES  IN  CHANCERY.  151 

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. 


152  CASES  IN  CHANCERY. 

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, 


QASB9  IN  CHANCERY.  199 

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 


154  CASES  IS  CHANCERY. 

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 


CASES  IN  CHANCERY.  155 

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* 


IS6  CASES  IN  CHANOERT. 

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 

VeAten. 

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  fapsign  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.) 


CASES  IN  CHANCERY.  iS7 

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  apcwiiea.    The  aoc  of  Co^gfess  r^enad 
toy  aevar  amnt  «d  dmciaiiae  ^  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 
teneliing  .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 


GlSBOVtb 


l&e  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCKRY.  159 

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* 
fence. 

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 


160  CASKS  IV  CHANCERY, 

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^ 


Oaiiati. 


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;, 
61.) 

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 


l«a  CASES  IN  CHANCERT. 

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. 


CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY. 

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. 


RoCXW|BI.L 
V. 

FoM9if. 


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. 


CASES  IN  CHAMCtKy. 

/ 

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.         ▼. 

SnwMMr. 


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 


Its  (UmS  IN  OHIDfCBIIT. 

I«l».      fiiMtkUfteMoL    The  cwet  6f  <3t*a-eB  t.  jPiircJlWii, 

^^  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 
suit* 

Per  Curiflm*  Modon  granted.  Cases  to  this  efiiect  were 
referred  to  in  i  Johmon't  Ck.  Rqf.  235* 


9A88S  IK  OHAKCCRT. 


FoLflnu 


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 


170  CASES  IN  CHANCERY. 

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^ 


CASES  IN  CHANCERY.  I7I. 

•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 


Its  CASES  IN  CHANCERT. 

lgld«       alBdflnrit,  for  «n  aUftcbmhrt  agmst  the  dufewhwiU,  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. 

CtfrolJtm; 

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 


CASES  IN  CHANCERY.  173 

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. 


CASES  IN  CHANCERY. 

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 
answered. 

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  nsing.one  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 


CASES  IN  CHANCERT. 

^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- 


1T«  CASES  IN  CHANCERY. 

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 


CA8ES  IN  CHANCBKT.  A7ff 

•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 
Ibccame. 

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 


OSMV 
V. 

SB*" 


178  CASES  IN  CHANCERY, 

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 


CASES  IN  CHANCERY. 

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. 


idO  CAS£8  IM  CHANCERY. 

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 
question. 

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- 
cessfuL 

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* 
dooed. 

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. 


182  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERT.  183 

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 


-Vc^vWfc/" 


iU  GASES  IN  CHANCEBY. 

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 
Court. 

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 


GASES  IN  CHANCERY.  485 

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 


184  CASES  IN  CHAKCERY. 

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- 


CASEjS  IN  CHANCERY.  187 

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. 

o 
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. 


CASES  IK  GHANCXRT.  18f 

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- 
ject 

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, 


180  CASKS  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  )9i 

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 


19t'  CASES  IN  GHANeERY. 

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- 
M,4c. 


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  rendered.it  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- 


C/XjCH^P^aJ^ 


CjISBS  IN  CHAMCCRT*  lf» 

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/ 


194^  CAS£S  m  CHANCBRT. 

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 


CASB6  m  CHANCERY.  1«£ 

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 


y^  CASES  IV  CHANCERY. 

.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 
guppleiaeotal  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 


CA8IS  IN  CHANCERTi  197 


a  eonAi^al  tevlMiM  to.Ae  ptfiet  tm  iclsra  to  their  fnll      1819. 
lew.'. 

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 
iibkiiwr  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 
aflKatedf<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- 


188  CASES  IN  OHANeaKT; 

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 
point. 
^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^  aooordiag.to  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 


CASES  IN  CHANClBRT.  IM 

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 

costs." 

^•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 


SM»  CASES  rN  CHAKCCRr 

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« 


CA^ES  IN  CHANCERY. 

/.  Raddiffi  for  the  defendant^  in  support  of  the  de- 
murrer. 

/•  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 
demurrer. 

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 


CASES  IN  CHANCERY.  203 

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- 


.^  CASES  IS  CHANCERT. 

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. 


CASES  IN  CHANCERY. 


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 


206  CASES  IN  CHANCERY. 

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. 


CASES  IN  CHANC£RT.  207 

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^  MfJM^,  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  dtftndtnt,  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  acquitsctd  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« 


CASB&  FK  CmVCBKY.  fn 

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]l8w.er  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  Vts.jm.  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 


CASKS  IK  CHANCBRT.  ^IS 

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 Veighi  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 


au  CAWS  IN  CHAKCBKT. 

1819.  it  mas  by  die  fiKhe^MlP  FAotie«,)  bm  k  «eil  §h»m  IMt 
masteri  upw  ^m^ndftioUB  to  tlw  awgwm,  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  dortriotf  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^Gt.pf  / 
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  iacHnetien  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  dcfciwlant  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^ 


ti«  CASES  IN  CHAKCBRT. 

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  dismissed. 

* '  The  dcAndam  has  iiera  admitted  himsalf  to  ba  an  liair,  and 

Vat.  IV.  f8 


CASES  IN  CHANCEllY. 

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 
rule. 

I  aoni  aecordiDgly,  of  opiaioo,  that  the  objeotions  to  the 
Master's  report  are  wdl  takeoi  and  that  the  answer  in  SttCt 
ficient* 

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 


GASfiS  IN  CHANCERY.  21» 

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« 


IM  CASES  IV  0HAJKC8RY« 

1619.  gOdd«  bflMgiBg  t(9iR.  P^totka  d^i^v^dmi^  »^9m(ftm Pm 
hM  fmjfiag  Urn  «AiouiH  of  fieighi  dMurf^d*  aoooidaiig.io  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 


CiU»8  IM  CHAKCIRT.  S21 

^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&- 
«d»%a. 

▲  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 


232  CASES  IN  CHANCERr. 

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. 


CASES  IN  eHANCERY.  223 

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 
roles* 

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- 
nation. 

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 


OAU»  lif  CHANCCkV 

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  bagiMttt'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 


CASES  IN  CHANCERT. 

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 


SBAmu 


Soofaui. 


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 
oftbecai^o. 

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 


CASKS  IN  CHANCERY. 

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 


M  CASES  «  OHANC^T. 

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  agteewent  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 


CASKS  IN  OHAMCBar. 

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 


ago  CASES  IN  GHAmXRT*. 

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 


CASES  IN  CHANCERT.  2Sl 

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 
owiie4.by^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 


^a^u<4iaCj 


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%||aiio 
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 


W60D. 


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 


V. 

Wood. 


234  CASES  IN  CHANCERY* 

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- 


CASES  IN  CHANCERY.  43S 

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, 


394  ^ASSS  IN  CHANCSRY. 


V. 


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  oahitHMH 
in  the  baeioese,  eiLcept  as  ageoi.    Tfaiat  die  sheriff  iuyijanid 
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 


QASES  IN  CHANCERV.  901 

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  edvettised  for  the  6tb  of  Mwreht  1804.    That 

diis  defaaAint  aMaded  die  sale.    That  he  had  no  interest  m 

the  jwdgaiDnt  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- 


CASES  IN  CHANCERY 

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.' 


V. 

Wood. 


CASES  IN  CHANCERY* 

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 


A40  eAS£8  IK  CHANCERY. 

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* 


CkSRH  m  CHANCERY.  Ml 


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, 
lBm\ 

^  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 
flefe* 

-  '^bt  dsuse  tras  argned  by  Henry  and  Van  JSireni  (br the  •V<»9.  lotftand 
phiitttHrr  andby  Van  Vtchtm  and  E.  WiOiam,  for  the  de-  **^  "^^^ 
"ftlidanCr. 

^^  '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 


SMft  tIASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY. 

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^ 


WOOB. 


244^  CASES  IN  CHANCERY. 

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. 


CASSa  IN  CHANCERY.  2AB 

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 


246  GASES  IN  CHANCERY. 

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- 


CASES  IN  CHANCERY.  247 

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. 


Wood. 


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- 


248  CASES  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY. 

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? 


250  CASES  IN  CHANCfiKY. 

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. 


CASES  IN  CHANCERY.  26^ 

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* 


262  CASES  IN  CHANCERY. 

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. 


CASKS  IN  CHANO£RY.  S5S 

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 
settlers. 

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, 


254  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERT.  2Mr 

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 


2tf6  CASES  IN  CHANCERY. 

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." 


CASES  IN  CHANCERY.  $4t 

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 
party. 

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. 


aS3  CASES  IN  CHANCERY. 

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^ 


Xju>op 


Wood. 


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. 


CASES  IN  CHANCERY.  2S$ 

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? 


teO   *  CASES  IN  OHAKCERT. 

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 

Wood. 


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 ; 


CASES  IN  OHAKCCRT.  Ml 


^ 


WOOB. 


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, 


CASES  IN  CHANCERT. 

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.  S.to  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- 


CASES  IK  CHANCERY. 

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 


9if4  CASES  IN  CHANCERY. 

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 
dollars. 

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 


CASES  !N  «HAKC£RY.  MS 

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 
dollars. 

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 


206  CASES  IN  CHANCERY. 

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  that.it  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 


CASES  IN  CHANCERY.  367 

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 


MC  CASES  IK  CHANCERY. 

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 


GASES  IN  CHANCfiRY^  366 

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 
hinu 

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- 


270  CASES  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY.  271 

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 
rehearing. 

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  possession  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, 


272  CASES  IN  CHANCERY. 

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 


CASS3  IN  CHANCERY.  ^| 

•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 


274  CASES  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY.  3!7B 

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. 


Sn  CASiS  IN  CHANCERT. 

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 
bowey. 

•  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* 


OASES  IK  CH'AKCIRT.  mi 

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. 


S(78  CASES  IN  CHANCERY^ 

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 


CASES  IN  CHANCERY.  2t9 

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- 


GA6ES  IN  CHANCERY. 

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.'* 


CASES  IN  OHANCERT. 


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  testatoTfrom  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 


/ruX^J^ 


^•JL 


Smith 

V. 

.Smith. 


282  CAS£S  IN  CHANCERY. 

.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 


h 


CASES  IN  CHANCERY. 

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 


284  CASES  IN  CHANCERY. 

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 


CA8BS  IN  CHANCERT.  985 

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 
reqeaa,  wiomBy  to  rtmain  ioagcr  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 
arise. 

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 


CASES  IN  CHANCERY, 

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. 

Exceptionsovermkd. 


CASES  IN  CHANCERY. 


The  Execui<nr$  of  Robert  T*  Liyinostoh  t^aiaut  John 

liXYINOSTON. 


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- 


CASES  tN  CHANCXRT. 

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- 
science.'* 

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- 


CASES  IN  CHANCERir. 

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 
conscience." 

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 


390  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY;  291 

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 


CASES  IN  CHANCERY* 

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 
Court. 

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- 


CASES  IN  CHANCERT«  298 

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. 


294 
1820; 


CASES  IN  CltANCERr. 


LivuiGSTOir 

V, 

LiVlHOSTOV. 


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- 

tiUedtoit. 

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 


CASES  IN  CHANCERY.  395 

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- 
tifi. 

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 


996  CASES  IN.  CHANCERY. 


jLlVlVOfTOV 
V. 

LivwQnow. 


,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 


CASES  IN  CHANCBRT. 

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 
cree. 

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 


K  CASES  IN  CHANCERT. 

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* 


CASES  IN  CHANCSAT. 

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. 


IBOL 


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 


302  CASES  IN  CHANCERY. 

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: 


CASES  IN  CHANCERY. 

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, 


3M  GASES  tH  C»AKeERY. 

1820.'      99  cents,  an4  clmrged  the  defaidants  Mtfa  interest  en  liM^ 
net  proceeds  <^the  sales  by  them,  ef  certain  bonses  and  lots 


0ROWV 


.  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 
law." 

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^ 
siccurate. 


V. 

Rickets, 


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 


306  CASES  IN  CHANCERY. 

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- 


CASES  IN  CHANCKRT.  307 

^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 


V. 


308  CASES  IN  CHANCERY; 

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 


CASES  !N  CHANCERY.  i»» 

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  •       ■         ' 

V. 

Raolby« 

■  Sbatvr  aad  others  fi^mtuf  Rai>l«t  and  ofbers. 

•  » 

If » IttMtee  by  impikatkm ,  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* 

A 


^V- 


^^^^^nC-^orfiZ^ 


CkSES  W  CHANCERY.  3» 

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- 


^Lo^ 


CASES  IN  CHANCERY.  313 

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 


314  CASES  IN  CHANCERT. 

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 


CASES  IN  CHANCERY.  315 

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 


816  CASES  IN  CHANCERT. 

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 


CASES  IN  COUNCERY.  317 

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. 


dl8  CASES  IN  CHANCERT. 

1820. 


DUMOKD 
V. 

^°"'      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 


CASES  IN  CHANCERT.  31» 

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 


CASES  IN  CHANCERY. 

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 
''blood* 


CASES  IN  CHANCCRY.  321 

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* 
culty. 

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 
directed. 

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 


CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  323 

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 


Masbc. 


324  CASES  IN  CHANC£RY. 

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 
estate. 

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 


CASES  IN  CHANCERV. 

I 

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 


326  CASES  IN  CHANCERY. 

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»* 


CASES  IN  CHANCERY.  327 

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 


328  CASES  IN  CHANCERY. 

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*' 
tiff." 


BIASES  IN  CBANCEl^Y. 


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* 
ced. 


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« 


330  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  331 

£.  ^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 


332  OASES  m  CHANCERY. 

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 


CASES  IN  CHANGERY.  S38 

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 


334  OASES  IN  CHANCERY. 

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 
debtors. 

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 


CASES  IN  CHANCERY:  336 

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 


336  CASES  IN  CHANCERT^ 

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. 

1819. 

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 


CASES  IN  CHANCERY.  3S7 

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 


338  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY. 

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 


340  CASES  IN  CHANCKIY. 

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 
fVencAlaw. 

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- 


342  CASES  IN  CHANCERY. 

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 
amount 

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. 


CASES  IN  CHANCERY. 


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 


344  CASES  IK  CHANCERY. 

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- 


CASES  IN  CHANC£KT.  S4fi 

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 


346  CASES  IN  CHANCERT. 

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.  &• 


CASES  IN  CHANCERY.  347 

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, 


$48  CASES  IN  CHANCERY. 

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 


CASES  IK.  GHANCEKY.  349 

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 


2S0  CASES  IN  CHANCERY. 

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* 


CASES  IN  CHANCERY.  3fil 

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 
doctrine. 

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. 


CASES  IN  CHANCERY. 


l4BRor 

•V. 

^^^^!^^^,  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 


QASB5  IN  CHAWCBRY.  35^ 

^.    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 


364  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  355 

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 

V. 

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 


^  CASES  IN  GHANCGRT. 

'^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 


358  CASES  IN  CHANCERY. 

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 
annually. 

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 


CASES  IN  CHANCERY.  369 

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 


-hjif 


1 


36»  C49e»  iN  GHANCBRT. 


GOUTBBITEU* 


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 
answered. 

The  Defendant^  in  propria  penona^  ii|  support  of  the 
motioiL 

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 


Elmiiidobv. 


CASES  IN  CHANCERY.  361 

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 


set  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  M» 

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. 


364  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  965 

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 

WOOLSET. 

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 
premises. 


M  CASES  IN  CHANCianr. 

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 
sale. 

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 


OASES  IS  CHANCERY. 

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. 


CASES  IN  CHANCERY. 


BSR«KK 

V. 

DlTFV. 


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 
attorney. 

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- 
ment. 

The  defendant,  in  his  answer,  admitted  all  the  material 


CASES  IN  CHANCERY. 

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 


370  CASES  IN  CHANCERY- 

1820.  The  agreement  was  not,  therefore,  a  dae  execntioii  of  the 

S-^^v^^    power  under  the  will,  and  the  bill  must  be  dismissed  with- 

SltVERLlKX     ■ 

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 
business. 

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- 


CASES  IN  CHANCERY.  371 

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 

proofs. 


S72  CASES  IN  CHANCERY. 

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* 


CASES  IN  CHANCERY.  373 

•onable  and  rnijost,  to  deny  ihem  that  {Nrivilege.    They      1820« 
might  wdl  exclaim^ 


Qjuod  genui  hoc  hominum  ) 


Silver  Lakt: 
3avk 


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- 


374  CASES  IN  CHANCERY. 

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- 
jections. 

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. 


CASES  IN  CHANCERY.  375 

1820. 

BOWEH 
V. 

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 
overruled. 

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 
filed. 

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 


V. 

Cross. 


376  CASES  IN  CHANCERY. 

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.)  ^ 


CASES  IN  CHANCERY.  877 

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 


378  •    CASES  IS  CHANCERY, 

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  to.be  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- 
faot. 

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 


CASES  IN  CHANCfiRt.  3»« 


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 
ofiered. 

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 


99Q  CASES  IN  CHANCERY, 

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. 


CASES  ta  OHANCERT. 


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 
after. 


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^&« 


CASES  IN  CHANCERT. 

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. 

RXRWICK. 

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^ 
troL" 


CASES  IN  CHANCERY.  383 

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, 


384  CASES  IN  CHANCERT. 

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 


Btirwic*. 


CASES  IN  CHANCERY.  SM^ 

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^ 


lUvwicx. 


386  CASES  IN  CHANCERT. 

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 


CASES  IN  CHANCERY.  SST 

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^ 


)88  CASES  IN  CHAKCERT. 


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 
deoiee. 

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 


CASES  IN  CHANCfiRT. 

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 


390  CASES  IN  CHANCERY. 

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 
proofi. 

The  cause  was  argued  by  T.  A,  Emmct^  and  P.  J. 
MinrOj  for  the  plaintiffs,  and  by  Harisan  and  Welb^  for  the 
defendants. 

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 


CASES  LV  CHANCERY.  391 

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 


382  CASES  IN  CHANCERT* 

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 


CASES  IN  CHANCERT.  393 

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^ 
cified. 

The  observation  of  Lord  Hardioicke^  that  the  real  and 

Vol.  IV.  50 


6M  CASES  IN  CHANCERY. 

182d.       |i6i'soosd  Mate  being  comprised  in  the  samb  tweeping  dause, 
is  a  strong  argument  against  a  resulting  trust  to  the  heir  at 


K66EK9 


Roil. 


^.  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 


CASES  IN  CHANCERY.  OM 

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 


39$  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  307 

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 
will. 

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 
devisee. 

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 


CiSra  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY.  S99 

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 
for. 

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; 


400  CASES  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY.  401 

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! 


402  CASES  IN  CHANCERT.      • 

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 


CASES  IN  CHANCERY.  403 

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 


4M  CASES  IN  CHANCERY. 

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. 


CASES  IN  CUANCERT. 


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^ 


406  CASES  IN  CHANCERY; 

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 


CASES  IN  CHANCERY.  407 

.  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- 


408 


CASKS  IN  OHANCERY. 


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 
cases. 

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 


CASES  IN  CHANCERY.  4Q& 

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- 
shaken. 

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 


410  CASES  IN  CHANCERY. 

1820.  THE  ^iH  stated^  that  the  plaintift  F^re  s^doiiaiflirator^ 

of  the  goods  and  chatteh  of  Stephen  Seymour^  d^ceasedi 


Seymour. 

fir 


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* 


412  CASES  IN  CHANCERY. 

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 
material." 

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. 


CASES  IN  CHANCERY. 

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- 


414  GASES  IN  CHANCERT. 

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 


CASES  IN  CHANCERY.  415 

•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 
Court* 

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 


416  CASES  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY.  417 

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 


418  *         CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY. 


419 


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 


▼. 

TOMPKIVS. 


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 
Stale. 

'(  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 


CASES  IN  CHANCERY. 

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 

TOHPKIVS. 


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. 


CASES  IN  CHANCERY.  421 

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 


4Sg  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY. 
ooUce  be  given  to  the  defendant  of  the  motion  for  an  in« 

V. 

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. 


424  CASES  IN  CHANCSRY. 


LlTIRGSTOir 
TOMPXIHS. 


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 


fASES  IN  CHANCERY.  42S 

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 
there. 

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 


4»  CASES  IN  CHANCERlf. 

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 


CASES  IN  CHANCERY.  433 


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- 
said. 

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- 


428  CASES  IN  CHANCERY. 

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^ 


CASES  IN  CHANCERY.  429 

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- 


430  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  I    4^1 

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 
hew. 

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 ; 


432  CASES  IN  CHANCERY. 

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- 


CASES  IN  CHANCERY.  433 


Liviir«BToa 

V. 


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* 
tion. 

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 


CASKS  IN  CHANCERY.  43^ 

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 


436  CASES  IN  CHANCfiRY. 

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 


CASES  IN  CHANCERY.  437 

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- 
feiture. 

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 
argument. 

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 


Hood 

V. 


438  CASES  IN  CHANCfERY. 

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- 
port. 

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/^ 


CASES  IN  CHANCERY.  439 

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* 

lea.) 

'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, 


440  CASES  IN  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. 


CASES  IN  CHANCERY. 


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 
grounds. 

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 


442  CASES  IN  CHANCERV. 

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. 


CASES  IN  CHANCERY.  44S 

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 


444  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  445 

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 
unfounded. 


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. 


CASES  IN  CHANCERY. 
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 
respoifsible. 

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, 


CASES  IN  CHANCE&T.  447 

(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 


448  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  449 

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 


CASES  IN  CHANCERY. 

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, 


OASES  IN  CHANCERY.  451 

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-^ 


CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  453 

property  in  the  ordinary  course  under  the  existing  reme-      1820. 
dies. 

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 


454  CASES  IN  CHANCERY. 

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 
reversion. 

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 


CASES  TN  CHANCERY.  455 

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. 


456  CASES  IN  CHANCERY. 

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^ 


6ASES  I^  CHANCERY.  457 

^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 


ASS  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  ifitl 

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- 


460 


1820. 


CASES  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY.  461 

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 


463  CASES  IN  CHANCERY. 

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- 


CASES  IN  CHANCERY.  463 

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^. 


464  CASES  IN  CHANCERY. 

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. 


RxMSEir. 


CASES  IN  CHANCERY.  465 

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 
debtors. 

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 


466  CASES  IN  CHANCERY. 

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\ 
against 


'^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 


/0. 


^^6CA^ 


CASES  IN  CHANCERY.  AIM 

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 


468  CASES  IN  CHANCERY. 

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^ 
558.) 

(2.)  That  the  English  assignees  had  a  goodright  to  demand, 
sue  far,  and  recover  the  debt  from  the  defendants,  in  the  man* 


CASES  IN  CHANCERY.  469 

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- 
cality." 

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. 


470  CASES  IN  CHANCERY. 

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- 


CASES  IN  CHANCERY.  471 


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. 


472  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY,  473 

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 


474  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANC£RT.  475 

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- 
tains. 
Again,  in  Jolkt  v*  Dqfonthieumd  BarUy  which  arose  be- 


476 


CASES  IN  CHANCERY. 


1820. 


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- 


CASES  IN  CHANCERY.  477 

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." 


478 


CASES  IN  CHANCERY. 


1820. 


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 


CASES  IN  CHANCERY. 


479 


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- 


tbe 


Adopted  bj 

common 

in 


131. 


480  CASES  IN  CHANCERY. 

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. 


CASES  IN  CHANCERY.  481 

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 


482  CASES  IN  CHANCERT. 

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^ 


CASES  iN  CHANCERY. 

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 


434  CASES  IN  CHANCERY. 

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 


CASES  IN  CHANCERY.  485 

GrameTf  due  to  the  bankrapts  before  their  failure.  The  at-  1820. 
tachmeDt  was  laid  subsequently  to  the  issuing  of  the  English 
commission ;  and  the  question  arose  in  the  city  Court  at 
Dunkirky  between  the  English  assignees  of  the  bankrupts, 
and  the  French  attaching  creditor,  which  had  the  better  title 
to  the  money  in  the  hands  of  JDe  Gravier^  the  garnishee. 
The  cause  was  heard,  and  received  mature  deliberation ; 
it  was  declared  that  the  assignees  were  entitled  to  the  money, 
and  that  the  attachment  be  dissolved,  and  the  French  credi- 
tor was  even  condemned  to  pay  the  costs.  The  opinions  of 
two  advocates  of  the  Parliament  of  Paris^  had  been  previ- 
ously taken  by  the  Efiglish  assignees,  which  opinions  are 
subjoined  to  the  case;  and  they  agreed  that  the  FreitcA 
creditor  was  not  entitled,  in  consequence  of  his  attachment^ 
to  any  privilege  or  preference  over  tlie  general  creditors, 
but  must  tak6  his  rateable  dividend  under  the  English  com- 
mission. In  one  of  these  opinions,  dated  at  Paris,  4th  De- 
cember, 1778,  and  given  by  JIf.  BabiUey  it  was  observed, 
diat  the  laws  of  commerce  were  a  branch  of  the  law  of  na- 
tions, and  that  the  property  of  an  insolvent  debtor,  where«> 
ever  it  maybe  found,  was  the  common  pledge  of  all  his  cre- 
ditors, whether  natives  or  aliens;  and  that  personal  proper- 
ty followed  the  person  of  the  owner,  and  was  governed  by 
Ae  laws  of  the  place  where  he  resided.  Commercial  con** 
tracts  were  to  be  governed  by  the  universal  law  of  nations ; 
non  erit  lex  alia  /2om<B,  alia  Athtenis. 

It  is  admitted  in  every  case,  that  foreign  assignees,  duly 
appointed  under  foreign  ordinances,  are  entitled,  as  such,  to 
sue  for  debts  due  to  the  bankrupt's  estate.  So  far,  says 
Lord  iCenyofi,  in  Smith  v.  Buchanan^  (1  East^  6.)  we  give  Lord  f<se 
effect  to  foreign  laws  of  bankruptcy,  on  the  ground,  |i|^|  y^'^'^P*'^^ 
personal  property  mast  be  governed  by  the  laws  of  the 
country  where  the  owner  was  domiciled.  This  is  a  recog- 
nition of  their  title,  and  an  admission  of  the  substitution,  as 
made  by  the  lex  lod ;  and  it  seems  difficult  to  make  a  dis- 


486  CASES  IN  CHANCERY. 

1820/  tiDction  between  its  validity  for  this  purpose,  and  not  for 
eveiy  other  reasonable  purpose  of  securing  the  bankrupt's 
effects.  But  there  is  an  inconsistency,  as  it  has  been  alleged, 
in  the  practice  on  this  subject,  which  gives  effect  to  the  as- 
signment, and  will  not  ^ve  effect  to  the  bankrupt's  certifi- 
cate of  discharge.  Lord  Talbot^  as  long  as  a  century  ago, 
{Cookers  B.  LawSf  347 — Beawes'  Lex  Mer.  6th  ed.  516.) 
complained  of  this  inconsistency ;  and  while  he  admitted  that 
the  assignment  carried  with  it  the  bankrupt's  effects  abroad, 
he  thought  it  would  be  reasonable  that  the  certificate  should 
be  co-extensive  in  its  operation  with  the  assignment.  The 
Opioionuco  Court  of  Session,  in  Stein*$  case,  went  the  whole  length  of 
£e  ^entim  declaring  that  a  certificate  obtained  under  an  English  com- 
^te^oT^e  mission,  operated  as  a  discharge  of  the  debts  of  the  Scotch 
b^^pftvsdit-  ^|^||Qf3^  proveable  under  the  commission.  Admitting  that 
there  is  a  want  of  harmony  between  the  parts  of  the  sys-^ 
tern  of  rules  on  this  subject,  it  will  not  affect  the  binding 
force  of  the  rules,  taken  separately,  that  the  assignment  does 
carry  all  the  personal  property  of  the  bankrii^t,  wherever 
situated;  and  that  the  certificate  is  no  bar  to  a  foreign  cre- 
ditor, who  does  not  come  in  under  the  commission.  Sup- 
pose the  debtor,  independent  of  the  statutes  of  bankruptcy, 
or  in  a  case  were  they  did  not  apply,  or  in  a  place  where 
they  did  not  exist,  had  made  a  general  assignment  of  all  bis 
effects  to  trustees,  for  the  benefit  of  all  his  creditors,  it  would» 
no  doubt,  have  been  a  good  and  valid  assignment,  and 
have  carried  all  his  effects;  but  it  would  not  have  been 
a  bar  to  the  suits  of  those  creditors  who  did  not  come  ia  and 
take  their  share  of  the  property  upon  his  terms.  The  a»: 
sigHment,  however,  would  have  carried,  in  eqiuty,  ^.his  f<h 
reign  debts,  and  prevented  a  subsequent  attachmeat  of  thenv 
In  Letm  v.  WaUis,  (Sir  T.  Jones,  iSS.)  the  K.  B.  beU^  thai 
after  the  assignment  by  A*  to  J3*,  of  a  debt  due  to  ^ik  from 
C.y  it  became  the  right  of  property  of  B^  and  «f .  bad  no 


CASES  IN  CHANCERY.  481 

interest  in  it,  but  as  a  trustee  for  B.,  and  the  debt  was  no       1820. 

longer  liable  to  a  foreign  attaduneot,  as  the  debt  of  t^*    It 

is  a  very  clear  proposition,  that  a  voluntary  assignment, 

made  bonafide^  by  a  debtpr  for  the  payment  of  bis  debts,  is 

valid,  and  founded  on  a  valuable  consideration,  and  will     A  r>oiHnUiry 

*  '  aasigDiiieBc 

operate  upon  bis  foreign  debts,  and  preclude  a  subsequent  b^f^/^^^ 

attachment  of  them.    These  rules,  which  may  be  apparent-  J"  ^J.^^; 

ly  conflicting,  rest  on  very  different  principles,  and  which  are  nefit  of  all  his 

sufficient  to  sanction  each  of  them,  in  their  diversity.   We  are  li^i  »d'  wui 

'  '  pass  debts  due 

bound  to  give  effect  to  the  assignment,  because  it  is  equiva-  <o  him  ia  fo- 
lent  to  a  voluntary  act  of  the  party  over  his  own  property,  tries. 
or  because  the  property  is  supposed,  by  a  fiction  of  law,  to  signmeot  an^ 
be  attached  to  his  person,  and  to  be  within  his  domicil,  or  rvpMawofhis 
because  we  are  bound  to  do  so  by  the  comity  of  nations,  b^^^'^lf^s 
Bankruptcy,  said  Lord  Mansfield,  in  Wadham  v.  Marlowy  ^hlSi??'^ 
(1  H.  Blades.  437.  note.    8  East,  314.)  is  an  act  done  by  JgdTtirjS 
the  bankrupt  himself,  and  he  is  liable,  on  his  covenant,  S^STof*^ 
for  rent,  equally,  as  if  the  assignment  was  voluntary,  in  JJE  Ws  ^"pw! 
contradisdnction  to  its  being  required  by  law.   Every  man's  ^"^^  K^Sfsii 
assent  is  to  be  presumed  to  a  statute.    The  same  principle  wJjeS'Vuk^^'f 
was  advanced  by  Ch.  J.  Parsons,  in  Goodwin  v.  Jones,  (3  ^^^^^^ 
Tyng,  517.)  when  he  considered  the  assignment  under  the  .^  ^J^edla 
bankrupt  laws,  as  the  party's  own  act,  since  it  was  in  exe-  ^SStTa^^lS* 
cation  of  laws  by  which  he  was  bound,  and  since  he  volnn-  own^nfrv.'* 
tarily  committed  the  act  which  authorized  the  making  of  it. 
Voet  (Com.  ad  Fond.  38.  17.  34.)  states  either  of  two 
grounds  as  sufficient  for  the  rule  of  distributiop  of  the  intes-p 
tale's  eflects,  according  to  the  law  of  his  domicil  y  re)  quic^ 
semper  domino  prcueniia  essefinguntur,  vd  d^  cofniiaiey  pas-, 
sian- usu  inter  gentes  recepia.    It  is  immaterial,  for  the  pre- 
sent purpose,  on  which  principle  ^e  give  effect  to  the  title  of 
the  foreign  assignee.     Either  is  n  stable  and  sufficient 
ground,  and  has  no  application  to  the  other  qaestion,  wbe>* 
dier  the  foreign  certificate  should  cancel  the  debt  of  a  credit 
tor  who  is  not  a  subject  of  the  foreign  government)  and  baa 
^  given  no  assent  to  the  proceeding. 


488  CASES  IN  CHANCERY. 

1820.  The  attachment  act  onder  which  the  plaintifis  derive  their 

character  as  trustees  of  the  English  bankrupt,  reaches  to  all 
the  estate,  real  and  personal,  of  the  bankrupt ;  and  credi- 
tors residing  out  of  the  state  are  specially  declared  to  be 
creditors  «rithin  the  act.  The  provisions  of  it  are  very 
comprehensive ;  and  I  entertain  no  doubt,  that  if  the  attach- 
ment and  appointment  of  trustees  under  this  act,  had  been 
first  in  time,  and  the  proceedings  had  been  consummated, 
without  any  interruption  or  supersedeas  on  the  part  of  the 
debtor,  the  title  of  the  trustees  would  have  been  recognised 
in  all  the  English  Courts,  as  controling  the  personal  pro- 
perty there.  In  that  case,  the  place  of  distribution  of  the 
funds  would  have  been  here,  and  not  in  London. 
Obseirationfl      Duriuff  the  examination  of  this  question,  I  have  not  been 

on  the  caw  of  °  .  ^  ' 

f''^'^  dcddS  >"***«otivc  to  the  case  of  Milne  v.  Moreton,  (6  Binney^  353.) 
^y'  ?*  Court  ^^'^^  '"  *®  Supreme  Court  of  Pennsyhama^  in  1814, 
of  pen;ngyiva*  s^qJ  which  gave  to  their  own  attaching  creditor  a  preference 
over  the  title  of  the  En^ish  assignees,  under  a  prior  as- 
signment. I  have  examined  that  case  with  great  care,  as  well 
from  respect  to  the  character  of  the  Court,  as  for  the  able 
discussion  which  it  contains ;  and  I  can  only  be  permitted 
to  say,  that  from  the  view  which  I  have  taken,  and  the  im- 
pressions which  I  have  received  of  the  law  on  the  subject, 
it  is  not  in  my  power  to  follow  the  conclusion  of  the  majo- 
rity of  that  Court.    Considerable  reliance  seems  to  have 
been  placed,  in  that  case,  upon  the  decision  of  the  Suprsne 
And^on  «h«  Court  of  the  United  States^  in  Harrison  v.  Sterry;  (5  Cranch^ 
*^««  Thc'^s^"  ^^0  ^'^^  '  ^^  "^^  disposed  to  controvert  the  position,  that 
^^^u^uA  *"  ^^^  distribution  of  bankrupts'  efiecU  in  this  country,  the 
Slates.  United  States  are  entitled  to  a  preference ;  because,  this  prefe- 

rence is  given  by  a  positive  law,  and  the  attaching  credi* 
tors  were  likewise  entitled  to  a  preference,  if  theur  attachment 
was  prior  to  the  assignment  under  the  British  commission. 
But  the  latter  part  of  the  decree  touching  the  distribution  6f 


CASES  IN  CHANCERY.  4Q» 

the  swrpfau  fitod  wants  explanation ;  and  we  do  not  know 
liie  grottods  of  the  decision.  It  is  never,  however,  to  be 
presamed,  that  any  Court  intends  either  to  establish,  or  re* 
ject  a  litigatedipoint  of  law,  of  great  importance,  merely  by 
a  dry  decision,  unaccompanied  with  argument  or  illustra- 
tion. 
The  case  before  me  has  one  strong  and  pecaliar  feature.  JJ/®JJ™?* 
*  There  was  not  only  the  ordinary  and  regular  assignment  J^'^^'th^ 
by  law  under  the  Britiih  bankrupt  system,  but  there  was  hS^'^MWHiee? 
also  a  concurrent  and  separate  assignment  by  the  bankrupt  ^^  ^  "^ 
to  the  same  assignees,  upon  the  like  trust,  of  all  his  personal  JSJ^'bMivS^t 
property  "  not  being,  arising,  or  growing  in  England ;"  and  *i'J{y^o2t*'^ 
we  have,  therefore,  the  benefit  of  a  voluntary  assignment  ^ougfaTlt  may 
(as  contradistinguished  from  that  under  the  sutute,  and  caM°§nb^  fo! 
which  operates  in  inmium)  by  the  act  of  the  bankrupt  him«'  h^^*"i£kS 
self.  This  seems  to  have  been  done  for  greater  -  caution,  °nthf*geMna 
and  to  meet  the  difficulty  that  might  arise  as  to  the  recep-  ^^h^^flectis 
tioD  of  the  statute  assignment,  on  this  side  of  the  Atlantic.  {^•^■•jJJ^'tran*- 
This  would  seem  to  have  removed  every  obstacle  in  the  [•'"""•^ty 

*^  himielf,  or  mr 

case.    But  I  do  not  place  much  reliance  on  the  distinction,  ^  .^7  ^  «« 

*  ^  '  domicil,      ipr 

and  it  does  not  appear  to  me  to  make  any  difference  in  the  ^ow 
application  of  the  principle,  whether  he  made  the  transfer 
himself,  or  the  law  of  his  domicil  for  him.  It  is,  in  either 
case,  in  contemplation  of  law,  his  act.  The  act  of  bank- 
ruptcy was  his  act,  and  the  law  of  his  land,  by  which 
he  was  bound,  operating  upon  that  act,  worked  the  transfer. 
There  was,  therefore,  no  longer  any  debt  due  to  him  in  this 
state,  upon  which  the  subsequent  title  of  the  plaintifis  could 
attach. 

I  am,  accordingly,  of  opinion,  that  whether  we  consider 
the  recovery  of  the  debt  in  question  under  the  foreign  at- 
tachment, or  the  prior  assignment  of  it  with  the  property  of 
the  bankrupt  under  the  English  commission,  the  plaintiffs 
have  no  equitable  claim  to  it,  and  the  bill  must,  consequent- 
ly, be  dismissed.    As  the  parties  are  all  before  the  Court  in 

Vol.  IV.  62 


49t  CASES  IN*  CHANCERY. 


NnURSB 
V 

Frimic. 


1620.      a  representative  character,  and  have  been  litigatiag  i 

and  important  qnestions,  without  any  imputation  of  muh 
coudoct,  I  shall  dismiss  the  bill  without  costs. 


Decree  accordingly.. 


NouHSE  against  Prime,  Wabb,  and  Sands. 

The  defendaDts,  bein^  stock  and  excbangfe  broken,  in  tbe  cooree  of 
their  business,  receiired  of  the  plaintiff  430  shares  of  United  Staled 
bank  stock,  and  which,  it  was  a^^ed,  in  February^  1818,  that  they 
shoold  hold,  as  oollateral  security  for  the  payment  of  a  note  giren 
to  them  by  the  plaintiff,  for  advances  to  him,  and  payable  on  the 
lOlb  of  January.  1819,  and  that  they  should  be  at  liberty,  in  case 
tbe  note  was  not  paid,  at  the  time,  to  make  immediate  sale  of  tbe 
stock,  accounting  to  the  plaintiff  for  any  surplus,  and  hoUJiBg  him 
responsible  for  any  deficiency.  The  shares  of  the  plaintiff  were 
not  marked  or  identified  as  his  particular  property,  or  kept  sepa- 
rate and  distinct,  but  were  blended  with  tbe  mass  of  shares  of  the 
same  stock,  held  by  the  defendants,  'beloqging  to  themselves,  and 
in  trust  for  others :  Ife/d,  that  as  the  defendants,  at  all  times,  since 
the  giving  of  tbe  note  by  the  plaintiff,  were  possessed  of  shares 
standing  in  their  names,  and  under  their  absolute  and  rightful  con- 
trol, and  subject  to  no  contract,  to  an  amount  far  exceeding  the 
number  of  tbe  shares  so  deposited  with  them,  by  tbe  plaintifis,  and 
were  ready  and  able,  at  any  time,  to  transfer  the  430  shares  to  tbe 
plaintiff,  on  payment  of  the  note,— they  were  not  bound  to  acoouot 
to  the  plaintiff,  fur  bis  stock,  at  the  kighut  pricey  at  which  shares 
were  s6ld  by  them  at  any  time  during  that  period ;  but  that  the  like 
number  of  shares,  held  by  the  defendants  when  the  note  became 
due,  were  to  be  oonaidered  as  the  shares  so  deposited  by  the  plain- 

.  tiff;  and  which  the  defendants  were  at  liberty  to  sell  according  to 
tbe  agreement,  to  reimburse  the  amount  of  tbe  note,  which  remain-^ 
ed  unpaid. 

Jiai0  20th  and      THE  defendants,  who  are  stock  and  excbanire  brokers 
in  tbe  city  of  J^ew^York,  and  had  purchased  shares  of 


CASES  IN  CHANCERY*  481 

Untied  SkOei^  baok  stock  for  the  plaintifi;  and  had  recelr-      1820. 
ed  a  traot&r  of  other  shares  for  the  plaintiff,  making  to- 
gether foar  haodred  and  thirty  shares  id  their  hands..    On 
the  6th  o(  February^  1818,  they   rendered  to  the  plaintiff  a 
general  account  of  their  transactions,  in  which  a  balance 
was  found  doe  to  them  from   die  plaintiff,  of  53,9 17   dol- 
lors,  15  cents,  for   which   the   plaintiff  agreed    to  give  his 
^  note  to  the  defendants ;  and  the  plaintiff  accordingly  gave 
to  the  defendants  his  note  for  54,200  dollars,  including  cash 
advanced  to   him,  of  282  dollars,   95  cents,  payable  on 
the  10th  of  January,  1819,  with    interest  at  7  per  centum, 
payable  half  yearly.    The  defendants   retained  the  430 
shares  of  stock  in  their  bands,  as  collateral  security  for  the 
payment  of  the  note,  and  gave  to  the  plaintiff^  receipt,  as 
follows :  ^'  We  acknowledge  to  hold   430  shares  of  llnUed 
States'  bank  stock,  as  collateral  security  for  the  payment  of 
the  said  note,  dated  the  24th  o{  December  h$ij  for   54,200 
dollars,  payable  on  the  10th  of  January  next,  with  interest, 
at  7  per  cent.,  be  on  the  payment  of  which  note  and  inter- 
est we  engage  to  re-transfer  the  said  430  shares  to  the  said 
Charles  L  Jfourse^  or  his  order,   accounting  with  him  for 
the  dividends  that  shall  become  payable  on  the  same ;    and 
in  case  the  note  and  interest  are  not  duly  paid,   we  are  at 
liberty  to  make  an  immediate  sale  of  the  said  shares,  ac- 
counting with   him  for  any  surplus,  and  holding  him   re- 
sponsible for  any  deficiency.    NevhYork,  11th  of  JPe&nia- 
ry,  1818.^^    The  bill   charged  that  the  defendants  did  ob- 
'tain  or  might  have  obtained  certificates  from  some  proper 
officer  of  the  bank,  distinguishing  and  identifying  the  said 
shares,  as  the  proper  shlu^  of  the  plaintiff;  and  might  and 
ought  to  have  guarded   against  the  casualties  and   misfor- 
tunes of  trade,  by  endorsing  the  name  of  the  plaintiff,  or  by 
potting  some  distinguishing  mark  on  such  certi  uates,  dcr 
stgnating  the  same  as  the  property  of  the  plaintiff,  and  to 
prevent  the  said  shares  from  being  mixed  in  a  common  und 
with  6ther  shares  of  the  Unimd  States^  stock  which  thade^ 


4d2  CASES  IN  CHANCKRf . 

1890.  fendaau  may  have  held  on  their  own  acctfttnt,  or  at  ttus- 
tees  for  others.  The  bill  further  charged,  thai  the  defend* 
ants,  daring  the  year  1818,  having  ako  in  their  hands  a 
kirge  number  of  shares  of  the  said  stock,  held  together  in 
trust  for  various  persons,  and  on  their  own  accounts,  and  as 
agents  for  others,  speculated  in  the  said  stock,  by  selling 
and  buying  shares,  as  the  price  in  the  market  rose  or  fell, 
and  did,  at  divers  times,  during  the  year  1818,  scH  aU  the 
said  shares  belonging  to  the  plaintiff,  at  a  great  advance, 
without  the  knowledge  or  consent  of  the  plaintiff,  and  re- 
ceived  therefor,  65,600  dollars,  Szic. :  and  at  one  time  during 
the  said  period,  had  not  in  their  hands  any  shares  of  the 
said  stock,  or  at  least,  not  equal  to  the  number  of  shaiea 
belonging  to  the  plaintiff.  That  at  the  close  of  the  year, 
when  the  price  of  the  said  stock  had  become  greatly  de- 
pressed)  in  order  to  realize  the  profit  to  themselves,  on 
sales  so  made  by  them,  in  breach  of  trusty  &ic.  tbey  did,  on 
the  14th  of  December,  1818,  write  to  the  plaintiff,  that  his 
note  would  fall  due  in  January ^  and  ofiering  tx>  estend 
the  payment  of  forty-three  thousand  dollars  of  the  amount, 
retaining  the  shares  as  their  security,  &ic.  The.  bill  Iw- 
ther  charged,  that  the  defendants  could  fiot  exonerate  them- 
selves as  trustees  to  the  plaintiff  and  others,  by  alleging, 
that  they  would  have  replaced  the  430  shares  of  the  plaii»* 
tiff,  out  of  a  common  and  mixed  fund,  which,  by  repealed 
breaches  of  trust  committed  against  the  plaindfi^  they  had 
rendered  totally  inadequate  to  the  performance  of  the  trusts 
committed  to  them,  and  with  which  that  fund  was  conneO* 
«d,  and  could  not  have  replaced  the  shares  of  the  plainlj/9^ 
without  committing  similar  breach^  of  trust  towards  some 
titber  persons.  That  if  the  defendants  have  mixed  the 
shares  of  the  plaintiff  with  other  shares,  or  have  neglected 
to  take  proper  vouchers  to  identify  the  shares  of  the  plain- 
tiff, they  have  acted  contrary  to  their  duty  as  trustees,  and 
subjected  the  plaintiff  to  the  risk  of  losing  his  shares  by  their 
insolvency.    That  the  defendants  ought,  therefore,  to  ac» 


cases' IN  CHANCERY.  .493 

QOnDt  to  tke  plaiDliff'  for  his  430  shares,  at  the  highest  rate  1820. 
at  wUcb  the  defendants  may  have  sold  any  shares  of  the 
United  SiaieM^  bank  stock,  at  any  one  or  more  times,  since 
the  11th  of  February,  1818,  amounting,  in  the  whole, 
to  430  shares,  as  well  as  for  the  dividends  which  accraed 
on  the  shares  so  sold.  That  the  defendants,  on  the  25th  of 
January,  1810,  sold,  at  the  then  depreciated  vaipe  of  the 
stopk)  430  shares  out  of  those  of  their  own,  held  at  that 
time,^  or  which  they  may  have  purchased  since  the  making 
of  the  note,  for  account  of  the  plaintiff,  and  as  and  for  his 
430  shares;  and  have  brought  an  action  at  law  on  the  note, 
against  the  plaintiff,  at  Boittm,  where  he  resides,  to  recover 
the  atteged  deficiency  between  the  amount  of  the  note  and 
interest,  and  the  amount  of  the  proceeds  of  such  sale. 
Prayer  for  a  discovery,  and  that  the  sale  of  the  25th  of 
JimtMry,  1819,  be  declared  null  and  void,  as  to  the  plaintiff, 
and  that  the  defendants  be  restrained  from  further  proceed^ 
ittg  at  law,  on  the  note,  &c. 

The  defendants,  in  their  annoer,  stated,  that  the  plaintiff, 
in  D0aimb0',  1817,  urged  the  defendants  to  extend  the  time 
of  cre4k  for  their  advances,  and  proposed  that  they  should 
have  the  entire  control  of  the  stock,  and  might  use  it  in  aid 
of  their  financial  operations,  and  that  his  sole  object  was  to 
secure*  to  himself  the  benefit  of  the  expected  advance  of 
price;  by  having  a  right  to  call  on  the  defendants  for  the 
fame  nomber  of  shares,  at  the  expiration  of  the  proposed 
period  of  credit,  which  proposal  was  agreed  to  by  the  de- 
fendants. That  it  was  not  the  practice  of  the  defendants  to 
take  out  certifitaie$  for  shares  of  stock  standing  in  their 
named,  until  they  wanted  to  use  them.  And  they  de- 
nied that  they  ever  did  take  any  certificates  to  identify  the 
430  shares  of  the  plaintiff,  or  were  ever  requested  to  do  sa 
That  the  plaintiff  well  knew  that,  according  to  the  course 
and  practice  of  doing  business  in  Uiis  respect,  there  was  not 
any  such  identification  of  the  shares.  They  denied,  that 
they  ever  did  sell,  pledge,  or  otherwise  dispose  of  the  whole, 


Am  CASES  m  CHANCfiRY. 

l8tM.  and  appropriations  as  the  exigencies  of  their  business  and 
engagements  reqnfavd ;  yet,  it  avers,  that  there  was  no  time, 
during  the  year  1818,  in  which  they  wene  not  possessed  of 
shares  standing  in  their  own  names,  at  their  absohite  and 
fighiful  control,  sttfaject  to  no  contract  of  sale,  to  an  amount 
&r  exceeding  the  shares  deposited  by  the  plaintiff;  nor  was 
there  any  moment  at  which  they  would  not  have  been  vcady, 
and  willing,  and  able,  and  rightfally  aUe,  without  any  breach 
of  trust  to  others,  to  have  transferred  the  said  shares  to  the 
fdaintiff,  upon  payment  of  his  note.  What  colour  of  equity, 
then,  has  the  plaintiff  to  call  on  the  defendants  to  account 
for  the  sale  of  the  like  amount  of  shares,  at  the  Mghest  price 
obtained  during  that  year  f  Nothing  eouM  be  more  an«- 
reasonable  or  unjust  The  defendants  were  not  bound  to 
separate  430  shares  from  the  common  stock,  and  mark,  or 
otherwise  designate  them  as  the  separate  property  of  the 
plaintiff,  inasmuch  as  the  plaintiff  bad  left  the  shares  unde- 
fined, and  was  content  to  take  from  the  defendants  a  certifi- 
cate to  return,  generally,  ^*  490  shares  of  UnUed  SUUai^  bank 
stock.^'  it  is  sufficient,  under  this  contract,  that  the  defend- 
ants always  bad  the  requisite  quantity  of  shares  on  hand, 
and  the  law  will  presume  that  the  shares  so  on  hand,  from 
time  to  time,  wtre  the  shares  dqponled,  because  the  parties 
have  not  reduced  the  shares  to  any  more  certainty.  *  We 
must  take  the  contract  as  we  find  it,  and  are  not  bound  to 
enter  into  a  labyrinth  of  inquiry  and  accounts  to  see  if  we 
cannot  mend  it.  The  plaintiff  has  no  right  to  call  for  an 
account  of  the  profits  made  on  a  like  number  of  shares,  when 
the  defendants  always  had  a  sufficient  quantity  to  comply 
with  the  contract,  and  when  the  plaintiff  is  not  able  to 
point  out  which  were  his  shares. 

Pothier^  in  one  of  his  plain  and  familiar  illustrations,  sup- 
poses the  case  of  a  quantity  of  wheat  deposited  with  ano- 
ther, and  in  a  season  of  scarcity,  the  magistrate  coaapds  the 
bailee  or  creditor  to  bring  that  wheat  to  market,  and  sell  it, 
he  is  then  responsible  for  the  price  of  it,  which  become^  a 


CASES  IN  CHANCERY.  497 

sabsdtote  ibr  the  ^edgein  specie.  This  is  obviously  jast  1830. 
and  true }  but  hi  us  suppose  that^.  had  acknowledged  that 
heliad  100 -bushels  of  wheat  received  into  his  possession, 
MoDgbg  to  jB.,  and  which  he  held  as  a  coUaleral  security, 
mod  that  the  wheat  had  been  mtied  in,  and  constituted  a 
part  of  one  promisonous  heap  of  1,000  bushels,  in  which  A. 
wsas  constantly  trafficking,  and  that  all  this  was  in  the  view 
and  knowledge  of  the  parties,  at  the  time ;  would  not  A. 
have  a  right  to  continue  buying  and  selling  wheat,  and  be 
making  constant  additions  to,  and  constant  substractioos 
from  that  heap,  mihout  being  chargeabk  vM  tdUng  the 
Vfheat  of  B.J  so  long  as  he  always  had,  at  least,  100  busheb 
of  like  quality  in  his  granary,  subject  to  his  disposition  and 
control,  and  ready  for  £.  whenever  he  had  a.rij^t  to  de- 
mand it?  Most  certainly;  and  if  a  person  will  suffer  his 
property  to  go  into  a  common  mass,  in  this  way,  without 
having  put  a  mark  upon  it,  by  which  it  can  be  identified, 
he  clearly  has  no  right  to  ask  any  thing  more  than  that  the 
quantity  he  put  in  should  always  be  there,  and  ready  for 

-him.  By  just  fiction  of  law,  that  rutduum  shall  be  pre- 
sumed to  be  lie  pMicn  he  put  in.  It  may  as  well  be  that 
as  any  other  portion  of  the  heap,  and  he  has  no  right  nor 

f  means  to  gainsay  it. 

Injunction  dissolved. 


J.  MiNTURN  against  Seymour. 

Wbere  the  defendant,  in  bis  answer  to  an  injunotion  bill,  admits  the 
equitj  ef  the  bill,  but  sets  up  new  matter  of  defence,  on  whioh  he 
rdUes,  ihfi  injonction  will  be  continued  to  the  hearing. 

Equity  will  not  enforce  a  mere  voluntary  agreement,  not  valid  at  law ; 
especially  against  a  legal  claim  for  a  jost  debt,  and  where  there  is 
no  consideration,  nor  accident  or  fraud. 
Vol.  IV.  63 


498  CASES  IN  CHANCERY. 

1820.  BILL,  filed  Nimmbtr  8,  181 9,  stating,  that  in  Sg^^eta- 

^'^"'^^   her,  1814,  the  defendant,  at  the  request  of  the  plaintiff,  and 
▼.  W,  MfUum,  made  a  promissory  note  for  2,900  dollars,  pay- 

Sk¥mw».     ^y^  ^^  ^|j^^  ^^  order,  which  was  discounted  at  the  Bank  of 
June  soih,  MiB'Tork,  for  the  benefit  of  J.  fy  W.  M.    That  before  the 
note  became  due,  the  plaintiff  and  W.  M.  failed,  and  the 
note  was  protested  for  non-payment*    That,  in  .ATooem&er, 
1814,  finding  that  the  defendant  and  several  other  creditors, 
were  willing  to  release  the  plaintiff,  pranied  all  the  credi- 
tors would  do  so ;  the  plaintiff,  with  the  advice  of  the  de- 
fendant, had  a  release  drawn  up,  which  was  signed  by  all 
the  creditors  of  J.  fy  W.  Mintumy  and  among  the  rest,  by 
the  defendant.     That  this  release  was  an  absolute  discbarge 
of  /.  if  W.  M.  from  all  debts  and  demands,  and  was  so  in- 
tended to  be  by  the  defendant,  and  the  rest  of  the  creditors; 
and  was  executed  by  the  Bank  of  JVew-York,  and  the  Mer- 
chants' Bank,  under  their  corporate  sealSf  tliougb  it  was  stated 
in  the  body  of  the  instrument,  to  be  "  subscribed  by  our 
names,"  and  was  only  so  signed^  by  the  individual  creditors. 
That  it  was  a  mere  mistake,  and  inadvertence,  that  seals 
were  not  affixed  to  their  signatures.    That,  in  Aprils  1817, 
the  defendant  brought  an  action  at  law  in  the  Supreme 
Court,  to  recover  the  amount  paid  by  him  to  the  Bank  of 
JVeW'York^  on  the  note.     That  the  plaintiff,  at  the  trial,  ofier- 
ed  the  instrument  above  mentioned,  signed  by  the  defendant, 
in  evidence,  in  bar ;  but  not  being  under  seal,  it  was  decided 
not  to  be  a  release^  and  was  rejected  by  the  judge,  and  aver- 
dict  was  found  in  favour  of  S.,  the  plaintiff  in  that  action,  for 
836  dollars  and  69  cents.     That,  on  a  case  made  and  argued, 
the  Supreme  Court  afterwards  gave  judgment,  on  the  verdict, 
for  the  plaintiff,  iS.  (a)   That  the  seals  to  the  instrument  were 
,  omitted  by  mistake  ;  and  that  if  the  defendant  intended,  at  the 

time,  to  release  all  demands  on  the  plaintiff,  in  consequence  of 
the  note,  and  if  he  knew  that  a  seal  was  necessary  for  that  pur- 
pose, and  omitted  to  affix  it,  it  was  a  fraud  on  the  plaintiff, 

(m)  Vide  S.  C.  17  Johnt.  Rep.  160-176. 


CASES  IN  CHANCERY.  499 

and  the  banks  who  affixed  their  seals.    Prayer^  that  the  de-      1820. 
fendant  may  be  compelled  to  affix  his  seal  to  the  instrument, 
and  for  general  relief;  and  for  an  injunction  to  restrain  the 
defendant  from  taking  out  execution  on  the  judgment  so  ob* 
/tained  at  law. 

The  answer  of  the  defendant,  filed  March  18,  1820,  which 
denied  the  material  allegations  in  the  bill,  is  substantially 
stated  in  the  opinion  delivered  by  the  Court. 

Bunner  and  S.  Jones  now  moved  to  dissolve  the  injunc-    JwMdm. 
tion.    They  cited  1  Ch.  Rep.  78. 84.    2  rent.  365.    1  Fern. 
37.  427.      1  Ves.  Jun.  50.       1  Fonbl  Equ.    336—340. 
3  Burrow,   1670.    7  Term  Rtp.  350.     13  Ves.  148.    4 
Johns.  Rep.  84.     Plowd.  308  b.     Dyer^  336  b. 

Harison  and  T.  A.  Emmets  contra.  They  cited  J5ama- 
dist.  Ch.  Rep.  373,  374. 

The  Chancellor.  The  answer  denies  all  the  equity  of  July20ih, 
this  bill.  It  is  true,  the  answer  endeavours  to  strengthen  the 
defendant's  case,  by  the  introduction  of  new  matter,  and  if 
the  defence  rested  upon  such  new  matter,  and  had  admitted 
the  equity  set  forth  in  the  bill,  then,  according  to  the  reason 
of  the  thing,  and  the  general  rule  declared  in  JlUen  v.  Crob- 
roft,  (Barnard.  Ch.  Rep.  373.)  the  injuncUon  ought  to  have 
been  continued  to'the  hearing.  But  in  this  case  the  equity 
of  the  bill  is  denied.  That  equity  consisted  in  the  averment, 
that  the  instrument  set  forth  in  the  bill,  was  sealed  with  the 
corporate  seals  of  the  two  banks,  in  consideration  of  a  good 
and  sufficient  release  and  discharge  of  the  plaintiff,  executed 
by  all  the  other  creditors ;  and  that  the  creditors  separate- 
ly consented  to  execute  such  a  discharge,  under  the  pro- 
viso, that  all  of  them  would  consent  to  do  it.  The  answer 
denies  this  averment,  and  every  pretext  on  which  it  rests. 
It  denies  that  the  banks  executed  the  faistrument  in  conside- 
ration of  any  efficient  discharge  being  give»  by  the  other 


5M  CASES  IN  CHANCERY. 

1820.  credttorSy  or  in  consideration,  that  the  dischargeiiras  a  valid 
one,  as  to  9JI  the  crecUtors  who  signed  it  It  states,  that  the 
instrument  was  signed  by  the  creditors,  individually,  and  by 
the  two  banks,  among  others,  as  they  were  respectively  ap- 
plied to,  without  any  concert  or  mutual  agreement,  or  con- 
dition, that  other  creditors  should  sign  it.  It  was  the  voIwh 
tary  and  spontaneous  act  of  each  creditor,  without  any  eon* 
sideration.  The  answer  thus  meets  and  overthrows  the 
charges  in  the  bill,  en  which  the  special  claim  to  the  assist* 
^Mce  of  this  Court  was  founded,  and^the  case  is  reduced  to 
this  simple  point,  whether  equity  will  enforce  a  mere  volun- 
tary agreement,  not  valid  at  law,  and  especially  in  destmc- 
lion  of  a  legal  claim,  and  recovery  for  a  just  debt.  A  vo- 
luntary deed  may  be  aided  in  special  cases,  as  was  mendon* 
ed  in  Bunn  v.  Winthrop,  (1  Johns.  Ch.  Rep.  329.)  but  it  is 
a  clear,  general  rule,  that  a  bill  does  not  lie  to  enforce  a 
mere  voluntary  agreement.  The  language  of  the  books, 
from  the  earliest  to  the  latest  cases,  is  uniform  in  support  of 
the  doctrine,  that  a  voluntary  defective  conveyance,  which 
-cannot  operate  at  law,  is  not  helped  in  equity,  in  favour  of  a 
volunteer,  where  there  is  no  consideration,  nor  any  accident 
or  fraud  in  the  case."^  To  entitle  the  party  to  the  aid  of  this 
Court,  the  instrument  must  be  supported  by  a  valuable  con- 
sideration, oTj  at  least,  by  what  a  Court  of  equity  considers 
•a  meritorious  consideration,  as  payment  of  debts,  or  making 
a  provision  for  a  wife  or  child.  {Pickering  v.  Keding^  1  Egp. 
in  Ch.  78.  Thtmpson  v.  AttfiM,  1  Vem.  40.  Longdak 
V.  LangdalBf  1  Vem.  456.  Colman  v.  Sardy  3  Bro.  12.  1 
Ves.  Jun.  50.  and  see  also,  1  Fonb.  339.  s.  2.  and  1  Mai^ 
dock's  Ch.  Rep.  564.) 

In  the  present  case,  the  defendant  was  a  meritorious  credi- 
tor, arising  £rora  the  gratuitous  loan  to  the  plaintiff,  of  a  ne- 
gotiable note  drawn  by  the  defendant,  at  the  plaintiff's  rer 
<iuest,  and  for  his  use,  without  any  consideration ;  and  he 
afterwards,  when  the  plaintiff  stopped  payment,  voluntarily, 
and  without  consideration,  subscribed  his  name  to  an  instru- 


CASES  IN  CHANCERY.  501 

mmt*  jr^eMing  aad  dUcburging  the  plaintiff  from  all  de-      1830. 
nmis.    Since  tbe  time  of  that  •tgnatore,  he  has  beeo  obli-  y^];;f^J[^^ 
ged  to  pi^  tbe  note  he  to  gave  to  tbe  plaintiff.    He  then  ▼*     - 

qalkd  npoo  him,  at  law,  lor  reimbonement  and  indemnity; L' 

and  Mie  instrament  the  defendant  signed  was  found  to  be  in- 
suficiettt  at  law,  to  protect  tbe  plaioUff  from  that  suit,  and 
the  defendant  has  recovered  of  the  plaintiff,  by  verdict  and 
judgment,  at  law.  ^^I  did  think,  upon  tbe  statement  in  the  bill, 
that  the  valid  discharge,  given  by  tbe  two  banks,  was  in 
eonsideration  of  a  like  valid  discharge  by  the  other  creditors,  ^ 
and  that,  therefore,  it  would  be  an  act  of  fraud  upon  those 
banks,  lor  tbe  defendant  to  refuse  to  make  effectual  his  dis- 
charge."*  But  the  answer  shows  that  this  part  of  the  bill  was 
not  well  founded,  and  the  case,  as  it  stands  upon  the  plead- 
ings, has  no  claim  to  the  equitable  assistance  of  tbe  Court. 
1  shall,  consequently,  dissolve  the  mjunctioD. 

Iiyunction  dissolved. 


ViH  VsoHTEK  againit  D.  Vmjs  Veohten. 

The  kiuiUmd  csniiot  file  a  bill  against  his  wife  ibr  a  divorae  d  menm 
'    -H  fAtftxs  OD  the  grmuid  of  craelty»  desertioD,  or  improper  conduct. 

So,  Chat,  if  in  antwgr  to  a  bill  filed  by  tbe  wife  agaiost  tbe  busbaod  for 
a  divorce,  under  the  statute,  on  the  ground  of  cruel  treatment,  the 
husband  denies  tbe  cbai*ge,  and  sets  up  acts  of  cruel  and  abosire 
treatment  on  the  part  of  the  wife,  and  aski  for  a  divoice,  the  bill 
willbedin&iBsed. 

The  Court  wUl  not  take  notice  of  any  consent  or  agreement  of  the 
parties  to  adivoroe4  metua  et  thoro. 

BILL  by  the  wife  against  her  husband,  for  a  divorce  ^^^y  ^i*'- 
a  maua  et  thoro^  on  a  charge  of  cruel  and  inhuman  treat- 
ment. 


502  CASES  IN  CHANCERY. 

1830.  The  answer  of  the  husband  denied  every  snbstantM 

.^^^^1^^^^^^^^  charge  of  iniproper  eoodoct:  and  be  recrinkinaled)  itad 

-     V.         charged  the  plaintiff  with  a  series  of  acts  of  cruel  and  aba* 

«^,......  sive  treatment,  and  admitted  that  it  w^ould  be  proper,  and 

intimated  a  strong  desire  that  a  divorce  should  be  deci^sed* 
'  The  cause  was  set  down  for  bearing,  upon  the  bHt  and 
answer. 

J.  V.  JV.  Yaies^  for  the  plaintiff. 

/.  UamUion,  contra. 

The  Charcellob.    As  the  charges  in  the  bill  ate  de* 
nied,  and  not  supported  by  proo^  the  foundation  of  the  bill 
has  failed.    I  cannot  listen  to  the  counter  charges  contcuned 
in  the  answer.    The  husband  would  not  have  been  entitled 
to  a  divorce,  even  if  such  charges  had  been  the  ground  of  a 
bill  exhibited  by  him,  for  that  purpose.    The  statute  au- 
thorizing a  divorce  from  bed  and  board,  for  cruelty,  deser- 
tion, or  other  improper  conduct,  applies  only  to  a  bill  ex- 
hibited  on  the  part  of  the  wife.    The  common  law  has 
given  to  the  husband  sufficient  power  and  control  over  the 
wife,  to  protect  himself  from  such  conduct.    Nor  can  the 
Court  take  notice  of  any  consent  or  desire  of  the  defendant, 
in  compliance  with  the  wishes  of  the  plainti^  and  make  thai 
the  ground  even  of  a  qualified  divorce  from  bed  and  board. 
It  ought  to  be  well  understood,  that  the  Court  cannot  lend 
its  judicial  aid  and  sanction  to  any  such  voluntary  agree- 
ment.   These  qualified  divorces  from  bed  and  board  are 
daneerous  enoucrh,  under  all  the  checks  and  guards  provi- 
mmsaeithoro,  ^ed  by  any  decree.  The  early  canons  of  the  church  (B«m#, 
checked,    ra-  EccU.  Law^  tic  Jlfamog'e,  ch.  ll.j  directed  that  parties  so 
couraged.  ^^  separated,  should  not  only  live  chaste,  and  without  forming 
any  new  matrimonial  contract ;  but  even  that  no  sentence 
should  be  pronounced,  until  security  was  given  by  the  party 
requiring  the  decru,  to  obey  this  restraint.    The  law  regards 


CASES  IN  CHANCERY.  503 

tbe  carriage  contract  as  a  stable  and  sacred  contract,  of  na-  1820. 

tural,  as  well  as  of  miinicipal  law.    It  is  a  contract  juris  ^-^'^^'"^^ 

_,  ,i»„.,.  Burnett 

go^tmf  and  parties  cannot  lawfully  nd  themselves  of  its  du-         v. 

ties,  at  the  pleasure  of  either,  or  of  both  of  them.    If  we  ex-  ^^^^^^' 


cept  the  new  law  of  France^  and  the  new  law  of  Prussia.  '^^^  contract 

of  fliAiTUWv  is 

aUaded  to  on  a  former  occasion,*  there  is  no  such  danirerous  ^atabieaSM- 

-  .  .  ,  ^  cred    contract 

relaxation  of  the  marriage  tie,  tolerated  amonff  the  Christian  o^  natural  aa 

ixr  .  «        i.  .     *  well  as  of  mn- 

nations.    We  mnst  go  m  search  of  such  loose  notions  of  oicipai  bw. 
the  obligation,  to  the  half-civiliied  people  of  Asia*  where  tnctjurisgrn- 

tiunif  and  tlia 

polygamy  prevails;  and  where,  as   a  consequence  of  this  parties  cannot, 

•,  at  pleasure  of 

evil,  and  as  a  branch  of  the  same  baneful  policy,  we  shall  either  or  both, 
find  the  prevalence  of  an  almost  unlimited  freedom  of  di-  iutie8it?mpo- 
vorce.     {Salens  Koran^  ch.  65.  Elphinstone^s   Caubtd^  b.  2.  •j'n^p.  iM. 
ch.  3.  Institutes  of  Menu^  ch.  9.  s.  132  to  126.   Colebrooke's 
ISndu  Law,  vol.   3.  p.  416  to  426.  sect.  64  to  71.  Jthrs-- 
dtn's  Sumatra,  p.  221  to  234.  Raffle's  Hist,  of  Java,  vol.  1. 
320.  Stanton's  Ta-Tsing-LeurLee,  sect.  116.) 

Bill  dismissed,  without  costs. 


Burnett  and  another.  Administrators,  fizc.  against  Sanders. 

On  a  bill  for  discovery  merely,  the  defendant  is  entitled  tocojif. 

Bat  where  the  plaintiff,  who  is  entitled  to  diaeorery,  goes  first  to  the 
defendant,  and  asks  for  the  information  sought,  which  is  refused, 
though  in  the  power  of  the  defendant,  and  tbe  plaintiff  is  compelled 
to  file  a  bill  to  obtain  it,  the  defendant,  though  he  answers  fuUy,  is 
not  entitled  to  cotts. 

BILL  for  a  discovery  of  payments,  alleged  to  have  been  July3iti. 
made  by  the  intestate,  on  his  bond  to  the  defendant,  and 
which  bond  was  then  in  suit  at  law.    The  bill  charged,  that 


504  CASES  IN  CHANCERY. 

1820.       on  application  to  the  defendant,  she  refused  to  admit  the 
^^^'^'""^^    pavments. 

Burnett       ■    -^ 

V.  The  answer  admitted  the  most  material  of  the  payments, 

'  and  that  the  plaintifis,  previously  to  filing  the  bill,  had  call- 
ed on  her  to  make  such  admission,  which  she  refased,  be- 
cause the  fact  of  the  payment  to  her  had  then  escaped  her 
recollection ;  and  she  did  not  believe  that  they  had  been 
made,  though  she  had  since,  upon  search  and  inquiry,  and 
examination  of  documents,  changed  her  opinion. 

O.  W.Strangi  for  the  defendant,  moved  to  dissolve  the  in* 
junction  staying  the  suit  at  law,  with  tiie  costs  of  the  suit  to 
be  taxed. 

Footf  contra,  cited  1  Madd.  Tr.  Ch.  176.  in  opposi- 
tion to  the  claim  for  costs. 

The  Chancellor  dissolved  the  injunction,  but  without 
costs,  as  he  tliought  this  case  formed  an  exception  to  the 
rule  of  practice,  that  when  a  plaintiff  comes  for  a  discovery, 
and  obtains  it,  he  shall  pay  the  costs.  Here  the  plaintifis, 
who  were  odmtnisfra^ory,  first  went  to  the  defendant,  and 
asked  for  an  admission  of  certain  specific  payments,  ap* 
pearing  from  the  accounts  to  have  been  made,  and  the  de- 
fendant refused  to  give  them  the  requisite  satisfaction,  and 
compelled  them  to  come  here  for  a  discovery.  As  the  pay- 
ments were  made  to  her,  it  was  her  duty  to  have  ascertained 
the  fact,  and  to  have  afforded  to  the  plaintiffs  the  inibrmation 
she  was,  or  ought  to  have  been,  accurately  possessed  of,  in 
the  first  instance.  She  has  no  equitable  claim  to  the  costs  of  the 
suit;  and  the  doctrine  of  Mr.  J.  BuUer^  when  sitting  for  the 
Lord  Chancellor,  in  Weymouth  v.  Boycr,  (1  P^esey,  joo. 
416.)  is  very  reasonable,  and  entirely  applicable  ;  and  Mr. 
Maddock  [Tr-  on  the  Pr.  and  Prac.  in  Chan.  vol.  1.  176.) 
says,  he  has  heard  Lord  Eldon  approve  the  doctrine. 

Order  accordingly. 


CASES  IN  CHANCERY. 


Frbncu  and  others  against  Shotwell. 

Where  a  plaintiff  asked  for  farther  time  to  except  to  the  answer,  which 
was  s^ranted ;  and,  also,  for  leave  to  amend  his  hill,  after  such  answer, 
and  9if{er% plea  accompanying  it,  but  not  noticed  for  argument ;  the 
plaintiff,  on  being  allowed  to  amend  his  bill,  was  ordered  to  p2LyJwe 
doilars  for  the  extra  costs  of  the  further  answer,  and  the  taxable 
coats  of  the  pUa,  in  case  it  should  become  useless,  in  consequence  of 
the  BiU  being  amended. 

MOTION  on  the  part  of  the  plaintiffs,  for  further  time  to 
except  to  the  answer,  and  for  leave  to  amend  the  bill,  after  the 
said  answer,  and  after  a  plea  accompanying  the  same,  but 
not  noticed  for  argument 

J.  K  Henry^  for  the  motion. 

if.  Bleeckerf  contra. 


Jv/ySlif* 


The  Chancellor.  The  delay  in  excepting  to  the  an* 
6wer  is  sufficiently  accounted  for,  and  the  plaintiff  ought, 
therefore,  to  have  time  to  except.  To  allow  the  bill  to  be 
amended  in  this  stage  of  the  cause,  is  according  to  the  prac- 
tice of  the  Court.  {3  Atk.  ^70.  J>fewland'8Pr.Q2.  Cooper's 
TV.  on  PL  333.  1  Fowler's  Ex.Pr.lll.il 2.)  Both  parts 
of  the  application  must,  therefore,  be  granted.  If  excieptions 
had  been  taken  to  the  answer,  and  submitted  to,  or  on  refe- 
rence, had  been  found  well  taken,  then  the .  plaintiff  might 
have  amended  his  bill,  of  course,  without  costs^  according  to 
the  15th  rule  of  this  Court.  But  here  he  comes  before  ex- 
ceptions are  actually  taken,  and  if  they  should  not  be  taken, 
or,  if  taken,  overruled,  the  plaintiff  ought  to  pay  something 
to  the  defendant  for  the  extra  costs  of  putting  in  a  further 
answer.    The  English  rule  is  to  require  20s.  t:osts,  in  ^uch 

Vol.  IV.  64 


CASES  IN  CHANCERT. 

1826.  cases.  So,  also,  if  the  plea  should  be  rendered  useless  by 
the  amendmenu,  the  costs  of  that  plea  ought  also  to  be  paid. 
I  shall,  thereforei  grant  the  rule,  subject  to  the  contingency 
of  paying  the  taxable  costs  of  the  plea,  in  the  one  case,  and 
five  dollars  for  the  extra  costs  of  the  further  answer,  in  the 
other  case. 

The  sum  of  five  dollars  is  adopted,  as  nearly  corresponduig 
with  the  20f .  sterling,  under  the  old  English  rule,  and  yet  the 
relative  value  of  stated  sums  is  constantly  varying.  Even  the 
20s,  sterling  was  deemed,  a  century  ago,  quite  too  small  an 
allowance,  and  the  costs  were  increased,  in  one  case,  by  the 
additional  allowance  of  21.  (Howe  v.  Stuart^  Dickens^  58.) 
Lord  ThurloWf  in  another  case,  allowed  40s.  on  such  an 
amendment.  But  the  smaller  allowance  is  suited  better  to 
the  state  of  our  practice,  and  the  moderation  of  its  expense^ 

Order  accordingly. 


F.  Brush  against  Wilkins  and  Bradish,  executors  of  J. 
Bbush. 

Sabfequent  marriage  cuid  birth  of  a  child,  are  an  implied  revocation  of 
a  will,  either  of  real  or  personal  estate. 

Bat  sQch  presumptire  revocation  may  be  rebutted  by  ciranmstanoes. 

It  uenu  that  a  subsequent  marriage  or  subsequent  birth  df  a  child 
alone,  will  not  amoont  to  a  revocation. 

A' will  doly  executed,  but  revoked  by  marriage,  and  the  biftfa  of  a 
child,  cannot  be  connected  with  a  will  subsequently  made,  but  not 
executed  with  the  requisite  solemnities  to  pass  real  estate,  to  as  to 
conititate  a  valid  will;  but  the  estate  descends  to  the  heir  at  faiw. 

/iifisi9(^aad      ICHABOD  BRUSH,  the  testator,  forneriy  of  Demo- 
^^^"^    '     uara,  South  America,  but  late  of  Hu»tingUm,  in  the  connty 


CASES  IN  CHANCERY.  WW 

of  Suffdkf  deceased,  being  seised  of  real  and  personal  182a 
estate  here  and  elsewhere,  made  his  will,  duly  executed 
and  attested,  dated  March  6,  1807,  by  which  he  dhrected, 
(1.)  That  his  plantation,  slaves,  and  effects,  in  tlfe  colony  of 
Demarara,  be  sold  by  his  ezecntors :  (2.)  That  his  executors 
pay  to  Miss  E.  fVilkins^  20,000  dollars,  in  five  annual  pay- 
mente,  and  in  case  of  her  death,  to  her  parents :  (3.)  That 
they  pay  to  the  plaintiff,  his  sister,  500  dollars,  annually, 
during  her  life.  The  testator,  after  making  various  other 
bequests,  and  giving  the  residuum  of  his  estate  to  his  bro- 
thers and  sisters,  appointed  five  executors,  of  whom  the  de- 
fendants, of  the  city  of  J^ew^Tork^  were  two.  In  /une, 
1808,  the  testator  married  Miss  E.  WUkins  ;  and  afterwards, 
made  another  will,  dated  Huntington^  March  14,  1809,  in 
which  he  reyoked  all  former  wills,  and  made  various  be- 
quests and  dispositions  of  his  estate,  different  from  those 
contained  in  his  former  will ;  giving  to  the  plaintiff  an  annu* 
ity  of  300  dollars,  for  life,  and  to  his  wife,  jointly  with  the 
child  of  which  she  was  then  enseint^  his  estate  at  Huntingtonf 
tz£.,  and  appointed  the  defendants,  and  two  of  the  other  per- 
sons, named  in  the  former  will,  his  executors,  who  were  di- 
rected to  sell  his  plantations,  slaves,  &c.  in  D.  The  testa- 
tor died  at  H,  the  1st  of  August^  1809,  leaving  one  child;  and 
the  second  will,  subscribed  by  him,  but  not  published  in  the 
presence  of  witnesses  or  attested,  was  found  with  the  first 
will,  sealed  up  in  the  same  envelope,  among  his  valuable 
papers.  The  defendants  treated  the  first  will  as  a  nullity, 
and  on  the  23d  of  Augnsty  1809,  proved  the  second,  as  the 
testator's  last  will  and  testament ;  and  no  person  proved  or 
ncted  under  the  first  will.  The  bill  charged,  that  the  defend* 
ants  had  possessed  themselves  of  the  personal  estate  of  the 
testator,  in  this  state,  and  in  Demararaj  and  received  the 
produce  of  the  real  estate;  and  forayed  that  the  defendants 
might  be  decreed  to  set  forth  the  situation,  be.  of  the  real 
estate  at  !>.,  and  the  produce  thereof^  and  to  account  with 


603  CASES  IN  CHANCERY; 

1820.  the  plaintiff  for  the  personal  estate,  and  the  income  of  the 
real  estate,  which  had  come  to  their  bands,  and  pay  to  the 
plaintiff  her  annuity,  and  for  general  relief. 
-  The  deilndanu,  in  their  answer,  admitted  that  they  pro- 
ved the  second  will,  and  possessed  themselves  of  the  per- 
sonal estate,  and  made  an  inventory^  to  which  they  referred, 
containing  a  just  and  true  account  of  such  personal  estate; 
that  they  were  advised,  that  the  slaves  on  the  planiation  be- 
longing to  the  testator  in  D.,  by  the  laws  of  that  colony, 
passed  with  the  plantation  as  immoveable  property ;  that  the 
testator  owed  debts,  beyond  all  the  personal  estate  which 
had  come  to  their  knowledge,  exclusive  of  that  specifically 
bequeathed,  unless  the  plantationy  slaves,  cattle,  &c.  in  D., 
y^ere  to  be  considered  personal  property ;  that  the  defendant, 
W.f  had  been  appointed  guardian  of  the  person  and  estate 
of  the  infant  son  of  the  testator,  and  had  received  the  rents 
and  profits  of  the  real  estate,  but  they  insisted  that  they  were 
not  accountable  therefor  except  tp  the  infant,  or  without  his 
being  made  a  party.  They  admitted,  that  if  the  plantation, 
slaves,  &c.  at  D.,  were  to  be  deemed  personal  property,  or 
if  the  real  estate  at  !>.,  or  the  profits  thereof,  were  to  be 
charged  with  the  payment  of  the  annuity  to  the  plaintiff,  un- 
der the  second  will,  there  was  sufficient  to  pay  and  secure  it 
to  her,  but  not  otherwise,  &£c.,  and  they  set  forth  a  schedule 
of  the  debts  of  the  testator. 

A  witness  was  examined  to  prove  the  laws  of  Demarara^ 
who  deposed,  that  he  was  born  in  D.,  and  had  resi- 
ded there  a  considerable  portion  of  the  time,  for  the  last  ten 
years,  and,  for  the  last  three  years,  was  an  officer  in  the  Civil 
and  Criminal  Court  of  Justice  of  that  colony,  and  was 
well  acquainted  with  its  laws.  That  by  the  laws  of  D., 
slaves  on  the  plantations  are  considered  as  attached  to  or 
part  of  them,  and  descended  and  passed  with  the  plantation 
to  the  heir,*  (unless  the  plantation  be  duly  devised)  as  real  es- 
t$tte.    That  the  same  formalities  are  required  to  devise  per- 


CASES  IN  CHANCERY.  509 

sonal  as  real  estate.  That  he  did  not  consider  himself  quali-  1820. 
iied  to  give  a  correct  answer,  whether  by  the  laws  of 
2>.,  a  will  duly  executed,  becomes  revoked  by  a  subse* 
qaent  marriage  and  birth  of  a  child.  That  a  will  concern- 
ing real  estate  in  D.,  by  a  person  residing  in  another 
country,  and  which  was  valid  to  pass  real  estate  by  the 
laws  of  such  country,  would  be  a  valid  will  in  D., 
though  not  executed  with  the  formalities  required  there. 
That  by  the  laws  of  D.,  a  will  must  be  executed  by  the 
testator  in  the*  presence  of  a  notary;  or  in  the  presence 
of  seven  witnesses ;  or  being  executed  without  witnesses,  be 
sealed  up  and  delivered  to  the  secretary  or  clerk  of  the 
Court,  who  indorses  his  signature  and  keeps  the  will. 

The  cause  came  on  to  be  heard  on  the  pleadings  and  *^^  i^^ 
proofs. 

Bqyd  fy  Riggs  for  the  plaintiff.  They  cited  Doug,  38. 
Burr.  2171.  1  Equ.  Cos.  Abr.  413.  2  Salk.  593.  note 
by  Evans.  2  East^  541.  7  Fesey,  364.  Sir  S.  Romilly, 
arguendo.     1  PhilKm.  Rep,  469. 

Harison^  contra.  He  cited,  Amb.  721.  5  Term  Rep. 
49.  4  Maule  ^  Sdw,  10.  1  PhUl.  Rep.  469.  2  Aik, 
267.  Bynk.  Observ.  Jur.  Rom.  lib.  2.  c.  1,  2.  11.  Poth. 
Trait,  des  Donat.  Testamen.  e,  6.  s.  2.  1  DodsonU  Adnu 
Rep.  263,  Demarara,  &c. 
• 

The  cause  stood  over  for  consideration  until  this  day.        jhigu$t  1st, 

The  Chancellob.  (1.)  The  first  question  arising  upon 
this  case  is,  whetherthe  will  of  the  6th  of  March^  1807,  was 
revoked  by  operation  of  law,  by  reason  of  the  subsequent 
marriage  of  the  testator  and  birth  of  a  son. 

I  am  not  apprized  that  the  question  has  ever  arisen  and 
been  decided  in  the  Courts  of  this  state;  we  are,  then,  to  con- 
sider it  as  a  case  to  be  governed  by  the  English  law,  as  set^ 
tied  at  the  time  of  our  revolution,  or  by  those  general  prin- 


§IQ  CASES  IN  CHANCERY* 

1820.       ciples  of  reason  aod  justice,  which  have  a  uoiform  aud  udi* 
versal  application* 

It  had  became  a  settled  rule  of  law  and  equity,  as  early 
as  the  year  1775,  that  implied  revocations  of  wills  were  not 


Implied  re-  Within  the  Statute  of  frauds,  and  that  mctrriage  and  a  child^ 
wilts  are  not  taken  together,  (tbouffh  neither  of  them  taken  separately 

within  tlMSte-  ^   .         X     ,.j  •        r    J  .  ^ 

tnto  of  freads.  was  Sufficient,)  did  amount  to  an  implied  revocation,  and 
mn^Igr  mul  ^^^  ^^^^  presumptive  revocations  might  be  rebutted  and 
mTeawimph'id  coutroUed  by  circumstances.  Without  going  minutely  in<- 
rerocfttiooofa  ^^  ^n  jjjg  cases,  a  cursory  view  of  them  will  be  sufficient  to 
Andrachre-  establish  this  position,  audit  can  be  shown  to  have  received 

▼ocmtions    be-  .  _         _  .  .  .  i  .     i 

iDg  prasamp-  cootinucd  and  unceasing  sanction  down  to  this  day. 
nny  be"reba^  Sir  Johu  JSTichoU  says,  that  this  rule  was  no  part  of  the 
»uioc6»r"^'™"  ancient  jurisprudence  of  England^  or  of  any  other  country^ 
d€d''**in  *ti  and  that  Overbury  v.  Overbury,  (2  Show.  25S)  was  the 
SmTaLcoS-  ^"^  ^*^  '°  which  the  rule  was  applied..  That  was  a  case 
bSi!^/w^j  before  the  delegates,  upon  appeal,  in  the  34th  of  Charles 
Skmtr'  253^)  ^'*  ^^^  ^^  ^^  adjudged  that  the  subsequent  birth  of  a  child, 
•8  to  per§€mi  ^|^g  ^  revocation  of  a  will  of  personal  property ;  and  thb 
decision  was  expressly  founded  upon  the  doctrine  of  the 
civilians. 
Cirii  law.  '^^^  civil  law,  in  several  instances,  recognized  these  im- 

plied  revocations. 
CaM  itated  The  case  stated  by  Cicero,  {de  Orat.  lib.  I.  c.  38."^  is  of- 
ten alluded  to;  in  which  a  father,  on  the  report  of  his  sob's 
death,  appointed  by  will  another  person  to  be  his  heir,  and 
his  son  returning,  the  case  was. brought  before  the  pentum- 
viri,  and  the  son  was  reinstated  in  the  inheritance.  There 
Ptttdecti.  is  a  lil^c  ^^^^  mendoned  in  the  Pandects,  {I^'  ^8.  5.  92.) 
in  which  the  Prince  set  aside  a  will  made  upon  a  false  ru- 
mour of  the  death  of  the  person,  whom  the  testator  bad  pre* 
viously  appointed  his  heir.  The  decree  was  made  on  the  peti- 
tion of  the  person  whom  the  testator  had  supposed  to  be  dead; 
and  it  was  made  decidedly  on  the  ground  of  giving  effect  to 
the  resd  intention  of  the  testator — iamen  ex  volunUUe  testMf 
tis  prUavit  Imperator  ei  tubveniendtm.    So,  abo,  the  snbse- 


CASES  LNT  CHANCERY.  SIf 

qoent  birth  of  a  child  unnoticed  io  the  will,  annulled  it;  1820. 
the  doctrine  was,  Teiiamenta  nmAuntur  agnatiane  posi- 
humi;  and  this  is  the  rule  in  those  cmintries  which  have  ge- 
nerally adopted  the  civil  law.  (Ctc.  de  Orat.  1.  57.  Imt. 
2.  13.  1.  FerriereU  Tradtic.  h.  U  Huber.  lib.  ^  tit. 
13.  8.  5.  de  liberia  exheredendu,  et  tit.  11.  s.  1.  QuibuM 
modis  testamenta  infirmantur.)  The  next  EnglUh  case  was  EagUah  de- 
that  o{  Lugg  V.  Lugg,  (1  Ld.  Raym^  441.  Salk.  593.)  de- 
cided by  the  delegates,  of  whom  Ch.  J.  Treby  was  one,  in 
which  it  was  ruled  that  marriage  and  a  child  amounted  to  a 
revocation  of  a  will  of  personal  estate,  founded  on  the  pre- 
sumption of  a  change  in  the  testator's  mind,  from  the  altera- 
tion of  his  domestic  circumstances  and  relations.  It  ap- 
pears from  the  able  and  elaborate  opinion  of  Dr.  flay,  io 
Shepherd  v.  Shepherd^  (5  Term  Rep.  51 .  note.)  that  it  had  con- 
tinued down  to  the  year  1770,  to  be  tlie  uncontradicted  and 
settled  law  of  Doctors'  Commons,  that  subsequent  marriage 
and  a  child  amounted  to  a  revocation  of  a  wilL 

In  Brovm  v.  Thomp$on^  (1  Eq.  Ca.  Mr.  413.  pL  15. 
1  P.  JVms.  304.  note  by  Cox,)  the  rule  was  adopted  in  the 
Court  of  Chancery,  by  the  Master  of  the  Rolls,  Sir  John 
TVeooTj  and  applied  to  a  devise  of  real  estate.  He  held,  that 
marriage  and  a  posthumous  child,  were  a  revocation  of  a 
will  of  land.  This  decision  was  afterwards  reversed,  on  ap- 
peal, by  Lord  Keeper  Wright,  who  admitted  the  general 
rule ;  yet  held  that  the  case  was  controlled  by  the  circum- 
stance that  the  testator  bad  devised  his  real  estate  in  fee  to 
his  future  wife,  and  thereby  made  provision  for  the  wife,  and 
through  her,  for  his  son  Mr.  J.BttHer.  (5  TermRep.  61.)  said, 
he  had  examined  the  register  book,  as  to  that  case,  and  disco- 
vered the  special  reason  which  governed  the  Lord  Keeper, 
which  was,  that  after  the  testator^s  death,  the  wife  had 
devised  to  the  posthumous  son  and  died,  and  so  there  was  no 
injury  to  any  person  by  the  establishment  of  the  will  But 
he  thought,  notwithstanding,  that  the  decision  at  the  Bolls 


513 


CASES  IN  CHANCERY. 


1820. 


Marriage, 
and  'birth  of  a 
child,  18  a  re- 
TocatioD  of  a 
willoftber«ff/ 
as  well  at  of 
the  penonal 
estate. 


was  sound,  and  that  the  validity  of  the  will  ought  not  to  have 
rested  on  the  subsequent  act  of  the  wife. 

The  application  of  the  rule  of  the  civilians  to  wills  of  land, 
continued  long  after  the  case  of  Brown  v.  Thompson^  to  be 
a  matter  of  doubt  and  hesitation  in  the  Courts  of  law. 
Lord  Hardwicke^  in  Parsons  v.  Lanoe^  (1  Vesey^  189.  Amb. 
557.)  cautiously  withheld  any  opinion  on  the  point;  and 
Lord  J^orthingtorij  in  Jackson  v.  Hurloek,  (2  Eden.  263. 
Amb.  487)  said,  that  the  cases  did  not  prove  that  marriage 
and  the  birth  of  a  child  would  revoke  a  will  of  real  estate. 
The  distinction,  however,  between  a  will  of  real  and  person- 
al estate,  in  respect  to  this*^doctrine  of  presumptive  revoca- 
tions, could  not  well  be  supported ;  and  Lord  Mansfield  ob- 
served, in  Wellington  v.  fVeUington^  (4  Burr.  2165.)  that  as 
it  was  settled  that  marriage  and  a  child  were  a  revocation  of 
a  will  as  to  personal  estate,  he  saw  no  ground  of  argument 
why  the  law  should  not  be  the  same  as  to  devises  of  land. 

This  great  question  was  at  Jength  finally  and  solemnly 
settled,  in  1771,  by  the  Court  of  Exchequer,  in  Christopher 
v.  Christopher^  {Dick*  Rep.  445.)  and  it.  was  adjadgedby 
Ch.*B.  Parker i  and  two  of  his  brethren,  in  opposition  to  the 
opinion  of  Baron  Perrot,  that  marriage  and  a  child  were  a 
revocation  of  a  will  of  land.  The  case  of  Spraage  v.  Stone^ 
{Amb.  721.)  followed  sood  after,  and  the  principle  received, 
in  that  cause,  the  sanction  of  the  most  distinguished  judges; 
and  it  has  stood  from  that  time  to  this  day  upon  an  immove- 
able foundation.  In  that  latter  case,  Spraage  made  a  will 
in  the  island  of  Jamaica^  in  1764,  devising  his  real  and  per- 
sonal estate.  He  afterwards  married  and  had  a  son,  and 
made  a  second  will  in  England^  giving  all  his  estate  to  bis 
wife,  but  this  last  will  was  unattested.  The  Court  of  Chan- 
cery in  Jamaica  decreed,  that  the  marriage  and  son,  to- 
gether with  the  subsequent  will,  amounted  to  an  implied  re- 
vocation of  the  first  will,  so  far  only  as  related  to  the  per- 
sonal estate,  and  the  first  will,  as  to  the  real  estate,  wasesia- 


CASES  IN  CHANCERT.  5(a 

blisbed.    On  appeal,  before  the  Lords  of  the  Committee,  at  1820« 

Che  Cockpit,  coosistiDg,  among  otliers,  of  Dc  Grey,  Ch,  J,  of  ^^"^^^ 

the  C.  B.,   Sir  J.  E.   Wilmot,  late  Cb.  J.  of  the  C-  B.,  T" 

Sir  Tho8.  Parker^  late  Cb.  B.  of  the  Exchequer,  it  was  ad-  "^'"* 


judged  that  the  Jamatca  decree  be  reversed,  so  far  as  it  esta- 
blished the  first  will  as  to  the  real  estate ;  and  it  was  declared 
that  the  subsequent  marriage  and  a  son,  were  an  implied 
revocation  of  tlie  whole  will  of  1764,  and  that  the  real 
estate  descended  to  the  son  as  heir  at  law. 

This  whole  subject  has  continued  to  receive  great  discus- 
sion in  the  Etiglish  Courts,  since  the  era  of  our  revolution ; 
and  it  has  led  to  noch  refinement,  and  been  accompanied 
with  many  distinctions,  growing  out  of  new  cases  constandy 
arising  amidst  the  endless  variety  of  human  afiairs.  The 
principle  established  in  the  preceding  cases  has,  however^ 
remained  perfectly  unmoved. 

In  Brady  v.  Cubittj  (JDot^.  31.)  Lord  Mansfield  said,  he  obMrntion 
did  not  recollect  a  case  in  which  marriage  and  a  child  had  juid.  ^^' 
been  held  to  raise  an  implied  revocation,  where  there  was 
Bot  a  disposition  of  the  whole  estate }  and  all  the  judges 
agreed,  in  that  case,  that  these  implied  revocations  by  a  sid>- 
seqoeat  marriage  and  a  child,  might  be  rebutted  by  parol 
evidence.  As  to  thi«  latter  point,  1  apprehend  it  will  be 
found  that  the  Courts  have  rather  cautiously  abstained  from 
any  decided  opinion  as  to  the  admissibility  of  extrinsic 
evidence  to  rebut  the  presumption  of  revocation  from  the 
circumstance  of  the  marriage  and  child,  and  this  decinon 
in  Douglas  has  been  repeatedly  questioned.  The  K.  B,  in 
Doe,  ex  dem.  Lancathirt,  v.  Laneoihirey  (6  Term  Rq^.  49.) 
decided,  upon  very  great  deliberation,  that  marriage  and  the 
birth  of  a  posthumous  child,  also,  amounted  to  an  implied 
revocation  of  a  will  of  real  estate.  This  was  nothing  more 
than  the  recognition  of  the  very  just  and  plain  doctrine,  that 
a  posthumous  child  had  equal  rights,  and  was  to  be  consi- 
dered in  the  same  situation,  with  a  child  bom  in  the  Ufttime 

Vol.  IV.  66 


314  CASES  IN  CHANCERY. 

1820.  of  the  father.  Bat  Lord  Kenyan  took  occasion  to  observe^ 
that  the  foundation  of  the  principle  of  these  implied  revoca- 
tions was  a  tacit  condition  annexed  to  the  will,  that  thepar- 

ty  does  not  then  intend  that  it  should  take  eflEect,  if  there 

Lord  Km.  should  be  a  total  change  in  the  situation  of  his  iamily. 

SH oftSprinl      The  subject  next  came  before  the  Master  of  the  Rolls,  in 

'^^'  Gibbons  v.  Caunt,  (4  Vesey,  848.)  upon  a  new  state  of  facts, 

and  presented    a  case    which    had   never  been  decided. 

There  was  a  marriage  prior  to  the  will,  and  then  the  birth 

of  childran,  by  the  first  wife,  after  the  execution  of  the  wiH, 

and  after  the  death  of  the  wife,  a  subsequent  marriage  and 

Lord  Jhm^  BO  children.     Lord  AlvanUy  did  not  say  the  role  of  dec!- 

UsfU  opiiiioii.    ^.^  ^^^j J  ^  ^^  ^^^^  ^^^  y^^  observed,  that  there  was  not 

a  single  argument  that  would  not  apply  to  the  one  case  as 
much  as  to  the  other;  and  he  showed  the  inclination  of  hid 
mind  to  be  in  favour  of  the  implied  revocation.  But  he  for* 
ther  observed,  that  ^  they  do  go  the  length  of  permitting 
evidence  to  be  received  against  those  implied  revocations, 
and  that  he  did  not  like  it ;  and  Lord  Ktfiyon^  in  5  Term 
Rep.  did  not  form  his  opinion  upon  it'' 
A  case  under  a  new  aspect  next  presented  itself  befbre 
Cue  befiN«  Xjord  LoughboTough,  (5  Vesey^  663.)  in  which  the  qietftioti 
hvrmtg^  was,  whether  a  will  was  revoked  by  marriage  and  the  birth 
of  a  child,  when  the  testator  had,  shortly  before  the  marriage, 
by  will,  given  the  residue  of  his  estate  over,  after  having  pro- 
vMed  an  annuity  for  the  person  with  whom  he  then  coha- 
bited, and  a  large  provision  for  the  children  be  might  there- 
after have  by  her.  He  then  married  that  person,  and  had 
several  children  by  her*  The  Lord  Chancellor  thought  the 
case  new,  and  submitted  it  for  the  opinion  of  the  Court  of 
K.  B.  This  is  the  case  of  Kenebd  v.  Scrofifon,  reported 
in  2Eastf  530.  The  Court  of  IL  B*,  after  great  constdera* 
tion,  decided,  that  the  will  was  not  revoked  by  the  subse- 
quent marriage  and  children,  inasmuch  as  those  new  ob- 
jects of  duty  were  contemplated  and  duly  provided  for  by 
the  win.    Lord  EUenboron^f  in  delivering  the  opinion  el 


CASES  IN  CHANCERY.  £1$ 

the  Court,  declared  the  rule  to  be  settled,  that  marriage  and 
a  child,  witkatU  proviBicn  made  for  the  objects  ofAe$t  rela* 
iionSf  operated  a  revocation  of  a  will  of  lands ;  but  that  the 
rule  only  applied  in  cases  where  the  wife  and  children  were 
wholly  unprovided  for,  and  where  there  was  an  entire  di»*  bol^h^^" 
position  of  the  whole  estate,  to  their  exclusion  and  preju*  nioa. 
dice.  He  approved  of  the  ground  of  reason  on  which  tht 
doctrine  of  implied  revocations  was  put  by  Lord  KenyoUf 
aad  which  wa^  not  a  presumed  alteration  of  intention,  but  a 
tacit  condition  annexed  to  the  will  when  made,  that  it  sliould 
not  take  eflSsct,  if  there  should  be  a  total  change  in  the  situa* 
tion  of  the  testator's  family.  Here  the  wife  and  children 
were  specifically  contemplated  and  provided  for,  though 
under  a  different  character  and  denomination.  And  we  ob« 
serve,  that  in  this  case,  the  Court  cautiously  withheld  an 
opinion  on  the  point,  whether  the  revocation,  where  there 
wa$  no  such  provision  in  the  will,  could  be  rebutted  by  sub- 
sequent parol  declarations  of  the  testator  in  favour  of  the  will. 

So,  in  t^e  case  ex  parte  the  Earl  of  Rchester,  (7  Vesey,  Exception  to 
348.)  Lord  lUdon,  with  the  assistance  of  the  Master  of  die  {Jj.  «*■««* 
Rolls,  and  theCh*  J.  of  the  C.  B.,  held,  that  a  second  mar- 
riage and  the  birth  of  a  child,  the  wife  and  children  being  pro^ 
vided  for  by  the  settlement^  and  there  being  children  by  the 
former  marriage,  was  a  case  of  exception  to  the  rule,  that 
marriage  and  a  child,  operate  a  revocation  of  a  will. 

Another  qualification  of  the  general  rule  is  to  be  found  in 
Sheath  v.  Tork^  (1  Vesey  and  Bea.  390.)  A  widower  hav* 
ing  a  son  and  two  daughters,  devised  his  estate,  real  and 
personal,  and  then  married,  and  had  a  daughter.  The  Ec^ 
cksiastical  Court  held  the  will  to  be  revoked  as  to  the  per- 
sonal estate }  but  Sir  fVm.  Chant  thought  that  there  was  no  DiitinctioQ 
ground  to  presume  the  will  revoked,  as  to  the  real  estate,  mmJ^L^ 
upon  any  implied  condition  annexed  to  it,  or  upon  any  pre- 
sumed change  of  intention,  where  the  testator  bad  already 
an  heir  apparent,  and  the  revocation  would  be  of  no  use  to 
the  subsequent  child,  who  could  not  take  the  land.    It  might 


516  CASES  IN  CHANCERT. 

1820.  be  revoked  as  to  the  personal  estate,  for  that  lets  in  die  Mh 
sequent  child,  bat  he  held,  that  it  was  not,  io  such  case,  re- 
voked as  to  the  land. 

From  this  review  of  the  cases,  it  wotdd  appear  to  be  a 
general  rule,  incontrovertibly  established,  tbut  marriage  and 
a  child,  amount  to  a  revocation  of  a  will,  either  of  real  or 
personal  estate.  There  are  a  number  of  exceptions  to  this 
rule,  but  not  one  of  them  applies  to  the  present  case.  If 
the  will  of  1807  was  to  prevail,  it  would  be  repugnant  to  the 
doctrine  in  every  decided  case.  .  Here  is  a  total  dtsposilioii 
of  the  whole  estate,  as  respects  the  child.  Here  is  wanting 
the  accidental  circumstance  of  a  provbion  made  by  the  mow 
ther  for  the  child,  which  weighed  with  the  Lord  Keeper,  m 
Brown  v.  Thompson.  If  this  will  was  to  prevail,  it  would 
be  the  case  of  an  only  child  left  entirely  destitute,  and  wiih>> 
out  any  provision,  under  a  will  of  a  man  of  large  fortune, 
disposing  of  his  whole  estate*  Nor  can  we  derive  any  cir- 
cumstance to  rebut  the  necessary  presumption  of  a  revoca* 
tion,  from  the  subsequent  unattested  will,  left  in  an  envelope 
with  the  former  will  uncancelled.  The  presumption  of  re^- 
vocation  is  increased  by  the  second  will,  which  begins  witk 
a  declaration,  that  all  former  wills  were  revoked,  and  wfaidi 
makes  provision  for  this  same  child,  with  which  the  mother 
was  then  enseint.  If  declarations  of  the  testator  be  admissi- 
ble, in  any  case,  (and  they  were  admitted  by  Sir  John  JV5- 
choll^  in  the  Ecclesiastical  Court,)  and  if  the  evidence  of 
circumstances  is  to  be  received,  (and  all  the  cases  seem  to 
agree  in  this,)  here  are  decided  circumstances  to  show  that* 
the  testator  did  not  intend  to  leave  his  son  destitute.  I  have 
no  hesitation,  therefore,  in  declaring,  that  the  will  o(  March 
6th,  1807,  was  revoked  by  the  subsequent  marriage,  and  the 
subsequent  birth  of  a  child. 
u«eem«that  '^  '«  Unnecessary  to  consider,  in  this  case,  wlietber  ikm' 
wl^of  rJSri  subsequent  birth  of  a  child,  without  the  additional  circum- 
SoTamodnt^lo  ^^^^  ^^  ^'^^  Subsequent  marriage,  would  have  been  suCp^ 
arevocauoii.    ^ieot  to  revokc  the  wilFj   yet  I  am  not  willing  lo  quit 


CASES  IN  CHANCERY.  ClT 

thift  w/kim^  witboot  takiDg  some  notice  of  the  late  case  of     1830. 
Jokndan  v.  JUbutot,  (1  PhtUxmore^  447.)  decided  by  Sir 
John  Mickoll,  in  1817,  in  the  Prerogative  Court  of  Canter- 
buryi^  in  wbicb  that  Judge,  in  a  very  elaborate  and  learned 


opbiion,  reviews  all  the  cases,  and  adopts  the  role  of  the  ^^/oAm  iW- 
dvjyi  law.  He  held,  that  it  was  not  an  essential  ingredient  nion. 
in  these  implied  revocations,  that  a  subsequent  marriage 
shwid  co0cur  with  the  subsequent  birth  of  issue ;  and  that 
the  birlh  of  a  child,  when  accompanied  with  other  circum* 
staPQes»  leaving  no  donbt  of  the  testator's  intention,  was  suf- 
ficient to  revoke  the  will  of  a  married  man.  The  case  be- 
foce  him  was,  indeed,  enforced  not  only  by  the  soundest  prin- 
ciples of  justice,  but  by  the  most  persuasive  equity.  When 
the  testator  made  his  will  he  was  married,  and  had  two  chil- 
dren living ;  and  hb  will  not  only  provided  for  them,  but 
for  a  third  child  in  venire  de  ta  mere.  He  lived  twenty-two 
years  afterwards,  and  his  property  had  augmented  from 
2O,O00L  to  300,0002.  sterling,  and  dying  suddenly,  he  left 
three  cbiUren,  bom  Slier  the  will,  wholly  uaprovidM  for, 
and  one  of  the  former  children  swept  away  the  whole,  aa  a 
residnary  legatee.  Such  a  case  was  almost  too  strong  for 
any  Conn  of  justice,  endowed  with  ordinary  moral  feelings 
and.  perceptions,  to  resist.  He  placed  the  doctrine  of  im- 
plied revocation,  not  where  Ijord  K^yon  had  placed  it,  on 
any  tacit  condition  annexed  to  the  will,  bnt  where  Lord 
Manefiddf  and  (as  1  think)  the  civil  law  had  placed  it,  on  a 
presumed  alteration  of  intention,  arising  from  the  occasion 
of  new  moral  duties,  which,  in  every  age,  and  almost  in 
every  breast,  have  swayed  the  human  affections  and  con** 
dact«  It  was  not  the  circumstance  of  marriage,  (  of  which 
tbe  civil  law  took  no  notice,  in  reference  to  this  point,) 
bnt  the  birth  of  offspring,  that  laid  the  true  and  rational 
fomidatioa  of  a  presumed  alteration  of  tbe  testator's  inten- 
tion, and  which  intention  constitutes  the  essence  of  every 
wilL 
It  jnay  be  questionable,  however,  whether  this  last  deci« 


5lt  CASES  IN  OHANCBRT. 

1320.       tion  faai  not  carried  the  doctrine  of  revocation  forttier  Aan 
the  English  law  will  warrant*    It  appears  to  be  in  oppoa« 
tion  to  the  decision  in  Sh^herd  v.  Shepherd^  already  ciled^ 
and  which  was  sent  oat  of  Chancery  by  Lord  Camden^  for 
the  opinion  of  Sir  Oeorge  Bby ;  it  was  there  held  that 
the  birth  of  a  daughter  and  a  son,  aAer  a  former  will  ma- 
king provision  for  the  wife,  and  a  child  then  in  efte,  was  in- 
sufficient to  revoke  the  will    The  general  reasoning  on  this 
subject,  in  &vour  of  the  revocation,  is,  that  the  testator  hav- 
ing contracted  new  relations,  such  as  those  of  husband  or 
father,  he  must  have  intended  a  revocation  of  his  prior  will, 
because  he  must  have  meant  to  discharge  the  moral  duties 
attached  to  those  relations.    The  claim  of  the  wife  to  the 
benefit  of  this  presumption,  in  the  case  of  a  devise  of  land,  is 
admitted  not  to  be  very  strong,  because,  if  she  was  lei  in, 
the  land  would  still  descend  to  the  heir,  and  the  law  has 
secured  to  her,  in  every  event,  a  provision  for  life,  out  of  the 
real  estate.     Her  claim  to  a  provision  from  the  personal 
estate,  rests  on  higher  ground :  for,  in  respect  to  that  por- 
tion of  her  husband's  property,  she  is  left  entirely  at  the 
control  of  his  will  and  pleasure ;  but  her  pretension  is  here 
also  weakened,  firom  the  consideration  of  the  provision  by 
dower,  which  the  common  law  has  already  secured  to  her. 
A  stronger  presumption  of  the  testator's  change  of  miod,^ 
arises  from  the  birth  of  subsequent  children ;  fi>r,  they  can- 
jiot,  like  the  wife,  ^take  care  of  themselves,  by  a  suitable 
settlement,  nor  have  they  any  fixed,  unalienable  provision, 
as  the  wife  has,  out  of  the  real  estate.    They  have,  there- 
fore, a  very  strong,  natural,  and  moral  claim  to  a  compe^ 
tent  support  and  provision,  out  of  their  feiher's  property. 

But  the  answer  to  this  is,  that  the  disposition  of  property 
is  and  ought  to  be  governed  by  setded  rules,  and  that  accord- 
ing to  the  language  and  authority  of  the  general  current  ct 
cases,  there  most  be  both  marriage  and  a  child,  to  work  a 
revocation  of  a  will  It  is  the  policy  of  the  English  law, 
tp  give  to  every  aum  of  competent  will  and  understandiag, 


CASES  IN  CHANCERT.  519 

^e  absolate  control  (however  imprudeody  or  improvideiilly  lB2Xk. 
be  ma}  at  times  exercise  it)  over  the  disposition  of  bis 
estate ;  and  children  are  not  considered  as  having  a  legal 
interest  or  property  in  the  effects  of  the  father.  06r  law 
has  rejected,  or  has  never  adopted  the  noUon  of  the  inoffi'- 
ciosum  te$tamentum  of  the  civil  law.  It  woald  be  danger- 
ous, and  might  lead  to  loose  speculations,  to  give  greater 
effect  than  the  setded  doctrine  of  the  Elnglish  law  has  al- 
ready done,  to  the  occnrreoce  of  new  domestic  duties. 
Every  person  is  permitted  to  make  his  own  will,  at  his  dis- 
cretion ;  and  he  may  even  disinherit  his  children,  if  he 
should  be  so  inclined,  whether  they  deserved,  or  not,  sucb 
extreme  chastisement  Every  material  addition  to  the  pro- 
perty of  a  testator,  or  alteration  in  the  circumstances  of  his 
family,  varies  his  relations  and  duties,  either  in  kind  or  de- 
gree, and  might  be  made  the  ground  of  very  plausible  and 
pathedc  claims  upon  the  Court  for  the  application  of  this 
doctrine  of  a  presumed  revocation.  Courts  would  be  run- 
ning the  hazard  of  "substituting  their  will  for  that  of  the 
testator. 

Indeed,  Sir  John  KichoU  was  not  inclined  ^o  controvert 
die  rule  laid  down  by  Sir  Oearge  Hay^  in  Sl^herd  v. 
Shepherdj  {ubi  sup  J)  and  by  the  K.  B.  in  White  v  Barford^ 
(4  Matde  and  Selw,  10.)  that  the  mere  subsequent  birth  of 
children,  unaccompanied  by  other  dreumstances^  did  not 
amount  to  a  presumed  revocation ;  and  it  was  the  concur- 
rence of  the  other  circumstances  rendering  the  intention 
*^  plain  and  without  doubt,"  uriited  with  the  birth  of  the 
children,  that  dictated  the  decree.  If  ever  such  a  case, 
with  equally  pressing  circumstances,  should  occur  here,  I 
should  never  dissent  from  that  opinion  willingly,  nor  with- 
out great  difficulty  and  nnafiected  regret 

(2.)  The  first  will  being  thus  revoked,  and  rendered  null 
and  void,  we  have  only  to  deal  with  this  case  under  the  se- 
cond will,  of  the  14th  March,  1809.    If  die  first  will  be  ab- 


<ao  CASES  IN  CHANGERT. 

lAW.       iohrtriy  lewkMly  tbere  is  no  pieMKe  for  ^MMUieMog^  Ai< 
fint  «rill  with  the  secoiid,  and  holding  the  letter  to  be  n 


BliirsH 


V.  mere  modificatioa  of  tlie  fonner^  and  4o  l>e  under  Itic  iiittt-' 

-  -  ence  and  control,  according  to  what  lias  been  supposed' to 


cxMotod  **£lt  ^^^^  '*^'*  ^®*^  ^y  ^^'^"^  Hardwickef  in  Btudendl  r.  Bough- 
nroked  *   by  ton.  (2  jjtk,  368.)  Thatcase  has  no  manner  of  application, 

mamtxa    and  ^  '  rr  w 

birth  cTa  child,  i^qJ  iq  connect  the  one  will  with  the  other,  woald  be,  moriua 

cannot  be  COQ- 

n«cted  with  a  jungere  corpora  tfivis.  The  first  will  is  absolutely  dead,  at 
'^"Id^ith  t£  '®**^'  **  *^  every  thing  that  concerns  the  rights  of  the  wife 
J?*"'.^*^  '^  and  child. 

kmnitytopats 

nai  estate,  to      The  Will  of  1809  was  uot  executed  with  the  solemnities 

as  to  make  a 

i^id  will; bat  requisite  either  by  our  law,  or  that  of  Demarara^  to  pass 
cendi  to  the  real  estate,  and  so  far  the  estate  descended  to  the  child,  as 
heir  at  law,  subject  to  the  dower  of  the  wife.  It  caunot  ad- 
mit of  a  doubt,  upon  the  proof  in  the  case,  that  the  slaves 
and  effects  attached  to  the  plantation  in  Dcmarara^  passed 
as  appurtenant  to  it,  and  as  part  of  the  plantation,  to  the 
heir.  They,  together  with  the  plantation,  were  real  estate, 
not  reached,  or  affected,  by  the  imperfect  will  of  1809.  The 
law  of  Demarara  on  this  point,  has  been  proved,  as  a  matter 
of  fact,  by  a  person  acquainted  with  the  laws  of  that  place, 
and  who  had  long  resided  there,  and  sustained  a  judical 
office.  If  he  was  not  a  professed  jurist,  the  plaintiff  should 
have  furnished  more  certain  proof  of  the  law  of  Dma- 
ji^reign  uin  rora.  (a)  The  evidence  produced  was  competent,  and, 
7^vHtneM«^  under  the  circumstances  of  the  case,  sufficient,  in  the  A- 
M^  matteiTo^  ^^^^  ^f  ^||  ^y^^  iprwit  I  Cannot  judicially  knoiv  the 
law  of  Demarara^  but  by  proof,  as  a  matter  of  fact.  The 
claim  of  die  plaintiff  mnst  then  be  confined  to  her  legacy, 
under  the  last  wilt ;  and  the  defendants  are  accountable  Ibr 
the  personal  estate  which  has  come  to  their  hands  as  execu- 
tors, and  they  are  not  accotmtable  to  any  further  ^sleik, 

(a)  It  WAS  ttndentood  in  the  ease  fai  JDMCMm»  fl  IMir,  Mm,  Ap.  Mil) 
Uwt  by  the  positive  law  of  Dtnutrarmi  9im$t  on  aa  eitste  irafe  |frt<iMtrwi- 

iitit,  or  ftUached  to  the  ioil,  M  fMirt  of  Uie  realty. 


CASES  IN  CHANCERY.  S21 

MW  as^  asecatoiB,  for  the  proceeds  of  Ae  real  estste,  for      1820. 
those  proceeds  beknig  to  the  heir.    The  aimuitj  given  to 
the  plaiotidr,  was,  oafortuoately,  not  made  chargeable  upon 
the  Demarara  estate,  nor  upon  any  other  real  estate.   Other 
legacies  in  the  will  were  chargeable  upon  the  proceeds  of 

.  the  Demarara  estate,  but  not  tlie  plaintiff's  legacy.  It  is 
chargeable  only  upon  the  personal  assets,  subject  to  the 
debtS|  and  to  specific  bequests.    On  this  point,  the  answer 

.of  the  defendants  states,  that  the  debts  of  the  testator  ex- 
ceeded all  the  personal  estate  that  has  come  to  thjsir  liands, 
or  knowledge,  exclusive  of  the  specific  bequest.  If  this  al- 
legation be  true,  (and  the  plaintiff  has  not  alleged  or  shown 
any  thing  against  it,)  there  is  no  use  to  the  plaintiff  in  di«* 
recting  an  account,  for  there  is  a  failure  of  assets,  and  the 
bill  opght  to  be  dismissed  : 

The  following  decree  was  entered : 

"  It  is  declared,  that  the  will  of  the  testator  in  the  plead-  Decra^, 
ing^  mentioned,  of  the  date  of  the  6th  of  ./IfarcA,  1807,  was, 
in  judgment  of  law,  revoked  by  the  subsequent  marriage  of 
.  the  testator  and  the  birth  of  his  son.     That  the  will  of  the 
14th  of  March,  1809,  was  not  executed  with  tlie  solemnities 
reqmsite  to  pass  real  estate,  situated  either  in  this  state,  or 
in  Demarara  ;  and  that  the  slaves  and  effects  of  the  testator, 
attached  to  his  plantation  in  Demarara^  descended,  together 
^  with  the  said  plantation,  upon  the  testator's  death,  to  his  son 
.  and  heir  at  law,  as  part  of  his  real  estate.     That  the  annu- 
ity given  by  the  latter  will  to  the  plaintiff,  was  not  charged 
upon  any  part  of  the  testator's  real  estate,  and  the  answer 
averring  that  the  debts  exceeded  the  assets  which  have  come 
40  the  possession  or  knowledge  of  the  defendants,  as  execu- 
tors, exclusive  of  the  specific  bequests,  and  which  debts  and 
assets  fu^  set  forth  in  schedules  annexed  to  the  answer  ;  It 
i»  4>rdfted,  ke.  That  unless  the  plaintiff  shall,  within  forty 
days,ele*t  to  have  an  accoont  taken  before  a  master  of  the 
Vol.  IV.  66 


5Sa  CASES  iN  CHANCERY. 

1830*  persaual  eetale,  and  of  the  admioistration  thereof,  by  the 
defendants,  upon  the  principles  contained  in  tbis«  decree,  and 
the  peril  of  costs,  in  case  no  monies  shall  be  found  due  and 
coming  to  the  plaintiff  from  the  defendants  upon  such,  ac- 
counting, the  bill  shall  then  stand  dismissed  withoot  costs." 


NicoLL  and  VANOVwrATCiR  againd  Mumfdrd. 

Tlie  interest  of  each  partoer»  in  the  partnenhtp  propertj,  is  his  share 
ia  the  turpkis,  suhject  to  all  partaenbip  accounts,  te. 

An  assignee,  tberefinre,  or  separate  creditor,  of  one  paitiMr,  is  entitled 
only  to  the  share  of  such  partner,  after  a  settloiaent  of  th/saoooonts, 
ai^d  after  all  the  joat  claims  of  the  other  partner  are  satisfied.  ■ 

Ship  owners  are  tenants  in  common  of  tha  yesael,  not  joint  tenants,  or 
partners ;  and  one  of  them,  where  the  vessel  has  been  sold,  know- 
ing that  the  share  of  the  other  had  been  before  lawiblly  mssignad, 
has  no  right  to  possess  himself  of  the  whole  proceeds,  with  a  riew 
to  retain  sach  share,  to  satisfy  any  claisM  he  may  have  agaiast  the 
other. 

The  assignee  of  one  part  o#Ber  of  a  vessel,  is  entitled  to  his  part  or 
the  proceeds  thereof,  withoat  being  subject  to  any  general  balance 
of  aocoont  between  the  owners. 

Owners  oi/reigiU  and  oarg^  are  joint  tenants  or  partners,  and  the  as- 
signee or  separate  creditor  of  one  of  them  takes  his  interest,  subject 
to  an  account  between  him  and  his  copartner  in  the  voyage. 

But  where  one  joint  owner  of  the  freight  and  cargo  of  a  particular 
vessel  on  a  particular  voyage,  assigns  his  interest  therein,  one  of 
them  who  has  got  possession  of  the  >rbole  proceeds,  cannot  retain 
the  share  sd  assigned,  to  satisfy  claims  be  may  have  against  the 
other,  arising  fh)m  former  and  distinct  voyages  or  adventures,  in 
which  they  may  have  been  concerned  together,  in  the  same,  or 
otiier  vessels ;  they  not  being  geiieral  partners  in  trade,  and  there 
not  being  «ny  connection  between  the  different  voyages  or  adven- 
tures. 

An  insolvent  debtor  may,  Sonajide,  assign  his  property  before  it  has 
become  bound  by  any  lien,  in  truH^  for  the  heoefit  of-aA  his 


CASES  IN  CHtANC£RT.  62» 

creditors :  and  iie  ttientof  the  creditore  it  pot  necessary  to  give       1820^ 

legBl  Falidity  to  the  deed.  S^^v^/ 
But  where  the  assignment  is  directly  to  the  creditors,  without  the  in-       Nwom. 

tfirFention  pf  trustees,  the  assent  of  the  creditors  is  requisite  to  gire  Mdmioio. 
it  legid  validity.  ■  ■ 


IN  1815  and  1816,  the  defendant,  Gurdon  S.  Mmford,  '^"^^^ 
and  Samuel  StUlweUf  were  joint  owners  of  the  brig  Phmniv^ 
and  her  cargo,  on  a  trading  voyage  to  the  Mediterranean^ 
&c.  After  disposing  of  her  outward  cargo,  which  was 
shipped  in  the  joint  names  of  Mumford  and  SttUweUj  and 
tailing  in  another,  the  Fhcenix  went  to  the  coast  of  BrazU^ 
sold  her  cargo,  and  tooli  in  another,  and  arrived  at  the 
jHav«nna,  where  the  captain  invested  the  proceeds  arising 
ftonrUie  wle  of  the  brig,  and  of  the  last  cargo,  in  sugar 
and  toffee.  B.  having  become  insolvent,  the  defendant,  who 
had  heard  of  the  arrival  of  the  Ptiiznix  at  H.,  in  order  to 
secure  his  claims  against  S.  arising  out  of  their  joint  con- 
oarn  ia  three  other  vessels,  and  vojrages,  and  to  indemnify 
4iimself  for  losses  arising  from  his  connection  with  5,, 
^i^ote  to  the  master  of  tlie  PhtRnix  at  H.,  directing  him  to 
consign  the  cargo,  in  which  the  proceeds  arising  from  the 
sale  of  the  brig  and  cargo  at  H*  should  be  invested,  to  the 
defendant  individually.  The  master,  accordingly,  and  with 
tbe  advice  of  merchants  there,  shipped  the  sugar  and  coffee 
8i>|mrDhasad  with  tbe  proeeeds  of  the  brig  and  her  cargo, 
on  board  the  brig  MkoioHj  consigned  to  the  defendant,  at 
^eVf'Tork^  as  if  he  was  the  sole  ownef.  The  Newton  arri- 
ved at  jYeuf'Torky  with  the  cargo,  so  consigned,  to  the  de- 
.feudant,  on  tbe  24th  February,  1817;  and  the  defendant 
entered  the  cargo  at  the  Custoai- House,  took  .possession  of 
it,  and  sold  it,  and  applied  the  proceeds  of  iS>.*s  stiare  to  tbe 
payment,  as  the  defendant  alleged,  in  his  answer,  of  the 
deb^s  of  Stillwell  Stillwell  liad,  on  the  27th  Aprl,  1816, 
MMgucd  all  bis  estate,  real  and  personal,  according  to  a 
flclHdate  aimexed  to  tbe  deed,  of  assigoineBt>  iocludiog  the 


CASES  IN  CHANCfiRY. 

brig  PhmniSi  and  ber  cargo,  lo  the  pJainlift,  in  trast,  fbrall 
his  creditors.    The  bill  alleged,  that  the  defendant  had 
notice  of  this  assignment  soon  after  it  was  execnted,  and 
long  before  the  arrival  of  the  Newton  with  her  cargo.    That 
the  plaintiffs,  relying  on  the  assignment,  and  thai  the  pro- 
perty  wonld  come  to  their  hands,  paid  the  debu  of  S.  and, 
among  the  rest,  bonds  at  the  Custom  House,  to  aJarge 
amount.    That  all   the  property   assigned,  including  the 
cargo  of  the  Newton,   is  insufficient  to  pay   the  Custooi 
House  bonds,  and  debts  due  to  the  other  creditors  pf  S. 
That  the  creditors  of  S.  relying  upon  the  assignment^  and 
on  the  good  faith  with  which  it  was  made,  pursuant  to  the 
aUpulations  contained  in  it,  did,  by  an  instrument  ex^uted 
by  them,  under  their  hands  and  seals,  prior  to  the  1st  oC^^* 
tember^  1816,  and  annexed  to.  that  ^gnment,  release  and 
discharge  5.  from  the  debts  owing  to  them  respectively. 
That  the  plaintifi^  have  demanded  the  proportion  of  S.  in 
the  cargo  sent  by  the  Newton,  and  the  proceeds,  of  the  de- 
fendant, who  has  refused  to  deliver  or  pay  to  them  any  part 
thereof.    The  bill  prayed,  that  the  defendant  might  be  de- 
creed to  account,  8tc  and  pay  over  to  the  plaintiffs  th^  one 
half  of  the  proceeds  of  the  brig  Phiznix  and  cargo,  8ic.  and 
for  general  relief. 

The  defendant,  in  his  answer,  admitted  the  material  fa^ts 
sUted  in  the  bill  ^  and  insisted  on  his  right  to  retain  the  pro- 
ceeds of  the  Phtsmx  and  cargo,  and  to  apply  the  proportion 
of  S.  to  the  payment  of  the  amount  due  from  S.  to  him,  on 
the  setdement  of  their  partnership  transactions  j  and  he  of- 
fered io  come  ta  an  account  and  general  settlement  of  all  bU 
dealings  and  transactions  with  S. 
June  26fA.  The  cause,  this  day,  came  on  to  be  beard  on  the  plead-, 

ings  and  proofs. 

Sloam  and  C.  Graham,  for  the  plmntiffs.    They. cited 
2  JoAni.   Ch.  Rep.  144.     9  Johm.  Rep.  502.    Mhol  on 


CASES  IN  CHANCERY.  626 

Sh%p9t,9Si  I  Mmiague  an  Parinenhip,  102.  18L    St  Term  1820. 

Rep.  409.     1  C««ip6eS  JV.  P.  Rep.  95.  "TJI^^ 

T. 
MUMFOKD* 

7.  A.  Enmetj  contra*    He  cited  Cowp.  405.    4  Fissey,  ^ 

396.     1  »%ihp.  jBep.  50. 

The  cause  stood  over  for  consideration  to  this  day.  MguHBth:  - 

Trb  Ctf  akoellor.  The  question,  in  this  case,  is,  upon 
whaf  principles  the  account  between  the  parties  shall  be  di- 
rected to  be  taken. 

StSlweU  and  the  defendant  were  equally  concerned  in  the 
brig  PAcBntr  and  her  cargo,  and  in  the  profit  and  loss  of  the 
voyage.  There  can  be  no  doabt  that  the  account  is  to 
be  taken,  as  between  partners,  in  respect  to  the  freight  and 
cargo;  and  the  only  difficulty  is,  as  to  the  vessel.  As  far 
as  the  defendant  and  S.  were  to  be  considered  partners,  so 
far'  the  defendant  is  to  be  deemed  as  having  a  lien  on  the 
partnership  property,  in  respect  to  the  balance  that  shall 

coine  due  to  him  on  the  partnership  account.    No  separate  An  ftSBignee 

"^                 ^  J  '                                     "^  or       wpantft 

creditor  of  one  partner  can  be  entitled  to  more  than  the  per*  creditor  of  ooa 

^           .             *  partner  wenti- 

son  in  whose  place  he  stands.     He  can  only  take  his  debt-  dedoniytotb« 

*                                                               "^  share  of  tar.h 

or's  share  after  the  other  partner,  oua-partner,  is  satisfied,  partner,  after 

*  •      •.     J     It  .           11                    /   ^  .                                   ,      .  aBettlemcnlof 

and  has  bad  all  just  allowances  for  debts,  expenses,  and  ad-  the  accoants, 

vances,  in  that  character.    H  he  interest  of  each  partner  is  th« jast  daimt 

his  share  of  the  surplus,  subject  to  all  partnership  accounts;  partner  are  w- 

and  that  interest,  or  surplus  only,  is  liable  to  the  separate  The  interest 

creditors  of  such  partner,  claiming  either  by  assignment  or  ishis  s£ara  in 

under  execution.    As  between  one  partner  and  the  separate  tubjecTto  iii 

creditors  of  the  other,  they  cannot  afiect  the  joint  property  SccMiiits,^;. 

any  further  than  the  partner,  whose  creditors  they  are,  could  te^  abnVu 

have  afiected  it.     This  is  the  settled  rule  in  cases  of  part-  pmte''!^^^^'. 

nership  property,  and  the  doctrine  of  Lord  Har^ftrtcAre,  in  Mrtnef,cidm^ 

the  leading  case  of  fVest  v.  Skip,  (1  Ve$ey,  239.)  has  re-  '^^it  ^Z 

ceived  a  constant  sanction  in  succeeding  cases.    (Fax  v.  "^"^^^ 


S»  CASES  IN  CHANCERY. 

183a  HMury,  Cowp.  44£.  FiM  ▼.  Clarkt,  4  Fasey,  396.  XHcT* 
ion  V.  Morrison^  17  Te^ey,  193.) 

Bat  a  difficalty  arises  in  the  application  of  this  doctrine 
to  the  vessel. 

In  DoddingUm  v.  Hdllet,  (1  Fetey,  497.)  Lord  Harduifike 
so  applied  it,  and  iield  that  part  owners  in  a  ship,  wi-re  to  be 
considered  partners  and  joint  owners*  though  tbigr  were,  i;i 
fact,  but  tenants  in  common  ;  and  tliat  the  distribntion  of  tfa^ 
assets  of  one  of  them,  being  insolvent,  was  to  be  mudei  as  ^f 
joint  property,  and  to  be  applied  first  to  tbejoint  deblSj  9l|d 
to  be  treated  as  partnership  property,  chaiyeable  with  9SI 
debts  for  which  either  owner  was  liable,  on  account  of  the  ship* 
This  case  was  expressly  overruled  by  hovA^Eldon^  in  the 

Ship  ownen  ^^  ^  -P^'"'*  ^^''^t  (^  ^«'  and  B^a.  242« .  2  lU^j  7§. 
are  unmu  in  f^ote.\  wbo  held,  that  a  ship  stood  upon  the  nice  distinction 

CtmillOA,       DOC  *•  ' 

joipt  tenanu.  of  a  tenancy  in  common.  He  ruled  agsun,  in  the  case  ex 
parte  Uarison^  ;  2  Rosens  Cases  in  Bankrvptctf^  76.)  that  the 
owners  of  a  ship  were  not  interested  in  it  as  joint  tenants, 
but  as  tenants  in  coounon,  and  that  the  bankrupt's  share 
passes  to  tbe  creditors  under  the  bankruptcy,  withogt  being 
liable,  specifically,  by  way  of  lien,  to  the  claims  of  the  other 
part,  owners,  in  respect  of  their  disbursements  and  liabiiities 
for  the  ship.  So,  also,  in  the  case  ex  parte  Gibson,  [  1  Mon* 
(ague  on  Partnership,  102.  note.)  it  was  held,  that  abanji- 
rupt's  interest  in  the  moiety  of  a  vessel,  was  his  separate  pro- 
perty, and  not  held  by  his  assignees,  for  the  purpose  of 
paying  the  joint  creditors  of  the  ship. 

This  doctrine  of  a  distinct  separate  property  in  a  vessel 
between  part  owners,  as  tenants  in  common,  seems  to  have 
had  countenance  from  Lord  Loughborough,  in  the  case  fir 
parte  Parry,  (5  Vesey,  675.)  where  one  joint  owner  of  a 
ship  insured  on  his  own  account,  and  became  a  bankrupt 
It  was  held,  that  though  the  cargo  and  proceeds  of  tbe  voy- 
age were  joint  property,  the  produce  of  the  insurance  0^1 
the  ship  which  was  lost,  was  separate  property.  And,  per- 
haps, we  may  say,  with  Sir  Arthur  Piggot,   that  it  is  the 


CASES  IN  CHANCERY.  '  627 

uaiyersal  understanding  in  the  coinnercial  world,  and  esp-      1620. 
peciaUj^  among  ship-owners,  that  part  owners  of  a  ship  are 
ttot  partners.    He  said,  that  the  case  of  Doddington  v.  Hal- 
Jet,  was  never  acted  upon;  and  the  EngUsh  usage  is  doubt- 
less our  usage  upon  this  point 

1  dare  not,  therefore,  follow  a  case  which  has  never  had 
efibct,  and  has  been  so  authoritatively  exploded.  The  late 
tases  which  have  been  referred  to,  are  in  point  against  the 
allowance  of  any  partnership  claim,  or  taking  an  account 
on  the  foot  of  any  partnership  in  the  vessel.  And,  as  Mr. 
Bdt  has  obseWed,  {Supplement  to  Vesey^  pernor)  in  his  notes 
on  the  case  of  Doddington  ^.,HaIUt^  it  was  rather  singular 
diat  Lord  Hardifficke  should  have  found  a  partnership  of 
the  ship,  and  each  part  owner  liable  in  solido^  for  all  advan- 
ces, when  the  agreement  stated  in  that  case,  expressly  de- 
clared, that  the  parties  agreed  severally^  and  not  jointly^  and 
each  for  himidf;  and  the  short  argument  for  the  defendant, 
as  reported  in  that  case,  states  facU  and  principles  which 
strike  me  as  most  weighty  and  conclusive  on  the  question. 
The  assignment  then  of  S.,  of  the  27th  o(  April,  1816,  and 
which  was  long  before  the  Pkcenix  arrived  at  the  Havanndy 
passed  to  the  plaintiffs  the  right  to  a  moiety  of  the  vessel ; 
and  the  defendant  must  be  held  accountable  for  that  moiety, 
or  the  proceeds  of  it,  which  be  has  received,  without  making 
those  proceeds  subject  to  the  balance  which  may  be  found 
due  4>n  a  settlement  of  partnership  accounts.  The  freight 
and  the  curgo  are  subject  to  such  a  balance,  because  as  to 
them  they  were  partners,  but  not  as  to  the  vessel.  As  to 
that,  they  were  merely  tenants  in  common,  in  like  manner 
as  if  they  had  owned  in  common  a  warehouse,  or  other  real 
property,  in  J^euhYork. 

The  next  question  is,  whether  the  freight  and  proceeds  of 
^  cargo  of  the  PJUBnixj  are  subject  to  the  unsettled  balance, 
(if  any)  due  to  the  defendant  on  former  joint  transactions 
Ibetween  him  and  5.,  in  respect  to  the  ships  Union  and  Oiyis, 
and  in  voyages  by  tliose  vessels  on  their  joint  account. 


iS8  CASES  IN  CHANCERY. 

1820.  This  preteimon  on  the  part  oT  the  defendant  i»q«ileiin' 
founded,  because  the  case  does  not  afford  any  evidence  that 
the  defendant  and  S.  were  general  partners  in  trade,  or  bad 
any  other  or  further  connection  than  what  each  separate  ad« 
venture  occasioned.  A  joint  concern  in  the  Phanix^a  voy- 
joiDt  owner  M-  age,  had  no  necetoary  connection  with  that  of  any  ibrnier 
«rt^  iQ^'^tbe  voyage;  and  to  make  the  rule  of  law  apply,  Kmitiag  the 
auwoofapttr-  assignees  of  S*  to  the  surplus  of  the  cargo  and  voyage  of 
ooa  purticaiar  the  P/uBuix^  after  deducting  the  balance  doe  the  defendant 
tttZef^rtoer,  oti  Other  transociions,  it  must  distinctly  and  clearly  appear 
TOMesMon  ^  that  the  concern  in  the  cargo  and  voyage  of  the  P/uBiMf  aad 
of  racC  freight  ^^  ^^^  former  voyages  and  adventures,  were  all  one,  entire, 
BotaitiSe!ito  subsisting,  connected  and  continued  partnership  transac- 
^id  ^!if  "^  ^^^-  Nothing  of  that  kind  appears,  or  is  to  be  inferred  flroiii 
ciymflbemaj  ^^  pleadings  and  proofs  in  the  case.  It  appears  by  the 
hlSroo-putoTr!  <^osvci*>  ^h^t  ^hc  defendant  owned  only  the  one  third  qf  the 
foimS  ^^  PAcBn/x  until  a  short  time  before  her  departure,  and  that  S. 
gillSdad^nl  owned  the  other  two  thirds.  This  inequality  in  that  case, 
£ej*w!i?SSi^  affords  a  strong  presumption,  that  the  parties  had  no  fiied 
^BT^i  ^  ^"^  settled  connection  as  partners ;  and  It  v^^as  for  the  de^ 
T^\^'  ^^^^  fendant  to  have  made  out  the  fact  in  proof,  if  it  had  eiisted. 
iMt  being  ge-      If  we  pot   the  soggestion  of  partnership    out  of  view, 

Befei  partners 

in  trade,  nor  then  the  defendant  has  no  ground  to  retain  the  proceeda  of 

MTcooDection  ,  ^    .       «i        .      T      ,.     ,  ^ 

czisUng  be-  One  moiety  of  the  Phantx^  m  discharge  of  any  general  ba- 
ferent  traoMc-  lance  of  accouuts  which  he  may  claim  and  put  forward  by 
gei,  ^'  ^^'^'  way  of  set-off.  The  right  of  iS.  to  a  moiety  of  tlie  proceeds 
of  the  vessel  and  cargo,  had  been  duly  assigned  to  the 
plaintiffs  in  trust,  for  the  benefit  of  all  the  creditors,  and  the 
defendant  had  no  right,  afterwards,  with  the  knowledge  of 
that  fact,  to  take  and  appropriate  those  proceeds  to  himself. 
The  right  bad  vested  in  the  assignees,  in  Jipril^  1816,  aad 
most  of  the  creditors,  before  September^  1816,.  bad  come  io 
and  released  S.  in  consideration  of  the  assignnMnt,  and  af 
the  dividends  to  be  received.  It  is  in  proof  that  the  defen- 
dant knew  of  that  assignment  before  he  wrote  the  letter  to 
Captain  Green,  on  the  13th  S^tember,  1816,  requesting  hioi 


CASjBS  IN  CHANCERY.  52^ 

txrcD^ii  the  entire  cargo  to  faixn,  the  defendant,  "  to  se-  l^Xk 
enre  bis  advances  on  that  and  all  ojher  accounts."  vThe 
defendant  ibad  no  right,  with  or  without  the  concurrence  of 
Captaifi  ^*,  to  seise  and  take  possession  of  the  share  of  S., 
which  had  been  lawfully  transferred  to  and  vested  in  the 
piwitiis.  It  was  a  possession  acqwred  wrongfully,  against 
the  act  and  deed  of  the  true  owner ;  and  it  would  seem  to  be 
iflSposdible,  upon  general  principles  of  equal  justice,  or  with 
safety,  to  credit  and  creditors  in  general,  to  give  sanction 
to.sttch'a  race  of  diligence,  and  such  an  act  of  unautho- 
tiled  appropriation. 

The  fact  of  the  assent  of  the  creditors  to  tbe  assignment, 
pti^r  to  the  taking  possession  of  the  property  by  the  de- 
fendant, may  make  the  case  more  impressive,  but  I  do  not 
consider  any  express  avowal  of  that  assent  as  necessary  to 
Ae  operation  of  the  assignment.  It  is  settled  by  a  series  of 
cases,  referred  to  in  Hendricks  v.  IZoitnson,  (2  Johns*  Ch. 
jRep.  307,  308;)  add  to  which  may  be  added  the  cases  of 
Picksiock  v.  Lyster,  (3  Maide  fy  Sdwyrii  37 1 .)  and  Broum 
v.  Minium^  (2  64iiiJron,  557.)  that  an  insolvent  debtor  may,  Aniiwoivent 
at  any  lime,  before  bis  property  becomes  bound  by  any  lien,  ^j^ ^^"2- 
assign  it  over  to  trustees,  for  the  benefit  of  all  his  creditors,  ■JS'^.'*  p*^ 

or  J  perty  in  truH 

by  an  act  made  h(ma  fide.    The  assignment  is  to  l)e  refer-  ^ofyi^u^S^- 
red  to  an  act  of  duty,  attached  to  his  character  of  debtor,  to  ^^^'^  ^^  ^ 

•"  '         assent  of   the 

make  the  fond  available  for  the  whole  body  of  the  creditors,  creditors  ianot 

Docest&rr     to 

In  the  case  last  cited,  it  was  held  that  the  assignment  was  ip^e  legal  ▼»- 
good  against  a  subsequent  attachment,  if  the  creditors  had  dee^ 
iisstnied  to  the  assignment  prior  to  the  attachment ;  and  the 
inclination  of  the  learned  judge  seemed  to  be  in  favour  of 
the  validity  of  the  assignment,  even  without  sucti  intervening 
^Mseot,  and  which,  I  apprehend,  is  not  indispensable.    If  the    ^at  if  the  as- 
ms^pmi!Kty9^9  directly  to  the  creditors,  their  assent  would  J^^jy*  ^^'^^ 
be  necessary  to  give  validity,  in  law,  to  tbe  deed.    But  if  ^S^nJ^^^*^*' 
the  assignment  (as  in  this  case)  be  to  trustees,  for  their  use.  i^^}^  g>>  >t 

,      ,        •  *  .       .  .  ^.  ^®E**  validity 

the  legal  estate  passes  and  vests  m  the  trustees,  and  Chance- 
ly  will  compel  the  execution  of  the  trust  for  the  benefit  of  tbe 
Vol.  IV.  67 


fiW  CASES  m  CMANCERY. 

1820.  creditors,  though  they  be  not,  ftt  the  time,  aiMiitiiif,  ttd 
parties  to  the  conveyance.  This  point  was  not^necessaiy 
for  decision  in  that  case }  but  as  far  as  the  case  went,  it  it 
equal  to  any  other,  in  point  of  authority,  derived,  most  Jnsl^ 
ly,  from  the  character  of  the  judge,  and  the  very  able  and 
accurate  investigation  by  which  his  decisions  are  distitt* 
guished. 

I  shall,  accordingly,  direct  a  reference,  to  take  and  sMe 
an  aocount  i  and  that,  in  taking  the  accoont,  the  defendant 
be  charged  with  the  net  proceeds  of  one  moiety  of  the  brig 
Phctnixj  sold  at  Hwanna,  and  with  one  moiety  of  the  net 
proceeds  of  her  freight  and  cargo,  upon  the  voyage,  in  the 
pleadings  stated,  or  so  much  (if  any)  of  such  moiety  of  the 
freight  and  cargo  as  shall  appear  due  to  the  phun^ifi,  as 

I  assignees  of  5^  after  deducting  the  balance  that  may  be 

found  due  to  the  defendant,  from  jS.,  on  a  settlement  of  ao* 
counts  bibtween  them,  in  respect  to  Aeir  joint  oonc^m  in  the 
said  freight  and  cargo  and  voifoge  of  the  PhcMx ;  and  all 
further  questions  are  reserved* 

Decree  accordingly* 


ScRiBNER  against  Hickok  and  others. 

On  a  bill  filed  by  the  mortgagor,  to  redeem,  against  the  administratorB 
of  the  mortgagee  'id  possession,  and  others  claimiog  under  him* 
the  defendants  were  decreed  to  pay  to  the  plaintiff  a  certain  ram  fiir 
HU  renU  and  priffUs  of  the  land,  after  deducting  the  mortgafs 
debt ;  and  the  decree  being  silent  as  te  the  proportions  whiob  eadi 
defendant  was  to  pay,  one  of  the  defendants  paid  the  whole  sum 
to  the  plaintiff,  who  gave  him  liberty  to  make  use  of  the  decree,  to 
reimburse  himself  the  amount  -.  heUtj  that  he  could  use  the  decree 
only  for  his  protection  and  indemnity,  so  far  as  bis  co-defendants 
were  bound  to  contribute. 


JSugud  M. 


GASES  IN  CQANCERT.  S31 

JM  As  Poitfti  on  petition  and  motion  of  aco-aefepdaat,  directed  Uie 
oi^tirilmtioa  to  be  enforced  under  the  decree,  so  far  only  m  the  right 
was  clearly  ascertained. 

THE  plaintiff,  as  mortgagor,  filedl  bill  to  redeem  against 
James  Hickok  and  Horatio  Hickok,  aministrators  of  Ezra 
Hickok^  the  mortgagee,  deceased,  and  Daniel  Hickok^ 
Daniel  Boardman^  and  Stephen  Brayton. 

On  the  22d  July,  1812,  the  Master's  report,  as  to  the 
amount  of  the  rents  and  profits  of  the  mortgaged  prembes, 
received  since  the  mortgagee  took  possession,  after  deduct- 
ing the  debt  of  Ezra  Hickok^  the  mortgagee,  was  confirm- 
ed, and  the  defendants,  who  were  either  administrators  of 
the  mortgagee,  or  assignees,  under  him,  of  the  land,  were 
decreed  to  pay  to  the  plaintiff  4,287  dollars  and  1  cent     On 
the  20th   of  October  following,   the  defendant,   Horatio 
Bickok^  who  was  one  of  the  administrators  of  the  mortga- 
gee, satisfied  the  plaintiff,  paying  him  4,050  dollars,  and 
obtained  the  consent  of  the  plainiiff's  solicitor  to  use  the  de- 
cree to  reimburse  himself.    It  appeared  that  H  Hickok  paid 
the  plaintiff  to  prevent  an  impending  execution  ;  and  he  paid 
it  out  of  his  individual  funds,  though  it  appeared,  by  the 
affidavit  of  the  defendant,  /.  Hickok,  the  other  administra- 
tor, that  he  advanced  about  1,000  dollars  to  H.  Hickok  for 
the  purpose.    An  execution  having  been  issued,  at  the  in- 
stance of  H.  Hickok,  against  the  defendant,  D.  Boardman, 
for  the  whole  amount  of  the  decree,  and  levied  on  his  pro- 
perty, he  obtained  an  order  from  Mr.  Chancellor  Lansing, 
on  the  20tb  ofJjprU,  ISIS,  staying  the  execution  until  fur- 
ther order.         ^ 

A  petition  was  now  presented  by  H.  Hickok,  praying 
that  the  order  of  the  20th  of  Jlpril,  1813,  might  be  vacated) 
and  it  appeared,  from  the  documents  and  affidavits  pro- 
duced, at  the  hearing  of  the  motion  upon  the  petition,  that 
Ezra  Hickok,  the  mortgagee,  took  none  of  tlie  rents  and 
profits  to  himself,  but  had  assigned  his  right  and  interest  in 


CASES  IN  CHANCERY. 

the  premises  to  the  defetidfltits,  D.  Hiekok  9.nA  'D.  Boari- 
many  and  that  they  and  Stephen  Brayton^  who  had  pat* 
chased  under  one  uf  them,  had  received  all  the  renu  and 
profits,  in  uneqaal  proportions. 

It  appeared  that  the  defendant,  D.  JSoonlman,  had  re- 
ceived, at.  least,  a  moiety  of  the  renU  and  profiu. 

J.  V.  Henry f  for  H.  Uickok^  the  petitioner. 

A.  Van  Veckteuj  contra,  for  the  defendant,  D.  Baardman. 

^H£  Chancellor  considered  that  the  defendant,  H. 
Hickoky  was  not  entitled  to  be  deemed  a  purchaser,  for 
himself,  of  the  decree^  and  to  use  it  as  if  he  stood  in  die  cha- 
racter of  a  stranger  to  the  parties,  but  as  havmg  satisfied 
it,  as  one  of  the  defendants,  on  behalf  of  the  estate  of  £. 
Hichoky  deceased  ;  and  was  entitled  only  to  indemnity  or 
contribution,  as  a  co-defrndant^  from  the  other  defendants. 
The  defendant  who  liad  paid  more  than  liis  due  proportion, 
or  who  bad  paid  the  whole,  when  the  same  ought  to  be 
borne  by  the  co-defendants,  or  some  of  them,  was  entitled  to « 
stand  in  the  place  of  the  plaintiff,  and  to  use  the  decree  for 
his  protection  and  indemnity,  so  far  as  it  clearly  and  cer« 
tainly  appeared  that  the  other  defendants  ought  to  contribute. 
(2  Vesey,  622.  1  Wightw.  2,  3.  6.  2  Maddock'9  Ch.  Sep, 
437.  11  Veieyj  22.  3  Merivale,  576.  1  Atk.  133.  2  Venu 
609.)  Perhaps  It  would  have  been  proper  to  have  desig- 
nated, in  the  original  decree,  the  proportions  of  the  sum  de- 
creed to  the  plaintifi*,  to  be  levied  on  tlie  defendanu  respect- 
ively ;  but  as  that  was  not  done,  the  right  of  contribution 
was  to  be  enforced,  upon  this  motion,  so  far  only  as  that 
right  had  been  clearly  ascertained.. 

TThe  foHowing  order  was  entered  : — *^  That,  inasmuch  as 
the  decree  of  the  twenty-second  of  July,  in  the  year  one 
thousand  eiglit  hundred  and  twelve,  directing  the  payment 


GASES  IN  CHANOBAT.  533 

to  the  pltiiiftiff  of  four  tboaiaod  two  hondfed  and  eighty^  ISSSQL 
Mvco  d^^rs  «od  one.CMit,  with  intofost,  from  Uie  fifteenth 
of  Joouvjr  prec^diBg,  wi»  diieetly  and  equally  against  all 
the  said  defeodoBts,  wiihoQt  diserimiii^iiWi  and  the  pi^ 
meol  to  the  complainant  of  four  thousand  and  fifty  dollars, 
by  the  defendant  H.  f/.,  in  satisfaction  of  that  deciee,  under 
the  circumstances  of  the  case,  and  the  proofs  produced,  is 
to  be  considered,  not  as  a  purchase  by  him  in  his  own  right, 
but  as  a  payment  by  him  in  trust,  and  in  his  representative 
character,  as  one  of  the  admini^rators  otEzra  Hiekok^  de- 
ceased, for  the  benefit  of  that  estate,  and  entitling  him  to 
contribution  or  indemnity,  only  in  the  character  of  a  co-de- 
fendant^  ^ually  bound  by  the  decree :  And  inoimuck^  as  it 
appears  thas  the  defendant,  D.  Boardaum,  was  not  bound, 
in  equity  to  contribute  to  the  said  payment,  but  in  a  ratea- 
ble proportion  with  such  others  of  the  co-defendants  as  were 
partakers,  with  him,  of  the  rents  and  profits  of  the  mortgaged 
premises ;  and  thait  he  is  not  to  be  deemed  answerable  to  the 
said  H.  H.  for  the  entife  proportions  of  the  smd  payment, 
which  the  other  defendants,  Danid  Hiekok  and  Siefkm 
^raytcUf  or  either  of  them,  were,  in  equity,  bound  to  con- 
tribute ;  and  it  appearing  upon  this  motion,  that  the  said 
Boardman  received,  at  least,  a  moiety  of  the  said  rents  and 
profits,  and  is  in  equity  bound  to  contribole  a  moiety  of  the 
paymem  to  made  by  the  said  H.  H.y  and  it  not  appearing, 
with  sufficient  certainty,  bow  mudi  more,  if  any,  he  ought 
to  contribute — It  is  ihereupon  ordeIie]),  that  unless  the  de- 
fendant, Daniel  Boardman^  within  sixty  days,  bring  into 
Court,  and  deposit  with  the  register,  for  the  use  of  the  de- 
fendant, H.  H.'f  two  thousand  and  twenty-five  dollars,  witli 
ibterest  thereon,  from  the  twentieth  of  October^  one  thousand 
eight  hundred  and  twelve,  that  then  the  said  motion  be 
granted,  so  far  as  to  allow  the  defendant,  H.  H.,  to  levy 
and  collect  the  said  last  mentioned  sum,  with  the  interest 
thereon,  as  aforesaid,  and  no  more,  from  the  said  defendant : 


CiflES  IN  CHANCEET. 

lan.      mda  ii  fmlhir  detlmud,  tkat  noiUag  im  Mb  ( 

ttioedi  shall  be  keened  to  prejadtee  the  right  ef  the  Mid  if* 


▼.         £.,  (if  my  he  has,)  to  a  suit  hi  this  Covrt,  by  MU,  fiir  aiijf 
*"'     forther  or  g^eattt  coiitribiitio&  froB  die  said  I>.  £.^ 


CAMroKLL  aad  others  against  Macomb  and  others* 

If  mortgaged  premises  arc  incapable  of  being  sold  in  pTcels,  or  of 
being  dinded,  without  injury,  the  whole  may  be  sold,  though^the' 
whole  of  the  debt  is  n9t  dnai  and  tbo  proceeds  Bwrtiea  to  pay  the 
tnieneit  gfid  tfoiCy,  and  the  seiplas  to  the  jiiohaife  of  tbenHaei|ai 
oCihedebt        ^' 

IVhere,  in  such  case,  the  bond  having  become  forfeited  at  law,  for  tiie 
noDhpaymeOTof '{hVinterest,  the  whole  mortgaged  premises  are  de- 
<?reed  to  he  sold^  and  the  mortgagofa^ot-UttLpnrchaser  of  the  equitjr . 
of  fedemptioD,  beibre  the  day  ^  sate,  pays  (faeidterest  and  ^^ 
tbe^»Ie  wiirbe  stayed;  bat  the  decree  of  feeckwanB  eateredyWiM 
remain  as  further  securi^r  to^nforge  the  jawient  o£  ^e  fatare 
interest,  and  the  instalments  of  the  princifal>  as,  theyj[gaper.tirehr 
becojEoe  due. 

Though  the  mortgagee  is  not  only  a  trtuUe*  but  a  turety  for  t|>e  debt^ 
-smd  thengb  the  mor^paged  premises  are_in_a  state  of  ruin  radjdfca/, 
in  eodeeqaanoeef  st<Mtitoj|jL^^  secinity  Cheteby  impaiied,  ant 
'^^^^  P''*"^'^'^^jJ!f.'*r'^!?iJ!JWB^^  *fflli^^  tf  have  the  peer 
pertgjgoldLbefiwg  the  debt  is  ^ub.  or  thedebtor  is  indefaelt 

Nor  will  this  Court,  where  the  premises,  being  a  dam  and  bridge,  were 
injured  by  8torm8^^inter]ere''t6"  cempeTtlie^ mortgagor  in  possessioD, 
to  repair  them  at  his  own  expense*  ' 

^tfusf  7tt.  A  DECREE  was  entered  io  this  caused  pn  the  ISdi  of 
Jimey  1820,  on  the  coming  in  of  the  Master's  report^  [by  which 
it  appeared,  that  there  was  doe  to^  the  |dainti£^  as  trustees 
of  a  charity  school,  on  two  bonds  ai|d  mortgages  in^^he 
pleadings  mentioned,  for  interesti  IfifB  dollars.  That%e 
principal  of  the  said  bonds,  being  in  the  whole,  10,000  dol- 
brs,  would  not  be  due  until  the  year  1825,  but  the  bonds 


CASES  nr  CHANCBRY.  535 

bad  beoMie  Ibrfttied  m  bw»  by  the  non^pnymest  of  iiite-      leaO. 
rMt»  Md  that  there  was  doa  tp  the  friaintifi;  Coinp&eS,    ^a^v^^ 
2Ty499  dinars  08  eeots,  on  tvro  jodgmeatfl,  and  that  the      ^  y.    ^ 
mortgaged  premises  were  manifestly  indivisible*  aod  could     ^^^^' 
not  be  sold  in  parcels,]  that  the  mortgaged  premises,  being 
a  stone  dam,  and  bridge,  across  Harkiem  riTer,  he  sold,  and 
that  the  proceeds  be  applied  to  discbarge  the  costs  of  stiit, 
and  then  the  interest  doe,  and  then  the  principal  of  the  said 
bonds  and  mortgages,  though  not  doe,  and  the  residoe,  if 
any,  towards  payment  of  the  two  judgments  in  favour  of 
the  plaintiff,  Campbell.  Brfor^thedayof  sale,  Jo&n,Mbtoa^, 
Jan.  the  purchaser  of  the  eqoity  of  redemption,  belonging 
to  the  two  mortgages,  paid  all  the  arrears  of  interest,  and 
the  costs  due,  and  an  order  was  entered,  upon  his  applica- 
tion, staying  the  sale. 

A  petition  was  now  presented,  on  the  part  of  the  plain- 
tiff, Cainp6eU,  stating,  that  he  is  personally  bound,  as  colla- 
teral security,  to  the  trustees  of  the  charity  school,  for 
the  payment  of  the  bonds  and  mortgages.  That  he 
holds  two  judgments  against  the  defendant,  Matomb, 
tor  moneys  advanced,  and  for  his  indemnity  as  such 
secority.  That  the  other  defendants  were  owners  of  the 
equity  of  redemption.  That  Maeamb  is  insolvent,  and 
die  dam  much  injured  by  a  storm,  since  the  filing  of 
the  bSI,  and  new  in  danger  of  being  destroyed.  That  the 
security  for  the  principal  of  the  mortgage  debts,  is  much 
impaired.  That  the  defendants,  who  were  then  owners  of 
the  equity  of  redemption,  agreed  to  the  decree  of  sale* 
The  petitioner  concluded  with  a  prayer,  that  the  defendant, 
JMoeoMft,  or  MowaUj  be  ordered  to  give  secnrf^  to  repair 
die  dam,  or  to  repay  the  mortgage  debt  with  interest,  or 
that  the  order  staying  the  sale  be  vacated. 

J.  L  Rooswelif  jnn.  for  the  motion,  on  behalf  of  the  pe- 
titioner: 


i36  CkSBS  IN  CHANCERY. 

1810*  J.  Smith,  cootrpu    H«  read  an  aflMavit  of  tbe  defendant 

Mdeombf  stating,  t)|at  MowM,  tbe  precent  owner  c^lhe 
eqoitjr  of  iademption,  was  rebailding  $b%  dan,  and  woold, 
probably,  finish  it  in  two.  months.  > 

The  Chaitcbllor.  Tbe  sale  of  the  whole  of  the  mort- 
gaged premises  was  iodiapenaable  in  this  case,  because  they 
were  not  capable  of  bcjtag  sold  in  .parcds,  or  of  being  di- 
vided, withoul  manifest  injury  to  all  the  parties  conoerotd. 
When  the  whole  premises  are  thos  necessarily  sold,  it  is  tbe 
direction  of  the  statute,  (1  A".  jR.  L.  490.)  that  the  Court 
apply  the  proceeds  of  the  sale  not  only*  in  payment  of  .the  in-- 
terest^  initabnent^  or  portion  due^  but  toward*  payment  of  the 
whokj  or  residue  of  the  demand,  which  hath  not  become  due, 
or  payMe,  provided  the  same  bears  interest*  But  this  pro- 
vision is  made  for  tbe  necessity  of  the  case,  and  more  than 
is  due  is  not  to  be'  raised  out  of  tbe  mortgaged  preo^s^t 
when  that  necessity  do^  .not  exist.  If  tba  mortgagpor,  or 
tbe  party  holding  the-fqaity  of  redemption,  comes  before 
tbe  sale,  ^d  brings  in  tbe  apiount.diie,  with  costs»  Ihore  is 
no  justice  or  equity,  in  suffering  the  sale  to  proceed.  It  has 
been  the  practice  of  the  Court,  smce  I  have  sat  here,.lo  stay 
the  sale  in  such  cases,  and  to  let  .'the  decree  of  Ibreclosnre 
remain  good  to  enforce  payment  of  tbe  future  interest:and 
instalments,  as  they  may  respectively  become  doe.  Wben 
such  an  application  was  made,  before  answer,  in  Lansiag.  v. 
Capron,  (1  Johns.  Ch.Rq^.6n.)  I  required,  as  a  condition 
qf  the  rule,  a  decree  of  foreclosure  to  be  entered  by  way 
of  security,  and  to  save  tbe  trouble  and  expense  of  a  new 
suit ;  but  this  is  the  utmost  length  to  which  any  proceedmg 
in  tbe  cause  has  been  carried,  after  payment  of  the  amount 
due,  with  the  costs. 

Though  there  be  a  regular  decree  of  sale  in  this  cas^,' 
there  can  be  no  doubt  of  an  adequate  power  in  tbe  Court, 
in  its  discretion,  to  regulate  tbe  process  of  execution  under 
the  decree*    To  sell,  after  satisfaction  of  the  decree,  would 


CASES  IN  CHANCERY4  iSl 

ho  gross  abase ;  and  the  whole  induceident  to  the  sale  is  to  1880. 
obtain  satisfaction  of  the  snm  actually  due.  The  object  of 
the  decree  was  not  to  raise  any  part  of  the  debt  not  due ; 
yet,  the  raising  of  the  entire  debt  may  become  an  una* 
voidable  consequence  of  the  sale,  because,  the  Court,  in 
order  to  raise  what  is  due,  is  obliged  to  sell  the  whole  of  the 
Bortg^ed  preroues^  as  they  happen  to  consist  of  one  entire 
subject,  incapable  of  being  conveniently,  or  safely  divided. 
if  this  necessity  can  be  avoided^  before  the  sale^  by  the  vo* 
kmtary  payment  of  what  is  due,  the  present  object  of  the 
decree  is  satisfied,  and  all  that  the  party  can,  in  conscience, 
require,  is,  that  it  may  remain  as  a  security,  for  subsequent 
defaults,  and  afford  him  an  easy  and  prompt  remedy,  when 
they  occur. 

A  Court  of  law,  after  judgment  and  execution  for  the 
entire  debt,  will  relieve  the  defendant,  on  paying  the  instal- 
ment doe,  but  will  retain  the  judgment  as  a  security  for  the 
fiitnre  instalments.  {Judd  v.  JSvans,  6  Term  Rep.  399.) 
This  is  an  equitable  construction  of  the  statute  of  4  Anne  ; 
and  surely  this  Court  will  not  turn  a  deaf  ear  to  the  equity 
of  the  case,  and  adopt  a  more  than  common  law  rigour. 

But  the  petition  states,  .that  the  petitioner  is  not  only  a 
mortgagee  in  trust,  but  a  surety  for  the  mortgagor^  and  that 
the  mortgaged  premises  are  in  a  state  of  injury  and  decay, 
from  the  action  of  storms,  and  have  thereby  become  a  pre- 
carious security.  I  do  not  perceive  that  this  circumstance 
gives  him  any  right  or  title,  in  equity,  to  have  the  premises 
sold  for  a  debt  not  due.  The  security  was  taken  with 
knowledge  of  the  situation  and  character  of  the  property, 
and  of  the  risks  to  which  it  was  exposed.  It  does  not  be* 
long  to  the  Court  to  give  a  party  better  security  than  he 
elected  to  uke,  where  there  has  been  no  fraud  or  mistake, 
nor  any  abuse  or  waste  of  the  subject.  I  am  not  informed 
that  there  exists  any  precedent  of  a  bill  qwa  iimetf  adapted 
to  such  a  case. 

Vol.  IV.  68 


538  CASES  IN  CHANCERY. 

1 S20.  All  the  cases  in  the  English  law,  in  which  even  a  surety 

may  file  a  bill  quia  iimety  are  those  in  which  the  debt  toas 
dm  from  the  principal  debtor;  and  I  do  not  know  of  any 
principle  of  equity  that  wOl  justify  us  in  giving  aid  to  the 
surety,  before  the  debt  is  due,  when  the  parties  have  not 
provided,  in  their  contract,  for  such  a  case. 

The  question  on  this  subject,  so  often  rinsed  ib  the  civil 
law,  assumed  the  fact,  that  the  principal  debtor  was  in  de- 
By  the  civil  ^^^^^  9  ^^  ^^^  *^  solutioue  reu9  cessavit ;  and  when  itisaddedi 
^niwt  •ue'thJ  ^"^  ^^^^^  ^^^^  ***^  dtssipavit,  the  reference  was  still  to  tlie 
^"forili^il!-  case  in  which  the  debtor  bad  failed  to  pay,  ftnd  was,  also, 
^Khim,  be^  ^^^i^g  l>'>s  goods.  I  apprehend,  this  must  be  the  trne  con«^ 
of*  wfy^  struction;  for  the  only  question  raised  by  MitrceUus^  in 
iLbtor,by  w!  ^•^^  ^*^'  referred  to,  {Dig.  17.  1.  38.  1.)  was,  whether 
tiw^^mdltor'  ^^^  surety  could  seek  indemnity  before  he  had  hioBielf  paid, 
^  ««P»'^i  fidejussor  an  etprius,  quamsohat,  agtrepasiity  ut'tiberetut9 
surety  nuy.af.  It  was  a  Very  eouitable  provision  in  the  civil  law,  to  afford 

terthetimcof  ,  .  l  .       ,.  t        \ 

payment   hu  a  remedy  to  the  surety  when  the  debtor  neglected  to  pay, 

elapted,     sue  •  r   «" 

the  debtor  for  thoQgh  the  creditor  had  not  required  payment,  and  though 
io       certaiD  the  surety  had  not  actually  ILdvanced  Che  debt ;  but  it  wodU 

caaee,     before  ,  ,  .... 

he  has  himself  not  have  been  very  just  to  have  given  the  surety  an  action 
for  indemnity  against  the  debtor,  before  the  latter  was  in 
default,  and  when  such  a  previbus  cimm  oude  no  part  of 
the  original  contract  The  debtor,  as  the  civil  iaw  tndy 
observes,  in  another  place,  [Dig,  lib.  17.  1.  22.  1.)  has  an 
interest  not  to  be  compelled  to  pay  before  the  day ;  and 
yet,  I  perceive,  that  several  writers  on  the  civil  law  {DamaL 
part  1.  b.  3.  tit.  4.  sec.  3.  n.  3.  Wood^^  InsHiuies  of  the  Cp- 
vil  Ijaw,  p.  227.  BrowrCs  Lectures  on  the  Civil  Law^vei.  1. 
362.)(a)  refer  to  this  very  text  to  prove,  that  if  the  surety  be 

(a)  There  must  be  tome  misappfefaension  of  the  meaning  of  the  text,  on 
tiie  part  of  these  writers,  or  the  opinion  of  Manellm,  (Dig.  lib.  17.  tit.  1. 
38.)  to  which  -tbey  refer,  is  irreconcilable  with  principles  laid  down  la. 
other  parts  of  the  Digest  In  the  case  stated  in  the  text,  Tiliu$  was  part 
owner  of  a  house,  which,  by  his  consent,  was  mortgaged  to  the  ere* 
ditor  of  his  natural  son  Mwvius,    Mceviui  died,  and  the  question  which 


CASES  IN  CHANCERY. 


53» 


io  peril,  he  may  sue  before  the  time  of  payment^  to  be  in- 
demnified or  discharged.  It  may  be  so,  but  these  writers 
refer  to  no  other  text  but  that  already  cited,  and  that  cer- 
tainly does  not,  by  any  necessary  interpretation,  warrant 
the  doctrine.  Indeed,  it  seems  to  preclude  it,  because  the 
remedy  was  intended,  or  provided,  (and  so  it  is  expressed,) 
especially  for  the  case  of  a  snrety  who  could  not  conveniently 
discharge  thedebt  himself^  and  have  his  regular  recourse  over, 
at  once,  by  the  action  of  mandaltm.  It  was  a  benevolent 
provision,  in  that  view,  and  just  in  no  other.    In  other 


1820. 


arose  between  TUxiu  and  the  guarcHans  of  the  orphan  child  of  Maviutf. 
was,  whether  the   part  of  the  house  so  pledged,  could  be  eionerated  -, 
there  being,  as  it  would  seem,  no  time  fixed,  by  the   agreement  of 
flia  parties,  for  that  porposa.    « It  is  not  nalika,'*  says  4foroeUiif,  <«  the 
question   so  fineqaently   agitated,   whether  a   surety,   even   before   he 
has  paid  the  debt^  can  demand  to  be  discharged?  He  is  not  obliged,**^ 
he  answers,  <<  to  wait  until  he  has  paid  the  debt,  or  a  judgment  is  given 
against  him,  if  the  debtor  lias  delayed  payment  a  long  time,  or  is  wasting  his 
Estate ;  especially,  if  the  surety  haa  not  gt>t  the  money,  by  the  payment  of 
wliicb,  to  the  creditor,  he  would  be  entitled  to  hn  action,  ez  momdaio,  against 
the  principal/*    [JCon  abtmilis  iUa  quafrcfuentissime  agUtxri  9olet,Jidejuttor 
an  tt  priiu,  quam  tolvat,  agert  pottit,  tU  liberetw  t    N'tc  tamen  semper  ex- 
tpectandum  etty  tU  tolvat,  out  jtuHeio  aeeepto  eondewmeiurf  n  diu  in  sokUitme 
feut  tfutmily  out  cttte  bona  nm  dimipant :  pratertim  d  domi  peeuHumJUkjW' 
Mr  non  kubebUf  qua  numarata  eredUari  numdali  aetione  amceniat.}   Marcelhu 
either  refers  to  the  case  where  no  day  of  payment  is  fixed,  and  then  it  is  an 
exception  to  the  general  rule,  and  left  to  the  discretion  of  the  Judge,  to  be 
decided  according  to  the  circnmstances  of  the  case,  or  to  a  case  where  the 
day  of  payment  was  passed;  otherwise, the  snrety, by  paying  thedebt, 
conld  not  have  an  aotfon  ex  mandaU^t  against  bis  principal ;  for,  until  the 
snrety  has  paid,  and  the  principal  is  in  default,  the  implied  or  quad  contract, 
ex  mandaiOf  could  not  arise  between  them.    If  the  creditor  cannot  sue  the 
debtor  before  the  day  of  payment,  the  surety,  whose  obligation  b  accessary 
merely,  can  have  no  better  right     Accordingly,  Jtuolenut  says,  (^Dig, 
17. 1. 51.)  « though  the  surety,  by  mistake,  pays  the  money  befora  the  day, 
he  can  neither  have  an  action  to  recover  it  back,  nor  an  action  ez  numdatOf 
against  the  debtor,  before  the  day  of  payment  arrives."    [Fidejuaor,  qiutm- 
visper  ernrem  ante  diem  peeuniean  mkferit,  petere  (repeiere)  tamen  nb  eo  non 
pcted :  ae  ne  mandati  qtddem  acNonom  ;  anieqwtm  diu  wloendi  vemat,  etiai 
reohabebiLI 


*  CASES  IN  CHANCERY. 

parts  of  the  Pandects,  {Dig.  17.  1.  22.   1.  and  46.    1- 
31.)  Paul  and  Ulpian  lay  down  a  rule,  in  respect  to  sare- 
ties,  in  perfect  accordance  with  the  construction  I  have  ven- 
tured to  adopt,  for  they  say,  that  if  the  surety  paj^  before 
the  day^  he  cannot  have  recourse  over  to  the  debtor  until 
the  day  of  payment  has  arrived.    A  number  of  civilians 
who  have  very  fully  discussed  the  rights   and  remedies  of 
sureties  under  the  civil  law,  and  always  with  this  text  of 
MarcdluB  in  view,  give  us  no  intimation  of  such  a  doctrine* 
The  general  rule  of  the  civil  law  was,  that  the  action  by  the 
surety  against  his  principal,  depended  upon  his  having  jiouJ 
the  creditor,  {Inat.  3.  21.  6.  and  Ferriere's  Inst.  h.  t.)   and 
the  cases  in  which  he  might  have  recourse  over,  before  pay« 
ment,  were  all  special  cases,  as  where  judgment  bad  already 
passed  against  the  surety,  or  the  debtor  was  in  failing  cir- 
cumstances, or  sucii  a  recourse  over  was  part  of  the  origi- 
nal  contract,  or  the  debtor  had  neglected  a  long  time,  as 
from  three  to  ten  years,  to  pay,  or  the  creditor  to  demand. 
In  all  these  excepted  cases,  the  surety  might  sue  the  debtor 
for  his  indemnity  or  discharge ;  but  when  might  he  sue  him  f 
Not  before  the  debt  was  due  and  payable  to  the  creditor, 
but  before  the  surety  had  paid  the  creditor.    The  authori- 
ties to  which  I  now  refer,  {Hub.  Prcdec.  lib.  3.  tit.  21. 
JDe  Fide  Jussoribus,  11.     Voet  ad  Pand.  lib.  46.  tit  1.  34. 
PoihieTi  Trait,  des  Obltg.  n.  441.  Ersk.  Inst.  b.  3.  c.  65.)  all 
consider  these  exceptions  as  only  providing  for  the  relief  of 
the  surety,  ante  solutionem.   He  may  sue  the  principal  debt- 
or  before  he  has  actually  paid  the  debt,  and  the  exceptions 
were  to  relieve  him  from  that  burden,  for  without  one  of 
these  special  causes,  says  the  Code,  there  would  be  no  foun- 
dation, before  payment,  for  the  action  of  mandatum.    (Mdla 
juris  ratione,  antequan  satis  creditoripro  ea  fecerisj  eum  ad 
solutionem  urgeri  certum  est.     Code  4.  35. 10.)     This  plain 
and  equitable  principle,  that  until  the  debtor  is  in  default^ 
either  in  bis  contract  with  the  creditor,  or  in  his  contract 


CASES  IN  CHANCERT.  541 

with  the  surety » he  is  not  bound  to  pay  or  indeoinify,  seems      1820. 
to  pervade  equally  every  part  of  the  civil  law. 

Poihier  says,  (ubi  sup.  u.  442.)  that  if  the  obligation  to 
which  the  surety  has  acceded,  must,  from  its  nature,  exist  a 
long  time,  as  if  he  was  surety  for  the  due  execution  of  a  trust, 
he  cannot,  within  the  time,  sue  the  principal  debtor  or  trus* 
tee  for  his  discharge, /or  he  knewy  or  ovght  to  have  knozonf 
the  nature  of  the  obligation  he  contracted.  Though  where 
he  is  surety,  indefinitely,  as  for  payment  of  an  annuity,  he 
may,  after  a  long  time,  as,  say  ten  years,  demand  that  the 
principal  debtor  liberate  him,  by  redeeming  the  annuity. 

I  cannot  make  it  a  condition  of  the  order,  staying  the  sale, 
that  the  defendant  should  repair  the  dam.  This  would  be 
a  very  extraordinary  and  dangerous  interference  with  the 
exercise  of  the  rights  of  a  mortgagor,  and  is,  in  practice, 
unknown.  Suppose,  the  most  valuable  part  of  the  mort- 
gaged premises  should  consist  of  buildings,  and  they  should 
accidentally  be  destroyed  by  lire,  can  the  mortgagor  be 
compelled  immediately  to  rebuild  f  Is  it  not  rather  incum- 
bent on  the  mortgagee,  or  the  surety,  to  provide  for  such  a 
case  in  the  contract,  or  by  insurance  ?  It  would  bring  dis- 
tress and  ruin  on  a  mortgagor,  to  charge  him  with  burdens 
and  duties,  not  within  the  contemplation  of  his  contract, 
and,  therefore,  not  within  his  provident  foresight.  How  far 
the  Court  could,  or  ought  to  interfere,  in  a  case  of  negli- 
gent, or  permissive  waste,  rapidly  impairing  the  securityi  is 
a  question  which  need  not  now  be  discussed ;  for  the  relief, 
if  any,  would  not  be  by  directing  the  mortgaged  premises 
to  be  sold  for  a  debt  not  due,  or,  under  a  decree  of  sale,  4a 
give  an  order  to  repair,  or  a  reference  to  assess  dama- 
ges. The  necessity  of  any  interference,  of  any  kind,  in  cases 
of  mortgages,  is  exceedingly  diminished  by  the  considera- 
tion, that  the  mortgagee  can,  if  he  pleases,  relieve  himself, 
by  obtaining  possession  of  the  land,  and  make,  at  his  own 
expense,  the  requisite  repairs,  for  which  he  would  be  allow- 


<Cj-^ 


542  CASES  IN  CHANCERY. 

18^.  ed,  in  accomit}  when  the  mortgagor  came  to  redeem.  It  is, 
also,  stated,  in  this  case,  that  the  present  owner  of  the  equi^ 
ty  of  redemption  is  in  the  act  of  repairing  the  dam ;  and  it 
is  so  evidently  his  interest  to  do  it,  and  his  payment  of  the 
interest  due  on  the  mortgage,  together  with  the  costs,  is  sncb 
decisive  evidence,  that  the  property  is  considered  to  be  worth 
more  than  the  debt  charged  thereon,  that  1  should  infer  there 
was  little  or  no  foundation  for  the  alarm  discovered  in  the 
petition. 

Motion  denied,  with  costs. 


JhtgtutM. 


Lawbsnob  agmut  Cornell  and  oAers. 

Oa  the  sale  of  premises,  uoder  two  mortgages,  it  was  represeatodt  thai 
the  property  was  free  from  all  incumbrances ;  bat  after  the  aale,  and 
the  Master's  report,  it  was  discovered,  that  the  property  was  sub- 
ject to  a  city  assessment  and  (ax ;  and  the  purchaser,  therefore,  re- 
fused to  complete  the  purchase,  unless  the  iBCumbranoes  were  re* 
mored.  The  Court,  the  Acts  beiag  satisfiustorily  psofad,  dimtad 
the  master  to  disckar^  the  incmabrances  out  oC  (be  prooaeds  of  Iba 
sale.  « 

PETITION  of  the  plaintiff,  stating  a  decree  for  the  jsale 
of  mortgaged  premises,  lying  in  the  city  of  JVetr- ForA;,  to 
satisfy  the  mortgage  debt  due  to  the  plaintiff,  and  a  junior 
mortgage  held  by  one  of  the  defendants,  and  a  sale  thereon, 
by  a  Master,  in  pursuance  of  the  decree,  to  William  Reynoldsy 
for  2,550  dollars.  That,  at  the  time  of  the  sale,  the  pre- 
mises were  represented  as  free  and  clear  from  all  incum- 
brances. That  since  the  sale,  the  plaintiff  has  discovered 
that  there  was  a  city  assessment  upon  the  lot,  amounting,  on 
the  1st  of  March  last,  to  300  dollars  and  31  cents,  and  that 
the  premises  were,  on  that  day,  sold  to  John  W.  Richardson^ 


CASES  IN  CHANGCRT.  fi4S 

for  die  term  of  four  yeiirsi  io'diaclxirge  of  the  asiessmciit;      }SM, 


GoiuniLL* 


ud,  also,  (bat  the  premises  were  dm ged  i^itb  a  cil;  tax 
of  13  ddlars  and  76  cents,  payable  on  the  1st  of  Qehher^  ▼. 
i819,  which  sum  bears  interest  from  that  day,  at  the  rate  of 
14  per  cent  That  Reyuolisj  the  purchaser,  refiised  to  uke 
the  purchase,  sabject  to  these  incumbrances,  but  was  willmg 
to  take  it,  if  they  were  redeemed ;  and  that  the  purchase,  by 
Ridiardson,  was  redeemable,  by  paying  the  300  doliars  and 
81  cents,  with  interest,  at  the  rate  of  20  pier  cent  from  the 
fiiDe  of  his  purchase.  That  the  plamtiff  was  entirely  ignoraiH 
of  these  incumbrances,  at  die  time  of  the  sale  $  and  he  prayed 
that  the  master  be  directed  to  extinguisb  the  iRCumlntifices 
ant  of  the  purchase  money. 

This  petition  was  accompanied  with  an  afidavit  of  the 
truth  of  the  facts  slated,  and  was  duly  served  on  the  solici- 
tor for  the  defendant,  Rogers^  who  held  the  junior  nort^ 
gage;  and  it  was  accompanied  with  the  MMlsr's  report, 
stadng  the  side,  and  the  terms  of  it.  The  report  fms.  silent 
as  tor  atiy  assurance  of  title,  but  the  Master  asnexed  to  his 
Report,  ^e  certfficfttes  of  the  street  commiss&oner  for  the 
city  of  Aeu^Fdf%,  dated  since  the  sale,  and  also  the  certifi* 
cate  of  the  collector  of  taxes,  stating  the  sale  to  Rkkwrdtofiy 
as  meiiUoMd  in  the  petition,  for  the  purpose  stated,  and, 
also,  the  other  tax  chargeable  thereon. 

/•  Smith,  for  the  plaintiff,  moved  for  an  order  pursuant  to 
the  prayer  of  the  petition,  and  cited  Sugden's  Law  of  Ven- 
4orSi  p.  41.  and  1  Vesey^jun.  266. 

MKovm^  contra,  on  behalf  of  the  defendant,  Rogers^  who 
held  the  junior  mortgage. 

The  Chakcellor.  The  facts  stated  in  the  petition  and 
report,  remain  uncontradicted.  The  premises,  at  the  time 
of  the  sale,  were  represented  "  to  be  free  and  clear  from  all 
incumbrances;''  and  the  Master's  report  contains  no  allega- 


544  CASKS  IN  CHAMC£RT. 

1820.  tion  to  the  contrary.  It,  likewise,  contaiiM  the  evidence  of 
the  fiict  of  snob  incumbrances ;  and  the  certificates  show  that 
the  evidence  of  them  came  to  the  Master's  knowledge  since 
the  sale.  The  purchaser  ought  not  to  be  held  to  his  pur^ 
chase,  under  these  circumstances ;  and  we  must  intend  that 
the  lot  was  sold,  and  was  purchased  with  die  understanding, 
that  the  title  was  clear,  and  the  price  bid  is  to  be  taken  as 
a  fair  and  adequate  consideration  for  the  premises,  free  from 
incumbrances.  It  is,  therefore,  just,  and  for  the  interest  of 
all  parties,  that  the  purchaser,  or  the  Master  for  him,  should 
be  at  liberty  to  apply  part  of  the  purchase  money  in  dis- 
charge of  the  incumbrances.  Strettan^t  caUf  (1  Veny^jwu 
266.)  though  rather  an  imperfect  and  unsatisfactory  note, 
contains  authority  for  this  duection,  as  we  have  here,  what 
was  wanted  in  that  case,  the  Master's  report  of  the  meum- 
brances. 

I  shall,  accordingly,  direct,  that  the  Mailer,  out  of  the 
proceeds  of  the  sale,  redeem  the  mortgaged  premises  from 
Richardion^  and,  also,  discharge  the  lien  of  the  other  tax, 
upon  the  terms  by  which  they  are,  by  law,  redeemable,  and 
that  he  bring  the  residue  of  the  purchase  money  into  Court, 
to  abide  iu  order. 

Order  acconfiogly. 


CASES  IN  CHANCERY. 


Lawbence  against  Cornell  and  othecs. 

A  decree,  after  it  has  been  entered,  but  before  it  is  enrolled,  may  be 
corrected,  where  the  omissioQ  or  mistake  was  inadrertent,  and  is 
clearly  ascertained. 

A  defendant  who  has  made  payments  for  his  co-defendant,  towards 
satisfying  a  prior  mortgage,  and  beyond  his  proportion  of  the  bur- 
den, is  to  be  deemed  substituted  for  the  plaintiff,  on  a  sale  of  the 
premises,  to  that  extent,  and  as  far  as  the  fact  appears  from  the 
proceedings  in  the  cause. 

PETITION  of  the  defendant  ComeK,  stating,  that  through  jtug^utm. 
inadvertence,  and  unintentionally,  his  right  and  interest, 
stated  in  his  answer,  to  a  portion  of  the  surplus  of  the  pro- 
ceeds of  the  mortgaged  premises,  after  satisfying  the  plain- 
tiff, were  omitted  to  be  provided  for  by  the  decree,  which 
was  prepared  by  the  plaintiff's  counsel,  and  entered  by  con- 
sent.of  the  solicitors  of  all  the  parties.  The  fact  was  veri- 
fied by  the,  accompanying  affidavit  of  the  plaintiff,  and 
nothing  appeared  to  gainsay  it.  ^ 

The  petition,  accordingly,  prayed  that  the  decree  might 
be  amended  in  that  respect. 

/.  Smith  f  for  the  motion. 

M^Kovm^   contra^  and  for  the  defendant  Rogers^  who 
held  the  junior  mortgage,  and  claimed  the  surplus. 

The  Chancellor.  The  mistake  is  manifest;  and  if  it, 
had  been  suggested  at  the  time,  there  would  undoubtedly 
have  been  a  provision  inserted  in  the  decree,  that  the  peti- 
tioner should  be  deemed  substituted  for  the  plaintiff,  so  far 
as  he  had  made  any  payments,  on  the  elder  mortgage,  for  the 
proper  debt  of  the  defendant,  MatthewSj  or  beyond  his  pro- 

Vol.  IV,  69 


iill 


CASES  IN  CHANCERY. 


laso^ 


IjAWBEIICX 

V. 
COMMMMJU 


portion  of  the  burden.  This  appears  to  have  been  the  eaUe 
as  to  a  moiety  of  the  sams  of  70  dollars  and  200  dollars, 
paid  by  him  in  1S17.  The  defendant,  C,  claims  the  bene- 
fit of  substitntion  for  the  other  moiety  of  those  sums,  on  the 
ground  of  some  alleged  agreement  with  the  plaintiff,  at  the 
time  of  the  payment,  and  on  the  further  ground,  that  the 
defendant  M.  ought  to  have  no  benefit  from  the  payment. 
But  the  harden  was  equally  chargeable  upon  the  defendants, 
C  and  M.f  and  whatever  rights  he  may  have  upon  any 
agreement,  (which  this  order  will  not  prgudice)  the 
benefit  of  substitution  is  only  to  be  applied  in  a  clear  case, 
appearing  from  the  proceedings  in  the  cause. 

The  next  question  is,  whether  the  decree  can  be  rectified 
a$  to  this  omission,  (appearing  to  have  been  unintentional 
and  inadvertent)  upon  motion,  without  putting  the  party  to 
the  expense  of  a  rehearing,  which  would  consume  a  great 
part  of  the  sum  to  be  secured.  The  decree  is  not  yet  en- 
rolled and  signed,  and  I  am  inclined  to  think  that,  accoid- 
ing  to  the  EnglUh  practice,  the  decree,  though  parsed  and 
entered,  may  be  corrected  before  enrolment,  on  motion,  ia- 
a  clear  case,  and  where  the  insertion  would  have  been  of 
course ;  but  there  must  be  a  separate,  supplemental  orderj 
for  the  purpose.  ( WyaU's  P.  R.  155.  JieidanJPt  Pr.  1 85/ 
186.    7  Fesetf,  293.    Lane  v.  Hobbi,  12  Fesey,  458.) 


Order  accordmgly. 


V. 

WooDRinrr. 


CASES  IN  CHANCERY.  «0 

182». 

Rose  against  Woobruff. 

A  decree  in  a  eavee  is  never  pronoiinced,  ualeas  the  cause  is  regular- 
ly set  down  for  bearing  in  term,  except  when  it  is  submitted  out  of 
term,  by  consent  of  all  parties ;  but  the  decree  may  be  afterwards 
entered  in  term  time,  or  in  racation,  at  the  Chancellor's  discretion. 
And  where  a  bill  ib  taken  pro  confcuo^  the  plaintiff  cannot,  Iber^ 
fare,  take  a  decree  ;  but  must  set  down  the  caase  for  hearing  in 
term,  aM  tfieClwk  mint  atiend  with  the  feesid  of  tho  hill»  t< 
«OTd  1^  tke  hewwigi  bat  no  notice  of  the  hearing  need  be  giren  to 
the  defendant,  or  afixed  up  in  eiti^er  of  the  public  offices. 

THE  BILLi  in  this  cause,  was  taken  pro  confesso,  and  •^HT"^  1^: 
4U1  order  for  that  purpose  was  obtained  and  entered  on  the 
17th  of  July  last. 

.AT.  fv^  Howellj  for  the  plaintiff,  now  moved  for  a  decree, 
such  as  the  Ull  entitled  him  to,  without  waiting  to  set  down 
the  cause  for  hearing  at  the  next  term* 

The  Cbanccllor.  The  course  and  practice  of  the  Cour^ 
is  not  to  pronounce  a  decree  in  any  case,  (except  where  a 
cause  bad  been  submitted  to  the  Court,  out  of  term,  by 
consent  of  parties,)  unless  the  cause  had  been  regularly  set 
down  for  hearing  in  term.  The  rule  is  the  same,  whether 
the  decree  is  to  be  pronounced  upon  the  bill  only,  or 
upon  the  bill  and  answer,  or  upon  the  pleadings  and  proofs. 
When  the  cause  has  been  regularly  brought  to  a  hearingj 
and  time  taken  to  consider,  the  decree  may  be  entered  at 
any  time  thereafter,  in  term  time,  or  in  vacation,  in  the  Chan- 
-cellor's  discretion,  whenever  he  is  ready  to  pronounce  it. 

In  Johnson  v.  Desmineere^  (I  Fern,  223.)  it  was  said^ 
that  the  practtce,  before  that  time,  (1683)  was^j  pot  to  take  a 


648  CASES  IN  CHANCERY. 

1820.  bill  pro  confesso,  (thoQgh  the  defendant  had  appeased,  and 
stood  in  contempt,  and  com|MUed  the  plaintiff  ''to  go  to 
the  end  of  the  line,  and  run  through  all  the  process  of  the 
Court  against  him,^')  without  puttmg  the  plaintiff  to  prove 
the  material  allegations  in  the  bill.  But,  in  that  case,  it  was 
admitted,  that  the  bill  might  be  taken  pro  confesso^  without 
such  proof.  By  the  rules  of  this  Court,  we  allow  bills  to 
be  taken  pro  confesso^  without  obliging  the  plaintiff  to  pur* 
sue  the  defendant  on  to  process  of  sequestration.  In  Haw* 
kins  V.  Crooky  (2  P.  fVms.  556.)  it  is  stated,  that  though  the 
bill  need  not  be  proved  after  the  defendant  has  appeared 
and  stood  out,  in  contempt,  to  a  sequestration ;  yet  that  the 
cause  was  to  be  set  down  to  he  heardy  and  the  record  of  the 
bill  produced,  to  the  end  that  the  bill  might  be  taken  pro 
confesso.  The  English  practice  now  is,  to  set  down  the  cause 
for  hearing,  upon  a  previous  order  that  the  bill  be  taken 
pro  confessOy  and  that  the  Clerk  in  Court  attend  with  the 
record  of  the  bill  at  the  hearing.  {Newland's  Pr.  p,  29.) 
Where  the  bill  is  thus  taken  pro  confesso^  and  the  cause 
thereupon  set  down  for  hearing,  the  course,  says  Lord  M- 
don,  in  Geary  v.  SJieridan,  (8  Vesey,  192.J  is  for  the  Court 
to  hear  the  pleadings,  and  itself  to  pronounce  the  decree, 
and  not  to  permit  the  plaintiff  to  take,  at  his  own  discretion, 
such  a  decree  as  he  could  abide  by,  as  in  the  case  of  de- 
fault by  the  defendant  at  the  hearing.  Even  with  respect 
to  the  case  of  a  default  at  ihe  hearing,  I  observe,  that  by 
Lord  Clarendon^  rules,  {Beames^  Orders,  p.  197.)  if  the 
defendant,  or  his  counsel,  did  not  appear  at  the  hearing, 
yet  the  answer  was  to  be  read,  and  the  Court  was  then  to 
determine,  upon  such  hearing,  if  there  was  cause  tp  decree 
for  the  plaintiffs. 

The  91st  rule  of  this  Court  shows,  that  where  a  bill  of 
foreclosure  of  a  mortgage  is  taken  pro  confesso,  the  cause 
must,  thereafter,  be  regularly  set  down  for  hearing,  at  term; 
and  that  pari  of  the  ride  was  not  introductory  of  any  new 
provision  peculiar  to  the  case  of  bills  to  foreclose.^   The 


CASES  IN  CHANCERT.  549 

nik)  in  that  respect, '  was  only  dedaratcry  of  the  general      1820. 
pradiee* 

As  setting  down  the  cause  for  hearing  in  such  cases  is  for 
the  sake  of  the  Court,  and  to  preserve  order,  and  to  prevent 
surprise,  it  is  not  necessary  to  give  notice  to  the  defendant 
of  the  hearing,  or  to  affix  notice  in  either  of  the  public  offi« 
ces.  The  defendant  who  suffers  the  bill  to  be  taken  pro 
confusOf  has  nothing  to  say,  and  requires  no  such  notice. 

Motion  denied. 


cL^^ 


Goodrich,  Administrator,   with  the  will  annexed,  of  P. 
Miller,  against  Pendleton. 

The  Surrogale  of  the  City  and  County  of  ^ew-  Yorkf  has  no  authority 
to  gnnt  letters  of  administration  with  the  will  annexed,  of  a  person 
.rositogent  of  the  state. 

By  the  acU,  (1  JV*.  it  £..  449.  8u9.^.ch,79.  §ec.l7.  Sesi.38.ch. 
157.)  the  Surrogate* iipo^en,  in  this  respect,  are  limited  to  the  case 
of  a  non-resident  of  the  state  dyin^  intetiate^  and  leaning  good»  and 
chaiCels  in  the  City  ofJ^ew-York. 

That  the  plaintiff  who  sues  as  administrator,  has  not  actually  taken 
out  letters  of  administration,  or  that  the  letters  of  administration 
were  not  granted  hy  an  officer  haying  competent  authority  to  grant 
them,  in  the  particular  case,  may  be  objected  to  by  plea,  or  in  the 
answer,  or  by  demurrer ;  and  if  insisted  on  at  the  hearing,  the  bill 
will  be  dismissed.  But  if  letters  of  administration  are  duly  taken 
out  any  time  before  the  hearing,  it  will  be  sufficient,  and  may  be 
charged  by  way  of  supplement,  or  amendment 

BILL  for  an  account  and  payment  of  moneys  received  '^f^g^  iMA.t 
by  the  defendant  for  and  on  behalf  of  the  testator. 

It  appeared,  by  the  bill,  that  Ph.  Miller^  the  testator,  was 
an  inhabitant  of  the  state  of  Georgia^  and  died  there,  an^ 


SSO  CASES  IN  CHANCERY^ 

ieiO«      that  bit  widow,  Cafi«riM  ilfiBer,  was  one  of  the  ezacoldn 
^■^^^^^^^    of  his  will,  and  look  apon  berselC  exclusively,  the  Irnsty 
V.         and  acted  as  aa  execatrix ;  and  the  dain  in  the  bill  was 
^^^'^"^'  fiMiBded  open  dealings  by  the  defendant  with  her  in  that 
character.     She    was    an    iahaUlanC  of    Otorgia^    and 
died  there,    and    the  defendant  was    an    inhabitant  of 
Dutekess  conoty,  in  this  stale.    Letters  of  adninistrationi 
with  the  will  annexed,  were  granted  to  the  plaintiff  by 
the  Surrogate  of  the  City  of  New-Yark.    It  did  not  ap- 
pear either  in  the  pleadings  or  proofs,  what  right  or  title  the 
plaintiff  had  to  take  out  letters  of  administration,  or  that 
the  testator  left  any  goods  or  chattek  in  the  City  of  New- 
Y&rk. 

The  defendant,  in  his  answer,  and  also  at  the  hearing, 
insisted,  that  the  plaintiff  was  not  the  lawful  representadve 
of  Ph.  Miller^  and  had  no  right  or  tide  to  sue  in  that  cha- 
racter, inasmuch  as  he  showed  no  authority  as  administra- 
tor from  the  Court  of  Probates  of  this  state. 

The  cause  was  argued  at  the  last  term,  briefly  upon  this 
point,  and  at  large  upon  the  merits. 

Boyd  and  K^t^  for  the  plaintiff. 

The  defendant,  in  proper  person,  and  Hoffman^  contnf. 

As  to  the  above  point,  was  cited  the  Staiutt^  1  M  R.L. 
444.  9ect.  3.  IB.  17.  and  Weston  v.  Weston,  14  Johns.  Rep. 

428. 

Thk  Chancellob.  The  point  that  meets  us  at  the  very 
threshold  of  this  case,  and  which  seemed  to  be  very  lighdy 
touched  at  the  hearing,  has  appeared  to  me,  upon  exa- 
4ninati90,  to  be  insurmountable.  I  cannot  discover  that 
the  Surrogate  of  New-York  had  authority  to  grant  letters 
of  administratioa  in  this  case,  atid  the  plaintiff,  therefore, 
f  how*  no  tide  to  appear  in  the  character  be  has  antnme^'. 


CASES  IN  CHANCERT.  Jgi 

II  if  001  wUhont  regret  tlntt  I  hare  arrived  at  tbis  conchi*       1830. 
sioo,  contidering  that  tins  caase  has  been  brought  to  a  hear- 
iitg,  at  great  expense,  and  discassed  folly  upon  its  merits. 
Bat  though  the  objection  may  appear  to  be  quite  formal  and 
technical,  the  defendant  has  certainly  a  right  to  insist  that 
the  person  who  undertakes  to  call  him  to  an  account,  should 
have  competent  authority  to  do  so,  and  he  is  entitled  to 
(jnestion  the  validity  of  the  plaintiff's  commission.    Such 
ftn  objection  was  allowed  in  the  case  of  Winn  v.  Fletcher^ 
(1  Vera.  473.)  to  be  good,  by  way  of  plea  ;  and  there  the 
defendant  pleaded  that  the  plaintiff  was  not  an  adminis-* 
trator,  as  he  averred  himself  to  be.  In  FeU  v.  iMtwidgt^  (^ 
Atk.  120.   Barnard  Ch.  Rgi.  319.J  the  exception  was  ta- 
ken, for  the  first  time,  at  the  hearing,  that  the  plaintiff  had 
DOt  taken  out  letters  of  administration  until  long  after  the 
bill  was  filed ;  and  though  Lord  Hardwicke  overruled  the 
exception,  it  was  not  because  it  was  too  late,  but  on  the 
ground  that  procuring  letters  of  administration  before  the 
canse  was  brought  to  a  hearing,  was  sufficient    Here  the 
objection  was  put  forward  distinctly  in  the  answer;  and  it  j.^'^^  ^ 
may  as  well  be  made  in  the  answer  as  by  plea.    The  gene-  ^'^^J^  ^ 
ral  rule  is,  that  after  a  plea  has  been  overruled,  the  same  de-  jjj"'^^^^ 
fence  may  be  insisted  on  by  way  of  answer.     (2  Vesey^  491. 
3  P.  Wm.  95*    Redesdde's  TV.  244.;    And  as  tiie  objec- 
tion was  taken  fit>m  the  answer,  and  made  a  point  at  the 
hearing,  the  counsel  for  the  plaintiff  did  not  attempt  to  re- 
sist it  on  that  ground.    They  met  the  objection  on  its  me* 
rits,  by  insisting  that  the  Surrogate  of  JVetr-Forft  had  com- 
petent power  to  grant  letters  of  administration,  in  the  given 
case. 

In  the  note  to  the  case  of  Cldand  v.  Cldand^  {Prec.  in 
Ch.  63.)  it  is  stated,  that  the  objection  that  the  adminis- 
trator was  not  made  a  party  defendant  to  a  suit,  was  over- 
filled, because  the  wife  was  charged  as  administratrix,  and 
confessed  in  her  answer,  that  she  had  possessed  and  admi- 
nistered the  personal  estate  of  her  deceased  husband,  though 


562  CASES  IN  CHANCERY. 

1820.  she  denied,  by  answer,  that  she  had  taken  out  letters  of  ad-- 
ministratioik  The  objection  was,  probably,  raised  by  her 
at  the  hearing,  and,  perhaps,  she  was  thought  to  be  con- 
cluded by  her  acts ;  and  the  note  adds,  also,  that  she  was . 


Thoufh   a  the  ptrson  by  law  eraiUed  to  administration.    That  last  cir- 
^'eatitied  to  cumstdnce  clearly  was  not  sufficient  to  dispense  with  the , 
tioo^'hec&nnot  letters  of  administradou  from  the  proper  source.    In  Htun* 
SjdW  HwiuJ  phreys  v.  Humphreys,  (3  P.  Wms.  348.)  the  next  of  kin  en- 
mkOsMioiL'   titled  to  administer,  sued,  without  letters  of  administration, 
and  a  demurrer  to  the  bill  for  that  cause,  was  allowed.   But 
that  case,  like  the  one  of  Fell  v.  Lutwidge,  might  have 
taught  the  plaintifi^  after  the  admonition  given  in  the  an- 
swer, how  easily  the  de&ct  was  to  be  cured.    Letters  of  ad- 
ministration were  taken  out,  in  that  case,  and  charged  by 
way  of  amendment  to  the  bill ;  and  the  Lord  Chancellor 
held,  that  the  fact  might  be  charged,  either  by  way  of  sup- 
plement or  amendment. 

The  plaintiff  does  not  appear  to  have  had  any  particular 
right  or  claim  to  sue  out  letters  of  administration  on  the  es- 
tate of  the  testator ;  and  his  title  to  sue  is  destitute  of  every 
adventitious  aid  and  presumption.  We  are  driven,  therefore, 
to  discuss  the  strict  point  of  law,  whether  the  surrogate 
had  jurisdiction  in  the  case, 
f  ih""?*^!^^  The  Court  of  Probates,  consisting  of  a  single  Judge^ 
Frobfttes.  ^as  recognized  in  the  27th  article  of  the  Constitution ;  and 
by  the  act  of  the  16th  of  March,  1778,  organizing  the 
government,  the  Judge  of  that  Conrt  w;as  declared  to  be 
vested  with  all  and  singular  the  powers  and  authorities,  and 
to  have  the  like  jurisdiction,  in  testamentary  matters,  which 
the  governor  of  the  colony  of  New-York  bad  exercised,  as 
Judge  of  the  Prerogative  Court,  or  Court  of  Probates  of 
the  colony.  Under  this  authority,  the  Court  of  Probates 
issued,  exclusively,  letters  testamentary,  and  letters  of  ad- 
ministration, upon  proof  taken,  as  well  by  the  surrogates,  as 
in  that  Court ;  and  this  practice  was  continued  until  the 


CASES  IN  CHANCERY.  fi53 

•power  of  the  Surrogates  was  enlarged  by  the  act  of  the  SOth       1830* 
of  February,  1787.     (Sess.  10.  ch.  38.)  G^^i^^ 

Under  the  last  act^  Surrogates  iu  each  county  were  ao'-       .  t. 

Px  H  D  IiETOlT 

ihorized  to  grant  letters  testamentary,  and  letters  of  admi-  ' 

nistralioB  with  the  will  annexed,  and  letters  of  administra-  Of  sarrogatcs. 
tioo  of  persons  dying  intestate  "  within  their  respective 
counties ;''  and  the  same  were  declared  to  be  as  valid  as  if 
issued  by  the  Court  of  Probates.  But  in  all  cases  of  per- 
sons dying  '*  out  of  this  state,"  or  within  this  state,  **  not 
inhabitants  thereof,"  their  wills  were  to  be  proved,  and  ad- 
ministration of  their  personal  estates  granted  by  the  Jqdge 
of  Probates,  "  in  the  manner  heretofore  used,  and  before,  or 
by  no  other  person" 

The  revised  act  of  the  27  th  of  March^  1801,  declared, 
also,  that  the  Judge  of  the  Court  of  Probates,  was  vested 
with  all  the  powers  and  authorities  of  the  Court  of  Probates 
of  vhe  colony  of  Muh-York,  ^^  except  as  was  therein  other- 
wise provided ;"  and  in  that  act,  the  powers  of  the  Surrogates 
were  continued,  with  some  little  alteration  in  the  phraseology 
of  the  provisions.  The  Surrogates  were  declared,  by  the 
third  section  of  the  act,  to  have,  **  except  as  to  persons  who 
may  not^  at  the  time  of  their  decease,  be  inhabitants  of  this 
state,"  the  sole  and  exclusive  power  to  grant  letters  testa- 
mentary, and  letters  of  administration  of  the  goods  of  per- 
sons dying  intestate,  or  with  the  will  annexed,  of  all  de- 
ceased persons  who,  ''  at,  or  immediately  previous  to  their 
death,  shall  have  been  inhabitants  of  the  respective  coun- 
ties of  such  Surrogates,  in  whatever  place  the  death  of  such 
persons  may  have  happened."  And  in  the  12th  section  of/ 
the  act,  it  was  declared,  that  in  all  cases  of  pereons  dying 
"  out  of  this  state,"  or  of  persons  dying  within  this  state, 
"  not  inhabitants  of  this  state,"  their  wills  may  be  proved 
before,  and  administrations  of  tlieir  personal  estates  granted  . 
by,  the  Judge  of  Probates,  ^'  iu  the  manner  heretofore  used, 
as  well  as  by  any  of  the  said  Surrogates." 
Vol.  iV.  70 


554  CASES  IN  CHANCERY. 

182Q.  These  words,  as  todt  at  by  any  of  the  said  SurrogaUif  aie 

^■^■^''^^^    a  substitute  for  the  words,  and  befbre  or  by  no  other  person^ 
T.  in  a  similar  section  in  the  act  of  1787 ;  and,  upon  the  first 

FEypLETow.  impi^^ggjon^  ii  would  seem  to  have  been  intended  to  give  the 
Surrogates  cfmcurreni  jmrisdtction  with  the  Judge  of  Pro- 
Imtes,  in  the  case  of  persons  not  inhabitanu  of  this  state,  as 
the  former  section  had  already  given  them  exieltmve  jnrisdic- 
fion,  where  the  persons  dying  were  inhabitants.  But  these 
provisions  in  the  act  of  1801,  having  been  liternily  traii- 
acrihed  into  the  new  revised  act  of  1813,  (1  .Y.  ft.  L.  p. 
444.)  received  a  jodicial  expoeition  in  the  Sopreme  Couft 
in  WeiUm  v.  We^an.  (14  Johne.  Rep.  423.)  It  was  there 
solemnly  adjudged,  that  the  Surrogate  of  the  coanty  of 
OnondagOy  had  no  aothority  to  grant  letters  of  administra- 
tion upon  the  estate  of  a  person  dying  out  of  the  state,  and 
not  being  an  inhabitant  of  it.  The  words,  *'  as  well  as  by 
any  of  the  Surrogates,"  were  taken  distributively,  and  ap- 
plied only  to  that  part  of  the  section  which  was  supposed  to 
give  to  the  Judge  of  Probates,  power  as  to  persons  dying 
out  of  this  state,  who  were  at,  or  immediately  previous  to 
their  death,  inhabitants  of  tlie  state.  The  3d  section  of 
the  act  had  already  given  the  Surrogates  exclvsive  power  in 
the  case  of  inhabitants  of  this  state,  *'  in  whatever  place 
the  death  6f  such  persons  may  have  happened.'*  There  is 
still  a  difficulty  in  supposing,  as  the  case  of  Weston  v.  Wes' 
ton  seems  to  suppose,  that  the  other  section  (being  the  15th 
of  the  act  of  1813)  intended  to  give  any  concurrent  power 
to  the  Judge  of  Probates,  in  the  case  of  persons  dying  out 
<}t  this  state,  who  were  inhabitants  of  it,  and  absent  ammo 
reiveriendij  or,  in  the  words  of  the  act  of  1787,  who  died 
'*  while  absent  from  home,  upon  a  journey  on  business." 
The  Sd  section  of  the  act  of  1813,  gave  "  sole  and  exclu- 
sive power,"  in  such  case,  to  the  Surrogates ;  and  could  the 
16th  section  have  meant  any  thing  so  repugnant  to  that 
3d  section,  as  to  give  the  Court  of  Probates  "  concurrent" 
power  in  that  case  f    If^  in  order  to  reconcile  both  parts  of 


CASES  IN  CHANCERY.  S5S 

the  act  on  this  poioti  we  construe  the  15th  section  as  mean-  1629i 
tog  to  give  to  the  Court  of  Probates,  jurisdiction  in  the 
case  only  of  persons  dying  without,  or  dying  within  the 
state,  not  being  inhMtantt  of  it^  then  the  words  as  well  ae  , 
ty  any  of  the  said  SurrogaUi^  become  senseless,  unless  they, 
are  to  be  construed  as  giving  a  concurrent  jurisdiction  to 
the  Surrogate,  and  the  Judge  of  Probates,  in  the  case  of 
persons  not  inhabitants  of  this  state.  There  is.  no  absolute 
and  irreconcilable  inconsistency  between  the  3d  and  12th 
sections  of  the  act  of  1801,  or  the  3d  and  15th  sectbns  of 
the  act  of  1818,  on  this  construction,  giving  to  the  Surro- 
gates exclusive  jurisdiction  in  the  case  of  inhabitants  of  this 
state,  and  concurrent  jurisdiction  in  the  case  of  persons  not 
inhabitants  of  this  state.  The  exception  in  the  third  sec- 
tion, applies  to  their  exclusive  jurisdiction,  for  it  is  declared, 
that  excqpt  as  to  persons  not  inhabitants,  they  shall  havefidl 
and  exclusive  jurisdiction ;  and  the  statute  may,  afterwards, 
have  given  to  them  concurrent  power  as  to  persons  not  in- 
habitants, without  overthrowing  the  exception. 

I  should,  therefore,  have  had  doubts  upon  the  construc- 
tion given  to  the  Surrogate's  powers  by  the  decision  in 
Weston  V.  Weston,  if  the  question  had  arisen,  de  novo^  before 
me ;  but  I  do  not  feel  myself  at  liberty  to  seek  after  another 
construction,  in  opposition  to  such  high  authority;  and  es- 
pecially in  a  case  where  the  point  came  properly  and  di- 
rectly before  the  Supreme  Court.  It  would  be  a  great  pub^ 
lie  inconvenience,  and  tend  to  render  the  law  vague  and 
uncertain,  to  introduce  conflicting  decisions  upon  the  con^ 
struction  of  the  powers  of  public  officers,  when  those  powers 
are  in  constant  activity. 

Assuming,  then,  (as  I  think  I  am  bound  to  do,  under  a 
proper  sense  of  respect  and  comity)  the  authority  and  va- 
lidity of  the  construction  given  to  the  Surrogate's  powers, 
by  the  case  of  Weston  v.  Weston,  we  are  next  to  inquire^ 
whether  the  Surrogate  of  the  city  of  J^ew'-York  has  other 
and  greater  powers,  in  the  ^ven  case. 


556  CASK  IN  CHANCERY. 

1820.  The  act  of  1801,  directed  administration  to  be  graateir, 

^^'^^'^^  witfaoDt  sureties,  to  the  Chamberlain  of  the  city  of  JV«»- 
v/*^  York,  in  the  case  of"  any  person  dying  intestate  within  the 
Pewdlbtoit.  ^jy  ^^^  county  of  J^ew-York,'^^  and  in  case  the  widow,  or 
Sarro^te  of  next  of  kin,  should  not  apply  within  one  week.  Bnt  the 
Ne»'7o/k,  ^  administration  was  to  be  granted  by  the  Surrogate,  or  the 
Judge  of  the  Court  of  Probates,  ^^  as  the  case  might  be  ;" 
and  it,  accordingly,  left  the  powers  distributed  between  the 
Surrogate  and  the  Judge  of  Probates,  as  it  found  them. 
The  act  of  31st  March,  1802,  (Sess,  26.  ch.  8^)  extended 
the  above  provision  to  "  all  cases  of  persons  not  resident 
within  this  State,  who  o)ay  die  intestate,  leaving  goods  and 
chattels  within  the  city  and  county  of  J^eto^York,  whether 
such  intestate  shall  die  within  this  state  or  not."  These  two 
provisions  were  consolidated  and  transcribed  into  the  revi- 
sed act  of  1813;  (1  JV.  JR.  L.  449.  s.  17.)  but  the  question 
of  jurisdiction  between  the  Judge  of  Probates  and  the  Sur- 
rogates, was  not  touched,  altered,  or  affected,  by  any  new 
or  different  provision.  The  power  was  still  to  be  exercised 
by  the  Surrogate  or  Judge  of  the  Court  of  Probates,  '*  as 
the  case  might  be."  Each  officer  was  left  to  move  in  the 
particular  sphere  in  which  the  law  had  previously  placed 
him. 

The  act  of  the  11th  otAprU,  1315,  (Sess.  38.  ch.  157.) 
substituted  a  public  administrator  for  the  city  of  New-York^ 
in  lieu  of  the  Chamberlain^  m  the  above  case ;  and  the  con- 
solidated provision  in  the  act  of  1802,  was  re-enacted  in  the 
same  words,  but  with  additional  provisions,  which  would 
seem,  by  imputation^  to  have  given  jurisdiction  to  the  Sur- 
rogate, even  to  the  extent  of  the  whole  case,  as  staled  in  the 
act  of  1802.  It  declares,  that  if  the  widow,  or  next  of  kin, 
shall  not  apply  within  thirty  days  after  such  citation,  as  is 
therein  after  directed,  to  the  Surrogate  or  Judge  of  the  Court 
of  Probates,  <^  as  the  case  may  be,''  for  administration,  that' 
then  administration  was  to  be  granted  to  the  public  adminis- 
trator.   The  citation,  therein  directed,  is  to  be  issued,  mH 


CASES  IS  CHANCERY.  557 

by  tke  Judge  of  Probates,  but  by  the  Surrogate^  to  tbe  wi«       1820. 
dow  and  next  of  kin,  "  to  appear  and  show  cause,  why  such    v^n/-^^ 
administration  should  not  be  granted ;"  and  before  whom  v. 

are  they  to  appear  and  show  cause  f  If  before  the  Surro-  ^'""'■"0^' 
gate,  as  the  provision  would  seem  necessarily  to  imply,  it 
then  equally  implies  that  tbe  Surrogate  may  grant  letters 
of  administration  in  the  case,  which  is,  ifanypersonj  not  re- 
sident mtkin  thu  Slate^  dying  intestatej  leaving  goods  and 
chattels  within  the  city  and  county  of  J^Tew-Yorkj  whether 
such  intestate  shall  die  ivithin  this  state  or  not* 

But,  if  it  be  admitted,  that  the  Surrogate  of  JVcw- Tori 
has  greater  powers  than  the  Surrogate  of  Onondaga  county, 
it  is  only  in  the  case  of  persons  dying  intestate^  and  leaving 
goods  and  chattels  within  the  city  and  county  of  New-Yorh. 
All  the  special  powers  (if  any  tiiere  be^  granted  to  the  Snr- 
rogate  of  JVcttf-ForA:,  in  extension  of  the  ordinary  jurisdic- 
tion of  the  Surrogate,  are  confined  to  tbe  case  of  persons  re- 
sident abroad,  dying  intestate^  and  leaving  goods  and  chat* 
tels  in  New-York.  The  revised  act  of  1813,  in  the  3d,  and 
again  in  the  10th  section,  has  clearly  noticed,  and  marked 
the  distinction  between  an  administration  upon  the  estate  of 
a  person  dying  intestate,  and  an  administration  with  the 
will  annexed;  yet,  in  the  17th  section  of  this  act,  and  in 
the  subsequent  acts  on  that  subject,  tbe  distinction  so  ma- 
terial in  itself,  so  well  known  in  law,  and  so  familiar  in  the 
language  of  the  Legislature,  is  omitted,  and  the  new  and 
special  provisions  for  the  city  oi New-York^  are  confined  to 
the  ease  of  persons  dying  intestate. 

In  the  case  before  me,  Phineas  Miller  did  not  die  intes- 
tate. He  made  a  will,  app^nted  executors,  and  one  of  them 
administered,  and. her  powers  and  acts  are  recognized  in  the 
plaintifTs  case :  nor  does  it  appear  that  PA.  MUer,  tlie  tes- 
tator, left  any  goods  and  chattels  in  the  city  of  New- York. 
If  the  claim  upon  tbe  defendant  be  goods  and  chattels,  yet 
the  bill  admits  that  the  defendant  resided  in  Dutchess  county. 
Debts  due  by  specialty  are  said  to  be  bona  notabiUa^  in  the 


558  CASES  IN  CHANCERY. 

1820.  place  where  they  are,  that  is,  where  the  creditor  resided  and 
died,  and  not  where  the  debtor  inhabits ;  but  debts  due  by 
simple  contract  are  bona  notabUia  where  the  debtor  resides. 
(Chdol.  Orp.  Leg.  70.)  There  is  nothing  in  this  case, 
therefore,  that  can  help  the  plaintiff.  To  give  to  the  Surro- 
gate of  .ATetcH  Fori,  a  broader  jurisdiction  than  the  country 
Surrogates  possess,  it  ought  to  have  been  distinctly  shown, 
or  made  to  appear,  that  Ph.  Miller  died  intestate,  and  left 
goods  and  chattels  in  the  city  ofNeuhYork. 

There  may  be  no  good  reason  why  the  Surrogate  of  JVeur- 
York  should  not  have  power  to  grant  letters  testamentary 
upon  testators'  wills,  as  well  as  letters  of  adminbtratioa 
upon  intestates'  estates ;  and  it  might  be  very  convenient 
that  he  should  have  the  power;  but  if  it  is  not  contained  in 
the  statute,  it  certainly  cannot  be  assumed.  The  argwmm" 
turn  ab  inconvenienti  cannot  be  applied  to  extend  the  limits  of 
power,  when  the  language  of  the  statute,  defining  the  limit, 
is  explicit,  and  its  meaning  clear,  without  any  visible  mix* 
ture  of  injustice  or  absurdity. 

The  power  of  proving  wills,  and  granting  adminislratioo, 
was  originally  vested  in  the  Court  of  Probates ;  and  though 
most  of  iu  jurisdiction  is  now  transferred  to  the  Surrogates, 
that  is  still  the  Court  of  Appeals  from  the  acts  of  the  Sur» 
rogates,  and  it  is  the  Court  of  general  jurisdiction  over  the 
subject  matter.  There  is  some  analogy,  therefore,  between 
the  powers  of  the  Surrogate  and  of  the  Ordinary ^  in  Eng^andy 
and  betweeu  the  Judge  of  Probates  and  the  Meirop$UtAn  of 
tlie  province ;  and  the  rule  may  be  applied  to  the  Sulrrogaie^ 
which  is  applied  to  the  Ordinary^  that  if  be  grants  admiois- 
traiion  in  a  case  not  within  his  authority,  but  in  one  that  be- 
longs to  the  MetropolUan^  the  same  is  absolutely  void.  {Jll- 
liion  V.  Diekenson^  Hardrea^  SI 6.  Hob,  Ch.  J.  in  Blacks- 
borough  V.  Davis,  1  P.  fVms.  41.  HiUiardv.  Cox^  1  Salk. 
37.  Godol.  70.)  It  is,  also,  a  general  principle,  applicable 
to  all  Courts  of  limited  jurisdiction,  that  they  must  act  with- 
in the  Umits  of  their  authority ;  and  it  must  appear  upon  the 


CASES  IN  CHANCERY.  6S6 

ftoe  of  their  proceedings,  that  they  did  so,  or  their  acto  wiU      1830. 
be  deemed  coram  nanjudicef  and  void. 

I  feel,  therefore,  constrained  (however  reluctantly)  to  de- 
clare, that  the  plaintiff  has  not  shown  a  title  to  sue  here,  as 
the  representative  otPhineas  MiUiTj  deceased,  and  that  the 
bill  must  be  dismissed ;  and  I  shall  do  it  without  costs,  and 
without  prejudice. 

Decree  accordingly. 


Hatch  against  Cobb. 

On  a  contract,  l>etif een  the  plaiotiff  and  defendaot,  for  the  sale  oi 
land,  the  payment  of  the  purchase  money,  by  the  plaintiff,  was  made 
a  condition  precedent  to  the  conveyance ;  and  after  a  default,  the 
defendant  accepted  part  of  the  purchase  money,  but  the  plaintiff, 
though  repeatedly  called  on,  refused  to  complete  the  payment.  The 
defendant,  after  giring-  notice  of  his  intention  to  do  so,  sold,  and  con- 
veyed the  land  to  another:  and  the  plaintiff,  afterwards,  tendered 
the  money  due  on  the  contract,  and  filed  a  bill  for  its  specifici  per- 
formance :  held,  that  a  specific  performance  could  not  be  decreed ; 
nor  could  the  biU  be  sustained  for  a  compentation  in  damages. 

This  Court  does  not,  unless  in  some  very  special  case,  ivstain  a  bill  for 
damages  on  a  breach  oiHjontract. 

Ji  seenu,  that  e?en  if  the  defendant  had  not  sold  the  land  to  another, 
before  the  plaintiff  filed  his  bill,  he  would  not,  after  such  default  and 
delay,  on  his  part,  have  been  entitled  to  a  specific  performance,  as 
no  accident,  mistake,  or  fraud,  had  intervened  to  prevent  the  t>eir- 
formance  on  his  part. 

BILL  for  a  specific  performance  of  a  contract,  on  the  jiugud  19/a. 
part  of  the  defendant,  to  sell  land  to  the  plaintiff. 

It  appeared,  from  the  pleadings  and  proofs,  that  the  plain- 
tiff bad  made  default  in  the  payments  which,  by  the  contract, 
were  made  a  condition  precedent  to  the  conveyance.    That 


SQO  CASES  IN  CHANCERY. 

1820.  the  defendant  bad  accepted  one  small  payment,  sabseqnent 
to  sach  default,  but,  that  about  six  months  thereafter,  the 
defendant  repeatedly  called  for  payment,  and  gave  notice, 
that  if  the  plaintiff  did  not  pay  him,  he  should  be  obliged 
to  part  with  his  interest  in  the  land  agreed  to  be  conveyed. 
No  payment  being  made,  he  assigned  over  his  right  to  a 
third  person ;  and  the  plaintiff,  with  the  knowledge  of  that 
fact,  made  a  tender  of  the  balance  due  on  the  contract,  and 
filed  his  bill  for  a  specific  performance  of  the  contract,  or 
for  a  compensation,  in  damages,  for  the  payments  he  had 
already  made,  and  the  improvements  he  had  made  upon  the 
land.  The  plaintiff,  subsequent  to  his  default  in  payment, 
had  confessed  a  judgment  to  a  third  person,  for  1,000  dol- 
lars, to  cover  his  property. 

Hawelly  for  the  plaintiff. 

J.  C.  Spencefj  contra* 

The  Chancellor.  A  specific  performance  cannot  be 
decreed.  The  defendant  had  fairly  disabled  himself  before 
the  suit  was  brought,  and  this  was  known  to  tlie  plaintiff. 
He  was  not  bound  to  wait  any  longer  upon  the  plaintiff,  but 
had  a  clear  right  to  exact  immediate  payment,  or  else  to  part 
with  his  interest  in  the  land  to  another,  in  order  to  meet  his 
own  convenience  or  necessities.  If  Is  doubtful  bow  far 
the  Court  has  jurisdiction  to  assess  damages,  merely  hi  such 
a  case,  in  which  the  plaintiff  was  aware,  when  he  filed  his 
bill,  that  the  contract  could  not  be  specifically  performed  or 
decreed.  It  is  properly  a  matter  of  legal  cognisance. 
The  case  of  Denton  v.  Stewart^  (I  Coxy  258.)  was  hesita- 
tingly followed  by  Sir  fVm.  Grants  in  Grenaway  v.  Aiamsj 
(12  Vesey^  395.)  but  it  has  been  much  questioned  by.Lord 
Eldouy  in  Todd  v.  Gee;  (17  Veaeyy  273.)  and  though  equity, 
in  very  special  cases,  may  possibly  sustain  a  bill  for  dama* 
ges,  on  a  breach  of  contract,  it  is  clearly  not  the  ordinary 


CASES  IN  CHANCERY.  S6l 

jurisdiction  of  the  Court    In  PhUlips  v.  T^hompson^  (1       1820. 
Johns.  Ch.  Rep.  131.)  the  bill  was  retained  in  order  to  af-    ^^'JJ]^^^ 
ford  a  compensation!  in  damages,  under  a  feigned  issue,  but  ▼. 

that  case  was  under  peculiar  circumstances.    The  bill  was  "' 

filed  for  discovery  and  for  specific  performancCi  and  the 
plaintiff  made  out  a  case  of  very  clear  equity  to  relief,  and 
the  remedy  was  precarious  at  law. 

If  the  defendant  had  not  parted  with  his  interest  be- 
fore the  filing  of  the  bill,  it  might,  even  then,  have  been  a 
point  deserving  of  consideration,  whether  the  plaintiff  was 
entitled  to  assistance,  when  no  accident,  mistake,  or  fraud, 
had  intervened,  to  pi^ent  the  p^ormance  of  the  contract, 
on  bis  part,  and  when  after  indulgence,  and  after  conside- 
rable subsequent  delay,  he  liad  twice  been  required  to  make 
payment,  and  had  omitted  to  do  it.  The  acquiescence  in 
his  default,  or  the  waiver  of  it,  by  the  defendant,  had  ter- 
minated before  the  assignment,  by  these  calls  for  payment, 
and  the  doctrine  in  Benedict  v.  Lynch,  (1  Johns.  Ch.  Rqp. 
370.)  would  seem  to  apply. 

But  it  is  not  intended  to  prejudice  any  claim  the  plaintiff 
may  have  under  his  contract,  at  law,  for  damages,  (a) 

Bill  dismissed  without  costs. 

(a)  Vxd€  Ballard  r.  WaOcsr,  (^  Johns.  Cos.  60.)  where  the  ven- 
dee Hiffisred  four  yean  to  elapse,  before  he  offered  to  fulfil  the  a^pree- 
ment,  on  his  part,  and  id  the  meaDtime,  the  vendor  had  sold  the  land 
to  another ;  the  Supreme  Court  considered  the  contract  of  sale  as 
rescinded  or  abandoned ;  and  in  an  action  brought  by  the  vendee,  to 
recover  damages  for  the  noa-perfomiance,  gave  judgment  for  the  de* 
fendaat    Orby  v.  Trigff^  9  J^od.  2. 


Vol.  IV.  71 


]«90; 


(Mess  IK  CHANCERY. 


£Liifm>eiiF  and  Bebkxak  ag^Aut  G.  LiJf8iN«>  Jm.  awl 

othtnk 

Where  an  executor,  or  other  tmtteo,  miMiiuiate*  the  eat&te  ooofide^ 
to  bis  c^irCf  or  pata  the  mssets  in  jeopardjr,  by  his  actual  or  impend- 
iog  iosolFeDcy,  this  Court  will  restraiu  him  from  all  further  inter* 
meddling  with  the  estate,  and  compel  him  to  restore  the  funds  in  his 
bauds. 

Jkn«xeoutor,  en  aMl  filed  i^MI  Mm  hf  fedi  4»|^sei»tei«i  «m»i^ 
Mratned  frem  all  fnrtb«r  inteiferanoe  w  the  manegeineBt  of  te 

.  estate,  and  decreed  to  restore  to  the  plaiotifi  a  bond  and  note  of 
the  ef^tate,  in  his  possession,  but  not  to  account  for  money  he  had 
received  on  the  bond,  or  to  pay  the  costs  Of  the  suit 

Augttit  22d.  '  ^^HE  bill  stated,  that  Jeremiah  Lansing,  of  Albany,  who 
died  in  February y  1810,  by  his  last  will,  appointed  the  plain- 
'Atkj  tind  the  defendant,  G.  Lansing,  juti.  bis  executors.  Cf. 
L.J  who  had  united  with  the  plaintiffi  in  the  execution  df 
the  will,  removed  to  fkrkimer  in  181 1,  and  the  whole  tare 
of  the  estate,  from  that  time,  devolved  on  the  pibtnttffs.  Iti 
September,  18J7,  Cr.  L.  returned  to  Albany,  and  demanded 
of  B.y  one  of  the  plaintiffs,  access  to  the  papers  of  the  testa- 
tor, which  was,  at  first,  refused,  but  aAcrwards  granted  ; 
and  without  the  knowledge  or  consent  of  the  plaintiffs,  ff. 
L.,  took  from  the  assets  of  the  testator,  a  bond  of  J.  T.,  for 
1,215  dollars,  and  a  note  of  G.  P.,  for  2,218  dollars  and 
47  cents  (  and  assigned  them  to  /•  V.  N.  Totes,  from  whom 
be  received  a  bond  and  mortgage  in  his  own  name.  On 
representation,  and  at  the  instance  of  the  plaintiffs,  this  as- 
signment, and  the  securities,  were  cancelled,  and  the  bond' 
and  note  returned  to  O.  L,  who  had  demanded,  and  re- 
\  ceived  of  the  obligor    200    dollars,  and    refused  to  re- 

turn to  the  plaintiffs  the  bond  and  note,  or  deposit  them 
with  the  papers  of  the  testator,  or  account  fiur  the  lao* 


'9     <k 


CASKS  m  CRAtlCfBftT* 

ney  §o  tvcelved  bj^  him.  That  in  AWMt&ar,  181«|  CL  laSffc 
L.  again  sold  the  note  to  one  S.,  and  raceiTed  a  greater 
pan  of  thf  amooot  to  hk  owa  use ;  and  had  put  the  bond 
IB  the  huKb  of  an  attomey,  whh  direettoos  to  collect  it  for 
him.  That  G.  L.  had  drawn  a  check  on  the  Bank  of  Albanff, 
for  450  dollars,  as  one  of  the  executors,  in  favour  of  one 
)l^  O.J  which  had  been  reftised  payment,  and  fV.  O.  had 
brought  an  action  thereon  against  the  bank.  The  bill 
charged  that  G.  was  utterly  insolvent,  and  was  indebted  to 
the  estate  of  the  testator.  That  the  interest  of  the  estate 
dM  not  require  that  the  bond  and  note  should  be  collected* 
The  bill  prayed,  that  the  defendants  G.  JL.  and  5.,  may  be 
decreed  to  deliver  the  bond  and  note  to  the  plaintiffs,  or 
bring  then)  into  Court,  and  for  an  injnnction,  and  for  gene- 
ral relief. 

The  amtffer  of  O.  £.,  charged  the  plaintiffs  with  remiss- 
ness in  settling  the  estate,  and  as  disposed  to  exclude  him 
IVom  an  active  participation  in  the  management  of  it  He 
admitted,  that  he  took  the  bond  and  note  belonging  to  the 
testator's  estate,  and  insisted  that  he  had  a  right  to  do  so ; 
that  his  object  was  to  guard  the  interest  of  the  estate,  and 
not  fraudulent,  or  with  a  view  to  appropriate  the  money  to 
bis  own  ose.  He  admitted  the  assignment  to  Yates,  which 
was  afterwards  cancelled;  that  he, afterwards,  sold  the  note  to 
fif.,  but  that  the  sale  had  since  been  revoked,  and  the  note' 
retorned.  That  he  drew  the  check  on  the  bank,  which  had 
been  refused  payment,  because  not  signed  by  a  majority  of 
the  executors,  and  a  suit  brought  in  the  naipe  of  D.^  who 
was  bis  agent.  He  denied  the  charge  of  inaoIveAcyt  Hq 
admitted,  that  he  received  the  200  dollars  on  the  bond,  but 
without  intending  to  apply  it  to  his  own  use  ^  that  he  was 
indebted  to  the  estate  for  mon^  received  a&  exe<;utor,  of 
which  he  had  already  rendered  an  account,  except  for  the. 
200  dollars;  but  that,  on  a  settlement  of  all  jqst  claims  be- 
twe^^n  him  and  the  estatey  there  would  be  a  balapce  in  bis 


jB4  CASES  IM  CHANCERY. 

1820.      favour.    Timt  he  b  a  legatee,  and  entided  to  a  jiHt  aBo«r. 
^-^"^^^^^    ance,  as  an  execator,  tsc. 
^"^T*^"'       The  other  defendants  pat  in  their  answers ;  and  pfoof  waa 

LAjsaq.     ^^^  33  i^j  ii^g  insolvency  of  G.  L.,  and  it  appeared,  Aat  be 
had  little  or  no  property. 

Van  Buren  and  Butler^  for  the  plaintffis.  They  cited 
2  Cases  in  Ch.  130.  jllmiier,  309.  2  Fe*ey,  jun.  94» 
4  Fesey,  592.  5  Fwcy,  722.  2  w2rA.  213.  2  Sch.  ^  Ltf. 
26.  1  Bro.  105.  279.  13  Fe*6y,  266.  4  5ro.  277. 
2  Vesey,  95.  iZg>.  in  CA.  110.  Cartk.  457.  Ca#ef  ta 
Ch.  75.    2  Fern.  249. 

J.  Fl  X  Fatoi  contra. 

The  Chancellor.    The  defendant  Lansing^s  answer,  is 
a  sufficient  admission  of  abuse  of  trust.    After  residing  se* 
veral  years  out  of  the  city  and  county  of  Albany^  he  re- 
turned  there  in  1817^  and  took  from  the  custody  of  the 
plaintiffs,  withovt  their  knowledge  or  consent,  a  bond  and 
note,  being  part  of  the  testator's  assets,  and  which  amount* 
ed,  on  the  face  of  them,  to  3,400  dollars,  and  upwards. 
He  applied  to  the  obligor  of  the  bond,  and  recdved  200 
dollars,  in  part  payment  of  it,  and  then  sold  the  bond  and 
note  to  a  third  person,  and  took  a  bond  and  mortgage  for 
the  amount  to  himself.    The  bond  was  then  put  in  suit  by . 
the  purchaser ;  but,  upon  the  remonstrance  of  the  plaimifi, 
the  sale  was  rescinded,  and  the  bond  and  note  restored  to  ike 
defendant    He  then  sold  the  note  to  another  person^  and 
that  sale  w«s-afierward  rescinded*  The  bond  was  then  order**^ : 
ed  to  be  put  in  suit,  and  he  drew  a  check  on  the  Bank  of^ 
Albany f  where  the  executors  bad  made  deposits  ot  the  trust, 
moneys,  for  450  dollars ;  and  the  check  was  delivered  to  the 
other  defendant,  who  resided  in  his  family,  and  is  charged, 
to  be  insolvent 


EUUUIDQBF 
V. 


CASIS  IN  CHAKCttY.  566 

ThMo  m$B  show  $ta  uDequivocal  dispositioo  to  convert  1820* 
ihe  aMOls  of  tbe  testator  to  bU  own  use,  and  the  proof  b 
fiilLuKl  satisfactory  to  the  point,  that  this  defeod|4it  is  worth 
littb  or  no  property*  It  becomes,  therefore,  just  and  neces-  ^^"*^' 
sary,  that  the  defendant  L.,  should  be  restrained  from  fur^- 
ther  intermeddling  with  tbe  estate,  as  a  co-executor ;  and  that 
he  should  restore  the  bond  and  note  which  he  so  improperly 
tooJk^  and  has  so  injariously  converted ;  and  that  the  suit 
against  the  bank,  upon  the  check,  should  be  perpetually 
ecjotned,  and  tbe  check  cancelled. 

It  is  a  settled  principle  of  this  Court,  that  an  executor, 
or  other  trustee,  who  mismanages,  or  puts  tbe  assets  in  jeo- 
pardy, by  his  insolvency,  either  existing  or  impending,  should 
be  prevented  from  farther  interfering  with  the  estate,  and 
that  the  funds  should  be  withdrawn  from  his  hands.  The 
authorities  to  this  point  are  sufficiently  numerous.  {Rons 
V.  MUe,  2  Vem.  249.  Batten  v.  Eamley,  2  P.  fVms.  163. 
and  vide  3  P.  Wm.  334.  S.  P.  Cwrth.  458.  Taylor  v. 
AUm,  %  Jltk.  313.  Utterson  v.  Jtfatr,  4  Bro.  277.  2  Ves. 
jun«  95.  Lake  v.  De  Lambert,  4  Fetey,  592.  Mddleian 
T.  Dodiwelli  13  Fe#ey,  266.)  I  shall,  accordingly,  restrain 
the  defendant  L.  from  acting,  or  intermeddling  any  fur* 
ther  with  tbe  assets,  or  in  the  administration  thereof,  as  a 
co*executor;  and  shall  direct  him  to  restore  tbe  bond  and 
note  to  the  plaintiffs,  and  cause  the  check  on  the  bank  to  be 
cancelled }  and  that  the  suit  thereon  be  perpetually  en- 
joined. 

As  to  the  200  ddlars,  which  L.  has  collected,  that  may  be 
left  to  be  accounted  for  when  he  is  called  to  an  account,  at  th6 
iaatance  of  creditors  or  legatees,  for  bis  previous  share  of 
tl|e  admhiisnration  of  the  estate,  in  which,  perhaps,  he  may 
have  a  claim  for  just  allowances.  This  suit  is  founded 
OA  principles  of  preventive  policy,  and  to  stay  future  waste 
and  Gonveraoo  of  the  onsets.  I  am  not  disposed  to  go 
further  upon  this  present  application  by  the  co-executors. 
1  shall  not  charge  the  defendants  with  the  plaintiffs'  costs  of 


CASK  m  cHAKcm; 

1890.  Ikbfiii^  tatl  shrit allow  the  pMhtilk  10 lAaigiBlMrm- 
MHiablecosto  mail  ebarget  of  tlito  lait,  apoar  ibeaM^iM 
tlieir  baadft. 

Dcccta  a^^vaiaip jR* 


S.  ta  P.  Penny  against  Martin  and  others. 

Wbere  there  is  neither  accident  nor  mistake,  misrepresentation  nor 
firaud,  Ibis  CouK  has  no  jurisdiction  to  afford  relief  to  a  partj,  on 
llMfffomd  that  he  has  lost  his  remedy^  at  law,  tbroogb  Mere  ^g9s»» 
taace  ^a/aci»  the  kuesfledgaotf  wMbbniiffht  hkw  beta  alMPi# 
hf  doe  diHgaace  aed  ig%niiy,  er  by  a  hiU  of  ditoeveqr* 

Am  where  the  pkUntifis  brought  a  suit  at  Jaw  a^paunt  two  pe nons»  as  part- 
ners in  trade,  under  the  firm  o{R,^A£  and  recovered  ajudgment, 
but  for  which  they  were  unable  to  obtain  satisfaction  out  of  their 
joint  property,  or  the  separate  property  of  M,^  who  was  insolTenl, 
like  other  partner  not  havings  been  bvoafhlitttoCeBrt,  eo  theneaaa 
preceM:  and  the  plaintifb,  ^wvor^  disoetefed^  M  the  fin% 
time,  that  JV*.,  JU  and  P.  three  other  pevaon^  were  d»r«Hiii| jpvK 
ners  with  JL  4-  JIf .,  and  jointly  interested  together  in  the  transaG- 
tion,  out  of  which  the  plaintiffs*  right  of  action  arose :  Held,  that 
this  Court  had  no  jurisdiction  to  aiibrd  relief  against  the  dormant 
partners. 

THE  plaindffs  brought  an  action  or  assumpsit  in  the  So*, 
preme  GcNtPt,  agahiBt  tbeilefeDdaals,  R0^aA  SindMkdkdl, 
for  meal  and  eoro  sold  ta  them,  as  partners.  Tbe  cs^aas 
was  retamed  takm  as  to  MUekeU,  and  not  found  as  to  Rdor^ 
bad.  A  second  capias  was  issoed  against  R.  to  answ^ 
simul  cumM*  which  was  returned  not  (bund.  The  plaitt- 
tifls  then  proceeded  against  JK,  under  the  act,  (1  JST.  it.  £•' 
£15.  sess.  80.  ck.  56.  sec,  13.)  wH|^' declares,  that  when  16 
a  suit  against  joint  debtors,  all  'are'  not  taken  and  brought 
into  Court,  the  plaintilF  shall  have  judgment  and  execution; 


CMBs  m  omMonT.  m 


fMbe4Me«MiHMff>a8if  aH  tke  4cfei]d»tg  ted  leen  brought  MBOi 
HMP  Cmh  :{ ;  bit  tbRt  no  «seoiitioQ  sfaoll  be  Jexecalcd  agaioat 
ibe  .pei«oai  or  the  sole  prc^Deriy  of  any  one  not  brought 
iblo  Courts  and  fteovered  a  jadgnMot  for  663  dollars  and 
14  eeiitsdaodages,  and  47  dollara  and  80  cents  cofets,  which 
WAS dockeited  JWw.  1,  ISlO^and  a  Ji.  fth  issued  thereon,  to 
be  levied  of  the  joint  property  of  A.  4t  M.^  and  on  the  separate 
|)r«peity  of  M.  The  execation  was  retnrned  unsatisficid. 
Tlie  bill  charged  ibat  «/lf«^Aefl  was  insolvent,  and  that  the 
plaintifis  could  not  proceed  at  law  against  the  separate 
|»roper$y  of  R.  That  on  the  1 6th  of  Januory  last,  the  plaia- 
lidfs  first  discovered  that  the  defendants,  'J^Torris  L,  Martin^ 
and  Samuel  Lamb,  and  John  Lambf  were,  at  the  time  of  the 
Mle  and  delivery  of  the  meal  and  corn  to  R.  and  Jlif.,  for  the 
{nice  of  wttcb  the  action  of  assompsit  was  brooghi,  pan- 
rDers  of /Z.  and  Jut  in  the  trade  and  bosaness,  though  the  same 
wat  carried  on  in  the  names  of  R.  and  M.^  and  that  the 
dSieal  and  corn  wel'e  so  pnrchiaslMl  of  the  plaintiffs,  for  the 
joint  account  and  benefit  of  all  tlie  defendants.  That  the 
said  .AT.  My  &  JU  and  /•  L.  refused  to  pay,  im.  and  the 
plaintids  prayed  relief,  &c. 

Tbe  defendants  pat  in  a  gmtral  iei^trer  to  the  bilL 

WelU  and  G.  W.  Strongy  in  support  of  the  demurrer. 

Ehf  If  J\t  Com^  contra. 

Ths  ChakoslimOb.    The  facts  an  this  case  are  few  and 
aMSfde.    T-he  plainttfis  aned  the  defendants^  R.  and  .If.,  as 
.partners  inosMia^pcst,  at  law,  and  Jf»only  was  taken.    The 
-  0iU|  was  carried  on,  mder  the  provision  in  the  statole,  against 
.Jl,  who  was  taken,  and  judgment  rend^ed  against  both  A. 
#nd  M* }  and  the  remedy  under  it  is  limited  by  the  statute  JU> 
;ap  execution  against  the  joint  property  of  both  the  defen- 
dants, and  the  separate  praperty  and  person  of  the  uoe 
fisben.     Ott  issuing  estcntioot  it  was  found  that  there 


iB»  CASES  IN  OHAKCERT. 

ISaa.      wt8  00  joint  property,  and  that  Jit,  tbe  drfundant  teken, 
was  tnsolveDt    Since  Uiat  time,  the  plaintiA  have  discoytred 


▼.         dial  die  odier  diree  defendants  in  tliis  soit  were  pa^tnen 


BfASTiir. 


with  R.  and  Jlf.  in  the  contract  sued  at  law ;  and  the  <|Des* 
tion  is,  whether,  upon  these  facts,  tbe  plaintifis  aie  entitled 
to  the  aid  ofthk  Court,  to  recover  by  its  decree,  their  demand 
against  the  dormant  partners. 

There  is  no  doubt  that  £«,  who  was  not  taken  in  the  .suit 
at  law,  can  be  sued  upon  the  judgment  which  was  rendered 
jointly  against  M.  and  R.  This  was  setded  by  the  Su- 
preme Court  in  the  case  of  the  fioni  of  Columbia  y.  A«9- 
comb,  (6  Johns.  Rep.  98.)  and  it  was  strongly  intimated  in 
that  case,  that  the  defendant  not  taken  in  the  original  suit^ 
would  be  emided  to  make  any  defence  which  he  might  have 
made  in  his  distinct  individual  capacity,  had  he  been  ar- 
l^ted  in  the  original  suit  This  conclusion  can  work  no 
prejudice  to  the  plaintiffs,  and  it  would  seem  to  follow  from 
tbe  plainest  priDCtples  of  jusUce.  It  is  equally  certain 
that  the  present  defendants,  who  now  join  in  tbe  demur- 
rer, might  have  been  ^ued  at  ]aw  in  the  original  action. 
The  demand  is  on  a  contract,  to  which  it  Is  alleged  they 
were  parties,  as  being  dormant  partners  with  R.  and  M. 
The  omission  to  make  them  parties  in  the  acdon  at  law, 
arose,  according  to  tbe  allegation  in  the  bill,  from  ignorance 
of  the  fact  that  they  were  such  partners.  Is  that  igno- 
,  ranee  a  sufficient  ground  for  transferring  to  this  Court,  ju- 
risdicdon  of  a  matter  properly,  if  not  exclusively,  cognisa- 
ble at  law?  The  ignorance  might  have  been  removed  by 
due  vigilance  and  inquiry,  and  perhaps  by  the  assistance  of 
a  bUl  of  discovery  here.  The  plaintifi  have  no  pardcidar 
equity  endding  them  to  relief.  Ignorance,  as  Lord  Loi^^ 
boroygh  said,  is  not  mistake.  They  never  inquired  wbelfaar 
R.  and  M.  had  secret  partners,  and  they  gave  the  wlok 
•credit  to  them.  If  they  have  now  got  into  embarrassmeBl 
and  difficulty,  in  respect  to  their  legal  remedy,  by  porsding 
tbe  ostensible  partners  at  law,  without  soeb  inqoiiy,  I  do 


CASES  IN  CHANCERY.  569 

iitk  tn6W  of  any  principle  that  will  anthorize  this  Court  to  1820. 
take  jurisdiction  of  a  case  where  tlie  remedy  was,  in  the  first 
instance,  fuU  and  adequate  at  law,  because  the  party  may 
have  lost  that  remedy  by  ignorance,  founded  on  negligence,  , 
not  on  accident,  or  mistake,  or  on  any  misrepresentation 
or  fraud.  Generally  speaking,  a  jurisdiction  does  not  arise 
here  from  the  mere  circumstance  that  a  party  has  omitted 
t(S  ibake  a  proper  case  at  law.  There  is  no  such  head  of 
'  equity  jurisdiction.  The  general  rule  is,  that  if  the  party 
'  becomes  remediless  at  law  by  negligence,  he  shall  not  be 
relieved  in  equity.  He  must  show  that  he  has  been  deprived 
of  his  legal  remedy  by  accident,  casualty,  misfortune,  bct 
(1  F(mb.  Tr.  6.  1.  cA.  3.  sec.  3.  ^.  3.J 

It  is  to  be  observed,  that  here  are  no  special  circum- 
stances disclosed  by  the  bill.  We  have  only  the  naked 
fact,  that  the  plaintifis  discovered,  since  the  judgment  at 
law,  that  the  defendants  were  partners ;  but  whether  they 
were  kept  in  ignorance  by  undue  means,  or  took  any  pre- 
vious steps  to  remove  it,  does  not  appear,  and  is  not,  there- 
fore, to  be  presumed.  Whether  they  have,  or  have  not,  lost 
their  remedy  at  law,  (and  on  which  I  give  no  opinion,}  the 
demurrer  must  be  pronounced  to  be  well  taken,  and  the  bill 
dismissed,  without  costs. 

Decree  accordingly. 

Note.  After  the  above  opinion  was  delivered,  the  Chan- 
cellor said,  that  be  bad  seen  the  case  of  fVtUingM  fy  Francu  v. 
Consequa,  decided  in  the  Circuit  Court,  for  the  third  circoit  of 
the  Untied  SMes.'in  1816;  (1  Peter's  Rep.  dO\.)  and  that  an 
opinion  expressed  in  the  course  of  tlie  trial  in  that  cause,  hap- 
,pened  to  fall  directly  on  the  point  decided  in  this  case.  That 
b^  QQticed  it  th^  more  readily,  (though  it  was  not  a«  precise 

,  and  certain  as  could  have  been  wished)  since  he  has  not  met 
with  a^y  other  opinion  or  dkkm  that  applied  fnlly  to  the 

,  question.  JMrn^  a  domam  partntr  of  WtVmgs  tf  Frtm^y 
Vol.  IV-  72 


V. 

Martiii. 


£fO  CASES  IN  CHANCK&T. 

was  offered  as  a  witoess,  and  he  was  objected  to  as  intertst- 
cd,  because  W.  Sf  F.  had  given  ^  note  to  Comequa,  oa 
which  they  were  sued,  and  a  verdict  rendered,  and  it  was 
alleged,  that  if  C.  was  not  aUe  to  obtain  sfttitfacuon  from 
them,  he  might  afterwards  sue  JT.,  as  a  dormant  partner.  It 
was  held  by  fVashingtany  J.  that  a  judgment  on  the  note 
against  W.  fy  F.,  would  as  completely  extinguish  the  origi- 
nal debt,  as  if  they  had  given  a  bond  for  it,  and  that  if  ۥ 
should  bring  an  action  against  JiT.,  separately,  the  latter 
might  defeat  it  by  a  plea  in  abatement,  and  a  judgment  in 
favour  of  C,  would  be  a  bar  to  any  suit  that  he  might 
bring  against  the  three  partners  fF.  F.  fy  K,  The  Judge 
then  added,  "  but  it  is  said,  that  though  Consequa  might 
have  no  remedy  at  law  against  ATtiAn,  he  might  be  relieved 
in  equity,  by  showing  his  ignorance  that  K.  was  a  dormant 
partner  when  he  took  the  note,  or  instituted  the  suit.  I,  by 
no  means,  admit  that  he  couid  be  relieved  in  that  Court  It 
would  still  depend  upon  a  variety  of  circumstances  not 
known  to  this  Court,  wliether  C  could  make  out  a  case  fit 
for  equitable  interposition.  By  his  own  showing,  \t  is  cer- 
tain that  he  did  not  give  credit  to  JT.,  and  whether  be  knew, 
iltat  be  was  jointly  concerned  in  that  transaction  or  not,  is 
unknown  to  this  Court.  It  was  in  his  power  to  have  dis- 
missed this  suit,  though,  at  the  tinie  it  was  brought, :  he 
may  have  been  ignorant  of  the  partnership,  and  have  insti- 
tuted another  against  all  the  partners,  after  he  was  informed 
who  they  were ;  and  his  failing  to  do  so,  would  indispose  a 
Court  of  equity  to  open  Its  doors  to  him,  after  he  had  per- 
mitted those  of  a  Court  of  law  to  be  closed  against  him«'\a). 

(a)  Vide,  also,  the  case  of  Robertson  v.  Smithy  (18  Johns.  Rep, 
45^.)  decided  bj  the  Snpren^  Court,  io  January  term,  I82Md  which 
the  qveatioD  came  directly  before  the  Court ;  and  it  was  held,  that 
tlie  BOQ-joinder  of  a  partner  could  only  be  pleaded  in  abatement;  and 
that  where  (he  plaintiff  sued  A,  and  B,  as  partners,  and  recovered  a 
judgment  against  them;  but  discoyeriog,  afterwards,  that  C.  andD. 


OiSES  IN  CHit^GERT.  ^71 

1820. 


V. 

J.  R.  Livingston  againtt  Gibbons,  ' 

Where  an  injijnctioD  has  been  already  granted*  a  second  iDJanction 
wili  not  be  g^nted  while  the  first  ib  id  force ;  unless  it  has  been 
withdrawn  by  some  agreement  between  the  parties,  and  satisfac* 
tory  reasons  are  shown  for  a  renewal  of  it. 

Nor  will  an  injunction  be  granted  to  restrain  the  defendant,  who  was 
charged  by  the  plaintifi*  with  navigating  the  waters  of  this  state  with 
a  $httjn  boati  in  violation  of  the  plaintiff's  exclusive  right,  from  re* 
moving  his  boat,  pending  an  action  at  law  brought  to  recover  the 
boat  as  forfeited  under  the  act  .of  the  9th  of  ^pril,  1811,  unless 
there  is  a  direct  and  positive  change  of  danger  that  the  boat  will  be 
eloigned,  pending  the  suit  at  law. 

BILL  charged  that  the  defendant  was  daily  rnnning  the  Augwi  2Qih. 
steam  boat  BeUona,  between  the  State  of  New-Jersey  and 
the  city  of  JfeW'York.  That  the  plaintiff  had  commenced 
a  suit  at  law  for  the  forfeiture  of  the  said  boat,  and  the  re- 
covery of  damages,  8iEc.,  and  concluded  with  a  prayer  for 
an  injunction  to  restrain  the  defendant  from  navigating  with 
any  boat  propelled  by  steam,  within  the  waters  of  this 
state,  and,  also,  to  restrain  the  defendant /rom  removing  his 
said  steam  boat  BeUana  out  of  the  jurisdiction  of  this  Court, 
pending  the  suit  at  law  mentioned  in  the  bilK  . 

A.  Van  VecAten^  for  the  plaintifl^  moved  for  an  injunction 
according  to  the  prayer  of  the  biU. 

Thc  Grancixlor  denied  the  motion  as  to  the  first  part 

were  dormant  partners,  brought  an  action  on  the  same  contract 
against  all yb«r,  as  partners,  the  judgment  recovered  against  A.  and  B, 
might  be  pleaded  in  bar  to  the  second  suit  against  the  four^  for  the 
tame  cause  of  action. 


£79  GA8E9  IN  GHiNCERT. 

1820.  or  branch  of  the  injunctioD,  because  such  an  injunction  had 
already  been  granted  and  issued,  at  the  instance  of  the 
plaintiff,  against  die  defendant,  on  die  3d  day  of  JIfay,  1819/ 
and  a  repetition  of  the  injunction,  while  the  former  was  in 
*  jffii/e,j9. 48.  force,  would  be  idle  and  useless,  and  derogatory  to  the  au- 
thority of  the  Court.  If  that  injunction  has  been  violated, 
the  remedy  should  be  by  application  for  an  attacbmenl;  or 
if  diat  injunction  has  been  voluntarily  withdrawn  by  the  (dain* 
tiff,  after  it  was  served,  by  some  arrangement  between  the 
parties,  (but  of  which  nothing  is  stated  in  the  bill,)  the  fact 
and  the  reason  of  it,  and  the  new  grounds  for  a  renewed  ap- 
plication, ought  to  have  been  fully  stated.  The  motion 
was  also  denied  as  to  the  second  branch  of  the  case,  be- 
cause it  did  not  come  within  the  meaning  or  equity  of  the 
act  of  tiie  9Ui  otJIprU,  1811,  entided,  *<  an  act  for  the  more 
effectual  enforcement  of  the  provisions  contained  in  an  act, 
entitied,  an  act  for  the  further  encouragement  of  steam  boats 
on  the  waters  of  this  state,  and  for  other  purposes/^  Thp 
bill  charged,  that  the  defendant  is  daQy  navigating  with  his 
boat,  the  waters  of  the  state  of  A6tr-Jer«ey,  as  well  as,  those 
of  this  state,  and  will,  unless  enjoined,  still  continue  to  do 
so.  There  is  no  positive  and  direct  charge  of  danger,. |hat 
the  boat  will  be  eloigned,  pending  the  suit  at  law,  or  re- 
moved oat  of  the  jurisdiction  of  the  Court,  vnthout  an  tn- 
tention  to  return.  Nor  can  such  a  charge  be  made,  con- 
fbtently  with  the  other  charges  in  the  bill.  The  case  is  not 
brought  within  the  necessity,  and,  therefore,  not  within  the 
intention  of  the  special  provision  of  the  act  against  danger 
cf  loss  by  removal.  A  remedy  so  unusual,  and  so  severe^ 
ought  not  to  be  extended  beyond  the  plain  and  necessary 
construction  of  the  statute. 

Motion  denied. 


GASES  IN  CUANCERT. 


E.  P.  LiTiNGSTON  againtt  D.  Lynch,  Juo.  and  others. 

Id  priyate  aasociattoni  of  individuals,  the  majority  cannot  bind  the  mi> 
nofitf ,  onlen  hj  special  agreement. 

Theaaaooiaiioiiofafeockholdert  oOhe  ^ctik  Rwer  Sieam  Beat  Comr- 
jMMy^  is  not  a  eopwiimnhip;  but  the  parties  are  fsnofiis  l»  «SMiviof» 
of  the  properfy  and  franchises  belonging  to  the  oompanj. 

The  ruohUion»  passed  at  a  meeting  of  the  stockholders,  by  unanimous 
Tote,  on  the  13th  and  14th  of  April,  18ir,  and  subscribed  by  all  of 
them«  are  the  fundamental  articles,  or  cofuUtution  of  the  company, 
by  which  the  former  articles  of  agreement  of  the  26th  July,  1814, 
were  abrogated: — And  they  cannot  be  changed  or  altered  but  by 
the  snanimoos  voice  of  all  the  stnokholders.  Thevefore,  certain 
retolmtimt  passed  the  6th  JIfay,  1$19»  not  having  been  consented 
to  by  all  the  stockholders,  and  being  repugnant  to  the  Jiindamenial 
mrtklei  of  the  association,  are  null  and  void. 

BILL  filed  Jtdy  22d,  1819,  against  Robert  L.  Livings  Aiguk;awi. 
stan^  ike  executors  ofR.  Fulton^  Dominick  Lynch,  Jun.  and 
others,  stating,  among  other  things,  that  on  the  26th  of 
July,  1814,  the  plaintiff,  the  defendant  JR.  L.  Livvi^stini, 
and  R.  Fulton,  since  deceased,  were  «oIe  proprietors  of  cer- 
tson  ^xclnsive  rights  to  navigate  with  steam,  fiic.  secured  by 
sundry  patents  from  the  U.  S.,  and  by  grants  and  acts  of 
the  legislatures  of  the  different  states,  and  particularly  of 
this  state,  to  JR.  FuUon  and  A.  R.  Livingston,  deceased, 
whose  heirs  and  assigns,  the  plaintiff,  and  the  defendant  R. 
L.  L;  are  owners  of  one  undivided  moiety  thereof. 

That  with  a  view,  amongst  other  thhigs,  to  constitute  a 
separate  concern,  as  to  so  much  of  the  said  rights  as  re- 
spected the  navigation  by  steam  boats  on  the  Hudson  river, 
between  the  City  of  NeuhYorkwaA  Troy,  and  the  interme- 
diate places,  R.  fl  and  the  plaintiff,  and  the  defendant,  jR. 
L.  L.,  on  the  25th  of  Jvdy,  1814,  entered  into  articles  of 
agreement,  under  their  hands  and  seals.  This  agreement, 
which  was  set  forth  in  the  bill,  recited,  that  whereas  the  par- 


tkfl  being  proprieton  and  actiag  pariaen  of  aod  m  tha 
rights,  privileges,   &c.  it  was  agreed  that  the  rights,  &c. 
on  the  Hudson  river*  betwera  Mw-Tork  aud  ZWy,  be 
and  the  boats,  be.  should  be  a  separate  concern  from  ibeir 
rights,  be.  in  other  places ;  and  shoold  be  divided  into  1^40 
shares,  of  500  dollars  each,  one  half  of  which  weredenlafed 
10  be  (be  property  of  JL  Fid4an;  one  fourth  the  propany 
of  the  plaintiff,  and  one  foorth  of  the  defendant,  R.  LJ  L.; 
and  the  subscribers   were  to  be  at  liberty  to  dispose  of 
their  shares,  as  they  night  deem  proper.     That  R.  Jl, 
during  his  life,  should  have  two  voices  in  the  maoageiMnt 
of  the  concern,  as  long  as  he  continued  to  bold  lea  sharee, 
and  the  other  two  one  voice  each,  as  loag  as  they  «omniifed 
to  hold  ftve  shares  each,  be.    That  on  the  death  of  eMier 
of  the  parties,  each  heir  or  assign  of  the  deceased,  should 
have  a  voice  in  the  concern,  in  proportion  to  the  nomber  of 
shares  he  or  she  should  hold  in  the  stock,  each  share  being 
one  voice,  and  then  a  majority  of  voices  should  govern  the 
concern.    But  no  heir  or  assign  should  have  a  control 
over  the  Hudson  river  concern,  until  the  death  of  the  coo- 
tracting  party  from  whom  the  share  or  shares  held  were 
derived,  be.    And  It  was  agreed,  that  the  ''  duration  of  the 
Hudson  river  partnership  be  co-extensive  with  the  grant 
from  the  state  of  JSTew^York" 

The  bill  further  stated,  that  under  this  agreement,  the  pro- 
fits of  the  concern  were  paid  by  the  masters  of  the  boats, 
directly  to  the  parties,  according  to  their  respective  propoN 
tions.  That  R.  Fulion,  before  his  decease,  assigned  soo* 
dry  shares  in  the  Hudson  river  concern  to  the'  other  defen- 
dants named.  That  on  the  13th  and  i4thof  jlprtlt  ^Si^s 
at  a  meeting  of  the  stockholders,  a  new  organijuttion  was 
agreed  on  between  them,  and  certain  resolutionsy  in  the  oa* 
ture  of  a  new  agreement,  were  adopted  and  signed  by  all 
the  persons  holding  shares  in  the  Hudson  river  concern, 
except  some  holders  of  shares  to  an  inconsiderable  amount 
who  acquiesced  therein.    The  preamble  to  these  tMhttima 


CA8B»  IN  «jy[ANCaB&Y.  SW 

w»  u  (bllovrt :  ''  At  a  npoetins  ^  the  stecUwIders  of  tte  lg9(K 
JVor^i  riyei  s^eaai.  boat  compaiiyy  held  oo  the  I^h,  and 
coutmued  by  adjoiununent  ta  the  Hth  of  dtfpnZy  1817,  con- 
vened for  the  purpose  of  orgaoiuog  the  coiDpaay,  and  of 
adopting  such  rulee  and  regnlatiooBi  as  sbonld  be  deemed 
advisable^  (or  the  well  managing  the  coneerns  of  the  ntid 
cpmiiaajK,  Ibe  ibUowiDg  naaed  stoekholderft  were  peesenir 
Tiau"  naming  them^  being  the  plaintiff  and  all  (lie  defendantSi 
except  nine.  By  these  resokiUonsi  tbtrty-lwo  id  nambert 
the  capital  stock  of  the  company  was  declared  t^be  sik  ban- 
diwd  thoosand  dollars^  divided  into  one  thoasand  shares,  -of 
sij;  hundred  dollars  each :  the  number  of  shares  set  oppo*^ 
site,  the  name  of  each  subscriber  to  the  resohitionft,  to  ba 
doomed  his  shares  o»  that  day.  A  president^  secretary,  and 
clerk,  were  to  be  annually  chosen,  and!  their  duties  weie 
pce^ribed.  The  third  resolution,  which  gave  the  secretary 
a  salary  of  one  thousand  dollars  per  annum,  made  it  bis 
duty  to  attend  the  meetings  of  the  company,  to  keep  a  record 
of  the  proceedings,  "  to  see  that  the  resolotions  of  a  majority 
of  the  interest  of  the  concern  be  carried  into  effect ;''  keep 
a  legalar  transfer  book»  bo.  Monthly  aieetings  of  the 
company  were  to  be  held  in  the  City  of  «A/ei^  For/r,  at  which 
meetings  the  stockholders  were  to  vote  in  pers<iH  or  by  proxy* 
The  masters  of  the  boats  were  to  deposit  the  whole  amount 
of  tb^ir  receipts,  on  their  arrival  at  X  F^  in  tlie  Manhmian 
Banky  to  the  credit  of  the  J^arth  River  Steam  Boat  Compa' 
fiifi  and  all  drafts  on  the  funds  in  the  bank  were  to  be  signed 
by  the  clerk  and  countersigned  by  the  secretary,  See.  Va- 
rious regulations  for  the  conduct  of  the  different  officers, 
masters  of  the  boats,  &c.  were  prescribed,  and  their  respec- 
tive duties  defined.  The  defendant,  R.  L.  L.y  was  appointed 
president;  the  defendant,  jL^cA,  secretary  j  ^nA  A.N.  Hoff- 
man^ clerk,  with  a  salary  of  1»500  dollars,  &2c. 

The  bill  further  stated,  that  by  this  arrangement  the  name 
of  the  concern  was  changed  to  that  of  the  '^  North  River 
Stfam  Boat  Company y^^  the  number  and  amount  of  shares 


576  CASE8  IN  CHANCERY. 

1820.  altered,  and  officen  appointed.  That  the  ^aintiff  waHned  a 
portion  of  his  right  ander  the  articles  of  the  26ch  oP  Ja/y, 
1814,  with  a  Tiew  to  place  the  concern  on  apermabent 
basis,  so  as  to  prevent  collision,  and  especially,  so  as  to  se- 
cure the  monies  arising  from  the  employment  of  theboatSt 
from  the  hazard  of  perversion  or  loss.  That  under  the  agree- 
neni  and  resohitions  pf  the  14ch  of  JlprU,  1S17,  th«  teats 
were  kept  employed,  and  the  masters  deposited  the  Kcrfpts 
respectively  in  the  Mmkattan  Bank,  and,  afterwanh,  bgrthe 
consent  of  the  stockholders,  in  the  Bank  of  JieuhTwtiCj  to 
the  credit  of  the  JVbrtil  River  Steam  Boat  Company  ;  and 
the  supplies,  except  such  as  were  permitted  by  the  mastecs  to 
be  made  in  cash,  were  procured  by  the  ckrk,  and  the  mo- 
nies drawn  out  by  the  check  of  the  clerk,  countersigned  by 
the  secretary,  until  the  £th  of  Jtfiiy,  1819. 

The  bill  then  charged,  that  the  defendant,  D.  Lgnch^ 
acting  as  secretary  of  the  company,  on  or  about  the  5th  of 
JMby,  1819,  under  pretence  of  authority  derived  from  the 
stockholders  of  the  company,  and  under  pretence  that  he 
h^d,  as  secretary,  authority  to  carry  into  effi^t  the  reso- 
latioos  of  a  ms^ity  of  the  stockholders,  caused  A*  JV. 
Hoffinan  to  be  dismissed  from  his  office  of  clerk  and  pur- 
veyor for  the  boats,  and  assumed  upon  himself  the  entire 
management  and  control  of  the  boau,  txc.  toe.  That  the 
taid  JD.  L.  gave  notice  to  the  masters  of  the  boats  to  pay 
to  him  the  whole  moneys,  receipts,  and  earnings  of  the 
boats,  or  else,  to  deposit  the  same,  subject  to  his  order,  in 
the  Bank  of  New^York,  to  a  new  account;  changing  the 
name  of  the  said  company  to  that  of  Hudion  River  Sieam 
Boat  Company,  to  the  credit  of  which  ^narne  and  account, 
he  had  directed  the  moneys  to  be  deposited;  subject  to 
be  drawn  out  by  his  own  check ;  and  had  taken  on  bimsdf  ex- 
dusivdy,  the  right  of  furnishing  supplies  for  the  boats,  and  set- 
tling and  paying  all  accounts,  be.  thereby  destroying  all  the 
checks  fl^inst  mismanagement,  provided  by  the  agreement 
and  resolutions  of  the  14th  of  Aprils  1817.    That  tiie  plain- 


GASES  IN  CHANCERY.  577 

tig,  kk-  eooiequeDce  of  these  acu  of  D.  //.,  gave  Botice      1820. 

td  Ibe  Mtften  of  the  boata  to  retain  and  deposit  in  the 

Jifm^katUttiBimkf  hid  proportion  of  the  receipts^  with  intent 
.  to  preserve  bis  rights,  until  the  resolutions  o(  Aprii  14, 

. 181 7t  should  be  restored,  or  hts  rights  under  them  enforced. 
TiTbat  sifice  sach  notice,  D.  L«,  and  others  connected  with 

Jifaa,  bad  threatened  the  masters  of  the  boats,  that  unless 
M.tfaey  paid  over  to  D.  JL  the  whole  of  the  moneys  received 

•  ibgr  ibem,  incloding  the  proportion  of  the  plaintiff,  and  con- 
'  ftrooed  implicitly  to  his  directions,  they  shonld  be  dismissed, 

and  others  appointed  in  their  stead.    That  the  said  D.  £r., 

'  iar  Justification  of  his  conduct,  sent  to  the  plaintiff  a  copy  of 

^  certain  resolutions,  dated  the  5th  of  JVay,  1819,  signed  by 

<  '  a  namber  of  the  stockholders,  and  to  which  the  secretary 

was  requested  to  obtain  the  signatures  of  other  stockholders, 

not  present  at  the  meeting.     That  the  plaintiff  wrote  to  D. 

Tj.  disapproving  of  the  resolutions,  and  of  his  conduct, 
'    and  insisting  on  a  strict  compliance  with  the  agreement  and 

arraligement  made  by  the  resolutions  of  the  14tb  of  Aprils 

1817i  That  although  by  the  resolutions  of  the  14th  of 
^'  AprH'^'WVt^  the  president  and  secretary  were  to  be  annually 

iq>l^med,  and  i2.  L.  L.,  and  D.  Lyneh,  were  then  respec- 
^  tbrely  appointed  to  those  offices,  the  term  of  which  expired 

itk'Aprilj  1S18,  yet  they  had  never  been  re*appointed,  at  any 
'^  regular  meeting  of  tiie  stockholders,  nor  any  other  persons 
'  bppoinied  in  their  places.  TImt  the  resolutions  purporting 
f  to  be  passed  at  a  meeting  of  the  stockholders  on  the  5th  of 
'  Jlfoy,  1819,  were  not  proposed  or  submitted,  at  any  montiily 
'.  oir  regular  meeting  of  the  stockholders  of  the  company, 

*  previoos  10  the  said  5tb  of  JMay,  for  their  consideration, 
'  rtor  w«8  such  meeting,  on  the  5th  of  JMojr,  one  of  the 
'  monthly  meetings  designated  by  tbe  resolutions  of  the  14th 
'  of  April,  1^17.    That  a  majority  of  the  stockholders  who 

sfibscribed  to  the  resolutions  of  the  5th  of  May,  1819,  were 
'  Induced  to  do  so  by  misrepresentations,  and  supposing  that 
Vot.IVi  73 


LnrcB. 


StQ  CASES  IK  CHAKCBKY. 

1820.  it  was  a  natter  of  general  arrange laeiit  and  acquietceiice, 
^[^^^^^^  That  the  plaintifi;  and  a  aii0ority  of  the  BtocUialdar%  ha4 
v.^  ao  notice  of  any  intent  to  pass,  or  adopt  soch  resolutioni^ 
until  a  copy  of  them  was  presented  to  them  for  their  sig- 
natures; that  these  resolutions  of  the  5th  of  Jl%,  1819, 
were  entirely  irregular  and  void ;  and  the  plaintiff  iasistec^ 
that  the  resolutions  of  the  14tb  of  ^pril,  1817,  aret  not- 
withstanding the  said  resolutions  of  the  fithof  Afay,1819,  iq 
full  force,  and  obligatory  on  the  proprietors  and  stockhold^ 
elrs ;  and  that,  by  the  true  construction  thereof,  the  funda* 
Qientat  articles  of  that  agreement,  which  regard  the  perma* 
nent  constitution  and  organization  of  the  association,  caor 
not  be  altered  or  changed,  unless  by  the  assent,  in  writing,, 
of  all  the  stockholders;  at  least,  that  no  alteration  thereof 
could  be  made,  except  by  the  vote  of  a  mgoriiy  in  interegti, 
of  the  stockholders,  at  a  regular  monthly  meeting^  and  after 
the  proposed  alteration  had  been  submitted  at  a  previous  re* 
gular  moi^thly  meeting,  so  that  the  same  might  be  matarely 
considered,  &cc.  be. 
The  bWl  prayed^  that  the  resolutions  of  the  5th  of  May  ^  1819^ 
and  any  other  resolutions  and  acts  of  the  defendants,  or  any  of 
them,  inconsistent  with  his  rights,  and  repugnant  to  the  reso* 
lutions  of  the  13th  and  14tb  of  «%n7,  1817,  mightr  be  set 
a^ide,  and  declared  null  and  void  ;  and  that  the  resolutions 
and  agreement  of  the  13th  and  14th  of  ^priij  1817,  may 
he  confirmed  and  estabUsbed,  and  be  carried  into  specific 
execution.  That  the  several  masters  of  the  boats,  in  con- 
formity (hereto,  may  be  directed  to  deposit  the  receipts  and 
profiu  which  may  come  into  their  hands,  in  the  BankofXew^ 
Yorkf  to  the  credit  of  the  J>forth  Rwer  Steam  Boat  Com* 
pony ;  that  the  said  bank  be  enjoined  from  paying  out  the 
aame,  or  any  part  thereof,  except  upon  the  draft  or  order  of 
the  clerk,  countersigned  by  the  secretary  of  the  company. 
That  the  said  D.  Lynch,  and  his  agents,  be  enjoined  from 
acting  under,  or  in  pretence  of  the  resolutions  of  the  5th  of 
Jtfay,  1819,  and  from  receding  any  moneys  frou)  the  mas- 


CASES  IN  CHANCERY.  tfi 

ten  of  the  boats,  8cc.  or  from  drawing  out,  or  otherwise  ob^  IBSO. 
tatning  or  receiviDg  any  moQeys  belonging  to  the  said  com- 
pany, from  the  Bank  of  New-York^  except  upon  the  checks 
or  drafh  of  the  clerk,  coantersigned  by  the  secretary ;  and 
that  D.  L.  be  enjoined  from  displacing,  or  removing,  or  at-* 
tempting  to  displace  or  remove,  any  erf*  the  masters  of  the 
said  boats,  or  any  of  them,  or  otherwise  interfering  with 
their  duties,  except  when  duly  authorized  to  do  so,  pursuant 
to  the  resolutions  of  the  14th  of  Aprils  1817.  Or,  in  case 
diose  resolutions  have,  in  any  way,  been  waived  or  rescind^ 
ed,  then,  that  the  plaintiff's  rights,  onder  the  articles  of 
agreement  of  the  25th  of /tJy,  1814,  may  be  established 
and  declared,  and  that  the  plaintiff  be  permitted,  thereunderi 
to  receive  directly  from  the  masters,  his  proportion  of  the 
moneys,  which  shall  be  received  by  them,  deducting  hit 
proportion  of  the  expenses ;  and  that  the  said  D.  L*  be  re« 
strained  from  exacting  and  receiving,  and  the  said  masters 
from  paying  to  him,  or  to  his  order,  such  proportion  of  the 
plaintiff.  And  that  the  masters  of  the  boats,  or  such  of 
them  as  it  shall  appear  to  concern,  may  come  to  an  ac- 
icount  with,  and  pay  over  to  the  plaintiff,  any  moneys  which 
may  appear  to  belong  to  him,  be.  And  for  general  re« 
lief,  &c. 

The  bill  was  taken  pro  confesso,  against  R.  L.  lAving* 
ston  and  Comdia  Juhd.  The  other  defendants  appeared, 
and  answered,  and  general  replications  having  been  filed, 
and  testimony  taken,  the  cause  came  on  to  be  heard  on  the 
pleadings  and  proofs. 

SloasoUf  for  the  plaintiff,  contended,  U  That  the  stock- 
holders of  the  company,  being  tenants  in  common  of  the 
property  and  franchises  belonging  to  them,  the  assent  of 
all  of  them  to  the  agreement  and  ressolutions  of  Aprils  1817, 
was  necessary.  Independent  of  any  agreement,  each  tenant 
in  common  has  the  entire  dominion  over  his  own  shartf 


liSO  CASES  iN  CHANCERY. 

1820.      or  propcMtion,  and  neither  of  them  can  do  any  act  to  bidd 
or  regulate  the  interest  of  the  others  without  his  assent. 
Kyd,  {on  Corp.  vol.  2.  p.  95.  chap.  3.  sect.  10.)  says,  "  there 
^  are  some  societies  which  are  formed  by  the  voluntary  asso- 
ciation of  the  members :  and  there  are  communities  which 
have  a  known  description,  and  are  recognized  as  forming 
part  of  the  general  constitution  of  the  country:  theibraier 
BMist  have  their  rules  or  by-laws  as  well  as  the  latter ;  hot 
they  receive  no  aid  from  the  general  law  of  the  land  to 
enforce  obedience  to  their  rules,  and  they  have  no  ultimate 
remedy  against  disobedience,  but  the  expulsion  of  the  diso- 
bedient member."    This  doctrine  was  fully  recognised  by 
Lord4  Mdon,  in  Hoyd  v.  Loaring,  (6  Twcy,  773.  777.) 
That  was  a  case  between  the  members  of  a  society  of  Freer- 
masona.    "  If  I  consider  them,"  says  Lord  Eldon^  "  as  indi- 
viduals, the  majority  had  no  right  to   bind  the  minority. 
One  individual  has  as  good  a  right  to  possess  the  property 
as  any  other,  unless  he  can  be  affected  by  some  agreement" 
Abbots  {on  Ships^part  1.  ci.  3.  sec.  2.)  says,  *'a  personal 
chattel,  vested   in  distinct  proprietors,  cannot  possibly  be 
enjoyed  advantageously  by  all,  without  a  common  consent 
and  agreement  among  them  :  to  regulate  their  enjoyments, 
in  case  of  disagreement,  is  one  of  the  hardest  tasks  in  legis- 
lation ;   and   it   is  not  without  wisdom,  that   the  law  of 
England^  in  general,  declines  to  interfere  in  their  disputes, 
leaving  it  to  themselves,  either    to  enjoy  their  common 
property  by  agreement,  or  to  suffer  it  to  remain  unenjoyed, 
or  to  perish  by  their  dissension,  as  the  best  method  of  forcing 
them  to  a  common  consent,  for  their  common  benefit."    In 
Ihe  Chamberlain  of  London^s  Case^  (5  Co.  63.)  it  was  held, 
that  the  inhabitants  of  a  tovm^  which  comes  within  the  dis- 
tinction of  Kydy   "  as  a  community  of  known  description 
recognized  by  law,  might  make  ordinances  or    by-laws  for 
the  reparation  of  the  church,  or  a  highway,  or  of  any  such 
thing,  which  is  for  the  general  good  of  the  public ;  and,  in 
fiuch  case,    a  greater   part  shall   bind,  the  whole,  without 


CASES  IN  CHANCasaT.  5S1 

auiy  custom ;  but  if  it  be  for  their  private  profit,  as  the  1820. 
well  orderiiig  of  their  coomion  of  pasture,  or  the  lilie,  there, 
without  a  custom,  they  cannot  make  by-laws :  and  if  there 
be  a  custom,  then  the  greater  part  shall  not  bind  the  less,  if 
it  be  not  warranted  by  the  custom."  Such  is  the  nniforib 
language  of  the  books.  The  majority  cannot  make  by- 
laws, OT  pass  resolutions  binding  on  the  minority,  unless 
there  be  some  special  agreement,  or  custom,  or  grant  from 
the  legislature,  for  that  purpose.  Lord  Eldan,  (6  Veseg^ 
778.)  says,  the  Court  would  take  notice  of  the  joint  in** 
terest  of  individuals  in  a  chattel,  and  of  agreements  upon 
it,  not  with  reference  to  them  as  a  voluntary  society,  but  as 
individuals.  Referring  to  the  case  ofFdU  v.  Read^  (3  Ve- 
setfy  70.)  he  observed,  that  it  was  the  duty  of  Courts,  not  to 
permit  a  voluntary  society  to  assume  the  character  of  a  cor- 
poration on  the  record. 

The  only  exceptions  to  this  general  rnle,  that  the  majority 
cannot  bind  the  minority,  without  a  special  agreement,  are 
the  cases  of  2l  partnership^  where  the  interest  is  joint,  not  in 
common,  and  of  the  part  owners  of  a  ship.  In  the  former 
case,  the  principle  is  not  that  a  majority  can  bind  the  mino- 
rity, but  that  each  partner,  having  a  joint  interest  in  the 
whole  concern,  may  bind  all  the  partners.  The  case  of 
ships  rests  on  peculiar  grounds ;  it  being  a  rule  of  maritime 
law,  founded  in  public  policy,  that  ships  are  built  ^  to 
plough  the  ocean,  and  not  to  rot  by  the  wall.''  And  the 
nature  of  the  enjoyment  of  the  common  property  in  ships, 
shows  the  distinction  in  regard  to  other  cases.  If  "all  do 
not  agree  to  send  the  ship  on  a  voyage,  the  dissentient  part 
owner  is  not  obliged  to  share  in  the  risk  of  the  adventure, 
nor  will  he  participate  in  the  profit  of  it.  He  may  require 
the  other  part  owners  to  give  security  for  his  interest.  But 
even  in  this  case,  if  there  is  a  setded  agreement  among  them, 
as  to  the  employment  of  the  ship,  the  majority,  cannot  con- 
trol, but  the  agreement  is  to  be  enforced,  as  in  all  other 
casesi  according  to  the  rules  of  law.    {AVbot^  iM  supra.) 


«e2  CASES  IN  CHANCERY. 

1820.  2.  Tbe  MSolatioDS  of  April,  1811,  whkh  wen  MaB»- 

moosly  agreed  to  by  the  stockholders,   and  which  font, 
the  fundamental  arUckt  or  constitution  of  the  compoBy, 
cannot  be  altered,  without  the  like  unanimous  consent,  or  SlBi 
the  mode  prescribed  by  those  resolutions.     It  is  express^ 
provided,  that  there  shall  be  monthly  meetings ;  and  tb»t  it 
shall  be  the  duty  of  tbe  secretary  to  see  that  the  resohttfoM 
of  the  majority  in  interest  in  the  concern,  be  carried  imb^ 
effect.    But  any  number  of  stockholders   less  than  the 
whole,  cannot  alter,  or  rescind  tho^e  fundamental  articles  of 
association.    The  express  assent  of  the  whole  was  necessa- 
ry to  their  formation ;  and  it  is  only  by  a  like  assent  that 
they  can  be  changed.     Solvitur  eo  ligamine  quo  Ugaiur.    A 
power  may,  undoubtedly,  be  given  by  express  agreement, 
to  a  majority  to  bind  the  minority,  and. this  Court  would 
enforce  such  an  agreement^  but  such  a  power  most  be  clear* 
ly  shown  and  established,  for  it  is  in  derogation  of  theleg^l 
and   natural  rights  of  the  minority.    Such  an  agreement^ 
however,  is  not  to  be  enforced  on  the  ground  of  a  right  id 
the  majority  to  bind  the  minority,  but  as  an  agreement 
merely  of  the  whole,  the  minority  being  considered  as  hav* 
ing  assented  to,  and  become  parties  to  the  new  resolutions 
formed  pursuant  to  the  fundamental  articles. 

If  such  a  power  existt  in  a  majority  lo  alter  or  rescind  the 
resolutions  of  ./Ipril,  1817,  it  must  either  be  given  in  express 
terms,  or  result,  irresistibly,  from  the  nature  of  the  agreement. 
The  only  resolution  which  at  all  adverts  to  such  a  power^ 
is  tbe  thirds  which  has  been  mentioned.  That  manilestly 
refers  only  to  such  directions  or  resolutions  of  the  majority 
of  the  concern,  as  shall  be  made  at  the  regular  monthly 
meetings  acting  under  the  constitntion  of  the  company. 
The  preamble  to  the  resohitions  of  j^jiri/,  1817^  shows,  that 
they  were  nuide  for  the  m-ganisation  of  the  company.  The 
acts  done  at  any  monthly  meetmg,  must  be  under  the  coin 
stittttion«    It  wodd  be  absurd  to  snppose^  that  a  nMyonty 


CABBS  IN  CHANCEKT.  683 

at  a  oiOBtUj  iMetingi  coaU  abolisb  the  office  of  secfetaryt      18Sfip. 
and  yet,  that  the  lecretavy  must  carry  that  resoluUon  into 
eftet* 

Nor  does  the  81  st  resolution  give  such  a  power.  It  pro* 
videi,  **  that  all  propositionfi  for  an  alteration  of  the  resolu* 
IHHM  of  the  company  shall  be  submitted  at  one  of  the 
aaoiithly  meetings,  and  thall  not  be  acted  on  until  the  next 
monthly  meeting/'  It  does  not,  in  .terms,  give  the  majority 
any  power  to  alter  or  rescind  the  resolutions;  and  unless  eas 
prenly  given,  the  power  cannot  be  claimed  or  exercised.  But 
it  is  obvious,  that  this  resolution  was  intended  merely  to  guard 
against  precipitancy  in  the  proceedings  of  the  companyi 
and  to  give  each  individual  time  for  deliberation  on  the  ex- 
pediency of  any  such  proposition,  before  he  was  called 
opon  to  vote  upon  it  That  the  defendants  themselves  un- 
derstood that  no  alteration  could  be  made  without  the  assent 
of  all  the  partners  in  interest,  is  evident  from  the  letters  of 
D*  L.  to  the  plaintiff.  Such  was  the  opinion  not  only  of  Lord 
Eldon,  but  of  the  Court  of  E.  B.,  in  the  case  of  Davies  v. 
Hatokinsj  (3  Mavle  fy  Sdwyn^  488.)  There  was  an  associ- 
ation of  600  persons,  who  made  subscriptions  in  shares,  for 
the  establishment  of  a  brewery^  and  the  subscribers  entered 
into  an  agreement  by  deed,  for  the  management  of  the  con* 
cern,  one  of  the  terms  of  which  was,  that  the  conduct  of  the 
business  should  be  confined  to  two  persons,  styled  hrewers^  who 
were  to  carry  on  the  trade  in  their  own  names,  as  trustees, 
Sic,  A  committee  was  appdnted,  with  full  powers  to  make 
by-laws,  Sec.  subject  to  the  confirmation  of  a  majority  of  the 
proprietors,  at  a  quarterly  meeting.  At  such  quarterly 
meeting,  on  the  recommendation  of  the  directors  who  had 
power  to  regulate  the  general  affairs  and  business  of  the 
company,  one  only,  instead  of  two^  was  appointed  to  con- 
duct the  business  as  brewer.  The  Court- held,  that  this 
could  not  >e  dune,  as  it  was  an  alteration  in  the  constitn* 


CASES  IN  CHANCERY. 

tioD  of  the  company,  which  could  not  be  made  without  the 
consent  of  the  whole  body  of  subscribers. 

3.  But,  in  any  event,  the  resolutions  of  the  5th  of  JHijr, 
1819,  were  irregular  and  void,  since  the  31st  resolution  of 
JlprU,  1817,  required,  that  all  propositions  for  any  altera- 
tion should  be  made  at  a  monthly  meeting,  and  not  be  acted 
upon  until  a  subsequent  monthly  meeting.  The  meetitfg  at 
which  those  resolutions  were  passed,  was  not  a  motttUy 
meeting,  nor  were  a  majority  in  interest  of  the  stockhoUkrsi 
present. 

7.  Jl.  Enrnei  contra,  contended,  that  the  agwcmcqt  of 
the  2£th  July^  1814,  was  the  constitutioo  of  the  aieorialion, 
so  far  as  regarded  the  JSTorth  River  coooem.  That  agree- 
ment recites  that  the  parties  are  pahmtru  They  ace  not, 
therefore,  to  be  regarded  as  tenants  in  common.  Tiie  rights 
are  divided  into  1640«  shares,  and  jipponiwed  l»«i«b  of 
the  proprietors.  The.  $tc(md  article  of  ihe  agreement  pro- 
vides for  the  event  wjiicb  gave.ri^  to  the.  preaeni  associa- 
tion.  In  case  of  the  death  of  either  of  the  ooauictiiig  par- 
ties, each  heir  or  assign  (and  those  who  purchased  of  JP. 
are  the  assigns)  of  the  deceased^  were  to  have  oiie  Mice, 
for  each  shar^  owned  by  him  ;  and  "thena  aBtfJ9^^,4if  the 
voices  shall  govern  the  concern."  Previousi  ihm^  M  the 
resolutions  of  Afril^  1817,  the  plaiatiflf,  by  an  MWfrpiwent 
under  his  hand  and  seal,  recognised  himself  as  a  jwiiner, 
and  stipulated  that  the  concern  shouldi  in  every  fhaig,  be 
governed  by  a  majority  of  shares.  Those,  therefore,  who 
afterwards  bought  rights  of  F.  purchased  also,  ihe  vakmble 
privilege,  that  the  nwyority  of  shares  should  govi»ra»  This 
was  a  fundamental  article  of  the  asfioc'iatioo,  aad  adopted 
with  a  view  to  the  subseqent  dispositipo  of  the  sbarea  by 
the  Messrs.  Vs.  U  F.  and  the  plaintiff  must  be  bound  kff  it, 
until  he  can  induce  all  the  stockholders  to  change  ilk  eo 
Ugamine  quo  ligatur.  The  parties  met  m  JStprilf*  1817,i  un- 
der this  previously  established  rule  and  compact  that  the 
majority  of  shares  should  govern ;  and  the  resolutions  wtte 


CASES  IN  CHANCERY.  565 

passed  as  the  act  of  a  majority,  and  derived  their  strength  1820. 
and  binding  force  from  their  bemg  an  act  of  the  majority. 
Uf  then,  a  majority  in  interest  had  a  right  to  malie  these 
resolutions,  sacb  majority  had  a  right  to  alter  or  annal 
then»,  or  any  one  of  them,  and  to  substitute  others.  The 
siathorities,  therefore,  whh^b  have  been  cited,  do  not  apply 
to  this  case,  for  the  right  of  the  majority  to  govern  was 
.  previously  established  as  a  fundamental  article  of  the  asso- 
ciation ;  and,  in  fact,  the  course  of  proceeding  adopted  by 
thejdefendants,  has  been  sanctioned  by  the  agreement  of  all 
parties.  The  constitution  or  basis  of  the  association  is  the 
ugreenent  of  the  25tfa  JuZy,  1814.  The  resolutions  of 
JSfrilf  1817,  are  in  the  nature  of  by4aw9f  for  the  better 
management  of  the  business,  and  might  be  altered,  from  time 
to  time,  to  suit  the  business,  by  the  whole  or  by  a  majority 
in  interest  of  the  stockholders,  either  at  a  monthly  meeting 
or  in  any  other  way,  clearly  showing  the  deliberate  consent 
of  a  nn^ority  ;  and,  dierefore,  since  the  discontinuance  of 
ibeee  meetings,  by  meetings  not  monthly,  or  by  written 
resolutions  signed  by  a  majority  in  interest  The  plain- 
lUr,  byMs  agreement  of  JMy,  1814,  was  bound  to  abide  by 
theregidhttious  prescribed  by  a  majority  in  interest  of  the 
stockholders,  when  their  will  was  clearly  expressed  and  as« 
<xrtoiiied;  and  he  cannot  be  heard  in  this  Court  to  claim 
riglffts  in  opposition  lo  his  solemn  agreement. 

But  the  '*  act  to  incorporate  the  North  River  Steam  Boat 
Comfon^^^  passed  the  10th  March  last,  renders  any  farther 
diS4Sttssion  unnecessary;  for  this  Court  cannot  admit  the  al- 
legation of  the  platntifi;  that  he  is  not  a  corporator,  because 
he  has  inot  assented  to  the  act  of  incorporation,  and  refuses 
to  become  a  party  to  it.  The  act  expressly  declares,  that 
ell  pi^rsons  who  then  were,  or  at  any  time  thereafter  might 
be  stockholders  of  the  Abft&  River  Steam  Boat  Company, 
should  be,  thereby  incorporated,  (a) 

(o)  While  tUs  suit  was  pendio;,  the  defendants  applied  to  the  le- 
gislature, and  obtained  an  act  incorporating  the  oompany  ;   but  tl* 
Vol.  IV.  74 


CASES  IN  CHANCERY. 

1820..  To  decide  on  the  character  of  the  resolutions  o(  ^priL, 

1817,  it  is  necessary  to  consider  the  distinction  between  a 
constitution  and  a  by-law.  Constitutions  are  agreements 
under  which  states  or  persons^  having  no  previous  bond  of 
union,  associate  or  unite,  either  for  government^  protectbn, 
or  acquisition  of  property.  The  acts  which  they  adopt  for 
their  guidance  and  management,  afterwards,  are  called 
laws  and  by-laws  ;  the  former  for  states^  the  latter  for  in- 
dividuals. I'he  parties  in  this  cause,  as  the  bill  stated,  were 
previously  united,  constituted  or  connected  by  an  agreemenl 
binding  on  the  plaintiff,  and  on  all  the  parties  having  inleresto 
in  tile  subject  matter,  not  derived,  as  to  any  of  the  deftiid«< 
ants,  from  the  plaintiffs  These  resolutions  did  not  consti- 
tute the  parties  proprietors,  for  they  were  already  such* 
They  merely  prescribed,  as  ihepreamble  to  them  says, 
"  such  rules  and  regulations  as  were  deemed  advisable  foe 
the  well  managing  the  concerns  of  the  said  company;"  thai 
is,  they  are  by-laws  for  the  management  of  the  joialpropern 
ty,  and  there  is  not  one  of  the  resolutions  that  is  entitled  to 
be  called  a  fundamental  article.  That  they  are  merriy  by-^ 
laws,  is  apparent  from  the  3d  and  3Ist  resolutions,  adtaittiBg 
the  right  of  a  majority  to  govern  and  alter  under  the  agrees 

plaintiff  refused  to  joior  in  (he  application,  or  to  become  a  eorporaHVt 
Tbe  seventh  section  of  the  act  (sen,  43.  cA.  84w)  provides  t  ^  That  if 
the  rights,  powers  and  priTiIegesof  the  respective  proprietora  or  stock- 
holders of  the  Steam  BoatB  employed  in  the  navigatioa  of  the  Hudson 
River,  as  at  present  possessed  and  exercised^  in  pursuance  of  any 
agreement,  contract,  or  aathoritj  whatever,  are  not  continued  and  se- 
icured  to  them  by  by-laws,  or  otherwise,  as  fully  under  this  incorpora- 
tion, as  they  are  entitled  thereto  before  the  passing  of  thU  act,  it  shall 
and  may  be  lawful  for  the  party  aggrieved  to  make  appUcatioD'tatko 
Chancellory  who  shaU  have  power  and  authority  to  order  tbe  DinMtor^ 
of  this  incorporation  to  carry  the  requisitions  of  this  section  into  ef- 
fect :  and  in  case  they  shall  refuse  so  to  do,  tbe  Chancellor  shall  have 
power  and  authority  to  declare  tbis  act  null  and  void ;  and  thenceforth 
this  law  shall  be  taken  and  deemed  to  be  null  and  void.** 


LiviirosToir 


CASES  IN  CHANCERY.  58^ 

ment  4>f  the  2fith  July,  1814,  and  poiDting  out  the  mode  in      1620. 
which  alterations  were  to  be  made.  .  If,  then,  those  resolu- 
tions are  by-laws,  and  if,  according  to  the  third  article,  a 
ndajorityare  to  govern,  the  resolutions   of   the  SthMay^      ^^^^^^ 
1819,  are  legal  and  binding,  for  they  have  bten   approved 
orsjg^oedby  all  the  stockholders,  except  the  plaintiff.    But 
it  is  said  that  these  resolutions  were  not  passed  at  a  regu« 
lar  monthly  meeting,   pursuant  to  the  31st  resolution   of 
AprHf  1817.  It  appears  to  have  been  the  intention  to  have 
hdd  regular  monthly  meetings  according  to  that  resolution, 
and  to  have  submitted  all   matters  previous  to  voting  on 
them  ;  but  it  appears,  also,  from  the  answers  of  the  defend- 
aaru,   and  the  evidence  of  Mr.   Hoffman,  that  these  month- 
ly meetings  being  found   inconvenient  and  impracticable, 
^■^^■^9   by  general  consent,  discontinued   after  «/u/y,  1817; 
and  the  business  of  the   company,   by  common  consent, 
has  since  been  transacted,  either  at  meetings  specially  called 
for  the  purpose,  or  by  written  resolutions  prepared  by  persons 
proposing  them,  and  transmitted  to  all  the  stockholders. 
The  bill  admits  that  changes  have  been  made  in  this  way. 
The  second  and   third  resolutions,  after  the  first  meeting, 
vrere  never  acted  upon,  and  the  officers   held  over  to  the 
time  of  the  act  of  incorporation ;  and  the  plaintiff  has  ap- 
proved of  it,  by  various  ways,  by  receiving  dividends,  and 
attending  subsequent  meetings,  Sec.     Hoffman^  in  his  testi* 
•mony,  states  a  number  of  alterations  of  the  resolutions  of 
Aprh,  1817,  not  proposed  or  made  at  any  regular  monthly 
meeting ;  and  at  most  of  those  meetings  the  plaintiff  was  present 
and  assenting.  The  plaintiff  ought  not,  therefore,  to  be  allow- 
ed to  object  to  the  resolutions  of  JUcry,  1819,  on  the  ground 
that  they  were  not  prepared  at  a  regular  monthly  meeting  s 
I.  Because,  he  has  concurred  in  the  discontinuance  of  (hose 
monthly   meetings,  and  in  the  mode  substituted  for  the 
transaction  of  business,   and  is  bound  by  his  agreement  to 
submit  to  the  will  of  the  majority,  so  declared  and  ascer- 
tained :    2.  Because,  in  bis  letter  of  the  IQth  May,  he  did 


5eS  CASES  IN  GUANCERV« 

1890.  not  aiake  that  a  ground  of  objection,  and  did  not  Hate  il» 
ondl  the  filing  of  his  bill :  3«  Because,  he  has  appfoved  of 
part  of  the  lesolataon  of  Jtfcy,  1819,  and  haslhaicby  watved 
any  right  he  may  have  had  to  make  the  otgection.  It  isaaid, 
that  the  31st  rcsdndon  of  ^/fynl,  1817,  is  faodamental,  be* 
cause  it  secuied  mature  delihenilioo  and  reflectioa.oo  aU 
measares  proposed.  Does  ooi  the  mode  of  sabmiuiog  piv- 
positions  to  each  stockholder,  in  the  Ibnn  of  written  resohir 
tions,  fiir  bis  conrideration,  equally,  or  in  a  greater  dcgme^ 
secura  delibaratioa  and  reflection  ?  The  resolusmis  oC 
Jlfay,  1819,  embraced  three  pomts :  1.  The  veoioval  ^^of 
Hoffman  as  clerk  and  purveyor:  2.  The  demanding  emi 
receiving  from  the  captains  of  the  boaU,  an  assignment  of 
the  contract  for  conveymg  the  mails  3.  Reqofaring  fisom'. 
Hoffiman  ^  VimBwren  payment  of  the  balance  due  from 
them.  It  is  to  the  fast  only  of  these  alteratiotts,  thai  the 
plaintiff  has  objecjM*  How  can  the  removal  of  this  indi- 
vidual be  a  violation  of  the  fundamental  artsdes  of  the  asso^ 
elation  i  The  counsel  here  went  into  an  examioation  of 
the  (acts,  ^nd  a  particular  discussion  of  the*  diierent  rssolu* 
tions,  aflfd  of  the  conduct  of  the  parties. 

fVelUf  in  reply,  said,  that  the  assertion  that  the  parUes 
were  partners,  not  tenants  in  common,  was  unfound^<  Tbf^ 
use  of  the  word  "  partners,"  in  the  preamble  to  the  resolur,' . 
tions,  did  not  make  them  $o.  Besides,  if  they  were  part- 
ners, how  do  all  those  defendants  who  clum  as  purchasers 
under  the  late  Mr.  FuUanf  make  title  to  their  shares  f .  If  it 
was  a  partnership  proper^,  the  whole  of  the  interest  of  JP. 
survived  to  the  platntiff  and  R.L.1^  But  it  is  manifest  that 
the  word  "  parUiers*'  is  used  accidentally  and  inartificial- 
ly,  as  meaning  only,  that  they  were  interested  an^  adding 
together  in  a  common  concern.  The  use  of  the  words 
cannot  alter  the  intrinsic  nature  ^of  the  proper^,  or  the  te- 
nure by  which  it  was  held. 

Instead  of  denying  the  conclusion  of  the  opening  counsel, 
be  defendant's  counsel  deny  his  premises.    They  deny 


GASES  IN  GIUNCERT*  1^39 

thftt  Ae mohiltoiM  ofJlfrUf  1817,  were  the  conslitatien,  or      1820. 
fundeinartal  articles  of  tbe  aiiociatioD  ;  aoA  tbej  go  back 
to  the  agieeiiieiit  of  Jtdjr,  1814|  which  thty  denomiaate  tbe 
toatHtati^n.^  aod  treat  the  letolatiouft  of  .^fpril,  1817,  ag 
mere  by-laws.  Tbe  priadpal  object  of  the  agreeoMDt  of  JmHj/ 
1814rwas  to  regalatetbe  eftfaymeiit  of  the  property  daring 
the  joitit  livei  of  di^  owneta.  When,  in  the  eveai  of  the  death 
of  oife  ef  tbepartiei,  a  mgority  of  tbe  stocldiohferg  wa»  to 
govefttf .  it  was  obviously  ioteoded  that  they  >  were  to  govern 
by  slMoeiMW  ndes,  not  to befonad  in  an.  inelrnaeni  apptt- 
eabkroaly  to  the  original  proprietors,  aod  not  intended  to 
govten  the  cightft  and  interests  of  peiaoos  newly  added  to  the 
old'Oemainiog  proprietors*    Accordingly,  aft»  tbe  death 
of  F*  nrithev  the  surviving  proprietors,  nor  the  defendants 
claiming  under  bias,  thooght  of  regnlattog  their  concerns 
by  die  agreement  of  July,  1814.  They  met  on  the  13th  and 
14th  Jtpril,  1817,  ^for  the  purpose  c£orgemimng  the  com- 
pany^ and  adepitiog'saoh  rales  and  regnlatims  as'slioold  be 
deemed  advisdUe  ibr  the  well  managbg  of  its  concerns." 
An  eadcanew  ogioement  was  formed   and  substitnted,  the 
number  of  shares  was  reduced,  the  price  of  them  altered  ; 
a  new  stock  was  created,  in  which  each  owner  is  put  on  an 
equldfty  In  proportion  to  his  interest.    A  mode  of  transfer 
is  pt^scribed,  and  each  purchaser  is  to  succeed  to  the  rights 
of  die  original  owner,  be.    The  whole  scope  of  the  resolu- 
tions of  dprtl^  1817,  shows  clearly  the  intention  to  abro-> 
gate  all  prior  agreements,  by  an  entire   new  organization, 
placing  each  proprietor  on  the  equd  footing  of  a  tenant  in 
comihob,  and  to  form  a  bond  ,of  union,  in  the  future  man- 
agement of  their  common  interests.    All  the  parties  treated 
it  as  an  establishment  then  first  formed,  and  tbe  resolutions 
are  not  6r  a  Society  already  organized,  but  of  one  organi- 
zing itself.    The  plaintiiT,  on  entering  into  this  new  com- 
pact, voluntarily  surrendered  powers  guaranteed  to  him  by 
the  agreement  of  JtJy,  1814,  with  a  view  to  conciliation,  and 
in  consideration  of  the  new  compact  offered  it)  their  stead. 


590  CJASES  IN  CHANCERY. 

1820.  Besides,  not  one  of  the  defendants,  except,  periiaps,  Ae 
counsel  himself,  pretends  ever  to  have  seen  the  agreement 
of  JtiZy,  1814,  or  to  be  acquainted  with  h :  nor  does  the 
coansel  regard  it  as  fandamental,  or  the  constitotion; 
on  which  his  ri^ts  are  founded.  He  chims  nodiing  under 
it,  though  he  admits  its  existence  :  a  mn^ority  of  the  defend- 
ants, in  their  answers,  insist,  that  the  articles  of  My^  1614, 
*^  are  not  binding  or  obligatory  upon  them  and  the  other 
stockholders,  further  than  they  are  recognised  in,  and 
adopted  by,  the  resolutions  of  the  13th  and  14th  AprUj 
1811.**  Now,  the  articles  of  July,  1814,  are  no  wliere 
mentioned  or  referred  to  in  the  resolutions  of  JiprS^ 
1817.  Several  of  the  odier  defendants,  in  their  answen^ 
insist,  "  that  by  the  resolutions  of  the  13th  Aprils  1817,  the 
articles  of  agreement  of  Ju/y,  1814,  if  any  such  eroted  re- 
lative to  the  Steam  Boat  concern  on  the  Hudson  River,  were 
wholly  abrogated,  and  rendered  null  and  inoperative,  and 
trould  in  nowise  bind  or  affect  any  of  the  proprietors  of  Ae 
new  association  formed  on  the  13th  and  14th  AprU,  1817.** 
It  is  idle,  then,  in  tiie  face  of  these  answers,  to  argue  that  all 
agreement,  which  they  insist  is  abrogated,  and  inoperative, 
is  the  constitution  by  which  their  rights  are  to  be  asctr< 
tained  and  secured.  But  it  is  said  that  these  resohllioM 
are  mere  by-laws.  But  what  did  the  pities  mean  when 
they  declare  that  they  met  on  the  13th  and  14th  JprU^  1817, 
for  the  purpose  of  "  organising  the  company,"  and  making 
"rules  and  regulations,"  for  the  well  managing  of  iu 
concerns?  Much  stress  is  laid,  on  the  third  resolution, 
as  to  the  secretary  being  directed  to  carry  into  efiect  the 
resolutions  of  a  majority  in  interest,  and  in  reference  to  the 
agreement  of  Jwly,  1314.  But  tlie  resolutions  themselves 
contain  no  reference  to  that  agreement.  At  most,  the 
third  resolution  could  only  mean  such  resolutions  as  the 
majority  might  lawfully  and  rightfully  pas&,  according  to 
the  constitution  of  the  company.  Nothing  was  said  at  tbi 
meeting  about  a  majority.  The  resolutions  were  sigiied 
by  all  the  stockholders,  who  affixed  to  their  names  the 


CASES  IN  CHANCERY.  591 

nomber  of  shares  owned  by  them,  thereby  .  expressing  tiie      1820, 

consent  of  each  iadividual  to  this  original  compact  of  their  ^^^^^^^^^^ 

association.    This  being  established,  it  follows,  that  no  al-      ,  v. 

Lthch. 

teration  can  be  made  in  any  of  these  fundamental  resolu-  «........^. 

tions,  without  the  consent  of  every  stockholder,  and  this 
general  principle  rest^  oq  the  common  law  doctrine  as  to 
tenants  in  common. 

But,  it  is  said,  ^hat  the  plaintiff  cannot  now  object  to  the 
iiesolations  of  May^  1819,  because  be  bad  acquiesced  in  the 
disGontiiivanGe  of  the  regular  monthly  meetings,  and  did 
not  make  his  objection  before  filing  his  bill,  and  because^ 
by  assenting  to  a, part  of  those  resolutions,  he  has  waived 
h'ls  rlg^itto  object*  Persons  acdng  together  in  any  particu- 
lar business,  may,  i  in  some  instances,  from  negligence  or  ig« 
norance,  siifier  their  affairs  to  be  irregularly  conducted,  but, 
though  bound  as  to  what  is  past,  they  have  a  right  to  stop, 
at  any  time,,  refuse  to  countenance  further  irregularityi 
infiiat  on  correcting  their  errors,  and  on  bringing  themselves 
aod  tbeir  as^oci^tes  back  to  the  strict  observance  of  the  ori** 
gipul  and  fundamental  rules  of  their  association.  It  is  a 
dictate  of  .good  sense,  and  that  practical  wisdom  which  the 
law  appf  oves^  The  counsel  next  discussed  various  grounds 
of  altercation  between  the  parties,  and  vindicated  the  coa- 
dopt of  the  plaintiff,  in  the  support  of  his  legal  and  just 
rights. 

.  The  Chancellob.  The  object  of  the  bill  is  to  rein- 
state the  plaintiff  in  certain  rights  which  he  claims  under 
the  resolutions  of  the  13th  and  14th  oiAprU^  1817,  relative 
to  the  appointment  and  removal  of  certain  officers  belong- 
ing to  the  North  River  Steam  Boat  Company^  and  relative 
to  the  security  and  distribution  of  the  funds,  and  the  gene- 
ral management  of  the  concern. 

The  great  point  is,  whether  Ihe  resolutions  of  the  13th 
^nd  14th  of  AprU^  were  to  be  regarded  as  fundamental  ar- 
ticles, or  the  constitution  of  the  company,  requiring  the 
unanimous  consent  of  all  the  members  of  the  company,  to 


593  CASES  IN  CHANCERY. 

1830.  ilter,  as  well  as  to  establish  them»  or  wlietber  they  were  to 
be  regarded  merely  as  by-laws,  subject  to  the  control  «f  a 
majority  in  inlerest  of  the  association*  On  the  Joluti«m  of 
this  point  depends  the  validity  of  the  resolatioos  of  the  5th 
of  May^  IS  19,  of  which  the  plaintiff  complams. 

It  appears  to  me  most  clearly,  that  the  association  it  not, 
in  judgment  of  law,  a  partnership  with  either  the  rights  or 
responsibilities  belonging  to  that  commercial  rdatieii.    If 
that  were  the  case,  each  member  would  have  a  jiHulTiMe- 
rest  in  die  whole  partnership  stock  and  cmicem,  a«d  eonld 
aliene  or  bind  the  whole  interest.    One  partner  may  pledge 
the  credit  of  the  others  to  any  amoont,  «iid  each  partner 
commiu  his  entire  rights  to  the  discretion  of  each  of  his  co- 
partners.   There  is  no  colour  for  'this  conclusion  in  this 
case.    The  evident  character  of  the  members  of  the  com- 
pany is  that  of  tenants  in  common,  in  which  each  has  a 
distinct,  though  undivided  interest  in  the  estaUisbment,  and 
an  entire  dominion  over  bis  own  share  or  proportioB  of  the 
property.;  but  without  any  of  right  or  power  to  bind  the  in- 
terest, or  regulate  the  enjoyment  of  the  properQr  of  the  other 
members.    The  resolutions  of  the  13th  and  14th  of  >AffU^ 
derived  their  binding  force  and  obligation  upon  all  Ihe  mem- 
bers of  the  company,  from  the  fact  that  they  were'agwed 
to  and  signed  by  all*    The  members  met,  and  acM4  on 
that  occasion  as  independent  tenants  in  common  f  and  from 
the  nature  and  language  of  those  resolutions,  it  ift.qnMAHp- 
parent  they  were  intended  to  be  permanent  regulaxiioop  for 
the  future  government  of  tlie  company,  and  not  snlyecf  to 
alteration,  but  by  the  same  united  will  by  which  they/  wiere 
ordained. 

The  three  persons  owning,  in  1814,  the  steam  bcNi' pro- 
perty and  franchises  on  the  UuJUm  river,  wert  not  paxtmgn 
under  the  articles  of  agreement  of  the  26lh  of  JUy  of  ibat 
year.  They  never  Intended  to  sulgect  tbemsetvca  indfaridn- 
ally,  to  the  risks,  and  to  the  alarming  powers  given  ta  each 
member  of  a  partnership,  by  the  policy  of  commercial  law. 


CASES  IN  CHANCERY.  £93 

They  treated  with  each  other,  and  acted  in  that  case,  in  1820. 
the  regulation  of  their  interest,  as  tenants  in  common. 
Though  they  speak  of  themselves  as  "  the  sole  proprietors 
and  acting  partners'^  in  the  steam  boat  rights  and  privi* 
hgesj  and  of  the  Hudson  river  establishment  as  a  ^^  part- 
nership,^' yet,  it  is  evident,  that  they  used  the  terms  part" 
ner  and  partnership^  in  some  popalar,  not  in  a  legal 
or  tectinical  sense,  and  without  meaning  to  attach  to 
tb^  association  any  one  quality  or  mark  of  a  partnership. 
By  tfabse  articles,  the  number  of  shares  belonging  to  each 
ilieAifc^r  was  ascertained,  and  it  was  added,  that  he  might 
^  di^ose  of  any  number  of  said  shares  he  may  possess^  that 
he  should  think  proper ;  but  if  he  should  part  with  the  whole 
of  his  shares,  he  should,  from  that  time,  cease  to  have  any 
further  management  in  the  Hudson  river  concern.^'  This 
was  declaring  the  true  character  and  interest  of  a  tenant  in 
Gdmmort.  So,  the  provision  that  the  shares  of  each  of 
those  members  should,  on  his  death,  descend  to  his  heirs, 
was  fottnded  entirely  upon  the  contemplation  of  a  tenancy 
in  comnion.  This  agreement  of  1814,  regulated  the  amount 
afld  distribution  of  the  capital,  and  the  number  of  votes 
eath  member  was  to  have  during  the  joint  lives  of  the  con- 
tracting parties,  and  the  variation  that  was  to  take  place  on 
tbe^death  of  either  of  them,  when  the  heirs  or  assignees 
cattle '  to  vote ;  and  it  provided,  that  a  majority  of  voices 
should  then  govern  the  concern  ;  But  how  govern  it  ?  Cer- 
tainiy  not  in  violation  of  those  permanent  provisions  esta- 
blishing the  amount  of  shares  in  the  M>rih  River  Steam 
B0ai'  navigation,  as  a  distinct  and  separate  concern,  and 
|m>vlding,  after  the  admission  of  the  heirs  or  assignees  of  a 
party  who  may  have  died,  that  the  surviving  contracting 
paities  sbonld  be  considered  equal  to  as  many  votes  as  he. 
liKd^skres  allotted  to  him  by  the  agreement.  It  is  evident, 
tliatxhe  majbrity  of  voices  was  to  govern  only  in  respect 
te  the  aditfinisnration  of  the  business  of  the  concern  under 
•    '  Vqu  IV-  75  ' 


£94  CASES  IN  CHANCERY, 

1820.  this  agreement ;  and  tbe  provision  was  intended  to  dispense 
with  the  inconvenience  of  requiring,  on  every  occasion,  the 
consent  of  every  member.  The  resolation  of  die  majority, 
in  pursuance  of  such  a  fundamental  provision,  stands  ibr 
the  will  of  the  whole,  it  being  the  will  of  tbe  whole  tiiat 
the  majority  should  govern  in  such  cases. 

If,  therefore,  we  were  to  recur  to  the  agreement  of  18t4, 
for  light  or  assistance  in  tbe  construction  of  the  resolutions 
of  1817,  it  would  not  afford  any  strength  to  the  preteBSioM 
of  ihe  defendants  under  those  resolutions.  But,  in  fact^ 
there  is  not  any  relation  or  connection  between  tbe  two 
agreements;  and  the  defendants,  in  their  answers,  have 
rested  their  rights  entirely  upon  the  resolutioos  of  1817. 

The  defendants,  R.  L,  lAvingston  and  Cornelia  JkM^ 
have  suffered  the  bill  to  be  taken  pro  oon/^Mo ;  and  thqrt 
with  the  plaintiff,  own  a  majority  of  interest  in  tbe  whole 
concern  i  that  majority,  therefore,  either  c<>titend  or  ad« 
mit  that  the  resolutions  of  Aprils  1814,  were  a  new'oi^gaii»* 
zation  of  the  company,  and  composed  a  new  cmiflitutioii 
for  its  future  government.  Most  of  the  ddfendioits  who 
have  answered  the  bill  must  have  formed  the  same  condtt** 
sion,  for  they  deny  any  knowledge,  other  than  what  ts  givtn 
by  the  bill,  of  the  agreement  of  1 814,  and  they  tmiM  ttMt  %t 
is  *^  not  binding  or  obligatory  upon  the  company,  fbrthier 
than  the  same  is  recognised  and  adopted  by  the  resolotiens 
of  1 811  •"  Nay,  several  of  the  defendants  insist,  tliat  by  Ihe 
adoption  of  the  resolutions  of  AprUj  1817,  "the  articles  «f 
agreement  before  that  time  existing  between  the  three  paHiek 
to  those  of  1814,  reladve  to  the  steam  boat  coneem,  wer6 
wholly  abrogated,  and  rendered  noil  and  inoperative,  and 
could,  therefore,  in  no  way  bind  or  aflect  any  of  the  profirt- 
etors  in  the  neto  association  formed  in  iSprU^  1817." 

The  resolutions  of  1817  purportf  upon  the  very  fa^eW 
them,  by  their  language,  by  tbe  whole  detail  of  tbe  provt^ 
sions,  and  by  tbe  unanimi^  required  and  given^  to  httve 
been  fundamental  articles,  or  tbe  constitution  of  tht  compfiH 


Lyvch. 


CASES  IN  CHANCERY.  595 

Ay.  Every  distioguishing  character  of  the  former  associa-  1820. 
tion  was  destroyed.  It  was  a  roeetinff  of  the  stockholders  ^•^^^'''"^^ 
**  convened  for  the  purpose  of  organizing  the  company,  and  ^  v. 
•f  adopting  rules  and  regulations  for  the  well  managing  the 
concerns  of  the  said  company."  The  capital  stock,  under 
the  former  establishment,  was  reduced,  a  new  stock  re- 
ated,  and  the  number  of  shares  designated  into  which  it 
was  to  be  divided.  There  was  to  be  an  annual  president,  to 
preside  at  all  meetings,  and  a  secretary,  to  be  annually  cbo^ 
teO|  with  a  declared  salary,  and  whose  duties  were  prescri^ 
bed.  There  was  to  be  a  clerk,  whose  duties  were  also  prescri- 
bed. The  monthly  meetings  were  regulated ;  and  at  such 
meetings,  the  absent  stockholders  might  be  represented  by 
proxy  or  attorney.  The  captains  of  the  steam  boats  were 
directed  where  to  deposit  their  moneys,  and  the  mode  of 
drawing  and  distributing  the  funds  was  specially  provided. 
The  general  duties  of  the  captains  were  also  particularly 
noticed,  and  all  the  officers  of  the  company  were  appointed 
by  namO)  and  their  compensatibn  fixed.  And  it  was  finally 
provided,  that  all  propositions  for  an  alteration  of  any  of 
the  resolutions  of  the  company,  were  to  be  submitted  at  one 
of  the  monthly  meetings,  and  not  to  be  acted  on  until  the 
nexi  meeting* 

I  4biok  there  cannot  be  a  doubt  upon  any  mind,  after 
perusing  these  articles,  and  connecting  them  with  the  admis- 
fiioDS  in  the  answers,  that  they  are  of  the  character  aopi  au- 
thority of  permanent  constitutional  provisions,  binding  upon 
all  the  members,  when  adopted  by  all,  as  a  solemn  private 
contract ;  and  that  they  can  only  be  abolished  by  the  like 
cancurrent  will  by  which  they  were  adopted.  If  these  are  not 
of  the  nature,  and  do  not  partake  of  the  force  of  fundamental 
ftrtietes^  it  is  not  in  the  power  of  any  private  association  to 
have  any.  None  can  be  drawn  more  essentially  specific  in 
iheir  detaibf  or  more  stable  and  directory  in  their  views. 
When  it^  b  declared  in  «oBe  of  these  resolutions,  pre- 
scribing the  duties  of  the  secretary,  that  he  was  ^*  to  see  that 


506  CASES  IN  CHANCERY. 

1820.  the  resolutions  of  a  majority  of  the  interest  of  tlie  conceiA 
be  carried  into  effect,"  it  certainly  could  have  referred 
only  to  resolutions  passed  in  the  ordinary  transactions  of 
the  concern,  and  in  perfect  subordination  to  all  and  each  o£ 
these  articles  of  the  original  compact.  We  are  not  to  in«* 
tend,  without  express  words,  that  each  of  these  tenants  im 
common,  especially  where  the  interests  were  so  unequal  and 
so  roomenlous,  surrendered  his  invaluable  right,  founded 
on  settled  principles  of  law,  not  to  bis  controlled  in  tba 
government  of  his  individual  interest,  without  his  consent. 

The  general  principle  of  law  is,  that  in  such  private  asso- 
ciations, the  majority  cannot  bind  the  minority,  unless  it  be 
by  aipecial  agreement 

Lord  Coke  {Co.  LiU.  181.  b.)  took  the  distinction  be- 
tween public  and  private  associations,  and  admitted,  that  in 
matters  of  public  concern,  the  voice  of  the  m^ority  should 
govern,  because  it  was  for  the  public  good,  and  the  power 
was  to  be  more  favourably  expounded  than  when  it  was 
created  for  private  purposes.  In  Viner^  (tit.  ^tUhoriit/  B») 
we  have  several  cases  marking  the  same  distinction ;  and  it 
is  now  well  settled,  that  in  matters  of  mere  private  confi- 
dence, or  personal  trust  or  benefit,  the  majority  cannot  con- 
clude the  minority ;  but  where  the  power  is  of  a  public  or 
general  nature,  the  voice  of  the  majority  will  control,  on 
grounds  of  public  convenience ;  and  this  is,  also,  part  of  the 
law  of  corporations.  {Attorney  General  v.  JDavy,  2  Atk. 
212.  The  King  v.  Beeston,  3  Term  Rep.  592.  Withnell 
v.  GarthaHif  6  Term  Rep.  383.  Grindley  v.  Barker^  l  Bos. 
fy  Pull.  229.  Green  v.  Miller,  6  Johns.  Rep.  39.  5  Co. 
63.  a.)  In  Uoyd  v.  Louring,  (6  Vesey,  773.)  there 
was  a  suit  by  three  persons,  on  behalf  of  themselves  and  all 
tiie  other  menibers  of  a  lodge  of  free  masons,  and  Lord 
Eldon  observed,  ''  tliat  if  he  considered  them  as  individuals, 
the  majority  had  no  right  to  bind  the  minority.  One  iiidi- 
vidoal  has  as  good  a  right  to  possess  the  property  as.  any 
other,  unless  he  can  be  afiected  by  some  agreement."    Mr. 


CASES  IN  CHANCERY.  597 

MbM  {Lwv  of  SMgpingj  part  1.  cb.  3.  8.  2.)  admits  thft      1820, 
extrane  inconvenience,,  onder  tbe  law  of  En^nd^  of  enjoy* 
ing  personal  chattels  vested  in  several  distinct  proprietors, 
without  a  common  covsent  and  agreement  anaong  them* 

But  tbe  case  most  applicable  to  the  ooe:before  ns,  is  thatof 
DaifiBs  v«  Hmufkins.  (3  Mauie  ^  Stitp.  488.)  A  company 
was  formed  for  brewing  ale,  and  by  deed  they  confided  .fbe 
conduct  of  the  basin^s  to  two  persons  who  were  to  be  trusleea 
of  the  company,  (Seneral  quarterly  meetings  of  the  com- 
pany were  to  be  held*  It  was  resolined  by  the  K.  B.y  that 
one  person  only  could  not  be  appointed  at  a  general  quar- 
terly meetings  in  place  of  the  two  originally  appointed  under 
the  deed,  unless  such  alteration  was  made  by  the  conseat  of 
all  the  subscribers.  Lord  EUerditarough  said,  that  <*8 
€bfiU[ige  had  been  made  in  the  consiUuiion  of  this  company, 
which  could  not  be  made  without  the  consent  of  the  whole 
body  of  the  eubscriben.  It  was  such  a  substituted  alteration 
in  its  constitution,  as  required  the  assent  of  all.'' 

The  resolutions  of  the  5tfa  of  May^  1819,  were  irregu- 
larly passed,  even  assuming  them  to  have  been  passed  by  a 
majority.  There  was  not  a  majority  of  the  stockholders  in 
interest  present  on  that  day,  nor  was  the  meeting  a  regular 
one,  according  to  the  constitution  of  the  company.  Though 
the  resolutions  may  have  been  signed  by  a  majority  in  in- 
terest, (which,  however,  does  not  appear,)  the  signatures  or 
assent  of  members  were  obtained  separately,  in  detail,  and 
not  given  by  them  in  their  collective  capacity.  They  had 
not  the  advantage  of  mutual  discussion ;  and  all  the  checks 
provided  by  the  resolutions  of  1817,  against  abuse,  and  to 
ensure  mature  deliberation,  were  prostrated.  It  was  an  ex- 
tremely precipitate  proceeding,  and  to  make  out  the  assent 
of  even  a  majority  in  interest,  the  defendants  refer  to  a  let- 
ter of  one  of  the  stockholders,  as  amounting  to  such  assent. 
It  wouTd  be  impossible  to  afford  sanction  to  the  resoloticms 
of  tlie  5th  of  Mayj  npon  any  known  principle  of  law,  or 


598         ^  CASES  IN  CHANCERY. 

1820.  with  du«  regard  toibb  rights  of  property,  or  to  tte  bMhig 
nature  of  a  solemn  private  assoeiation  and  compactt  haivEng 
great  interests  under  its  care.  The  meeting  which  paised, 
or  the  nembers  frtio  signed  those  resolutions,  seeaMfiU  to 
be  sensible,  that  the  aliemtkins  they  iiade  in  tlie  perma* 
nent  orgMhation  of  the  company,  ooghc  not  to  be  left  lo 
ffM  upon  the  dedared  will  of  a  asajority,  fbr  «'  die 
tores  of  ail  the  stockholders  was  to  be  solksted." 

Nor  A>es  there  appear  to  have  been  the  requisite  t 
4«ent  ratificatiott  of  the  alterations  of  JMsy,  1319*  The 
plamtiffhas  given  no  sach  ratification ;  and  thooghacSi'miLy 
have  been  agreed  to  by  all  not  strictly  within  the  scope  erf 
the  ffoscAotioDS  of  1817,  those  acti  were  only  a  wuves^  bt 
Ae  particular  occasioa  or  purpose  producing  them;  and 
every  member  of  the  company  has  a  right  to  recnr,  when 
he  pleases,  to  his  rights  as  they  were  secared  by  tbe  fsnda-* 
Bsental  artides  of  tbe  association.  .It  is  not  perceived, 
however,  that  any  act,  on  any  occasion,  has  been  noesii- 
*  monriy  assented  to,  affecting  materially  the  ooastitntioo  of 
thecd^any. 

In  short;  these  is  no  just  foundation  for  the  docuine,  thmt 
the  articles  of  1817  could  be  controlled  or  abolisbad  by  the 
will  of  a  part  of  tbe  association.  If  any  one  acticlo  mighl 
be  abolished  by  a  vote  of  tbe  majority,  so  might  eircQr 
other  artide;  and  tbe  rights  and  property  of  each  individ^^ 
al  member  would  be  placed  in  the  utmost  jeopardy,  at  .the 
eontrol  of  others,  without  any  security  from  compact,  at 
the  dictates  of  his  own  judgment.  The  law  ^ves  no  such 
control  to  others  over  one's  own  property,  or  undivided  in* 
terest,  except  in  the  case  of  partnerships,  and  of  ship  owoen» 
which  stand  on  peculiar  grounds  of  commercial  and  mari- 
time  policy ;  and,  even  in  those  cases,  there  is  pi^rtjciUar 
protection  provided  for  the  dissenting  owner. 

I  shall,  therefore,  declare,  in  tliis  case,  that  the  resohH 
Uons  of  1817  are  valid  and  biodiog,  until  altered  by  noar 
nimous  consent;  and  that  the  resolutions  of  jVay,  1819,  are 


CASES  IN  CHAKCERr.  |;09 

void ;  and  thai  the  plaintiff  is  entitled  to  have  the  rights  of      1820. 
the  aasootalion  replaced  on  their  Ibmier  basis* 


The  fottowiDg  decree  was  entered :  v. 

Ltvcb. 


^^Itimdeclaridf  that  the  parties  to  Ais  suit  ibrmiiig  the  Decree. 
assoeiatioa  in  the  pleadings  mcmiooed,  are  tenants  in  com- 
moo,  Imving  distinct  hot  undivided  interests  in  (he  property 
aad^achises  beloi^ing  to  the  company  $  and  that  they  bam 
neither  the  rights  nor  responsibilities  of  partners,  ^ndno 
■sember  has  power,  as  a  tenant  in  common,  to  dispose  of 
any  interest  except  his  own,  or  to  bind  the  assodation  by 
his  coMracts.  And  it  i»  further  declared,  that  the  resoht* 
lions  in  the  pleadings  menUoned,  and  stated  to  have  been 
pttssed  on  the  18th  and  iMi  ofjlpnlj  1817,  are  the  fnnda^ 
QMOtal  articles,  or  constitution  of  the  company,  passed  by 
their  unanimous  voice,  and  requiring,  upon  established 
principles  of  law,  the  like  unanimous  voice  to  alter  or  repeat 
thoa»;  and  that  the  articles  of  agreement  of  the  26ch  of  JUy, 
1814^  are  not  obligatory  upon  the  company,  and  were  ab- 
rogated by  the  adoption  of  thcL  resolutions  of  Aprils  1817, 
and  so  it  is  admitted  generally,  by  the  defendants  in  tlus 
snit.  And  it  is  further  declared,  that  the  resolution  which 
Ateotft  die  secretary  of  the  company  to  see  that  the  resolor 
lioAa  of  a  majority  in  interest  of  the  concern  be  carried  into 
eflbet,  has  reference  to  resolutions  passed  under  the  authori- 
ty e^  and  in  conformity  to,  the  provieioos  contained  in  the 
said  articles  of  the  13th  and  14thof  j%^r»/,  1817,  and  not  to 
resolutions  altering  the  same,  or  any  part  thereof.  And  it  is 
further  declared,  that  the  resoIuUons  in  the  pleadings  men* 
tioned,  and  purporting  to  have  been  passed  on  the  5th  of 
JIfay,  1819,  being  repugnant  to  some  of  the  provisions  of 
the  said  ftmdamental  articles,  and  not  having  received  the 
assent  of  aH  the  members  of  the  company  as  was  intended 
in  and  by  the  same,  and  as  was  required  by  the  rights  be- 
longing to  each  member,  are  null  and  void,  and  of  no  force 
or  obligation  upon  the  saidcompaoy )  and  that  any  acts  of 


600  CASES  IN  CHANCERY. 

1820.  all  tie  company,  in  any  particalar  case,  contrary  to  the  pro- 
visions of  the  said  fundamental  articles,  if  any  such  Ibei^ 
be,  do  not  alter  the  force  or  obligation  of  the  said  articles, 
or  the  rights  of  the  members  of  the  company  under  tbem,  in 
any  other  case  in  which  the  like  unanimous  consent  may 
not  have  been  given.  And  it  is  further  declared,  thai  the 
said  resolutions  of  the  13th  and  14th  of  Jipril,  1817,  and 
every  part  thereof,  continue  to  be  obligatory  upon  the  com- 
pany, and  ought  to  be  carried  into  specific  executioB,  in 
every  respect  in  which  the  same  have  not  been  or  may  not 
be  altered  or  varied  by  tthe  unanimous  consent  of  the  said 
company  duly  declared.  It  is  accordingly  ordered^  ad* 
judgedj  and  decreed^  that  the  said  resolutions  of  the  IStb 
and  14(h  of  ^pril,  1817,  are  binding  upon  the  said  compa- 
ny, being  the  parties  to  this  suit,  until  changed  or  repealed 
by  unanimous  consent  as  aforesaid,  and  that  the  said  reso- 
lutions of  the  5th  of  May^  1819^  are  null  and  void ;  and  that 
the  said  resolutions  of  ^prilf  1SI7,  be  carried  into  specific 
execution,  as  to  the  deposit  of  moneys,  and  as  to  the 
drafts  of  those  moneys,  and  as  to  the  appointment  and 
duties  of  the  clerk,  and  in  all  other  respects,  oolesa  they 
shall  have  altered  or  may  alter  the  same  in  cases  where- 
in they  do  not  conform  thereto,  by  unanimous  consent  as 
aforesaid ;  and  that  the  irgunction  heretofore  issued  be  con- 
tinued, and  the  receiver  heretofore  appointed  be  coniintted, 
until. the  said  company  shall  have  so  conformed  to  the  said 
vesohitions  of  the  ISth  and  14th  of  .IprU^  1817,  as  afore- 
said, with  the  exception  as  aforesaid.  And  it  is  furthertM'- 
dered^  adjudged^  axid  decreed^  in  pursuance  of  the  provisions 
of  the  statute  of  the  10th  of  March,  1820,  entided,  ''an  act 
lo  incorporate  the  Jforih  River  Steam  Boat  Cimpany^^  that 
the  rights,  powers,  and  privileges  of  the  plaintiffs,  and  of 
each  proprietor  or  stockholder  in  the  company  aforesnd, 
under  the  said  agreement  of  the  13th  and  14th  of  wlSfpKI, 
1817,  as  above  declared,  be  continued  and  secured  to  them, 
until  changed  or  repealed  by  unanimous  consent  as  afi^e- 
said,  whetlier  the  said  association  shall  act  as  a  private  com- 


CASES  IN  CHANCERY.. 

pany,  or  M  a  corporate  body  ander  the  said  statute.  And 
}t*  is  fitrther  0rdered^  adjudged^  ahd  decreed^  that  the  defen- 
^kmt  pay  to  the  plaintiff  his  costs  or  this  sait,  to  be  tax- 
ed, and  to  be  paid  as  well  by  the  d^endants  who  have 
answered,  as  by  those  who  have  suffered  the  bill  to  be  taken 
fro  eanfi$90f  and  to  be  paid  rateably,  in  proportion  to  their 
liesp^ctive  interest  and  shares,  relatively  to  each  other,  in  the 
faid  company/' 


TfiNBaooK  againit  Lavsimo  and  others* 

The  act  passed  the  12th  Aprils  1820,  (ten.  43.  eft.  184.)  direotioir  tthe 
sheriff  or  other  o£Eicer,  where  lands  are  sold  by  virtue  of  any  execa- 
tion,  to  delay  giving  a  deed  to  the  purchaser,  so  as  to  give  the  debt- 
or time  to  redeem  within  a  year,  on  certain  terms,  does  not  apply  to 
tiiecBSe  of  a  sale  by  a  master  of  mortgaged  premises,  under  a  de- 
cree of  sale  and  forecliMare, 

PETITION  o(J,  Laming,  Junr.  one  of  the  defendants,  Stpiembir^m 
atatttig  that  the  defendant  S.  Lanting,  and  his  wife,  on  the 
lOtfa  Jti/y,  1916,  mortgaged  to  the  plaintiff  a  farai  in  the 
Iowa  of  BeiUehem^  in  the  coaoty  of  Albany^  containing  83 
acres,  to  secure  thepayment  of  1060  dollars,  with  interest; 
.^d  that  on  the  10th  day  of /u/y,  1819,  there  were  108  dol- 
lars 96  cents  of  interest  doe*  That  the  farm  was  purchased, 
in  1814,  Cor  3000  dollars,  and  considerable  soros  of  mo- 
fic^  have  since  been  expended  for  repairs  and  improve- 
inents.  That  a  bill  of  foreclosure  has  been  filed,  and  a  sale 
of  the  mortgaged  premises  decreed,  to  satisfy  the  monies 
dae  on  the  said  mortgage.  Th^t  the  petitioner  had  ac- 
quire^y  by  purchase,  th^  equity  of  redemption*  That  the 
mortgaged  premises  were  advertised  for  sale,  on  that  day ; 

Vol*  IV.  76 


M2  CASES  IN  CHANc£RT* 

18S0.  (Jlnguiij  ift,  1890,)  and  praying  that  the  aet^  fmoed  iba 
l^OiAprU^  1630,  entitled,  ^  an  act  in  additbn  to  the  a«i 
concerning  judgments  and  executione,"  might  be  applieA 
to  the  case,  as  coming  within  the  equity  of  that  statute. 

On  that  petidon,  an  order  was  entered  that  the  master,  on 
selling  the  mortgaged  premises,  forbear  to  execute  a  deal 
to  the  purchaser,  until  further  order,  and  that  he  make  • 
report  of  such  sale  to  the  Court,  **  to  the  end  that  the  qaea* 
tion  of  a  right  to  redeem,  under  or  within  the  equity  of  thi 
statute,  passed  at  the  last  session  of  the  Legislature,  may  be 
considered." 

The  master  sold^  on  the  day  of  the  date  of  the  petition, 
and  of  the  said  order,  under  the  decretal  order  of  the  12tfa 
day  of  Jtmelast,  to  satisfy  the  principal,  interest,  and 
costs,  the  whole  of  the  mortgaged  premises  to  Samud  Vm 
Orden^  the  agent  for  the  plaintiff,  for  1440  dollars. 

Upon  this  case,  the  plaintiff  moved,  that  the  order  sns* 
pending  the  execution  of  a  conveyance  by  the  master  be 
discharged. 

J0.  Van  Vecktm^  for  the  plaintiff, 

/•  Lansings  Junr.  in  propria  pertona. 

The  Chakcellob.  This  case  is  evidently  not  within 
the  statute  referred  to*  That  statute  applies  only  to 
sales  on  execution  issued  and  directed  to  the  sheriff  or  other 
officer ;  and  this  is  not  such  a  case.  If  we  look  through  dU 
the  details  of  the  act,  we  shall,  in  vab,  search  for  any  proii- 
sion  that  shows  an  intention  to  apply  the  directions  of  the 
act  to  sales  of  mortgaged  premises,  made  either  by  the  mort- 
gagee himself,  under  a  power,  or  by  a  master  under  a  decvee. 
A  sale  by  the  master  cannot  be  said  to  be  a  sale  ^  by  vir- 
tue of  an  execution,"  nor,  in  such  a  case,  is  there  **  an  exeen- 
tion  issued.''  And  when  the  act  speaks  of  «<  theduty  oftlM^she- 


CASES  IN  CHANCERY.  60a 

riff,  or  olhev  officer  who  shall  have  soM,  or  his  exccatofsor      1820. 
adminisirators,   to  complete  snch    sale    by  executiog  a 
deed,"  it  can  hardly    be  supposed  that  the  act  intended 
that  the  execntors  or  adminbtrators  of  a  master  were  to  exe- 
cute a  deed. 

Nor  is  the  case  within  the  equity  or  policy  of  the  act : 
isortgaged  premises  are  not  sold  by  any  process 
which  can  properly  be  said  to  be  judgments  and  execu* 
tioiM  at  law,  or  perhaps  like  process  of  execution  from 
this  Court,  to  actintfUH^icm;  for  they  are  sold,  and  thq 
equity  of  redemption  barred,  in  pursuance  of  the  express 
contract  of  the  parties.  The  mortgagor  agrees,  that  i[  he 
makes  default  in  payment,  the  lands  specified  in  the  mort- 
g^age  shall  be  sold,  or  his  equity  barred.  The  Court  does 
DO  more  than  execute  bis  specific  contract  The  lands  are 
frequently  sold  by  the  mort^igee  himself,  under  a  power 
contained  in  Uie  mortgage,  or  the  equity  of  redemption  m^ 
be  barred,  at  the  election  a(  the  mortgagee,  by  a  strict 
foreclosure  of  that  equity,  without  a  sale,  according  to  the 
uniform  English  practice,  which  continued  until  very  lately, 
and  which  is  according  to  the  terms  of  the  contract.  In 
neither  of  these  cases,  can  there  be  any  pretence  for  the  ap- 
plication of  the  statute.  The  Legislature,  doubtless,  inten- 
ded to  leave  the  case  of  mortgages  untouched.  They  stand 
upon  the  footing  of  a  contract,  aiid  the  sale  or  foreclosure  is 
part  and  parcel  of  that  contact.  Besides,  it  is  the  course 
und  practice  of  the  Court  to  enlarge  the  time  to  redeem,  by 
extending  the  period  of  foreclosure,  or  the  time  for  sale,  on 
a  bill  to  foreclose,  if  applicatipn  be  previously  made,  in  due 
time,  and  on  reasonable  grounds,  such  as  bringing  into 
Court  the  arrears  of  interest  and  costs* 

Noaoch  application  was  made  in  this  case,  to  the  discra* 
lion  of  the  Court  But  on  the  morning  of  the  sale,  an  ap* 
plicalion  is  made  to  apply  the  provisions  of  the  act  of  the 
last  session,  which  permits  the  sale,  but  pos^nes  the  ex^ 
^«6m  pf  the  deed.    I  an»  a£cordiogly»  of  opiuip,  that  the 


604  CASES  IN  CHANCERY. 

1820.       act  does  not  apply,  and  that  I  have  no  authority  to  witfK 
hold  the  deed  from  the  purchaser. 
Motion  to  discbarge  the  order  of  the  18th  August^  granted. 


Motion  granted. 


Ha  ZEN  against  Thurber  and  others. 

'  On  a  bill  for  dower^  the  widow  was  held  entitled  to  the  value  of  tbe 
mesne  profiU  arising  on  the  use  of  the  UDdivided  third  of  the  premw 
868  of  which  her  husband  died  seized,  from  the  death  of  her  husband, 
exclusire  of  the  improvements  since  made  thereon.  <  And  there  be- 
ing^ several  heirs  and  terre-tenants,  the  amount  was  directed  to  bcr 
assessed  upon  them  respectively,  icoordif  to  the  time  of  their  en- 
joyment of  the  premises :  but  as  the  widow  had  never  claimed  her 
dower,  and  there  was  no  opposition  or  vexation  oo  the  part  of 
the  defendants,  costs  were  denied  her. 

Seji/.iwft.  BILL  for  dower.    The  question  was  as  to  costs  and 

mesne  profits.  The  widow  claimed  the  mesne  profits  frooi 
the  death  of  her  husband,  who  died  setKed,  in  1803,  and 
also  costs.  There  had  been  no  demand  of  dower  of  the 
heir  or  terre-tenant 

Butler^  for  the  plaintiff. 

The  Cuanceixob.  The  widow  is  entitled  to  the  valuf  of 
the  mesne  profits  arising  from  the  use  of  the  uofiivided  tbiid 
part  of  the  premises  whereof  her  husband  died  seised  ^  wd . 
the  account  is  to  be  taken  from  his  death,,  excbsiva  of  tkfi 
improvements  since  made  thereon;  and  Jhes^mesQejMsg^  . 
are  to  be  assessed  i|pon  the  defendants,  r^pectiveljry  accord-, 
ing  to  the  tiae  i»f  iheir  eojoj^ment  of  the  hmA :  And  illwqe.}.. 


CASES  IN  CHAMCERT.  005 

nmst  te  a  nfevence  to  compote  the  same.  As  the  plaintiff  1820. 
bad  never  claimed  ber  dower,  and  no  opposition  or  vexa- 
tion is  chargeable  upon  the  heir  or  terre-tenant,  costs  are 
denied.  Ijord  Kenyon,  in  Curtis  v.  Curtisj  (2  Bro.  632.) 
stated  this  to  be  the  rule.  As  the  land  had  been  sold  to  the 
United  States,  (being  at  Rause^s  Painty  on  Ltike  Chamm 
plain,  on  the  Canadian  Kne)  and  the  value  of  the  land 
and  improvements  paid  by  tbe  U.  S.,  and  the  money  depo- 
sited in  Court,  for  the  benefit  of  whom  it  might  concern,  and 
as  tbe  plaintiff  has  elected  to  take  a  gross  sum,  in  lieu  of 
dower,  the  master  is,  also,  ordered  to  compute  the  value  of 
her  dower  in  the  sum  so  assessed,  for  the  land  and  improve- 
ments ;  and  the  amount  must  be  paid  to  her. 

Order  accordingly. 


A.  &  R.  EirswoRTH  against  Lambert,  Fanning  and  others. 

On  ft  WUto  ibraoloBe  a  mortgage,  all  incambcaacers  exuting  at  the 
cornqMncemeDt  of  the  8ait«  must  be  made  parties. 

Wher^  the  objection  of  a  want  of  parties  is  made  out  of  season,  tbe 
plaintiff,  instead  of  amending  the  original  bill,  may  tie  9l  tupptemm- 
iary  bill,  merely  to  bring  in  the  parties  wanting ;  and  the  defendants 
to  the  original  bill  need  not,  in  such  case,  be  made  parties  to  the 
aupplemental  bill. 

SILL  to  foreclose  a  mortgage.  The  defendant,  £>.,  suf-  8epi,Mk. 
fened  the  bill  to  be  taken  pro  eonfasso,  and  the  other  defen- 
dants answered.  The  defendant,  L.,  had  a  mortgage  on 
the  premises  sabsequent  to  the  one  owned  by  tbe  plaintiffs. 
The* toaster's  report  was  obtained  preparatory  to  a  final 
decree  for  the  sale  of  the  land ;  and  the  defendant,  L.,  came 
in  and  SfMedi  by  pmltiooy  that  Chorge  Astor  held  a  mortgage 


QAffiS  IN  CaJlif(mT. 

md  prayai  Ikai  the  fdafaitifig  OM^t  be  ordem}  to  iweod 
tbcv  bill  and  nake  hi«i  a  par^y  so  that  agood  titl«  mifl^ 
be  ghreft  upoa  tbe  tale,  and  alt  deception  apoo  tbe  poccha* 
leii  m4  all  foUBprt  tfppW^  h»  pievenled^^ 

Gf,  IF.  fitevNy,  HI  sappon  o£  the  petitioii. 

Thk  Chahoelloe  ordered  tbe  proceediogi  to  he  stayed, 
and  that  G.  A.  should  he  brought  into  Court,  as  it  was  a 
fixed  rule,  and  essential  to  juslioe,  that  no  decree  should  pai^' 
until  all  necessary  parties  were  brought  in.  All  incumbranoers 
existing  at  the  commencement  of  the  suit  must  be  made 
parties,  or  else  their  rights  will  not  be  affected  by  the  decree 
and  sale  thereon.  To  save  time  and  expense,  a  supplemen- 
tal bill  may  be  filed  by  the  plaintiffs,  instead  of  amending 
the  original  bill ;  and  when  it  is  used  merely  for  the  purpose 
of  bringing  a  formal  party  before  the  Court,  as  a  defendant, 
the  defendants  to  tbe  original  hill  need  not  be  made  par- 
ties. {Redeid.  Tr.  Ch.  PL  70.)  Where  the  objection  for 
want  of  parties  is  made  rather  out  of  season,  as  in  /ones  v* 
JoneSf  (3  Mk.  110.  317.)  the  want  of  parties  may  be  sup- 
plied by  a  supplemental  bill.  In  that  case,  tbe  cause  had 
been  once  heard,  and  was  brought  on  again  upon  the  equity 
reserved,  when  the  objection  was  raised.  So,  also,  in  HoZitr- 
VH>rth  V.  Holdiwortk^  {Dick.  799.)  parties  appeared  to  be 
wanting  on  an  appeal  from  a  decree  at  the  Rolls,  and  the 
canse  was  ofdered  to  stand  over,  with  liberty  for  the  pluH 
tiA  to  file  a  supplemental  bill,  merely  to  add  parties. 

The  proceedings  in  the  cause  were,  accordingly,  ovdwd 
to  be  stayed,  wd  the  plaintifis  had  leaye  to  file  a  supple* 
nental  bill,  in  order  to  bring  in  &•  Agtor^  who  held  cIm 
third  iocumbraiice. 

Oiidcr«ecqiita6ly. 


«il8E8»rCRANC£RT. 


Thomas  againsi  Stxtsns  and  Maxwell,  Eiecnfon^  tic 


Though  the  xuune  of  a  leg«tee  k  entirely  mieteken  by  the  testator,  as 
ConuUa  Thampafmy  for  CaroUne  7%<»iia»,  yet  the  bequest  bb  good ; 
and  the  intentioii  of  the  testator,  and  the  mienomeri  beiqg  8ttlpfiu:ti>> 
rfly  ■hofwn,  the  legacy  was  ordered  to  be  paid  to  the  person  intended. 

BECmEST  by  will  of  a  bank  share  to  Camdia  Thomp- 
$on»  The  plaintiff  claimed  the  beqaest,  on  the  groand  that 
her  name,  which  was  Caroline  Thomas^  had  been  mistaken 
by  the  testatrix,  or  by  the  person  employed  to  draw  her 
will,  and  that  the  plaintiff  wa#  the  person  intended* 

The  defendants,  who  were  the  ezecnCors,  admitted,  by 
their  answer,  the  material  facts  charged  in  the  bill ;  ihajt 
the  testatrix  bad  been  dead  upwards  of  two  years,  and  tfaaft 
ao  person  by  the  name  of  Comdia  Thompton  had  appepu^ 
ed  to  claim  the  legacy,  and  that  they  believed  and  admitle4f 
that  the  plaintiff  was  the  person  intended ;  for  she  was  a 
great  favourite  with  the  testatrix,  and  it  was  understood  and 
believed,  that  some  provision  by  will  was  to  be  made  toft 
her.  That  a  great  friendship  had  existed  between  the  tester 
trix  and  the  mother  of  the  plaintifi^  who  died  some  time  be- 
fore the  testatrix. 


JVbvMiier 


Ooodenotfff  for  the  plaintiff. 

Maxwdlf  for  the  defendants. 

*  The  Chancellor,  upon  the  facts  adnutted,  being  perfirct- 
ly  satisfied  of  the  intention  of  the  will,  and  of  the  misno- 
mer, on  the  authority  of  the  cases  of  Beaumont  v.  FeUj 
(2  JP.  Wmfr  l^^}^9id  Bradwin  v.  Harpur,  {Amb.  374.)  da- 


606  CASES  IN  CHANCERY. 

1820.      creed,  that  the  defendants  should  convey  the  bank  shaxe  t» 
"H^   the  plaintiff. 


V. 

Boss. 


Decree  accordingly. 


Rogers  and  others,  Executors  of  Henderson,  against 
Ross,  Executrix,  Sec. 


JViivMiiocr 


Wbere  the  will  of  the  testator  is  to  ambigtioiuly  ezpraited,  as  to  lebder 
it  proper  for  the  executor  to  take  the  directienof  the  Courts  the 
eoUi  will  be  ordered  to  be  paid  out  of  the  fund  in  controrecBy. 

THIS  cause  came  on  to  be  beard  upon  the  equity  re- 
served, upon  the  coming  in  of  the  Master's  report,  (vide 
ante,  p.  388.  S.  C.)  a  question  arose,  whether  the  costs  of 
the  defendant  should  be  charged  upon  the  assets  of  her  tes- 
tator, or  upon  the  fund  in  controversy,  being  the  rents  and 
profits  of  certain  real  estate. 

T.  Jl.  Emmet,  for  the  plaintiff,  contended,  that  the  costs 
ought  not  to  fall  upon  the  fund,  for  that  would  be  maling 
the  owners  of  the  fund  pay  the  costs  of  the  defendant  hi  un- 
successfully resisting  their  demand. 

Wdls,  contra,  cited  MorreU  y.  Dickey^  1  Johns.  Ck. 
Rep.  153. 

Thb  Chancellor.  Neither  the  defendant,  nor  her  testa- 
tor, were  in  fault  Her  testator  was  the  executor  of  jdfecoii- 
der  Henderson,  and  the  will  of  ^.  H,  was  expressed  so  aa* 
biguously,  as  to  the  disposition  of  the  intermediate  rents 
and  profits  of  the  farm  devised  to  WiUiam  Hendenm^  that 
counsel  difiered  as  to  the  true  construction^  and  legal'  opera- 
tion of  the  will  on  that  point    It  was,  therefore,  mi  act  of 


CASES  IN  CHANCERT. 

sound  discretion  in  the  executor  of  A^  H.^  and  in  the  de« 
lendant,  as  his  executor,  to  require  the  direction  of  this 
Court ;  and  the  fund  in  dispute,  not  his  own  estate,  ought 
to  bear  the  expense  of  the  suit  This  was  the  principle 
advanced  in  the  case  cited ;  and  it  has  been  frequently 
beld,  that  costs  ought  to  be  charged  upon  the  general  assets 
of  a  testator,  or  upon  the  fund  created  by  his  will,  if  the 
will  be  so  drawn  as  to  create  difficulty,  and  render  a  resort 
to  this  Court  advisable.  (3  P.  fVms,  303.  3  Bro.  25. 
192.)  It  is,  also,  the  settled  doctrine,  that  executors,  and 
other  trustees  who  have  acted  fairly,  or  who  have  resisted 
a  claim  in  good  faith,  merely  by  way  of  submission,  shall 
have  their  costs  out  of  the  fund.  (1  Fe^ey,  jun.  205.  246.) 
The  costs,  therefore,  must  be  paid  out  of  the  fund. 


«Q0 


1820. 


Order  accordingly. 


Eebshaw  against  Thompson  and  others* 


The  power  of  the  Court  to  apply  the  remedy  in  the  case,  is  co-exten- 
.  «iTe  with  its  jaiisdictioik  over  the  sobject  matter. 

That,  when  a  foreclosure  of  the  equity  of  redemption  and  sale  of  mort* 
ga^ed  premises  is  decreed,  aud  the  mortgagor  or  defendant,  or  any 
person  who  has  come  into  possession  under  him,  pending  the  suit, 
refuses  to  deliver  up  the  possession,  on  demand,  to  the  purchaser 
under  the  decree,  the  Court,  on  motion  for  that  purpose,  wiU  order 
tha  poBsesstoQ  to  be  delivered  to  the  purchaser,  and  not  drive  him 
to  8A  actm  of  cyectment  at  law ;  though  the  delivery  of  posiessioa 
is  not  made  a  part  of  the  decree. 

In  case  of  disobedience  to  such  order,  an  injunction  issues,  of  course, 
on  affidavit  of  service  of  the  order,  4rc.  to  enjoin  the  defendant  to 

'  deliver  possession :  And  on  proof  of  service  of  the  injunction,  and  a* 
i^fusal  of  the  party  to  comply,  a  wril  of  astkfame  is  issued,  of 
.«eane,totliesheriC     . 
Vol.  IV.  77 


f  1*  CASCS  IN  CHAKCERY. 

1630*  Wkew  (b«  4eliYer7  of  poMOMion  is  made  a  part  of  Uie  docrae  of  foa* 
cloanro  and  aalo»  a  tort'  ^  ereoi/toii  of  the  decree  is  the  jwopef 
lemedy,  io  case  of  diadbedieoce. 


THE^tioo  of  Jocofc  Bory,  one  of  the  defendants, 
JVav.9iM^  8Uted,tb«t  on  the  10th  otJlvgust  last,  be  became  a  purcha- 
ser of  the  premises  mentioned  in  the  pleadings  in  this  cause, 
which  were  sold  under  a  decree  of  this  Court.  That  on 
the  12th  of  August^  the  master  executed  a  deed  to  him,  for 
the  consideration  of  eight  thousand  three  hundred  and  fifty 
dollars,  being  the  price  at  which  the  premises  were  struck 
off|  and  deemed  to  be  their  full  value.  That  within  ten  days 
afier  the  conveyance,  he  applied  to  the  defendant,  Elizabeth 
TAofiipfon,  who  was  and  is  in  possession  of  the  premises^ 
and  requested  a  delivery  of  the  possession  to  him ;  but  she 
refused  tm  give  possession,  unless  he  would  pay  her  five  hun* 
dred  dollars.  That  he  again  applied  to  her  on  the  17  th  of 
OdobeTj  shewed  the  deed  from  the  master,  and  demanded 
possession,  and,  at  the  same  time,  gave  her  notice  that  he 
should  apply  to  this  Court  on  the  2l8t  of  October^  for  an 
order  on  her  to  deliver  up  the  possession,  and  to  pay  him  a 
reasonable  compensation  for  the  use  of  the  premises  from 
the  10th  of  August^  with  the  costs  of  the  application.  That 
ber  husband,  Justus  Thompsanj  defendant,  is  now,  and  bar 
been,  for  several  years  past,  absent  from  the  stale.  The 
petitioner  prayed  for  an  order  pursuant  to  the  notice  so 
given  to  Mrs.  T. 

It  appeared  from  the  original  bill,  that  the  premises,  con- 
sisting of  a  house  and  twenty-five  acres  of  land,  and  three 
acres  of  salt  meadow,  lying  in  Bushwickj  tRngs  CowOi/f 
were  sold  in  1804,  by  the  plaintiff,  to  Justus  Thompson,  the 
defendant,  who,  pursuant  to  an  agreement,  executed  a  lease 
to  the  plaintiff  of  twelve  acres  and  an  half,  for  life,  free  of 
rent,  and  on  the  6th  of  Jlfay,  1805,  executed  a  bond  and  a' 
tnortgage  of  the  whole,  to  the  plainUff,  to  secure  two  thou- 
sand dollars,  part  of  the  consideration  money.    The  mort- 


CA^^ES  IN  CHANCERY.  611 

gligt,  m  wUcb  M?s.  T.  jmeA,  wa&  duly  regiatdied.  The  laatk . 
other  defeiuhmts  were  snbseqaent  jodgneat  cvediltrs  Md 
mortgagees.  The  bill  ehwged  that  the  hood  was  nnpftid, 
a«d  the  mortgage  forfeited,  whereby  the  estate  became  ab- 
SQlate  at  law ;  aod  that  the  plaintii'  had  called  on  the  de- 
fendant, T.,  to  pay  the  debt,  or  to  deliver  ap  the  poesessioo* 
of  the  premises  to  the  plaintiff,  and  release  the  equity  of 
redemption.  The  bill  prayed  for  a  decree,  that  T.  should 
piE^^,  or  be  foreclosed  of  all  equity  of  redemption,  and  sur* 
render  up  all  the  title  deeds,  or  that  the  premises  be  sold; 
and  for  general  relief.  The  bill  was  taken  pro  confiao, 
against  J.  T%omp8on  and  his  wife.  On  the  coming  in 
of  the  master's  report^  stating  a  balance  of  3,486  dollars, 
and  33  cents  due  to  the  mortgagee ;  it  was  decreed,  on  the 
Idth  of  Jme  last,  that  the  right  of  the  defendants,  T.  and 
wife,  in  the  mortgaged  premises,  subject  to  the  life  estate  of 
the  plaintiff,  in  the  northerly  half  of  th^  farm,  be  sold,  &c. 
and  that  the  master  execute  a  deed  to  the  purchaser,.  &c. 

C.  Baldwin^  for  the  petitioner,  now  moved  for  an  order  Odo6cr  sail, 
on  the  defendant,  Elizabeth  T.,  in  pursuance  of  the  notice 
stat^  in  the  petition.     He  cited  Dick.  Rip.  617.     1  Bro. 
376.    1  Fonbl  Equ.  31,  note. 

Sampson,  contra.  He  cited  2  Ch.  Cos.  244.  2  Madd. 
Pr.  360,  361.  4  Inst.  79.  1  RoU.  Abr.  373.  Wyatt  Pr. 
Ry.  157.  205.  1  Ch.  Cases,  91. 184.  1  Atk.  544.  3  Atk. 
275.  Barton's  Suit  in  Equ.  210.  213.  Hind's  Pr.  609. 
1  P.  Wm.  746. 


The  CHA!7cfiLL0R.  This  is  an  application,  on  the  part 
of  the  defendant  Berry ,  as  a  purchaser  of  the  mortgaged 
premises,  for  an  order  upon  the  defendant  Elizabeth 
Thompson,  to  deliver  up  the  possession.  She  is  the  wife  of  Jl 
Tliompson,  the  mortgagor,  and  united  with  him  in  the  mort- 
gage ;  and  she  was  with  her  husband  made  a  party  to  the 
bill,  which  was  filed  by  the  plaintiff  as  mortgagee,  to  foreclose 


If99,  Mh. 


61ft  CASES  IN  CHANCERY. 

1990^'     the  equity  of  redemption.    She  aad  her  bosbMd 'sqiffefid' 
the  bill  to  be  taken  pro  eoftfesso.    The  bitt  stated  that  she, 
as  well  as  her  husband,  duly  executed  and  acknowledged" 
the  mortgage ;  that  the  debt  had  not  been  paid,  by  reason 
whereof  the  estate  had   become  absolute  in  Ae  plairftiff; 
that  he  had  applied  to  the  mortgagor  to  redeem  or  else  to 
deliver  up  possession  and  release  the  equity  of  redemption ;  * 
and  the  prayer  in  the  bill  was,  that  the  mortgagor  redeem, 
or  be  foreclosed  of  all  equity  of  redemption,  and  that  he  be 
decreed  to  sun^ender  up  the  title  deeds,  or  that  the  land  be 
iold  ;  and  the  bill  concluded,  as  usual,  with  a  prayer  for  ge-' 
neral  relief. 

The  decree  was,  that  the  right  of  Thompson  and  bis  wifc^ 
be  sold  by  a  master,  and  that  he  eYecute  a  deed  to  the  pur- 
chaser, and  bring  the  purchase  money  into  Court.  The  peti« 
tion  states,  that  Berry,  the  purchaser,  gave  the  full  value  of  the 
land,  and  that  he  showed  the  master's  deed  to  the  defendant, 
Elizabeth  Thompson,  and  requested  a  delivery  of  the  posses- 
sion, which  she  refused  to  give,  unless  he  would  pay  her 
500  dollars.  She  has  had  due  notice  of  this  application, 
and  it  is  resisted  by  her,  not  on  the  ground  of  any  alleged 
title  or  claim  on  her  part  to  the  land,  (for  none  is  stated,) 
but  on  the  ground  that  the  Court  has  no  authority  to  inter- 
fere with  the  possession,  and  that  the  purchaser  under  the 
decree  ought  to  be  driven  to  his  ejectment  at  law. 

I  have  examined  this  point  with  a  disposition  not  to  en- 
large the  established  jurisdiction  of  the  Court,  but  with  an. 
anxiety,  at  the  same  time,  to  afford  to  the  suitor  the. adequate 
and  perfect  relief  to  which  he  may  be  justly  entitled.     U 
does  not  appear  to  consist  with    sound   principle,  thai,  the  . 
Court  which  has  exclusive  authority  to  foreclose  the  equi^.* 
of  redemption   of    a  mortgagor,    and    can  pall  all.  ihe  - 
parties  in  interest  before  it,  and  decree  a  sale  of.  the  ovir^c 
gaged  premises,  should  not  be  able  even  to  put  the  purcbsn 
ser  into  pos$e$sion  against  one  of  the  very  parties  tQ^^tba 


CA8BS  IN  CHANCERY.  619[ 

aoit^tfidwbaitboiiodby  tbe  decree.     When  the  Court      1820,. 
has  ohlaio^d  lawful  joriadictioQ  of  a  case,  and  has  ioveed-    v^v^^i*- 
galfd  and  decided  apoQ  its  merits,  it  is  not  sufficieot  for  the         ^ 
end^  of  jasUce>  merely  to  declare  the  rigbt,  without  afford-   TBo«Fa<w. 
ing   iij^  remedy.    If  it  was  to  be  understood,  tbat  afler  a 
decree  and  sale  of  mortgaged  premises,  the  mortgagor  or 
other  party  to  the  suit,  or,  perhaps,  those  who  have  been  let 
into  the  possession,  by  the  mortgagor,  pendente  lite^  could 
withhold  the  possession  in  defiance  of  the  authority  of  this 
Coprt,  and  compel  the  purchaser  to  resort  to  a  Court  of 
law,  I  apprehend  that  the  delay,  and  expense,  and  incou"* 
venience  of  such   a  course  of  proceeding,   would  greatly 
impair  the  value  and  diminish  the  results  of  sales  under  » 
decrecr    A  better  doctrine  was  laid  down  by   Lord  Hasd^ 
mcke,  in   Yates  v.  Hambly,  (2  Aik.  360.)  when  he  held» 
on   a  bill  to  redeem  a  mortgage,   that  the  plaintiff  was  en- 
titled to  redeem    upon  paying  the  principal,  interest,  and 
costs ;  that  he  was  not  obliged  to  bring  an  ejectment  for 
the  possession,  but  he  should  have  a  decree  for  it  in  Equity, 
after  the  mortgage  was  satisfied,  and  that  it  was  like  many 
other  cases  in  that  Court,  where,  though  the   party  had  a 
double  remedy,  he  should  not  be  put  to  the  expense. 

The  distribution  of  power  among  the  Courts   would  be 
injudicious,   and  the  administration  of  justice  exceedingly 
defective,  and  chargeable  with  much  useless  delay  and  ex- 
pense, if  it  were  necessary  to  resort,  in  the  first  instance, 
to  h  Court  of  equity,  and,  afterwards,  to  a  Court  of  law,  to 
oUlaii)  a  perfect  foreclosure  of  a  mortgage.     It  seems  to  be 
almird  to  require  the  assistance  of  two  distinct  and  separate 
joHsdicttons  for  one  and  the  same  remedy,  viz  x  the  foreclo- 
%xat  and  possession  of  the  forfeited  pledge.    Bat  this  does 
Dlit,  tipou  due  examination,  appear  to  be  the  case ;  and  it  may 
b«  -^fbly  laid  down  as  a  general  rule,  that  the  power  to 
apply  the  remedy  is  coextensive  with  the  jurisdiction  over  the 
gvkject  matter.    A  hill  to  foreclose  the  equity  of  redemption 
it'i  suit  concerning  the  realty,  and  in  rem  }  and  the  power 


CASES  IN  CHANCIHY. 


dittcaa  dispose  of  the  fee,   Mistcoolrol  die  pMmiim. 
Tlie  p«rtic«  to  Ihe  snk  «re  bound  by  the  decree  ;  their  hi* 
lerests  and  rights  are  coDcluded  by  it;  attd  it  would  be  very 

ttDik  and  onreasoiiabk,  tiiat  the  defendant,  whose  right  and 

A    bill  to  title  has  been  passed  apon  and  foreclosed  by    tfie    decree, 

^^u  ^  ghoold  beaUe  to  retain  ibe  possession^  in  despte  of  the 

^^^^^?I  I  Court.    Tbk  i»  not  the  doctrine  ofthe  cases^  nor  the  pali- 

potwMioa  foi-  cy  of  the  law. 

id'^iit^'S      The  case  of  Dave  v.  Dove,  (Dickem,  617.  1  R-q.  375. 

?oart.  ^  1  Cox,  lOi.  5.  C.)  which  was  befere  Lord  Lavgibar^i^ 
and  also  before  the  Lords  Commissioners,  hi  1783  and  1784, 
has  settled  the  question  as  to  the  authority  and  practice  <tf 
the  Court 

By  the  decree,  the  estate  ofthe  testator  was  to  be  sold,  and 
all  parties  were  directed  to  join.  There  was  nothing  m  ibe 
decree  that  the  defendant,  or  any  other  person,  was  to  deli- 
ver up  possession.  The  tenant  in  possession,  (and  wbo 
was  a  party  in  the  cause,)  was  a  widow,  and  was  not  in  un- 
der the  will,  but  under  some  supposed  right  of  her  owo,^  of 
jointure  and  dower.  The  estate  was  sold,  and  the  pwcba* 
ser  required  the  widow  to  deliver  him  possession,  but  slie 
refused.  He  then  applied  to  the  Court,  and  pursned  the 
regular  course  to  obtain  the  possession,  and  did  obtain  it 
by  a  writ  of  assistance.  It  was  shown,  by  divers  preo^ 
dents,  in  that  case,  that  the  course  of  proceeding,  was  firai 
to  procure  a  decree  or  order  (caHed  in  that  case  the  com- 
mon order,)  on  the  defendant  to  deliver  possession,  which 
order  is  served  on  the  defendant,  accompanied  with  a 
demand  of  the  possession ;  and  there  is  sometimes  a  formal 
writ  of  execution  of  the  order  to  deliver  possession.  An 
attachment  then  issues  for  disobeying  this  order,  but  that  at* 
tachment,  it  seems,  is  only  matter  of  form,  and  is  opot  to  be 
served.  The  next  act  is,  an  order  for  an  Myanc^jen  9gu|lt 
the  tenant  to  deliver  possession,  which  issues  of  ootiiae^ 
on  aiSdavil  of  the  previous  steps,  and  then,  oa  affiAMrit^tlf 


C/atS  IN  OHANCKRT. 


filS 


tint  Mrvke^aywelioDy  and  fefiisal,  a  nmt^OHuknnce  to 
tbe  sheriff  to  pat  die  party  in  posseflsion,  iasues,  of  course, 
4MI  motion,  widioat  notice. 

This  is  a  case  very  orach  in  point.  It  applies  to  tbe  one 
before  me,  in  every  essential  particokr ;  and  I  cannot  see 
irhyito^ghtnotto  be  regarded  as  a  just  and  conclusive  au« 
ibority  on  this  question  ofjurisdiction  and  practice. 

The  forms  of  process  mentioned  in  that  case,  are  all  to 
befomidin  theolder  books  of  practice;  and  the  same  course 
of  proeeediag  in  decrees  concerning  land,  is  declared  and 
kdd  down  both  in  the  old  and  tbe  modern  books.  {Bohun^s 
Our.  Cmed.  XS.  2^4.  NaOand't  Pr.  19&.  Lord  Hard- 
^ritke^  in  Stribley  v.  HuwJde^  S  Atk.  215.  Huguemn  r. 
Ba»deyy  16  Fetey,  180.)  Lord  Hardwieke  says,  in  Peiin  v« 
Lord  Btdtm&re,  (1  Fesey,  444.)  that  Chancery  will  enforce 
«  decree  tn  rem,  as  to  kmds  lying  within  its  jurisdiction,  and 
that  it  was  settled  as  early  as  the  time  of  Jtmes  L,  that  it 
weald  put  a  party  into  possesttoa  in  a  suit  concerning  lands* 
He  liad  premiisly  aseerled  tbe  same  jurisdiction,  in  Bober* 
dmu  %.  Ae^    (1  Jlik.  MS.) 

in  she  eompSation  made  by  Wesif  in  tbe  reign  of  EUza* 
Ml,  (West's  Symbol,  part  2*  189.)  it  is  stated,  that  if  the 
dataree  be  in  a  suit  for  lauds,  and  the  defendant  detain  the 
pCMweisioo,  against  tbe  process  of  contempt,  a  commissioD 
gaes  to  the  sheriff  to  put  the  (daintiff  in  possession ;  and  he 
giviss  US  the  firnn  of  the  writ  The  same  course  of  pro- 
ceeding under  a  deciee  foif  the  possession  of  land,  is  pre^ 
saribed  by  Lord  J^ocon,  in  his  rule  No.  9. 

Thepe  eoold  be  no  donbt,  under  any  oi  die  cases,  that  this 
iwial  course  to  obtain  delivery  of  possession,  woaM  be  admit* 
tfi^  if  il  was  made  part  of  the  decree,  that  the  possession  was 
to>be4elivered.  That  omission  constitutes  all  the  difficulty 
oC  the  case.  But  the  possession,  as  a  consequence,  is  necessa* 
ijly  .implied  tn  a  decree  directing  the  sale  of  land,  and  a  deed 
toifbe  purchaser.  The  sale  would  be  useless,  and  without 
;  to  the  pmchas^,  if  it  was  not  to  be  accompanied 


1^20. 


^16  CA8B8  or  OHARCnV. 

1800.  irich  actml  possettion;  WImb  thedMfefcdohjeqrof  *e 
bill  is  to  foreclose  the  mortgagor's  eqaiiy  of  redeospdoo, 
and  to  obtain  possession,  or  else  to  bare  the  land  sdd  to 
•atbfy  the  debt,  and  the  decree  directs  a  sale  in  pnrsiiance 
of  the  prayer  of  the  biHy  the.  rights  of  the  mortgagor -are 
neoessarily  concloded,  and  possession  is  part  of  ibelide^ 
and  equally  within  the  meaning  of  the  suit*  and  tiie  spirit 
of  the  decree.  A  bill  of  foreclosure  is  for  a  apeufic^  por- 
fornance  of  the  mortgage  contrast,  by  passing  the  whole 
title  of  the  mortgagor  to  the  plaintifi^  or  to  the  piuehater 
under  the  decree,  and  it  is  peculiariy  a  suit  in  renh  Xhe 
whole  object  of  the  suit  is  the  remedy,  by  foreclosore^or 
•ale  of  the  mortgaged  premises ;  and  it  is,  thereforej  witWa 
the  reason  of  the  cases  which  speak  of  a  suit  concemiag 
the  title  and  posaession  of  the  land  itself.  In  the  case 
of  Dove  V.  Dwe,  already  cited,  there  was  a  decree  for  i^ 
sale  of  the  land,  but  there  was  no  special  dinectioo.  in  the 
decree  for  the  delivery  of  possession  to  the  pwcbaser; 
yet  the  remedy  for  the  possession  seemed  to  bagmoted  aa  a 
matter  of  course.  The  doubts  and  deliberatiqa  in  that 
case,  rested  only  upon  the  point  of  regularity  as  to  the  pro- 
cess. 

The  anonymous  case  in  2  Ch*  Coi,  244.  was  relied  on  by 
the  counsel.  In  opposition  to  the  niotton ;  but  it  does  not 
weaken,  essentially,  the  doctrine  which  I  have  deduced  from 
the  other  cases ;  and  it  is,  besides,  so  briefly,  and  ao  v^ 
loosely  reported,  as  to  be  scarcely  deserving  of  any  consi- 
deration. 

That  was  the  case  of  a  mortgagee  suing  to  have  fats  mo- 
ney, or  that  the  equity  of  redemption  be  foreclosed.  With- 
out giving  us  the  substance  or  nature  of  the  decree,  the  case 
then  adds,  that  by  ^  subsequent  orders,'^  possession  was  or- 
.  dered  to  the  mortgagee,  and  the  heir  was  prosecut^  for  a 
contempt  in  not  ddtvering  possession ;  and,  on  examini^tion, 
'*  be  set  forth  a  title."  Lord  Chancellor  J^i>tHngham  would 
not  discuss  the  title,  and  agreed  to  leave  the  plaintiff  to  such 


't 


CASES  IN  OOAHOmX.  Si? 

mrm -Imiitd,  withom  wwmMog  U,  spd  tbe  heir. w«#  4ii-      IfflO. 

•  Tim  case  sfaow^^  that  the  delivery  of  posiessioii  was  no 
|Mrt  of  tbe  deeree,  but  of  sabjiequeot  orders,  jet  no  ob* 
jaciMD  WHS  made  on -that  groandyand  which,  indeed,  U  ibe 
miy  odAanraMe  ground  of  objection  in  tbe  present  case.  l\ 
^  ^sesaM  appear  that  the  beir  wap  a  party  to  tbe  sait  and  do* 
cree,  imd  the  contrary  k  to  be  presoiaed,  since  be,  aftevt 

*  w«rda^  set  ap  a  titte,  and  that  was  tbe  reai  objection  to  rti0 
1  paaoneding*    To  -add  possession  to  the  plaintiff's  daim^ 

would  be  amending  it,  or  strengthening  it,  against  the  tide 

•  sat  up  b]^  the  heir,  and^it  was  very  probable,  even  from  die 
Miperiect  note  of  that  case,  that  it  was  an  act  of  soand  dis*  ,•< 

*  ermion  to  leave«tbe  party  to  try  his  title  bj^-smt  agaihsC  the 
imt.  That  case  has  no  analogy  to  this,  for  here  is  one  of 
Ae  mortgagors,  and  a  party  defendant  to  the  snit,  and  One  ... 
Winy  snlTered  the  bill  to  be  taken  pro  confeuoi  endeavouring 
to  extort  a  large  sum^  from  the  purchaser,  as  the  price  of  IJie 
ptfsstfsston,  when  she  sets  u]p  no  claim,  and  is  justly  con- 
dfdded  by  tbe  decree.  It  is  so  very  reasonable,  that  the 
party  against  whom  a  decree  has  been  rendered,  and  under 
which  his  property  has  been  sold,  should  surrender  up  the 
possession  to  the  purchaser  under  the  authority  of  tbe  de* 
cree,  without  tbe  delay  andcipense  of  a  new  suit,  that 
jfru/fer,  J.  was  inclined  to  think,  in  Taylor  v.  Cole,  (3  Term 
Rep.  298.)  that  the  sheriff,  evgp  on  a  J!./a.,  might  turn  the 
debtor  himself  out  of  possession,  in  favour  of  the  purchaser 
of  the  farm  ;  and  Mr.  J.  lAvtngston^  (1  Johns*  Rep^  44.)  in 
a  case  in  our  Supreme  Court,  indmated  the  same  opinion. 

As  to  the  mode  of  proceeding  in  4he  present  case,  it  is    Fom  of  pro- 
proper  to  grant  an  order  on'^Elizabeth  Tkompstm,  the  de-  uSS^SLS«?wI 
fendant  in  possession,  to  deliver  the  possession  of  the  pre-  preSSw^nl 
'mises  to  Berry,  tiie  purchater,  according  to  the  intent  and    ^'  *  d««w 

':  meaning  of  the  decree  directing  a  sale.    If  it  had  been 
specially  expressed  in  th£  decide  itself,  on  directing  that  tlie 

Vot.  IV.  78  ,,  ^    • 


Tiiowsoir. 


$16  ^  CASES  IN  CHANCERY. 

iSSIf.       Masterlbould  execolj^  ft  deed  to  the  pofdMiser,  theti  tkerd^* 
^i!^|J^^  fendanU  who  may  be\n  posiessum,  or  any  penon  u^  Uu 
▼•  come  in  under  Aem^  or  either  of  them^  pendente  Ute^  diSner 

possenion  if  the  mortgaged  premises  to  sutk  purchaser^  M 
production  of  the  deed^  then  t  formal  writ  of  executioo  of 
the  decretal  order  to  delWer  posaeMion^  wooM  bare  bees 
{proper.  Bat  as  this  effect  and  raletttion  of  fhe  doecee, 
though  necessarily  resulting  from  it,  and  clearly  inipliefl^  is 
left  to  inference,  as  it  was  in  the  case  of  Dove  v.  Dove^  die 
order  to  deliver,  and  a  service  of  it^  must  supply  the  place 
of  the  more  formal  process.  The  attachment  on  the .  disov^ 
bedienoe  to  thfKHrder  is  a  useless  process,  since  it^s  MHito 
be  sewed,  and  it  clearly  may  be  dispensed*  with.  The- 
course  of  proceeding,  in  this  case,  is  the  4>ffder,  then  itk 
kijanction,  and  then  the  writ  of  assistance. 

It  was,  thereupon,  **  ordered,  that  the  said  Elizabetlt 
Thov^on^  on^  of  the  defendanu  in  this  cause,  on  beiiig 
eerved  with  a  certified  copy  of  this  oider^  fofthvith  deUvtr 
up  to  the  said  Jaeo&  Berry^  the  mortgaged  premises  osen- 
tioned  and  described  in  the  pleading^  and  decree  in  this 
cause,  and  in  the  deed  executed  by  the  Master  to  the  said 
Jo/cob  Berry,  in  pursuance  of  the  said  decree ;  and  uj^n 
snch  service,  accompanied  with  a  demand  of  the  ^^j^m-- 
session,  and  a  refitsal  thereoi;  the  said  Josoi  £crry  masR  Jipply 
for  an  injanction  according  to  the  course  of  the  Count  m 
^uch  cases." 


•f 


QASSa  IN  CIMNCft^Y. 


,  TfiOMPSQir  and  others  against  Browsj  Fat,  and  others. 

l[1ie  C«iirt  of  Chancery  0197  appoiat  a  penoD  to  carry  on  trade,  for 
ao  in&iit  partner. 

Where  an  ainriiiSitrator  of  a  deceased  partner,  withont  applying  td 
thk  Coort  for  iti  direetioo,  bonafiie^  pennitted  the  surnring  pari* 

^  ner  to  tell  the  joint  8took,  in  the  wuaLcoone  ef  the  trade^  fbr  ih* 

.  joiD^t  b^efit  of  bimaelf  aqd  the  intestate^s  eatate^  he  vas  held  not  t^ 
be  responsible  to  the  creditors  for  any  loss  \  but  l^e  is  pertonaUt^  lia- 
ble for  any  debts  contracted  by  such  assumed  partner. 

So,  if  be  puts  into  the  bands  of  tbe  surviving  partner,  cusett' vvhieh 
be' had  in  bis  own  bands,  and  nnder  his  own  confopl,  to  trade  with', 
be  witt  foe  ansiiwnihle  for  the  Icise. 

BlbeQUton  ani  admioismtoFi,  or  traatees,  aotiof  with  good  iititlw  aqd 
without  any  wilful  defouU  or  fraud,  will  not  be  reepensible  for  tbi) 
loss  which  m9J  arise. 

A  creditor  may  come  into  a  Court  of  Chancery  against  an  executor  or 
administrator,  for  a  disoorery  and  distribution  of  sunets. 

Opoh' the  tttttaf  iieoree  to  aoooant,  to  a  sait  by^  ene  or  morecfeditort 
•f^iutMi  «3(fBebtor  er  admiaistralor,  either  separately  ibr  ihe«^ 

.  •  ^xmt  or  ispfoialJi't.oa  beH^  of  tbemselres  mid  all  ether  crediton^ 

,  the  decree  is  for  tbe  benefit  of  all  the  creditors,  and  in  the  nature  of 
a  judgment  for  all;  and  all  the  creditors  are  entitled,  and  ehould 
Itave  notice  for  that  purpose,  to  come  in  and  prove  their  debts  be* 
fnre  tbe  master,  and  tfaey  are  to  be  paid  by  tbe  executor  or  admttt- 

V  iiiriLtftr,  latealfly,  after  judgment  oreditom  ajM  satisied,  without 

'  pB>f«6Dee»er  ragaffdlo  tbelegel  priority  of  specialty  oter  simple 

•ontraot  creditors.  And  from  the  date  of  such  decree,  and  on  a  due 

disclosure  of  assets,  an  injunction  will  be  granted,  on  the  motion  of 

either  party,  to  stay  all  proceedings  of  any  of  the  creditors  at  law* 

Creditors  may  file  a  bill  against  heirs  and  devisees  for  an  account  fbr 
the  sale  and  distribution  of  the  real  estate  descended,  to  make  good 
any  defieienoy  of  tbe  personal  assets*  Bat  the  real  estate  will  not 
be  dixeoted  to  be  aoU,  until  the  aropunt  of  tbe  debts,  and  the  deficieur 
cy  of  tbe  personal  estate,  bare  been  first  ascerta^ied* 

Audit  is  no  objection  to  a  sale  of  the  real  estate,  for  the  payment  of 
debts,  that  the  heirs  are  infants. 

A  widow  and  administratrix,  who  under  her  'daiin  of  dower,  and  ae 
guttrdittn  to  faer  inftnt  chiUven,  had  received  the  rents  and  profits  pf 
tiie  twd«ettte»  and  api^i^  thtm  to  the  ^eeesyary  jpoajp^naa^*  d'' 


Duetmberlth. 


62»  CASES  IN  CHANCEAT. 

1820.  <be  cfaiUreD,  prior  to  duo  noCioe  and  appKcfttioa  of  enMhan^ 

not  held  to  aoeoont  ibv  the  raili  aod  profits  m  fwoirod  aad  «s- 
pended. 

IN  1815,  and  long  time  before,  Lemuel  Brawn  and  Jedt" 
diah  Fay  were  partners  in  trade,  at    Owego,  in  Brooms 
county,  and  became  indebted  to  Kellogg  Sf  Spragu^  mer* 
cfaaals,  in  Mew-  York.    Browm  died  on  the  1st  of  Ihumbtr^ 
1815,  intestate,  leaving  Elizaketh  B.  defendant,  Us  widon^  , 
and  nine  of  the  defendants,  his  children.    On  the  1st  Jaur  . 
uary,  1816,  administradon  of  his  estate  was  granted  lo  his 
widow,  and  to  the  defendants,  J.  McQmgg  and  «d.  SrMpw 
A  jodgment   was,  afterwards,  recovered  in  tke  Sapivma . 
Court,  by  K.  ^  S.  againH  Fay,  as  surviving  paHMroCft 
1^  F.f  fenr  1,945  dollars  and  81  cents.    In  May,  1817,  a 
tt$i.fi.fa.  was  issued  to  the  sheriff  of  Broome^  which  was  le* 
tnmed  riMUa  bona.    In  Jtdy^  1817,  the  judgment  was  at* 
signed  to  the  plaintiffs.    The  bill  stated,  that.  L.  B.  i^eA 
seised  of  consideraUe  real  and  personal  estate  }  that  at  | 
ner  with  Fay^  be  owned  a  moiety  of  a  store  of  goods^'i 
ing  to  7,000  dollars  ;  and  that  his  administrators  took  p6i« 
session  of  the  undivided  -moiety,  and  by  agfeement  with  '■■ 
Fayy  the  administrators  engaged   to   save  Imn  haradess* 
against  all  the  debts,  as  surviving  partner^  and  to  sell  the  - 
goods  on  joint  account.    That  the  administrators  mM  iha  - 
goods  to  persons  unable  to  pay  for  them,  and  wasted  thCM.  ^' 
That  they  received  the  rents  and  profits  of  the  real  etfiks, 
and  took  possession  of  the  personal  estate,  aod  more  than' 
sufficient  to  pay  the  judgment  debt  to  the  plaintiffs.    The 
IMprittfed  tbist  the  administrators  of  B.  might  admit  asusta  . 
sufficient  to  satisfy  the  plaintiffs,  or  set  ibith  a  true  aooonnt ' 
of  the  personal  estate  of  B.,  and  what  part  had  tome*l»' 
their  hands,  and  how  they  had  disposed  of  the  same,  and ' 
make  discovery  of  the  facts  relative  to  their  GomMctioa  ^ 
with  Fay}  and,  also,  an  account  of  the  real  estate  of  B^^ : 
where  situated,  &fc.  and  Ae  rettis  and  frofitswUshliavu 


CMBS^N  OHANCUIT«  Ctt 

beeimttii^,  and  the^daiBi%  if  any,  oo  the  real  and  per-  1890« 
tonal  e0laie;  and  (hat  if  the  personal  estate  be  not  safi- 
cient  to  satisfy  the  debt  of  the  plaintiff,  the  real  estate  mig^t 
be  sold,  and  all  proper  parties  join  in  socb  sale,  and  so 
much  of  the  proceeds  thereof,  as  may  be  necessary,  be  appUed 
to  Satisfy  the  debt  of  the  pknotiiTs,  and  for  general  relief. 

^e  answer  of  the  administrators  of  B^  set  forth  a  full  ae* 
count  of  the  estate,  real  and  personal,  of  the  intestate,  kc.  and 
itf<the  disposition  of  the  assets  which  bad  cone  to  their  hands, 
and  of  the  debts  still  dae  and  unpaid*  They  stated  the 
goods  or  stock  in  trade  belonging  to  B*  and  /I,  according  to 
the  i^^entory  taken,  aosonnting  to  7,202  dollars  and  97  cents, 
addlha  ondiTlded  moiety  of  which  belonged  to  B^$  estate. 
Tkey  denied  that  tbey  took  possession  thereof;  but  that,  con- 
ceiving it  wonld  be  most  for  the  interest  of  all  concernedi 
they  Sttfiered  the  goods  to  remain  with  F^  who  had  during  the 
life  time  of  fi. .  the  principal  direction  and  management  of 
the  partnership  concerns ;  and,  at  his  instance,  on  the  25th 
jDeoMi6e^,.lftl5,  agreed,  that  he  should  keep  possession  of 
theiflSan.and  goods^  and  sell  the  goods  for  the  joint  bene- 
fit^ jilJiiioself  and  of  tt^e  estate  of  £. ;  and  they,  accordingly, 
eotfiMd.ialo  articles  of  copartnership  with  R  on  the  same 
terms  aa  B.  and  F.  j^d  before  carried  on  the  bosiness,  and 
by  r  which  F*  was  to  continue  it,  under  the  firm  of  Fojf  ^ 
Cg^  «nlil  the  partnership  should  be  mutually  dissolved* 
Thai  tbey  entered  into  this  co-partnership  with  F.  solely 
for  Ibe  benefit  of  the  estate  of  £.,  without  any  intention  or 
d^re  to  benefit  themselves,  aqd  ui>on  the  advice  of  counsel 
ttmt  they  might  safely  do  so.  Tbey  denied  that  they  had 
agreed  to.  indeouiify  F.,  or  entered  into  any  other  agree- 
ment with  htm,  than  the  one  above  mentioned.  That  F. 
centimied  to  carry  on  the  business,  and  had  the  sole  and 
eitire  management  of  it.  That4ie  sold  the  principal  part 
of  the  goods  to  persons  who  failed  to  pay,  and  converted 
the  residue  to  his  own  use,  and  bad  never  accounted  to  them, 
the  adminislrators  of  £.,  for  any  part  thereof^  and  that  F»  was 


TflOtfMO* 


CMB  Iir  OlttNCIIK^ 

Tiwt  Urn  gndft  ranaimg  widi  F.  wm»Higai 
dsder  a  ji.  /«•  igmnti  kam^  tod  bb  loitrttttiMreai  «dU|  sod 
the  residM  so  ttiMd,  not  actedmg  to  wine  4AI  doHsM^ 
were  taken  potsewion  of  by  the  deftndatilk  Thfti*  they 
eoHeetad  some  <Mrti  due  u>  F.  4^  Cb*  to  the  imoum  of 
ass  dollftre,  whith  wae  dl  Ibey  hid  #ec«hrtd  )  that  iJm^ 
hM  out  411  dolldirs  51  cenU  of  Bmm^  <br  tbe  pttithaai  of 
goods,  soon  after  tbe  deotb  of  &  and  alio  advaneed^  at 
fftock,  354  dollars  and  35  centSy  and  this  stock  and  foodb 
was  added  to  the  stock  in  trade  eotnuted  so  F.^  and  aws 
ilictuded  whb  the  rest,  and  disposed  of  as  above  iModotied« 
They  stated  various  debts  doe  by  F.  Sir  Ca*  wfaidi 
had  been  put  in  sait,  amoanttngto  1,563  dollars  15  ceoCs, 
and  a  bond  given  by  fi.  in  his  life  time  to  JIf eQdfi^,  (de- 
fendant,) secured  by  a  mortgage,  amountiog,  prhicipal  and 
imerest,  to  2,033  dollars.  That  EUzabeth  B.  was  eniitM  la 
dower,  and  as  goardian  to  her  cbildreo  took  possession  of 
the  real  estate,  and  received  the  rents  and  profits,  which  s)ia 
had  faithfully  applied  towards  tbe  support  and  edncw 
tion  of  the  childreii,  though  these  were  wholly  insafioiaii^ 
the  annual  amount  not  exceeding  1^  ddlai««  Thai  do* 
ducting  the  debts  of  £.  paid  by  them,  and  the  sums  adva»* 
ced  by  them  for  stock,  tfaere  remaioif}  in  hand  only  3W 
doUars  and  91  cents,  which,  with  the  goods  of  il  4*  jPb, 
on  hand,  and  the  personal  property  of  i9.  unsold,  wpoldiool 
be  sufficient  to  pay  more  than  one  third  of  the  aasoom  of 
tbe  debts  dqe  by  F.  4r  Co.  and  Mc  Quigg^s  bond  >  and  th^ 
believed  the  whole  real  and  personal  estate  of  B.  was  Ml 
fiaffideot  lo  pay  those  debts*  Tbe  bill  was  taken  jpr^  pm^ 
fiuo  agaiott  Fe^.  The  iofeat  heirs  admitted  ootUog^Jhim 
prayed  the  protection  and  direction  of  the  Court, 
The  cause  was  heard  on  the  pleadings  and  proo& 

£.  )r.  ir«M^,  for  tbe  plaintiffs.    . 

J.  .A.  CoUier^  for  the  defendants. 


CMES  IIT  CHANCERY.  If89 

fhril^j^au^iit^ihB^Mintedd^t  1«  That  «hm^«»       MW; 
lile  of  Brmm  wm  ltaUe|.and Mgbt  la  be  mM  for  ibe  pay* 


XoKMirtoir 


of  tlw  piaiiilift.    9L  Thai  iha  petsonal  etlate  of  B.^         ^ 


andaoMietyol'ihettoakialradaoriJ.aiidilal  Usdeaih,  . 
amio.be  deemed,  onder  the  frets  and  aircumeiaacee  dis* 
rioiid,  as  peraooal.asselsia  tke  haikbor  the  adiainislratar^ 
of  JB.  {Taier'shmofEBmutonj  U6.)  3*  Th«t  the  trade  car^ 
iWoo  by:  the  adaikditratoia  in  oooipaoy  wHh  F.  waste  be 
dsemed  to  have  been  carried  oti  for  dieir  indifidaai  benefit, 
and  that  they  were  cfaargeairie  with  interest  on  the  valoe 
of  thfli  assets,  so  pot  hi  trade.  (I  Term  Rep.  2U.)  4.  That 
tbe  efftmhuBtrators  were  liable  for  the  oosfe. 

Fcr  Ae  dtfmimU^  it  was  contended:  1.  That  the  ad« 
ministrators  oughl  not  to  be  held  accountable  for  fhe  moiety 
of  the  stock  in  trade  oiB.  and  F.,  left  in  the  hands  of  F., 
to  be  sold  for  the  benefit  of  B.U  estate.  In  regard  to  exe- 
ctitors  and  administrators,  as  trustees,  acting  for  the  benefit 
(Mf  others,  Courts  are  extremely  liberal.  {Ambler^  219.  5 
Femy,  848.  i  Maiii  Ch.  114.)  They  will  endeavour  to 
relieve  them  firom  any  mischief,  which  may  arisd  from  the 
misapplieatlon  of  the  trust  money.  (3^t2:.44  4.  Though 
a'n  eicecutor  or  trustee  may  be  liable  for  negligence,  hnmst, 
as  Lord  ^Keeper  J^arth  observes,  be  very  snpine  negligence. 
(1  Vernon^  144.)  It  must  be  crossa  negl^en^,  or  gross 
he^gence.  (1  JIfadd.  Rep.  290.)  To  make  out  the  charge 
of  gross  negligence,  it  must  show,  since  firaud  or  covin  is 
not  and  cannot  be  pretended  in  this  case,  that  the  adminis- 
trators have  acted,  or  omitted  to  act,  against  their  know* 
ledge,  information,  or  reasonable  expectation;  or  have  taken 
steps,  in  reference  to  the  estate  of  the  intestate,  extraordina- 
ry, unnsiial,  and  contrary  to  the  usage  of  persons  in  tbe  same 
situation,  and  without  legal  advice.  (JlmbL  219.  4  Fu^ 
369.  ^Madd.  Ch.  119.  128.)  Nothing  of  this  sort  ap- 
pears in  the  present  case.  A  Court  of  Chancery  will,  some- 
times, permit' an  executor  or  administrator  to  continue  tbe 


Bmwv 


934*  CASES  m  CHANCB&r. 

18M>.      tMlt,  mA  ewty  h  on  wider  the  adfioe  nf  Ite  (?o«rt,  10  as 
*  r^Iumu     ^  P^)^^^  ^*"*'  *i^  <^<^  of  lots,  even  at  Imir.    Will  nol  thU 


Bkowv. 


Court  consider  that  ai  properly  done,  wlucfa,  oo  applica* 
doa  for  that  porpoee,  it  woald  have  aothorised  (he  adniaia- 
tratonlodor    (4F«My,S6f.    1  Bro.  C.  C. 969.    3^f«r. 
60.  401.    7  Fcity,  150.)    U,  then,  theie  adiaiiiisiralQn 
haira  aeled  Amm  jUe,  withoat  daimiDg  die  previoas  per- 
austioD  of  the  Coor^  though  in  a  trial  4it  laip^  itnmg  ^H 
afford  them  excoae,  ye^  when  creditors  hf^re  come  iotp  t^ 
Coart  for  >elief  against  thenii  will  the  Coort  inte^ei^? 
Tbsre  was  lui  new  trading;  it  was  oiei^  pei9nitMP|^  the 
surviving  pastner  to  40f  what  he  cauU  have  daur  wi4|f|Qt 
the  consent  of  the  administrators;  to  dispose  of  the  stock4o 
trade  by  a  sale  in  the  marltet,  in  the  usual  course  of  the 
trade,  so  as  to  clofe  the  concern  in  a  maqoer  supposed  the 
most  advantageous  ibr  hin^  and  the  estate  q(  the  intestaie«r 
This  is  not  like  the  cgse  of  A^ers  v,  Cokmm,  (2  Atk.  43d, 
44a    AfM.  £84.    2  41k.  603.)  nor  the  cas?  of  BarJgerM* 
Parker,  (1   Term  R^.  S67.  295.)  which  has  been  citejl. 
That  was  the  case pf  a  $ole  trader;  there.was,  tberefone^  ||# 
rights  of  i  survivii^^  partner,  or  any  obstacle  ^  cli^^g  the 
business  immediately.    Fay,  the  surviving  partner,  w&  the 
most  proper  person  to  close  the  concern.    lie  yr^j^l  a 
sirasi^er^  but  a  partner  in  whom  the  intestMe  bad  repotfd 
i)nbounded  confidence.    (3  Fi»<y,  365.)    If  tjie  .admipis- 
trator  had  sold  the  gpods,  htma  f4e,  on  a  credit,  they  woi^d 
QOt  bavii  b^ep  liable,  if  the  purchaser  had  becope  in^lvenf. 
(4  X^^ous.  S.  C.  £gK.  R^.  207.)    They  ought  not,  tbe^, 
to  be  o^ade  liable,  in  this  case,  for  entrusting,  tb^  P^vpc^iy 
tp  the  ipaa^gement  pf  a  person  who  i\ad.  been  ^elected  ^ 
the  intest^  himself  for  a  similar  trusji»  and  whf  was,fH^t 
kopwi:^  or  suspected^  aitbe  time,  to  be  in^vent,  ic^in 
danger  of  insolvency.    (3  4ik.  480.)    Th««€ase  of  £^,^* 
JSSng,  (3  JoAas.  Casiee,  4^5.)  cab  have  no  application  (p  4^ 
present  case»     The  administrators  not  only  aated  4p||p 
fide^  but  they  4Q0k  the  advice  of  cpunsel;  and  it  has  bea^ 


CASES  IN  CHANCERY.  fi2S 

said,  that  if  an  executor  takes  the  advice  of  9,lawyer  io  what  1830* 
be  does,  he  will  not  be  chargeable  for  misconduct.  (2  Madd, 
Ch.  128.  5  Vesey^  144.)  And  it  is  not  merelj  where 
trustees  act  themselveSi  but,  also,  where  they  act  by  other 
hands,  from  necessity,  or  conformable  to  the  common  usage 
of  mankind,  that  they  are  not  answerable  for  losses.  (2 
Modi.  Ck.  119.  Ambl  219.  ^Atk.  480.  DickeM,  120. 
3  Veseifj  565.)  ,Nor  is  a  trustee  liable  for  having  applied 
trust  property  to  what  has  turned  out  a  losing  adventure, 
if  done  without  fraud  or  negligence.  (1  Fe^ey,  Jun.  41. 
2Madd.  Ch.  125.  3Bro.  73.  2  Bro.  439.  1  P.  Wms. 
146.  t  Veity,  83.  85.  240.)  The  case  of  W^hman  v. 
Tovmroe^  (I  Made  fy  Sdwyn^  412.)  turned  on  a  different 
point  from  the  one  in  the  present  case.  2.  But  should  the 
administrators  be  liable,  they  are  not  chargeable  with  inter- 
est. (2  Atk.  439,  440.  603.  Ambl  584.  11  Fe^ey,  581. 
i  Vesey,  Jan.  294.  2Madd.  Ch.  115.  13  Vesey,  402.) 
3.  Nor  ought  they  to  be  charged  with  eostSf  for  they  have 
not  been  guilty  of  any  breach  of  trust,  nor  of  fraud,  or  gross 
negligence;  (13  Ve$.  403.)  and  costs  are  always  in  thedisi- 
cretion  of  the  Court.    (1  Johm.  Ch.  Rep.  478.) 

The  Chancellor.  The  plaindfis  sue  as  assignees  of 
Kellogg  if  Spraguey  who  were  simple  contract  creditors  of 
Broum  ^  Fay.  After  the  death  of  Brown,  a  judgment  was 
obtained  at  the  suit  of  JT.  fy  S.  against  F.  as  surviving 
partner,  and  an  execution  was  issued  against  his  property, 
and  returned  nvUa  bona.  F.  is  admitted  to  be  insolvent, 
and  the  bill  is  against  the  administrators  and  infont  heirs  of 
'Brown;  tt  calls  upon  the  former  to  discover  and  ac- 
count for  the  personal  estate,  and  of  BrownU  share  of  the 
stock  in  trade  belonging  to  the  firm  of  B.  ^  F.,  and  what 
agreement  and  tlispositlons  in  respect  to  it,  were  made  with 
F.  the  survivor.  If  the  personal  estate  should *prove  bsuf->' 
ficient,  the  bill  seeks  a  discovery  and  sale  of  the  real  estate 
of  B.,  and  ui  account  of  the  rents  and  profits. 

Vol.  IV.  79 


i^  CASES  IN  CHANCERY. 

1880,  The  infant  heirs  ot  B.  admit  oothiog,  and  submit  thn[|i« 

selves  to  the  protection  of  the  Court.  But  the  administra*' 
tors  make  a  full  and  frank  disclosure  of  the  real  and  per- 
sonal estate,  and  the  manner  in  which  they  have  disposed  of 
the  latter,  and  they  state  an  account  of  the  debts  still  du^ 
and  unpaid.  By  this  answer  it  i^ppears,  that  the  joint  stock 
in  trade  of  JS.  ^  F.,  at  the  death  of  £.,  amounted  in  vainq 
to  7,202  dollars  and  97  cents,  and  of  which  B.^s  undivided 
moiety  was  3,601  dollars  and  4£  cents.  They  state  that 
they  did  not  take  this  undivided  share  into  their  possession, 
but  suffered  F.  to  retain  possession,  and  to  go  on  and  seR 
the  joint  stock  according  to  the  usual  course  of  the  trad4 
for  the  joint  benefit  of  F.^  and  of  the  esute  of  B.  ThqF 
aver,  that  they  did  this  without  any  intention  or  wish  Guf 
personal  benefit,  and  upon  the  advice  of  counsel ;  and  be- 
cause they  deemed  it  a  safe  step,  and  best  for  the  estate  of 
£.,  and  the  interest  of  the  infants,  and  particularly  as  JF*. 
possessed,  during  the  life  time  of  £.,  his  confidence,  and  had 
been  entrusted  by  him  with  the  principal  care  and  direction 
of  the  partnership  concern.  The  administrators  set  fortb 
the  articles  of  agreement  which  they,  in  their  representa- 
tive character,  entered  into  with  Jl,  for  the  continuation  of 
the  partnership  for  the  purposes  aforesaid,  and  for  none 
other.  They  admit,  that  F.,  under  that  agreement,  cood- 
aued  the  business  by  selling  the  goods  for  the  benefit  of  him- 
self, and  of  the  defendants,  as  administrators,  and  that  be 
bad  the  entire  management  of  the  store,  and  sold  on  credit 
to  persons  who  did  not  pay,  and  that  the  proceeds  have 
mostly  been  lost  or  converted  by  F.  to  bis  own  use.  They 
state,  that  he  has  never  accounted  to  them,  and  is  reputed 
insolvent,  and  that  they  have  only  received  of  the  remains 
of  the  stock  in  trade  to  the  amount  in  value  of  491  dolHui^ 
and  of  debts  so  created,  to  the  amount  of  %8  dollars. 
They  admit  Turther,  that  they  advanced  to  /!,  shortly  aftet 
tbe  death  of  B.,  for  the  use  of  the  store,  assets  in  the  shape 
of  cash,  and  stock,  t0  the  ei9ount  of  665  doIliMrs  and  76 


CASES  IN  CHANCfiRT.  637 

cenu.    They  then  give  a  satisfactory  accooat  of  the  amoant      1820. 
and  disposition  of  the  residue  of  the  assets,  and  of  the 
charges  thereon,  and  they,  also,  exhibit  an  account  of  the 
real  estate  descended  to  the  heirs  of  0.,  and  of  an  incum* 
brance  thereon. 

The  only  inquiry  in  the  case  would  seem  to  be  concern- 
ing the  proper  directions  to  be  given  to  the  Master,  on  the 
reference  to  take  and  state  an  account;  and  a  principal  ques- 
tion is,  whether  the  administrators  are  to  be  held  personally 
yespoQsible  for  the  waste  and  loss  of  the  assets  so  entrusted 
to  Fay  to  be  sold. 

This  was  not  a  new  and  distinct  original  trading  with 
the  assets,  voluntarily  entered  into  by  the  administrators. 
They  found  a  store  of  goods  in  possession  of  a  surviving 
partner,  and  they  had  no  other  alternative,  but  either  to  suf- 
fer him  to  go  on  and  sell  upon  the  usual  terms,  and  under  a 
iContinuation  of  the  confidence  bestowed  upon  him  by  thia 
intestate,  or  to  divide  the  goods,  and  sell  the  share  of  fi.  at 
auction.  The  latter  would  have  been  a  perfectly  safe  course 
(br  them,  but,  probably,  most  persons,  under  like  circum- 
stances, and  with  the  same  anxiety  for  the  interest  of  all 
concerned,  would  have  deemed  it  best  that  the  surviving 
partner  should  go  on  and  close  the  business  in  the  usual 

course  of  the  trade.    It  is  said,  that  a  Court  of  equity  will     A  Court  of 

^      "^  equity       wll!^ 

sometimes  appoint  a  person  to  carry  on  a  trade  for  the  be*  8oroetimea,ap- 
,nefit  of  an  infant  partner;  {Montagu  on  Partnerships^  187.  ^canr  on  4 
and  Sayer  v.  Bennety  there  cited ;)  and  Lord  Mansfield^  ijn  the  beucfit  of  ai^ 
ease  of  Barker  v.  Parker^  (1   Term  Rtp.  295.)  obsfrved,     ant  i*      • 
.  that  he  remembered  many  instances  of  trade  being  carried 
;.  on  nnder  the  direction  of  the  Court  of  Chancery.    But  the 
case  of  fVightman  v.  Towaroe,  (1  Matde  ^  Sdw»  412.)  it 
one  in  point,  in  which  executors  went  on  imprudently,  and 
.  tmder  the  great  risk  alluded  to  by  Lord  Mansfield^  as  th^ie 
defendants  have  done,  without  any  such  protection,  and  coo- 
litmed  the  share  of  the  property  of  an  infant  daughter  of 
the  testator,  in  a  trade  in  which  the  testator  had  been  a  parfr* 


CASES  IN  CHANCERY. 

ner.    The  executors  in  that  case  left  the  bnstness  entirely  i»'^ 
the  management  of  the  surviving  partner,  and  solely  for 
the  benefit  of  the  infant    The  only  question  made  in  the 
K.  B.  was,  whether  the  executors  were  not  personally  Ua« 
ble,  as  partners f  for  a  debt  contracted  by  the  survivor^  for 
the  use  of  the  new  firm,  and  they  were  held  to  be  liable.  That 
was  a  very  different  question  from  the  one  bdbre  me,  asd 
resting  on  very  difierent  grounds.    An  executor  maybe> 
legally  bound  as  a  dormant  partner  for  a  credit  give*  to  . 
the  firm,  though  the  partnership  be  assumed  in  the  ditint^ 
rested  performance  of  a  trust,  and  yet  not  be  eqtAtMf 
chargeable  as  a  trustee  to  creditors  of  the  testator,  fer  a  . 
loss  of  the  property. 
If  u  admi-      The  administrators   acted  in   this  case  in  good   fsuthi 
demsedpMt^  There  IS  no  pretence  of  mala  fides.    They  reposed  coofi- 
penDhT**^  deuce  where  the  intestate  had  before  reposed  if,  and  acted 
to  niP^  exclusively  for  the  interest  of  others.     It  was,  at  most,  bat 

an  error  of  judgment,  and  a  want  of  sharp  sighted  vigt- 

for  11m  *Mnt  IftQce.    And  it  would  have  the  appearance  of  great  rJgonr, 
SlriT^a^  £i  >n<l  be  hardly  reconcilable  with  the  doctrines  of  Urn  Cowt^ 
btettetof  t^  to  make  them  responsible  for  the  goods  so  wasted  by  ^    ' 
hM  mSpoo^  surviving  partner.    They  run  sufficient  hazard  in  exporiag 


ranrivi 
aerto 
■tock    in    11m 


fer  aa^l^to  themselves  to  personal  responsibility  for  debts  contmeted  , 
tiwjT^ra^  by  their  assumed  partner,  and  from  which  their  repnsenti^  ^ 
aeirt^'^  a^^  tive  character  would  not  h^ve  protected  them ;  and,  I  con^ 
S^JcmteJci^  elude,  that  the  mere  fact  of  leaving  the  undivided  portion  of- 
SUll,^'^^^  the  goods  in  store,  and  in  the  possession  of  the  survrviflg' 
^^'  p9xi^^  to  be  sold  for  joint  benefit,  is  not,  of  itself,  snfficietf 

to  cbaiige  tiiem  with  the  loss.  ^ 

-This  Court  has  always  treated  trustees  acting  in  good 
faith  with  great  t^derness. 

In  KnigfU  v.  TU  Earl  of  Plymouth,  (3  Jik.  480.  Dkh-  - 
€iM,  130.)  a  receiver  had  deposited  money  with  a  banker  of  ^ 
good  credit,  who  afterwards  failed,  and  as  he  was  not 
ehaigeable  with  any  wilful  default  or  fraud,  he  was  not 
held  responsible  for  the  loss  of  it.    The  observations  of 


GASES  IK  CHANeERY. 

Jttford  Sbriwieke  are  itroDg  and  pointed.  <<  Suppose/*  he 
observes,  '*  a  trustee  having  in  his  hands  a  considerable  sam 
of  money,  places  it  out  for  the  benefit  of  the  cestui  que  trusty 
io  the  finds  which  afterwards  sink  in  their  value,  or  on  a 
security  :at  the  time  apparently  good,  and  which  afterwards  Tnuteet,  act- 
tunu  btit  not  to  be  so,  was  there  ever  an  instance  of  the  Alfth^mtraat. 
tmsiMS  being  made  to  answer  for  the  actual  sum  so  placed  niity  and  in. 
outf  I  aaswer,  no.  If  there  was  no  i7uiZa,/!ies,  nothing  wil-  ifjClrrto  w 
fttl  in  Uie  conduct  of  the  trustee,  the  Court  will  always  fa-  dqct  orTfi^ 
voor  biiii.  For  as  a  trust  is  an  office  necessary  in  the  con-  aDeaecStor  or 
cemt  between  man  and  man,  and  which,  if  faithfully  dis-  ^^tbT^idTl!! 
chajiged,  is  attended  with  no  small  degree  of  trouble  and  Sul^MpadaJ! 
anxiety,  it  is  an  act  of  great  kindness  in  any  one  to  ac-  S^^tdST  iiia 
cep(  of  it.  To  add  haiard  or  risk  to  that  trouble,  and  ^^l^o'^^- 
to  subject  a  trustee  to  losses  which  he  could  not  foresee, 
wo«id  be  a  manifest  hardship,  and  would  be  deterring  every 
ohefirom  acoepdng  so  necessary  an  office.'' 

The  same  rule  was  followed  in  Rawth  v.  HaweUf  (3  Ve- 
scy,  i65.)  where  executors  were  not  held  liable  for  a  loss  by 
the  iiisolveiiey  of  a  banker  whom  the  testator  had  trusted,  and 
with  whom  they  suffered  stock,  deposited  by  the  testator,  to 
reinaftn.  The  principle  of  this  case  has  a  strong  bearing 
npdn  the  point  now  under  consideration.  Other  cases  may 
be  nfitrred  to,  {WUkinsan  v.  Stafford^  1  Vesey,  Jun.  41. 
Fevv.fmery,  5  Veaey,  144.)  in  which  the  Court  of  Chan- 
cery declared  a  determination  to  relieve  trustees  acting  upon 
professional  advice,  or  with  the  best  judgment  they  could 
fonn,  from,  losses  of  the  trust  property. 

The  case  of  the  assets  in  band,  which  the  administrators 
delivered  over  to  Fay  to  be  employed  in  trade  on  their 
joint  concern,  stands  on  quite  a  different  footing.  Though 
an  adnmiistrator  may  be  excused  from  loss  when  he  leavetf 
an  undivided  stock  of  goods  in  the  possession  of  the  sur- 
vivvig  partner  to  be  sold,  as  it  is  only  suffering  a  business  * 
begjum  by  the  intestate,  to  be  carried  on,  according  to  his 
intepcttion,  to  a  beneficial  conclusion,  yet,  to  put  assets,  which 


CASKS  IN  CHANCERY. 

19SD.  «ft  under  ikt  maiusm  •6fNiralt  emMnd,  and  wUdi  htte  iw 
connection  Uriih  any  previovs  paitntnhipy  into  the  hand*  of 
a  nefchant  in  trade,  witboat  mty  Mcority,  is  expoeing  tbe 
trust  faad  to  uoreaeooable  jeopardy.    Tbe  policy  of  law  wfli 


Botiranad-  aotoeraiit  a  trustee  to  deal  in  that  loose  way  with  the  rand. 

^ioMlraUir  of 

•  deccawd  It  bocoues  a  distinct  appropriation  of  his  own,  and  not,  as 
mtZ  /which  in  the  other  case,  a  mere  acqaietcence  in  tbe  act  of  the  ii»- 
Slodi,M>dufk.  testate,  and  a  continaation  of  ancestral  confidence. 


SS^'Srh^  I  conclude,  tbeui  that  in  takiqg  tbe  account,  In  tbistese^  oC 
^^^^  tbe  asseu,  tbe  adnintsofators  ought  not  to  be  charged  with 
"*'*     ^*^  tbe  lott  sustained  on  the  moiety  of  the  goods  kftio  the  poe» 


!lM;^ifo  MSfton  of  Fay,  and  that  they  ought  to  be  chaiged  with  the 
thBiMt.  0^  doUars  and  76  cents,  put  in  wade  by  themselves. 

it  appean  from  the  answer  and  the  icbedules  aaneaed  le 
it,  that  the  defendanU  are  chargeable  with  assets  to  d»4ai 
dolkrs  and  3  cents,  and  that  they  have  duly  adaMuistevei 
of  the  same  to  2,465  dollars  and  96  cents^  which  leaves  a 
balance  to  be  accounted  for  of  062  doilan  and  7 
And  if  to  tins  balance  we  add  481  dollars,  tmt  tbe  i 
of  the  goods  in  store,  driivered  to  them  by  thesfaerii^  i 
50Qdollart  for  tbe  value  of  personal  property  on  hand  ^ 
sold,  the  balance  to  be  accounted  for  will  be  enlarged  to 
1,M3  dollars  and  7  cents. 

To  meet  this  balance,  they  will  not  be  entitled  !•  any 
credit  for  the  d6<  doUars  and  76  cents,  advanced  t»A^ 
and  lost ;  but  they  will  be  entitled  to  a  credit  tbeeeon  for 
debts  of  tbe  copartnership  of  £•  and  F^  asstmed  by  them 
prior  to  this  suit,  and  mentiened  in  their  answer,  aod  mt^ 
mated  therein  as  amounting  to  1,583  dollars  awd  IB  edits. 
If  these  sums  shoald  prove  to  be  correct,  they  would  then 
have  a  balance  in  hand  of  only  369  dollars  and  32  cents, 
to  answer  the  demand  of  the  plaintifi,  and  the  hood  of 
McQwigg ^hicb  is  mentioaed  in  the  answer* 

But  a  difficulty  arises  as  to  the'  proper  <Hrectioa  tcTfbe 
master,  in  respect  to  the  debts.  The  answer  stales,  that  Umk 
is  a  bond  creditor,  whose  debt  wotdd  greatly  eteeeil-the 


CMES  IK  CKUNCERY.  Ml 

Ufim^  SMI  the  Qi^i^r  b«  ^QoSnad  ta  wb«t  to  due  to  tbe 
iMntiAt  Of  iMV  1h»  abo  tdb»  «»  Mcwot  of  the  bond  d«b| 
of  JilpQt«^i  and  of  the  d^btft  of  all  the  other  creditors  of 
the  intestate?  The  Engtith  practice  teema  now  to  be  to 
djrect  the  master  **  to  take  an  account  of  what  was  doe  to 
the  plaiutiff,  and  la  aU  oiher  the  crediton  of  the  Uiiator  er 
i^extote,  and  that  the  master  cause  an  adveriUemmt  to  be 
published  in  the  Loudon  Oastette^  and  such  other  public  pa* 
pera^  as  he  mi^  think  proper»  for  the  onditors  to  eoeie  tn 
before;  lum  and  prove  their  debts  i  and  that  these  who  should 
DIM  come  in  and  prove  their  debts  by  a  peremptory  time  to 
be  b  V  him  fixed,  were  to  be  excluded  from  the  benefit  of  ihe 
decree^  and  that  those  persons^  not  parties  to  the  mt^  who 
ab<Hikl  come  in  before  the  masler  to  prove  their  debts,  were, 
before  they  should  be  admitted  creditors,  to  contribute  to 
liie  plaimtif  their  proportion  of  the  expense  of  the  suit,  to 
bo  tsettled  by  the  master,"  be.  There  are  very  important 
MoseqlueDoes  growmg  out  of  the  form  of  the  decree,  and 
whieh  may  subsequendy  affect  the.  rights  of  other  crediton 
uA  law,  and  the  whole  eoorae  of  adminisiration  of  the  assets. 
▲.credilDr  has  a  right  to  come  here  for  a  discovery  of  as- 
aelB^  TUsisasetded  aod  necessary  right.  When  here,  maAo'^iDto 
said  Uird  Uardwicke,  (2  dtk.  303.  3  ./ftJL  a&3.)  he  shall  ^r„.?r6»: 
Mt  be  turned  over  to  a  smt  at  law,  and  pot  to  that  expense.  ;;ilt'?^t?rrfo?a 
He  sbaB  be  decreed  satisfocUon  here  for  his  debt,  and  this,  dk^rilTJ^oo*^ 
wpon  Iho  ground  of  preventing  multiplicity  ef  suits.  But  '^'^^' 
ehcB  to  protect  the  executor  or  administrator  in  making 
Ant  aalisGietioo,  the  decree  must  be  maintained  as  equal  to 
a  jndgmeaH  at  law ;  aud  this  leads  to  much  interference  with 
the:  proceedings  of  creditors  at  law,  and  threatens  to  draw 
all  the  creditors^  and  the  entire  distribution  of  assets,  into 
this  court*  I  have  had  occasion  heretofore  (SVoAni .  Ch. 
B0p.  68,  59.)  to  express  my  apprehensiona  of  this  result ; 
anditherefove,  to  attain  all  the  information  that  may  be  want- 
ing on  iho  salgect^  I  have  looked  into  the  history  ud  pria- 
oipki  of  the  fingUsh  peactice^ 


CASES  IN  CHANCERY. 

ISao.  In  Joi^h  V.  Mott,  {Free,  m  Ck.  79.)  a  bond 

broQgfat  a  bin  against  an  executor  to  have  a  discovery  and 
account  of  the  personal  estate  of  the  testator,  rnid  a  tatufac^ 
,  turn  of  hit  debt  There  was  a  decree  by  de&ult  against  the 
executor,  for  an  account  and  satisfaction  out  of  the  assets. 
Before  the  decree  was  made  absolute,  another  bqnd  credi- 
tor sued  the  executor  at  law.  The  latter  appeared,  but  sa(- 
fered  judgment,  as  the  decree  could  not  be  pleaded  at  law, 
and  the  question  before  the  master  was,  whether  he  sho«hl 
allow  that  judgment  which  the  executor  had  brought  in  ; 
and  the  Master  of  the  RoUs,  afterwards  the  Lord  Chanod- 
lor,  held  that  the  decree  must  be  preferred. 

This  case  was  decided  as  early  as  1697,  by  Lord  Somen ; 
and  as  the  decree  was  prior,  in  point  of  time,  to  the  judg- 
ment, and  assuming  it  to  have  been  entided  to  the  charac- 
ter of  a  final  decree,  the  decision  was  undoubtedly  correct, 
and  it  is  now  the  undisputed  doctrine  of  the  Court 

The  next  case  to  be  nodced  is  Dargton  v.  The  Eati  of 
Offord,  in  170L    (Free  in  Ch.  188.    3  P.  fVmi.  401. 
Mote  F.,  S.  C.)    A  bond  creditor  filed  his  bill  for  disco- 
very of  assett  and  to  be  paid,  and  pending  the  suit,  after 
answer,   and  before  decree,  the  executor  voluntarily,  and 
without  suit,  paid  another  bond  creditor.    An  accouiit  waff 
afterwards  decreed,  and  the  question  was,  whether  the  exe- 
cutor should  be  allowed  that  payment,  in  the  account  to 
betaken.    The  Lord  Keeper  held,  that  the  payment,  was 
not  to  be  allowed,  it  bdng  pending  a  suit  hare,  which  was 
equivalent  to  an  action  at  law.    But  this  decree  was  after- 
wards reversed,  on  appeal,  and  the  voluntary  payment  al« 
lowed.    {CoUes^  Cases  in  Parliament^  229.)    The  doctrine 
then  stood,  that  pending  a  suit  in  chancery,  and  before  decreet- 
a  voluntary  payment  by  the  executor  to  another  creditor  in 
equal  degree,  would  be  good.    This  case  did  not  seem  ne- 
cessarily to  overthrow  the  case  of  Jonph  v.  Motif  though 
Lord  Keeper  Wright  thought  so,  for  the  point  there  was, 
whether  a  decree  prior  in  time  to  a  judgment^  shoul^  not  be 


CASES  IN  CHANCERY.  633 

pfefcrr^l  and  Lord  Tdbot  cited  the  case  of  Joteph  v.  Mott      1880. 
as  a  good  aulbority  to  that  point. 

The  ultimate  decision  on  appeal  in  Darstan  v.  Lord  Or- 
fordf  was  not  according  to  sound  priociplei  assunding  what    . 
is  now  settled,  that  Courts  of  Equity  have  concurrent  jurisdic- 
tion with  Courts  of  law  in  suits  against  executors,  and  that  a 
voluntary  payment  to  a  creditor,  in  equal  degree,  is  not  good 
after  action  brought,  though  a  voluntary  confession  otjudg- 
"  meni  to  another  creditor   is  good,  and  may   be  pleaded. 
Tn    Waring  v.   Danvers,  in   1775,  (1    P.    Wms.  295.)  it 
'  was  held,  that  if  a  bill  be  filed  by  a  simple  contract  credi- 
tor, against  ah  executor,  and  the  executor  thereupon  volun- 
tarily confesses  judgment  at  law  to  another  simple  contract 
'  creditor,  that  judgment  creditor  would  be  preferred. 

The  jurisdicUon  of  Chancery  over  the  distribution  of 
assets,  appears  by  these  cases  to  have  been  clearly  establish* 
ed  in  the  beginnrng  of  the  last  century,  and  the  only  difficul- 
ty was  to  reconcile  this  jurisdiction  with  the  toleration  of  a 
'  race  of  difigence  by  creditors  at  law.     But  in  the  course  of 
time, 'the  rights  of  parties  in  the  respective  Courts,  and  the 
course  of  proceeding  in  Chancery,  became  gradually  better 
understood  and  more  accurately  defined. 
*'  Itt  the  case,  of  the  creditors  of  Sir  Charles  Cox^  in  1734, 
(&  P.  Wm.  341 .)  Sir  Joseph  Jehfll,  the  Master  of  the  Rolls, 
'  thought  it  to  be  a  clear  point,  that  if  a  simple  contract  ere- 
"*ditor,  on  hehalfof  himself  and  the  rest  of  the  creditors^  brought 
^  a  bill  and  obtained  a  decree  for  him  and  the  rest  of  the  ere- 
iiiorsy  to  come  in  before  the  master  and  be  paid  their  debts, 
"  and  that  notice  be  given  in  the  gazette  for  that  purpose,  a 
*"  t)ond  creditor  coming  in  on  the  foot  of  that  decree  should 
^  bnly  be  paid |>ro  rata  with  the  simple  contract  creditors,^  for 
\&i  coming  in  implied  a  submission  to  the  decree.     He  was 
inclined  io  hold  further,  that  if  such  bond  creditor,  mVA  no* 
ytci  of  the  decree  and  of  the  advertisement^  should  lie  by  and 
'  sue  the  executor  at  law,  the  executor  and  the  simple  contract 
•  creditor  tt^ouU  have  an  equity  to  compel  hira  to  come  in 
-   Vbt.nr.  BO 


t&4^  CASES  IN  CHANCERY. 

182(K  and  take  only  his  rateable  proportion.  Thifi  was,  howjever, 
but  opinion,  and  no  part  of  his  judgment ;  and  on  the  decree 
^oran  account,  (3  P.  Jfm,  note  3.  p.  344.)  the  master  was 
directed  to  distinguish  between  the  legal  and  the  equitable 
assets,  and  that  such  as  were  legal  should  be  applied  in  a 
course  of  administration,  and  such  as  were  equitable,  shoold 
be  applied  pari  passu. 

According  to  this  case,  then,  a  creditor  who  did  not 
choose  to  come  in  under  the  decree,  was  not  obliged  to  give 
up  his  legal  preference,  as  a  specialty  creditor,  over  a  sinpk 
contract  creditor,  in  respect  to  his  claim  upon  the  legal  afl*- 
sets. 

In  Rohiruan  v.  Tonge,  in  1735,  (3  P.  Wms.  398.;  a  biH 
was  filed  by  bond  creditors  against  an  administrator,  aad 
the  usual  decree  was  made,  that  the  defendant  accoant,  and 
that  the  master  be  at  liberty  to  state  any  thing  specially. 
In  this  case,  it  was  insisted,  and  agreed  to  by  Lord  Talbot^ 
that  the  administrator  could  not  pay  a  bond  debt,  after  a  irill 
in  equity  brought  against  him  by  another  bond  creditor,  and 
notice,  as  the  bill  was  in  nature  of  an  action  oflaw^  in  which 
case,  the  administrator  would  not  be  permitted  (o  pay  the 
bond  creditor,  without  giving  him  a  judgment* 

This  opinion  of  Lord  Talbot  was  unquesiionably  sound 
in  principle;  yet  it  was  directly  against  the  decree  on 
appeal  in  Darston  v.  Lord  Orford,  and  may  be  considered 
as  reinstating  the  authority  of  the  decree  of  the  Lord  Keeper 
HI  that  case. 

The  great  case  of  Morris  v.  The  Bank  of  JBnfbnd,  in 
1736,  {Cases  limp.  Talbot.  218.  4Bro.P.  C.  287.  &  C.) 
established,  by  the  highest  authority,  that  decrees  in  Chan- 
cery were  equal  to  judgments  at  law,  and  entitled  to  tlie 
same  effect  in  the  distribution  of  assets.  In  that  case,  sone 
of  the  creditors  of  Morris  filed  a  bill  against  the  executrix, 
praying  for  payment.  She  confessed  the  bill,  and  tbe  de- 
cree was,  that  an  account  of  the  personal  assets  be  taken, 
and  that  those  debts  be  paid  in  a  course  of  cidminisiration. 


THOHPSOtf 


CASES  IN  CHANCERY.  630 

The  ezecotrix  paid  part  thereof  ander  the  decree,  and  other      1820. 
creditors  filed  another  bill|  which  was  also  confessed,  and  a 
decree  nade  that  the  execatrix  pay  what  was  to  be  certified 
by  the  master  to  be  doe,  in  a  course  of  administration.  She     fi»>ws. 
n^as  then  soed  at  law  by  several  simple  contract  creditors, 
and  among  others,  by  the  Bank  of  England.    All  those 
creditors  had  notice  of  the  decree,  and  that  the  assets  were 
Dot  sufficient  to  discharge  the  specialties,  and  that  a  consi- 
derable part  of  the  moneys  doe^  under  the  decrees,  were 
mpaid.    Ail  the  creditors  at  law,  except  the  bank,  took 
judgment  for  assets  defiUuro.    The  bank  took  issue  on  the 
plea  of  ifae  executrix,  and  went  to  trial,  and  obtained  a  judg-* 
ment,   subsequent  to  the  other  judgments.    She  then  filed 
ber  UU  against  the  several  creditors  by  decrees  and  judg- 
■leDts,  stating  all  the  facts,  and  that  she  could  not,  at  law, 
protect  herself,  under  those  decrees,  from  executions  on  the 
judgments.    Sir  Josq»h  JekyU^  the  Master  of  the  Rolls, 
directed  Ae  decree  creditors  to  be  first  paid,  as  being  prior 
in  time,  and  then  the  judgment  creditorsj  according  to  prio« 
rity,  md  then  the  other  creditors  to  be  paid  in  a  course  of 
administration;  and  the  judgment  creditors  were  enjoined 
from  proceeding  at  law,  for  so  much  of  the  assets  as  were 
covered  by  the  decrees.    On  appeal  to  Lord  Chancellor 
Talboty  he  affirmed  the  decree  at  the  Rolls,  and  specially 
liirected  that  the  master  take  an  account  of  what  was  due  to 
all    the    creditors,  and   of  the  assets   received  ;  that  the 
assets  were  then  to  be  applied,  in  the  first  place,  to  pay  the 
creditors    under  the  decrees,  according  to  priority,   the 
residue  of  the  assets  to  be  next  applied  to  pay  the  several 
judgmenu  according  to  their  respective  priorities,  and  if  any 
thing  should  remain,  then  to  pay  the  other  creditors  in  a 
course  of  administration  ;  and  the  defendants  who  had  ob- 
tained judgments  at  law,  or  who  had  not  yet  obtained  any 
judgment  or  decree,  were  enjinned  from  proceeding  at  law 
against  the  eocecutrix^  and  all  parties  were  to  be  paid  their 
costs  out  of  the  testator*s  personal  estate. 


6Sft  CASES  IN  CHANCERY. 

16^  The  Chaocellor  observedi  id  giving  his  opiaioa,  dnt 

Chaocery,  in  the  distribotion  of  legal  assets,  followed  the  rule 
of  law,  which  allowed  of  prefereDce  to  creditors  who  had 
Qsed  legal  diligence ;  and  that  that  Conrt  had  only  a  ood- 
current  jurisdiction  over  lboal  asieu  with  Courts  of  law  ; 
and  «s  such  preference  was  allowed  by  law,  there  woold  be 
great  confusion  in  the  administration  of  legal  assetSy  if  Chan- 
cery did  not,  in  general,  follow  the  same  rak.  If  decrees 
did  not  stand  upon  an  equal  footing  with  judgments,  and 
to  be  paid  indiscriminately  with  judgments,  according  as 
the  one  or  the  other  should  happen  to  be  prior  in  time^  the 
Court,  as  he  observed,  would  have  to  give  up  its  jnrisdie* 
tion. 
To  protect      This  case  then  settled  the  point,  that  a  decree  priar  in 

the     executor         •#••  •«  %        ^  •■■ 

or  adfflinistra-  poiut  of  time  to  a  judgment  was  to  be  first  paid ;  that 
T'c^oSS^tT^  judgment  creditors  at  law  would  be  injoined  firooi  incerfe- 
c^rt  it^iMid  ^^%  ^^^^  ^^^  priority,  and  that  wheo  they  were  broogbt 
a'^Judsl^Mi^  before  the  Court  of  Chancery,  the  distribotloB  would  be 
^?  decree  m&de  herewith  a  due  preservation  of  priorides;  and  that 
tea' judgmSS  **  ^°  Other  creditors,  they  were  to  be  paid  tii  a  cimne  of 
^i^andiu^^  AiImtnutra^D,  aod  which  I  understand  to  mean  according 
"^°^^5^^"  to  legal  priorities.  The  assets  were  not  altered  by  socha 
joioedfromfii.  decree,  but  r^mahied  l^al  assets  to  be  administered  accor* 

terfenne       at  " 

Uw  with  snch  diug  to  the  rule  of  law. 

crediton  will  This  decree,  upon  appeal  to  the  House  of  Lords,  was 
atrained  from  affirmed  J  but  it  wss  discussed  with  very  great  ability,  aad 
Taw%iei?joD  especially  by  the  counsel  for  the  appellants,  who  dwelt  upon 
filed 'in  thif  the  iuconveuience  of  allowiug  a  Voluntary  dccrec,  submitM 
judgmen*t°  ob^  ^  by  an  executof  in  favour  of  some  creditor,  to  be  a  saffi- 
Tlt^rJ^^,  cic°t  ground  for  drawing  all  the  other  creditors  and  the 
ucted**  iu^  entire  distribution  of  the  assets,  into  equity  ;  that  lh;s 
{moritjr.  would  expose  the  creditors  to  great  delay  and  expense,  as 

the  accounts  might  be  taken  and  the  demands  adjusted  be- 
fore any  payment,  and  the  whole  costs  of  the  litigation 
might  fall  upon  the  fund.  It  was  obser^'ed,  that  bills  by 
executors,  in  the  first  instance,  to  have  the  assets  broogbt 


CASES  IN  CHANCERY.  637 

into  equity  and  dblribmed  as  equitable  ass^,  bad  always      1890. 
been  r^ected. 

Tbe  case  of  Smith  v.  Eyles,  in  1742,  (2  Aik.  385.) 
brovgbt  the  subject  before  Lord  Hardmcke^  who  beld^  that 
a  decrae  for  an  account,  juod  ctmputet^  did  not  alter  the 
nature  of  the  demand  }  and  tbs|t  until  ^  final  decree,  an 
executor  might  confess  a  judgment  which  would  have  pri- 
ority, because,  until  then,  it  would  be  impossible  to  pro- 
nounce who  would  be  debtor  or  creditor;  and  the  same  doc- 
trine was  latdy  held  by  Lord  EUan,  in  Perry  v.  Phelps. 
(10  Fesey,  34.)  He  said  that  a  final  decree  upon  a  sum 
ascertained  was  equal  to  a  judgment ;  but  that  a  mere  de- 
cree for  an  accpunt  of  the  demand  of  the  creditor  and  of 
ihe  assets  ip  tbe  hands  of  the  executor,  with  a  mere  direc- 
tion, for  payment  out  of  the  result  of  that  account,  would 
not  prevent  tbe  executor  from  paying  a  judgment  Until  it  is 
ascertained  what  is  dne^  aad  a  report  and  an  ord<Hr  made  there- 
on to  pay  >' nan  transit  in  remjudicatam.  AH  the  decrees  ap* 
pealed  fnun  in  Morris  v.  The  Bank  of  England^  were  decrees 
ordering  psynent  of  sums  liquidated  by  statements  in  the 
bill,  andihe  admissions  of  the  answer,  and  were  considered 
in  .the  House  ofLo«dsas  final  decrees. 

TheonoojfMeui  case  in  3  Jitk.  £72.  is  too  brief  and  loose 
to  be  of  much  consequence ;  but  from  that  case  it  would  ap- 
pear, that  any  single  creditor  might  file  a  bill  against  the 
executor^  without  taking  notice  of  other  creditors,  and  the 
decree  would  be,  that  tlie  executor  acconnt  before  a  master, 
aud,payj  in  the  course  of  administration^  according  to  the 
l>rdert>f  legal  preference  of  the  debts,  to  be  by  him  exhibited 
to  the  master.  But  in  Martin  v.  Martin^  in  1748,  (1  Vesey 
211.)  Lord  Hardwicke  lays  down  more  precisely  the  prac- 
tice of  the  Court  in  the  aoalagous  case  of  the  heir  at  law. 
Actions  at  law  were  brought  by  several  bond  creditors 
against  the  heir,  and  a  bill  was  also  filed  against  the  heir^ 
by  other  bond  creditors,  on  behalf  of  themselves  and  the 
other  creditors^  to  have  satisfaction  out  of  the  real  and  per- 


^  CASES  IN  CHANCERY. 

1820.  tonal  assets.  Here  was  a  race  of  dUigeDce  by  different  sets 
of  creditors  in  the  diflereat  coocurreat  jurisdictions.  A  de- 
cree was  obtainedia  CimQcery  directing  an  account  of  tbe 

debu,  and  a  sale  of  ihe  real  assets  descended,  to  satisfy  dK>ae 

demands.  The  heir  then  filed  bis  biH  to  restrain  those 
bond  creditors  who  sued  at  law,  because  by  the  decree 
for  a  sale,  the  fund  was  taken  from  him.  The  Lord  Chan- 
cellor granted  the  injunction,  and  held  that  the  heir  or 
executor,  in  a  like  case,  had  no  relief  bat  by  iiijtuiclion»  to 
support  the  decreie  and  prevent  a  double  charge,  for  tkoagh 
the  decree  was  prior  in  time,  it  could  not  be  pleaded  at  law. 
The  decree  or  judgement  first  obtained  must  be  first  paid, 
and  if  the  decree  be  prior,  it  could  only  be  estabKsbed  by 
injunction.  But  he  observed,  that  unHt  a  deeree^  a  pro- 
ceeding by  different  creditorsin  difierent  suits,  in  law  and 
equity,  camot  be  stopped,  or  the  chanoe  of  gaining  priority 
prevented*  The  constant  course  of  the  Court,  on  a  decree 
for  sale  in  satisfaction  of  a  bond  creditor,  not  oidy  in  die 
case  where  it  was  on  behalf  of  himself  and  olfaen,  but  even 
where  the  IhU  was  for  satisfacHon  of  hu  oum  partieuUir 
de&^,  was  to  direct  an  account  of  all  the  boni  iAts  of  the 
ancestor^  mik  liberty  to  the  creditors  to  come  in  for  a  sdltr- 
faction.  He  saM,  no  decree  could  be  made  without  this 
liberty,  for  all  the  creditors  were  entitled  to  receive  satbfiic- 
tion,  and  might  otherwise  sue  at  law  and  proceed  agunst 
the  estate;  which,  after  the  decree  for  a  sale,  would  be 
mischievous. 

A  iiiit  by  ooe      Tbis  case  then  settles  the  rule,  that  in  a  suit  against  the 

creditor        a- 

gainst  an  heir,  heir,  aod  decree  for  a  sale,  it  enures  for  the  benefit  of  all  the 
for  the  sale  of  Creditors,  against  the  heir,  and  draws  the  entire  distribotioD 

the  assets  de-      ^  ,  i.  ■      •    .    .  •  .     ^ 

sceDded,  will  of  the  assets  of  the  heir  mto  this  Court. 
bCoefit  ^of  all  The  case  of  Douglass  v.  Chy^  in  1767,  (cited  in  1  Bro. 
and  draw  Te  184.  and  10  Vcscy^  40.)  was  decided  by  Lord  Camden^  epon 
tion'of'^themi  the  administration  of  personal  assets;  he  held,  that  until  a, 
ourt  j^p^^  ^^y  creditor  might  proceed  at  law,  but  after  the 
decree,  the  Court  considered  it  as  much  available  to  any 


CASES  IN  CHANCERY.  639 

creditor,  and  as  to  all  who  came  in,  as  if  all  had  obtdoed      1820. 

judgment.   A  decree,  thereibre,,at  the  suit  of  creditors  against 

an  executor,  for  an  account,  binds  ali  other  creditors,  and 

if  they  afterwards  sue  at  law,  the  Court  will  enjoin  them* 

Lord  Thurlowj  afterwards,  in  Brookt  v.  Reynoldsy  in  1782, 

(1  Bro.  183.)  declared  the  same  rule.    That  was  a  Ull  by 

traatees  against  the  heir,  executor,  and  legatees  >  and  the 

decree  directed  proper  accounts  to  be  taken,  and  the  peiv 

sonal  estate,  not  specifically  bequeathed,  to  be  applied  to 

pay  debts  and  legacies ;  and  if  not  sufficient,  any  creditor 

waa  at  liberty  to  apply  to  the  Court*    Here  was  no  special 

order  for  creditors  to  come  in.    Proceedings  were  had  UU'     j^^  .^  j,  ^ 

der  the  decree,  but  there  was  no  report ;  and  in  the  mean  SSnJ'^e'^! 

time  there  was  a  suit  at  law  by  a  creditor.     The  executor  n°I^{[i*^"**" 

iEUed  a  bill  to  stay  (hat  suit,  and  the  Chancellor  held  that  it 

made  no  difierence  though  creditors  were  not  ordered  to 

come  in,  nor  the  bill  filed  on  behalf  of  creditors,  for  they 

nught  come  in  before  the  Master,  and  as  the  Court  bad 

taken  the  fund  into  its  own  hands,  it  would,  not  permit  the 

executor  to  be  sued  at  law. 

These  two  cases  would  seem  to  settle  the  rule  in  the  case 
of  personal  assets,  as  much  as  that  before  Lord  Hardwicke 
did,  in  the  case  of  the  heir ;  and  they  consider  a  decree 
agiainst  an  etecutor,  as  enuring  equally  for  the  benefit  of 
all  the  creditors,  and  as  drawing  the  whole  administration 
of  the  personal  assets  into  this  Court 

The  case  of  Goate  v.  Fryer,  in  1789,  (2  Cox,  201.)  is 
much  to  the  same  purpose.  A  creditor  filed  a  bill  on  be- 
half of  himself  and  all  the  other  creditors  who  should  come 
in  and  contribute,  for  an  account  of  the  personal  estate  of 
the  intestate,  and  a  distribution  rateably  among  all  the  ere* 
ditors.  The  administrator  submitted  to  account,  and  a  de« 
d^  was  made  for  taking  an  account,  advertising  the  credi-* 
tors,  and  for  a  raieaUe  ditiribtaiofk.  The  administrator  was 
sued  at  law  before  filing  the  bill,  and  after  pleading,  and 
ifiinediately  after  the  decree,  filed  a  bill  for  an  injuncttoo. 


640  CASES  IN  CHANCERY. 

1820.  Lord  Thurlow  said,  it  was  now  the  settled  rule  of  the  Court, 
not  to  permit  any  creditor  to  proceed  at  law  against  an  ex- 
ecutor or  administrator^  after  a  decree  to  account^  and  for 
payment  of  aU  debts^  for  that  gives  every  creditor  who 
comes  in,  a  claim  equal  to  that  of  a  creditor  by  judgment  at 
law,  from  the  date  of  tlie  decree.  The  Court  only  supports 
a  decree  as  equal  in  point  of  rank  to  a  judgment,  and  then 
follows  the  rule  of  law  giving  preference  to  the  judgment.or 
decree,  prior  in  time.  Such  a  decree  was  considered  as 
taking  the  administration  of  the  whole  personal  estate  iato 
the  hands  of  the  Court,  and  that  all  subsequent  proceedings 
at  law  were  to  be  stayed.  The  injunction  was  granted,  bot 
as  the  suit  at  law  was  first  commenced,  the  creditor  was  al- 
lowed to  prove  his  costs  also  under  the  decree. 

The  following  case  of  Hardeastle  v.  Chetth,  in  1792, 
(4  Bro.  163.)  was  founded  upon  the  same  doctrine,  and  re- 
lated to  the  question  of  staying  suits  at  law.  It  was  the 
case  of  a  bill  by  a  creditor  on  behalf  of  himself  and  other 
creditors,  against  an  administrator,  for  an  account,  tic. 
The  usual  decree  was  rendered  for  taking  an  account,  and 
for  creditors  to  come  in  before  the  Master,  and  the  usual 
notice  was  inserted  in  the  gazette.  A  creditor  came  in  be- 
fore the  Master,  but  did  not  establish  his  debt,  and  after- 
wards sued  at  law  and  obtained  a  verdict.  A  motion  wms 
made  for  an  injunction  to  stay  the  entry  of  judgment 
The  Lords  Commissioners  granted  the  motion,  and  held, 
that  as  the  creditor  had  appeared  before  the  Master  to  prove 
his  debt,  he  had  so  far  become  a  party  to  the  suit,  as  to 
warrant  the  motion,  without  fling  a  new  biU. 

In  Rush  V.  HiggSj  in  1799,  (4  Vesejfj  638.)  an  executor 
who  had  been  sued  at  law,  and  in  which  suit  issue  had  been 
joined,  filed  his  bill  to  stay  that  suit  at  law,  and  prayed  br 
the  direction  of  the  Court  as  to  his  administration.  His 
counsel  endeavoured  to  support  the  injunction,  contrary  to 
the  received  doctrine,  that  it  was  previously  necessary  that 
there  should  be  a  decree  for  an  accoqnt  at  tlie  instai|c&of  a 


CASES  IN  CHANCERY.  641 

oreditor)  knd  that  the  executor  cannot  come  in  voluntarily 
and  file  a  bill  against  all  the  creditors.  But  Lord  Loughs 
ierofggh  said,  that  there  was  no  instance  in  which  a  creditor 
at  law  bad  been  stopped,  unless  there  was  a  decree  under 
which  he  eould  came  in  ;  and  he  said  further,  tiiat  the  execu- 
tor could  not  file  a  bill  against  all  the  creditors.  This 
would  be  to  cast  off  at  once  upon  the  Court,  the  whole  bur- 
den of  his  administration. 

The  subject  was  brought  into  discussion  before  Lord  EU 
iott^'m  Paxion  v.  Douglass^  in  1803.  (8  Vesey,  520.)  Here 
was  a  decree  for  an  account  against  an  administrator,  and  a 
motion  was  then  made  on  his  part,  for  an  injunction,  to  re- 
strain a  creditor  at  law,  and  it  was  considered,  on  that  side^ 
as  a  motion  almost  of  course.  The  objection  was,  that 
there  ought  to  have  been  a  bill  filed  against  the  creditor,  to 
sustain  the  motion.  Lord  Eldon  said,  that  it  was  well 
settled,  that  a  decree  for  administration  of  assets,  was  a  de- 
cree, in  nature  of  a  judgment  for  aU  creditors  ;  and  that 
since  Lord  Hardvncke*s  time,  the  Court  had  been  in  tbe 
habit  of  enjoining  any  creditor,  for  that  purpose.  The  re- 
cent practice  introduced  by  Lord  Rosslyn.  had  been  to 
grant  the  injunction  without  a  new  bill,  on  the  conve- 
nient ground,  that  the  creditor  might  come  in  before  the 
iMaster  upon  the  foot  of  the  decree,  without  a  bill,  as  the  de- 
cree was  for  him;  and  it  seemed  reasonable,  in  order  to  save 
expense,  that  the  executor,  when  sued,  giving  notice  to  the 
creditor,  should  be  able  to  bring  him  in.  The  decree  was 
in  the  nature  of  a  judgment  for  all  creditors,  and  as  it  can* 
not  be  pleaded  at  law,  the  jurisdiction  must  be  given  up,  if  it 
did  not  stop  all  proceedings,  and  all  further  costs  at  law,  af' 
ter  notice  of  the  decree,  to  be  given  by  the  party  seeking  to 
restrain  the  creditor. 

Tbe  Lord  Chancellor  refused* to  grant  the  injunction, 
without  an  affidavit  of  the  executor,  as  to  the  assets  on  hand; 
and  the  practice  was  adopted  to  pfevent  the  abuse  of  bills 

Vol.  IV.  81 


^  OASES  m  cfi  ANceaf • 

1820.  behig  Sled  by  tat  (Hendiy «redil0r,  hi  ccilQakili  friiblltf  CB** 
ecutor,  and  a  decree  IWha  being  <*  snapped/'  m  Lend  Ei- 
d&n  expressed  it,  by  a  solicitor  who  was  eoDcerMd  ibr  sdl 
.  pardes,  and  an  injuncdoo  procored,  and  then  no  money 
was  to  be  fbinid  widi  the  eiecator,  while  the  creditor  at  hnr 
had  thus  lost  the  opportnmty  to  fix  bSm. 

Lord  Redesdale  had  occasion  to  declare  the  eenrse  a^ 
the  English  practice,  aod  the  rules  of  equity  on  dm  sabjed^ 
in  the  case  of  Largen  v.  Botven.  ( 1  Seh.  8f  Lrf,  296.)  He 
said,  that  if  a  creditor  at  law  can  obtain  judgment  before  a 
decree,  he  will  have  obtained,  and  will  be  protected  to  his 
priority ;  and  that  Chancery  would  not  restrain  creditors  at 
law  against  executors,  merely  on  a  hilt  fled  by  other  €f#» 
ditors.  But  when  a  decree  is  obtained,  the  Court  proeeais 
on  the  ground,  that  the  decree  i»  ajud^ent  infainmr  of  M 
the  creditorSy  and  that  all  ought  to  be  paid  according  to  their 
priorities  as  they  then  stand ;  and  the  Court  could  not  exe- 
cute ite  own  decree,  if  it  permitted  Courts  of  Itt^  to  ahet 
the  course  of  payment 

The  practice  in  Paxton  v.  Dougla^Sf  was  afterwardk  re- 
cognized in  CHlpinv.  Lady  Sovihampion.  (18  Vetty^  469.) 
It  was  the  case  of  a  bill  by  a  creditor  against  an  administra* 
tor*  The  usual  decree  was  obtained,  and  on  a  motion  for  an 
injunction.  Lord  Eldon  said,  that  where  the  answer  did 
not  state  what  the  assets  were,  the  executor  most  state  them 
by  alEEdavit,  before  an  injunction  would  be  granted,  to  re^ 
strain  a  creditor  from  proceeding  at  law.  He  observed, 
that  these  suits  were  generally  by  the  executor,  in  the  name 
of  a  creditor ;  the  object  was  to  give  a  judgment  to  oB 
the  creditors^  and  to  secure  a  distribution  of  the  assets,  with- 
out preference  to  any,  and  that  where  once  a  decree  wa» 
made,  it  was  impossible  to  permit  a  creditor  to  go  on 
at  law*  To  close  this  part  of  the  inquiry,  1  shall  oqly 
refer' to  the  case  of  Dyer  v.  Kearsley^  in  1816.  (2  Meri-^ 
vo/e,  482.  note.^)    The  motion  there^was  by  theplajoti^t 


CM0BS  IN  CHANCBRT.  64> 

tht  cMilCMT  vJb  bad  ^obtaoiicd  tbeimal  dtcree,  wd  iben  w  ieao» 
aOicvi  at  kw  by  «noiber  credalor,  and  a  Judgment  by  de- 
buiu  Tbft  molioa  was  to  netttaio  execution  at  law,  and  it 
«M.graojted  upoo  the  usual  affidavit  of  tbe  executor,  as  to 
Ibe  stale  of  the  funds,  and  with  a  declaration  that  the  plain- 
tiff at  law  was  entitled  lo  his  costs  up  to  the  time  when  he 
(lad  notice  of  thedecree^  to  be  paid  out  of  the  assets. 
.  We  now  perceive,  that  tbe  observation  of  Sir  James 
JUhn^idd^  in  1  Camjpb.  Ji.  P.  148.,  was  founded  on  the 
best  authority,  when  he  said,  that  the  creditors  of  a  deceased 
wolvent  might  always  be  compelled,  through  the  medium 
of  a  C!ourt  of  equity,  to  take  an  equal  distribution  of  as* 
•els,  without  preference  to  any ;  and  that  it  was  only  neces- 
sary for  a  friendly  bill  tobe  filed  against  the eiLecutor  or  ad- 
HHnistrator,  to  account,  aft^  which  (that  is^  after  the  de- 
cree,) the  Chancellor  would  enjoin  any  of  the  creditors 
ftom  proceeding  at  law. 

The  doctrine,  then,  as  finally  setded  in  the  English  Chan-  The  decree, 
eery,  is,  that  upon  the  usual  decree  to  account,  in  a  suit  by  Tv^t^^J^n- 
pne  or  more  creditors  against  the  executor,  either  singly  for  fjj  hiiwdfl  w 
themselves,  or  specially  on  behalf  of  themselves  and  all  ^[^^'iJ^di^ 
other  creditors,  (for  it  makes  no  difierence,)  the  decree  is  SSm^forthe 
for  the  benefit  of  all  the  creditors,  and  in  the  nature  of  a  i^P^^u  **^*'''» 

'  IS  in  the  nature 

judgment  for  all ;  and  all  are  entitled,  and  are  to  have  notice  ^^«  J",^®°! 
to  come  in  and  prove  their  debts  before  the  Master ;  and  •ii  ^«  credit- 

*  'on  are    eati* 

that  from  the  date  of  such  decree,  an  injunction  will  be  tied,  and 

«  1        t.     t  j>  .  .         "hould      hare 

granted,  upon  a  due  disclosure  of  assets,  upon  the  motion  notice  to  come 

of  either  party,  to  stay  all  proceedings  of  any  of  the  credit-  their  de£'be^ 

ors  at  law.    The  establishment  of  this  doctrine,  and  prac-  ter;  and  from 

tice,  is  to  be  traced  back  to  the  decisions  of  Lord  Hard-  decree,  uid  on 

tdcJce,  Lord  Camden^  and  Lord  ThurloWj  though  the  prac-  of  aneti^'^ 

M  ,  ,.  ...  .Ml     injunction  wiU 

tice  of  staying  proceedings,  on  motion,  without  a  new  bill,  be  g^ranted,  oq 

and  of  requiring  a  disclosure  of  assets  to  prevent  abuse,  is  ther  partj,  % 

of  more  recent  date.    The*  usual  decree  for  an  account,  or  ceed/ngg  ^"^ 

quod  computet^  is  sufficient  to  warrant  the  interference  with  ui^.  ^"'    ^ 
proceedings  at  law ;  and  it  is  not  necessary,  as  Lord  Thur- 


CASES  IN  CHANCERY. 

law  obsemd,  in  Kenyan  v.  Wcrikingtan,  (cited  io  10  Fe- 
#ey,40.j  that  the  decree  thoold  be  final,  tbongh,  a«  welwve 
seen,  it  is  the  find  dwaee  only  npon  a  snm  ascertained,  that 
is  equal  to  a  jodgment,  and  entitled  to  a  preference  in  pay- 
ment, if  prior  in  time. 

It  wonld  rather  appear,  that  the  doctrine  of  Lord  flfarrf* 
toidfce  and  his  raccessors,  was  only  a  necessary  conscqaenoe 
of  the  principles  long  before  recognized,  that  Chancery 
had  concurrent  jurisdiction  in  the  case,  and  that  final  de- 
crees were  to  be  protected  as  equal  to  judgments.    The 
latter  practice  became  indispensable  to  support  the  acknow- 
ledged jurisdiction,  inasmuch  as  the  executor  could  not 
plead  the  decree  in  bar  of  a  suit  at  law,  and  he  wonld, 
therefore,  have  been  exposed  to  a  double  charge.    We  have 
seen,  that  that  great  roan  and  able  lawyer.  Sir  Jo$qfh  Jtr 
kyUj  near  a  century  ago,  perceived  the  necessity,  and  ex- 
pressed a  strong  opinion  in  favour  of  the  rules  and  course 
of  proceeding  which  prevail  at  this  day.    The  only  mate- 
rial variation  between  the  former  and  the  latter  doctrine,  is 
in  respect  to  the  distribution  of  the  assets.    Formerly,  the 
decree  seemed  to  be  considered,  judging  from  the  mora 
loose  language  of  the  cases,  as  a  lien  in  favour  only  of  the 
particular  creditor  who  filed  the  bill ;  and  creditors  who  were 
not  parties  to  the  suit,  and  were  not  judgment  creditors, 
were  to  be  pud  out  of  the  residue  of  the  assets,  in  the 
course  of  administration,  which  would  give  specialty  cr^ 
ditors  a  preference  over  simple  contract  creditors.    But 
now,  according  to  opinions  to  be  deduced,  as  I  apprehend, 
from  the  time  tif  Lord   Camden^  they  would  all  be  paid 
rateably,  after  the  judgment  creditors  were  satisfied;  and  this 
not  only  on  the  general  rale  of  equality,  when  equity  db* 
tributes  the  fund,  but  also  on  the  ground,  that  the  usual  de- 
cree to  account,  and  allowing  all  the  creditors  to  come  in, 
rendered  the  decree  in  the  natore  of  a  judgment  infavatft 

of  da. 


CASES  IN  CHANCERY.  MB 

Upoo  the  wliole,  I  consider  myself  boaod  by  tlMSft  doc-  1830. 
trines  aad  rafes  which  are  to  be  deduced  from  this  review  of 
the  cases,  and  which  have  been  the  settled  law  of  the  £ng* 
Ksh  Chancery,  for  perhaps  half  a  centary.  There  has  been 
no  alteration  in  doctrine  since,  and  only  some  improvements 
in  the  practice.  The  law  of  the  Court,  as  it  is  now  under* 
stood,  seems  to  rest  upon  the  clearest  principles  of  justice, 
and  it  is  not  destitute  of  strong  support  in  public  conve-* 
nience  and  commercial  policy. 

Bnc  to  return  to  the  further  examination  of  the  case  be- 
fore me:  another  olgectof  the  bill  is  to  have  the  real  estate^ 
descended  to  the  infant  heirs  of  Brown,  sold  for  the  pay« 
meat  of  the  plaintiff^s  debt. 

The  administrators  deny  that  they  have  interfered  with 
the  rents  aad  profits  of  the  real  estate ;  and  the  defendant, 
Elizabeth  Browrij  admits,  that  she,  under  her  claim  of  dow- 
er^uid  as  mother  of  the  children,  has  received  the  rents 
and  profits,  and  expended  them  in  the  necessary  mainte- 
nance of  the  infants.'   I  am  not  disposed  to  call  the  mother 
to  -account  for  rents  aod  profits  so  received  and  expended. 
There  was  a  good  deal  of  doubt  expressed  in  the  old  cases, 
{March  v.  Bennett,  1  Fern.  428.     WaterMy.  MraU,  2  Fern. 
606.     Chaplin  v.  Chaplin,  3  P.  Wm.  365.)  as  to  the  duty     The  widow 
of  the  guardian  to  apply  the  rents  and  profits  of  the  real  tntrii,   who* 
estate  to  pay  the  bond  creditors  of  the  ancestor.    The  cium  of  dow- 
guardian  certainly  ought  not  to  be  answerable  for  rents  and  guardian    to 
profits  applied  for  the  support  of  the  infants,  prior  to  any  had  recei?"^ 
due  notice  or  application  from  the  creditor.    But  the  case  profitT^of  the 
of  Martin  v.  Martin,  already  cited,  shows,  that  the  credit-  li!^  exp^de^ 
ors  may,  by  bill,  obtain  a  decree  for  an  account  of  the  ^?mJ^  ^ 
debts  chargeable  upon  the  real  assets  descended,  and  for  the  ?f''''£r"dSi]. 
sale  of  them  to  satisfy  the  debts.    In  Lowthian  v.  flcv-  tSd'''^  m! 
eel,  (4  Bro.  167.)  a  bill  was  filed  by  creditors  against  the  ditor!*Sh  wTi 
devisee,  for  sale  and  distribuUon  of  the  real  estate.    The  hif  anT'S^ 
decree  in  that  case  was,  that  the  Master  take  an  account  of  acc^unf^  a^S 
the  rents  and  profits  of  the  real  estate,  and  the  estate  was  ^e  as^lil^d^f 

scended. 


V. 


CASS8  nr  cHtfroniT* 

1620.      oidMredtobeioU,  ftodtbeMoiieyt  ^rbiog  AMi'te 

aod  on  the  aecoaot  of  ihe  raiii  wd  profili,  to  be  9^fflM  ^ 
make  good  ibe  deficieney  of  the  fcnooal  eslate.    In  the 
^^"^       present  case,  it  would  fioem  to  be  piemalure  to  lake  my  or- 
Creditort  maj  der  foT  the  Safe  of  the  real  estate,  amil  the  amoMC  of  ^ 

file  a    bill   a-.  ..•^.  «.  «  ^ 

gainst  hein  debts,  aod  the  defictency  of  the  personal  estate,  are  first  aa- 
for  taie'^j  certaioed.  I  shall,  therefore,  make  what,  under  the  caaea 
the  real  estate,  which  have  been  examined,  may  he  called  the  umal  decree^ 

in  case  the  per*  ,  ■  •  j» 

■oaai  estate  to  take  an  account  of  the  debts  and  personal  assets,  and  for 
ci^  And  it  rateable  distribution,  subject  to  preference  of  jodgueot  ere- 
to'^ac^'^l!^  ditors ;  and  I  shall  include  in  it  a  direction  to 


are  in&Btk  "  amouut  of  the  real  estate,  and  of  the  incumbrances  tliereod, 
and  reserve  all  further  directions  as  to  the  real  estate.  The 
right  of  application  to  stay  proceedings  at  law,  either  in 
respect  to  the  personal'or  real  estate,  will,  of  course,  be  left 
open. 

I  have  not  considered  it  as  any  olgection  to  a  sale  of -the 
real  estate,  that  the  heirs  are  infants.  In  Pope  v.  Ot^yn^ 
(8  Fieigr,  28.  note,)  the  heir  was  an  infant  at  the  time  of 
filing  the  bill,  and  at  the  decree,  directing  a  sale  of  the  real 
•state  to  pay  creditors  of  the  testator ;  and  the  infant  9^ 
fendants  in  that  case,  who  were  co-heiresses  at  law,  Were 
ordered  to  convey,  on  coming  of  age,  unless  they  sbooM 
show  cause  to  the  contrary.  The  form  of  the  dectee  Is 
given  in  the  note  of  that  case ;  aod  it  must  have  been  cond- 
dered,  as  It  was  a  point  in  the  case,  that  the  parol  should  not 
demur,  and  so  it  was  determined  in  Hargrove  v.  Tyndid. 
(1  JJro.  136.  note.)  The  statute  for  the  reUef  of  cre£iort 
against  heirs  and  devisees^  makes  provision,  that  in  suits  at 
law  against  the  infant  heir  or  devisee,  the  remedy  shall  not 
be  suspended  by  reason  of  nonage;  and  the  equity  of  that 
provision  applies  to  this  Court. 

Deem.  rpjj^  following  decree  was  entered  : 

^  OfiDSBED,  that  it  be  referred  to  one  of  the  Masters,  &c. 


CJOSB  in  OHAKCfiar.  649| 


M'  idtf  «id  fiBle  aa  aocoBot  of  what  may  be  doe  to  tlic      ISaOi 
plaitttift  apoa  tbeir  demaady  slated  id  the  bUl,  and  to  all 
94|ier  ike  credilon  of  the  intestale  from  bimi  at  the  time 
of  bis  deadif  eitber  in  bis  andhridaal  character,  or  as  a  part- 
atr  of  tbe  house  of  B.  fy  F*,  in  the  pleadings  mentioned ; 
aad  whether  by  jadgenent,  laortgage,  or  otherwise ;  and 
the.  Matter  is  to  canse  reasonable  notice  to  be  giveo^  in  bb 
ditcrelioDy  either  personally^  or  inserted  in  such  public  pa- 
par  or  papers  as  be  may  deem  proper,  for  the  said  creditors 
to^come  in  before  him  and  prove  their  debts ;  and  he  shall 
fis  aperemptoi^  day  for  that  purpose,  and  snch  of  them 
who  shaU  not  come  in  and  prove  their  debts  by  tbe  time  so 
;to  be  limited,  shall  be  ezcladed  from  tbe  benefit  of  this  decree; 
and  soeb  persons,  not  parties  to  this  suit,  who  shall  come  in 
before  the  said  Master  to  prove  their  debts,  are,  before  tbe^ 
be  admitted  creditors,  to  contribute  to  the  plaintiffs  their 
proportion  of  the  expenses  of  this  suit,  to  be  setded  by  the 
smd  Master.    And  it  t»  further  arderedy  that  tbe  Master 
take  an  account  of  the  personal  estate  of  the  intestate, 
which  bath  come  to  tbe  hands  of  the  defendants,  (adminis- 
trators,) or  to  the  hands  of  any  other  person,  by  their  order, 
or  for  their  use.    And  it  is  hareby  ordered,  by  way  of  spe- 
cial directions  to  the  said  Master,  that  in  taking  soeb  ac- 
count, the  administrators  be  not  charged  with   any  loss 
sustained  by  the  act  of  the  defendant  F.,   on  the  undi- 
vided moiety   belonging  to  the  intestate,   of  the  goods, 
chattels,  and  crediu  of  the  said  firm  of  B.  fy  F.,  in  posi- 
session  of  F.,  by    the  administrators,  and    which    undi- 
vided   moiety  is  stated  in  their  answer,  to   have    been 
of  the  value  of  3,601  dollars  and  45  cents,    And  it  it 
further  ordered^  that  tbe  administrators   be  charged   with 
the  amount,  without  interest,  of  assets,  being  in  money  and 
stock,  or  chattels,  and  amounting  to  665  dollars  and  76 
cents,  and  put  into  the  possession  of  iP.  by  them,  as  part  of 
th$  partnership  stock  between  them ;  and  that  they  likewise 
be  charged  with  the  amount  in  value  of  goods  received  by 


648  CASES  IN  CHANCERT. 

1820.  ihein  upon  the  insolvency  of  F.  from  the  said  partaerBl^ 
•tock,  and  stated  by  them  to  be  of  the  value  of  491  doHars ) 
and  that  they  likewise  be  charged  with  the  amount  in  value 
of  assets  admitted  to  be  in  hand  nnsoldi  and  stated  by  them 
to  be  of  the  valoe  of  500  doHars ;  and  that  they  be  charged 
with  moneys  recaved  from  the  debts  of  the  continoed  part- 
nership formed  between  them  and  the  said  F.,  and  stated  by 
them  to  amount  to  269  dollars.  Jlnd  it  it  Jvrtker  ordered^ 
that  they  be  credited  with  the  debts  of  the  partnership  of  S. 
^  F.f  for  which  they  have  made  themselves  personally  lia- 
ble, as  and  for  so  much  money  paid  by  them  in  a  course  of 
administration,  and  which  said  debto,  with  the  interest  and 
costs  thereon,  are  estimated  by  them  to  amount  to  1,583 
dollars  and  75  cents.  And  itii  further  arderedf  in  addition 
to  these  special  directions,  that  the  administrators  be  char- 
ged with  all  other  assets  which  may  have  come  to  their  hands, 
or  to  the  hands  of  any  other  person  for  their  use,  and  be 
credited  with  all  other  payments  and  dispositions  thereof,  by 
them  made  in  a  due  course  of  administration.  Jlnd  it  tit 
further  orderedj  ihzt  the  said  Master  make  all  just  allowan- 
ces to  the  said  administrators  for  costs  and  expenses,  but 
that  no  allowance  be  made,  under  the  special  drcumstances 
of  this  case,  by  way  of  ^compensation  for  their  time  and 
trouble.  And  it  is  Jurthe/-.  ordered,  that  the  said  Master 
also  state  an  account  of  the  location,  quantity,  and  value 
of  the  real  estate  of  the  intestate,  whereof  he  died  seized,  and 
of  the  amount  of  the  incumbrances  thereon;  that  the 
Master  report  in  the  premises  with  all  convenient  speed,  and 
that  he  report  specially  on  any  point,  or  apply  for  further 
directions,  if  he  should  deem  it  proper.  And  it  ie  furAer 
wrdertd  and  dedaredj  that  the  balance  of  the"  said  personal 
estate  that  'shall,  upon  such  accounting,  be  found  to  be  re- 
maining in  the  hands  of  the  administrators  unadministered, 
be  applied,  in  the  first  place,  to  pay  and  satisfy  judgment 
debts  against  tiie  said  estate,  according  to  their  respective 
priorities  in  point  of  time ;  and  if  any  assets  shall  then  remain 


CAS£S  m  CHANClBRY.  64» 

unadmuiiitered,  that  tlie  same  be  applied  to  pay  the  plilintiiTS)  1880. 
aod  all  other  creditors,  if  any,  who  shall  have  cdme  In  uti* 
der  this  decree,  and  proved  their  debu  before  the  said  mas* 
ter^  sum!  if  not  sofficient  to  pay  all  of  them,  indading  their 
eostSy  then  in  rateable  proportions,  according  to  Iheir  re* 
speoUve  amounts,  and  without  any  preferences,  or  regard  to 
legal  priorities,  ^nd  U  is  further  ordered^  that  if  any  pro* 
portion  of  the  debts,  and  the  costs  and  charges  thereon,  shall 
still  remain  unsatisfied,  the  plaintifis,  or  any  other  of  tb6 
creditors  who  shall  have  so  come  in  under  this  decree,  shall 
be  at  liberty  to  apply  to  this  Court,  on  the  foot  of  this  de- 
cree, for  a  sale  of  the  real  estate  of  the  intestate;  and  that  the 
proceeds  arising  from  such  sale,  be  applied  to  satisfy  th^ 
proportions  of  debts  that  shall  remain  due,  but  that  all  legal 
incumbrances  upon  such  real  estate  shall  have  preference. 
Andtit  u further  dedaredy  that  the  right  of  application  on  tb^ 
part  of  either  of  the  parties  to  this  suit,  for  an  injunction,  if 
requisite,  to  stay  proceedings  on  the  part  of  any  creditor  at 
law,  either  in  respect  to  the  persorial  or  real  estate,  or  to 
stay  proceedings  on  any  mortgage  upon  the  said  real  estate^ 
is  left  open.  And  all  other  and  further  directions  and  qoes'* 
.  tions  are  reserved." 


Hallock  against  Shith  and  WiLLiiuiisoir. 

A  re-examination  of  witneases  is  not  of  coarse,  but  only  on  special 
application  to  the  Court,  and  on  sufficient  cause  shovB,  by  affidavit, 
or  otlienrise,  according  to  circumstances. 

<Hi  a  biU  to  foreclose  a  mortgage,  the  mortg^agor  whose  equity  of  re* 
demption  bad  been  sold  by  the  sheriff  an  Jer  an  execution,  at  law, 
must  be  made  a  party ;  as  he  has,  by  the  act  of  the  12th  of  ^prUf 
1820,  (sess.  43.  ch.  184.)  one  year  from  the  sale,  to  redeem  the 
land  from  the  purchd^se,  and,  therefore,  an  ejdsting  right  of  which 
he  cannot  be  devested  within  the  year. 

BILL  to  foreclose  a  mortgage.    The  defendants  were 
purchasers,  under  a  sale  on  execution  at  law,  since  the  ^rsl 
Vol.  IV.  82 


Jkeembtrdth. 


650  CASES  IN  CHANCERY. 

182Q.  dfty  of  May  last,  of  the  mortgagor's  equity  of  redeiiiption 
ID  the  mortgaged  premises,  and  received  the  sheriff's  certi- 
ficate of  the  sale  and  purchase,  in  pursuance  of  the  act,  en- 
,  titled,  *^  an  act  in  addition  to  the  act  concerning  judgments 
and  executions,"  passed  the  12tb  of  April,  1820.  The  mort- 
gagor, who,  by  that  act,  has  one  year  from  the  sale  to  re- 
deem the  land  from  the  purchaser,  was  not  made  a  party 
•to  the  suit*  Issue  ^ras  joined,  and  proof  taken  on  both 
sides,  and  the  cause  regularly  set  down  for  hearing. 

&  B.  Sirongj  for  the  defendants,  moved  for  a  re-exami- 
nation of  two  of  the  witnesses,  who  had  been  examined  in 
chief  and  cross-examined,  on  doe  notice  of  the  motion,  and 
"On  the  alleged  ground  of  the  insufficiency  of  their  answers 
to  some  of  the  interrogatories.  It  was  also  objected,  on 
the  part  of  the  defendants,  that  the  mortgagor  ought*to  have 
been  made  a  party,  or  that  his  deposition  (which  was  sup- 
pressed on  the  ground  of  his  interest  in. the  cause,  as  the 
defendants  had  set  up  fraud  in  the  execution  of  the  mort- 
gage, and  that  the  same  was  given  without  consideration) 
be  read. 

G,  W.  Strongj  for  the  plaintiff. 

The  Chancelloe  said,  that  a  re-examination  was  not 
of  course,  but  at  the  discretion  of  the  Court,  on  special 
Bpjllication;  and  that  in  this  case,  the  truth,  as  to  the  essen* 
tial  matters  in  issue,  as  far  as  it  depended  upon  the  exami- 
'  nation  of  those  witnesses,  did  not  appear  to  require  a  fur^ 
tlier  examination.  The  22d  rule  of  this  Court  declares, 
that«  witness  shall  not  be  re-examined,  but  upon  sufficient 
«ause  shown  by  affidavit  or  otherwise,  according  to  cinnim- 
stances.  (Vide  also,  Lord  Bawn^s  rale,  n.  74.  17  iPeny, 
434.  1  Johru.  Ch.  Rep.  140.)  The  motion  was,  diere^ 
fore  denied.  But  the  olyection,  that  the  mortgagor  was  not 
a  party,  was  wdl  taken%    He  was  entitled,  within  one  year 


CASES  IN  CHANCERT.  651 

from  the  sale,  to  redeem  his  interest  in  the  mortgaged  pre-  1890. 
misesy  from  the  purchasers  under  the  ezecatioo,  and,  conse- 
qaendy,  he  had  an  existing  right  (of  which  he  was  not  de- 
vested, within  the  year,  by  tliesale,  and  conld  only  be  by 
foreclosure  here,)  to  unite  with  that  redemption,  a  redemption 
also  of  the  premises  from  the  mortgage  incumbrance. 

It  was,  accordingly,  ordued,  ''  that  the  cause  stand 
over,  with  liberty  to  the  plaintiff  to  amend  his  bill  by 
making  the  said  mortgagor  a  party  thereto,  or  otherwise,  as 
he  shall  be  advised." 


BxNSON  and  others,  Executors  of  Rutobbs,  agai$ut  Ls 
Ror  and  others* 

Where  a  testator  devised]  all  his  estate,  real  and  personal,  to  four 
trustees,  three  of  whom  were  his  executors,  ia  fee,  in  tmst^  to  pay 
his  dehts,  and  then  to  distribute  the  residue :  Heldy  that  by  the 
trustj  the  assets  were  placed  under  the  jurisdiction  of  this  Court. 

The  statute,  jef«.  36.  dL  93.  (1 JV.  R,  L.  316.)  does  not  interfere  with 
the  doctrine  of  equitable  assets,  by  which  all  the  creditors  are  to 
be  paid  equally,  pari  paatu  ;  for  the  omission  of  the  4th  section,  or 
proviso  of  the  EugHsh  statute,  (3  H^.  &  JIf  •  c.  14.)  which  excepted 

.  devises  of  lands  for  the  payment  of  debts,  does  not  [vary  its  con^i 
structiou. 

The  Court  will,  therefore,  in  such  case,  enjoin  a  suit  brought  by  a 
creditor,  at  law,  for  the  purpose  of  gaining:  a  preference  over  the 
other  creditors. 

THE  plaintiffs,  JE^frer^JSen^on,  Charle$  MEven,  mdRoB-  D^- 1^* 
well  L.  Coltf  executors  of  Antkom/  IZtt^gers,  deceased,  in  behalf 
of  themselves  and  other  creditors  of  Jacob  Le  Roy,  deceas- 
ed, who  should  come  in  and  contribute  to  the  expense  of  the 
suit,  filed  their  orijftno/  biU,  on  the  14th  of  Aboemier,  1813, 


652  CASES  IN  CHANCERY. 

laao.  againit  Ptier  A.  Jay,  administrator,  with  the  will  annexed, 
of  Jacob  Lt  Roffj  deceased,  Martha  Lt  Roy,  widow,  and 
Harriet,  Goldsbrow,  Mary  and  Comdia,  children  of  the 
stid  /.  Le  Roy,  and  Campbell  P.  White,  for  an  account  of 
the  real  and  personal  estate  of  the  said  /.  Le  Roy,  and  for 
a  sale  of  the  real  estate,  and  praying  that  out  of  the  moneys 
thence  arising,  the  plaintiffs,  and  the  other  creditors,  who 
should  come  in,  Stc.  might  be  paid  their  several  debts,  with 
interest  and  costs,  and  that  all  proper  parties  might  join  in 
the  sale  of  the  real  estate.  The  original  bill,  also,  set  forth 
the  substance  of  the  will  of  J.  Le  Roy,  by  which  he  devised 
in  fee,  to  Herman  Le  Roy,  Robert  Le  Roy,  Jacob  Livingston, 
and  RotweU  L.  Colt,  all  his  estate,  real  and  personal,  in 
trust,  to  pay  his  debts,  and  then  to  distribute.  Sec.  By  the 
will,  the  said  H.  Le  Roy,  Robert  Le  Roy,  and  R.  L.  Coif, 
were  appointed  executors,  with  power  to  sell  his  real  and 
personal  estate,  with  the  consent  of  his  wife,  the  said  Mat- 
tha.  Jacob  Livingston,  the  other  devisee  in  trust,  was  not  an 
executor.  The  defendants  named,  appeared,  and  (he  bill 
was,  afterwards,  amended,  by  adding  Herman  Le  Roy,  Ro^ 
bert  Le  Roy,  and  Jacob  lAvingston,  the  above  named  devisees 
in  trust,  as  parties  defendant.  Before  the  original  bill  was 
answered,  the  plaintiffs,  on  the  24th  of  May,  1819,  filed  a 
supplemental  bill,  stating,  that  since  the  original  bill  was 
filed,  they  had  discovered  and  now  charged,  that  Jacob  Le 
Boy,  at  bis  death,  was  largely  indebted,  and,  among  others, 
to  John  S.  Ronlet,  executor  of  Victor  Moreau,  deceased,  by 
bond  to  the  said  J.  5.  Roulet,  in  his  own  right,  to  Elizabeth 
Hyde, ,  Mary  Hoffman,  and  Robert  Le  Roy,  severally,  oa 
simple  contract.  That  Martha  Le  Roy,  widow,  having 
procured  assignments  to  her,  by  those  creditors,  in  conside- 
ration of  paying  or  securing  to  them,  the  payment  of  the 
said  debts,  in  whole  or  in  part,  caused  suiu  at  I&w,  for  die 
recovery  thereof,  to  be  brought  in  the  names  of  those  citrdt* 
tors,  against  H.  L.,  R.  L.,  J.  L.,  and  R.  L.  Colt,  the  said 
devisees,  and  against  the  children^  the  heirs  at  {ato  of  the'said 


CASES  IN  CHANCERY.  653 

J.  Lc  Ray ;  and  (hat  in  January  last,  jodgments,  by  confes*  1820. 
sioDy  were  obtained  in  those  suits,  (stating  them,)  that  exe- 
cations  had  issued  on  two  of  the  judgments,  and  the  sheriff 
of  the  City  and  County  of  Mw^Tork,  by  virtue  thereof,  had 
levied  on  all  the  real  estate  of  J.  Le  Roy^  and  advertised  the 
same  for  sale.  That  the  debts,  on  which  these  two  judg- 
ments were  recovered,  belong,  by  assignment,  to  the  said 
Martha  Le  Roy,  who  had  commenced  and  prosecuted  the 
soitSy  in  concert  and  collusion  with  the  heirs  and  devisees, 
in  order  to  secure  to  her  a  preference  over  the  plaintiff;,  and 
the  other  creditors,  and  to  defeat  that  equality  of  payment 
which  the  plsuntiffs  sought  to  establish.  Prayer  tot  an  in- 
junction to  restrain  Martha  h.  from  selling  the  real  estate 
under  those  executions.  The  injunction  was  granted.  May 
22d,  1816. 

The  defendants  answered*  The  material  allegations  in 
the  bill  were  admitted,  except  as  to  the  charge  of  collusion. 
Martha  L.  also  stated,  that  she  paid,  out  of  her  property, 
the  debts  mentioned,  and  took  assignments  thereof,  and  had 
obtained  judgments  and  issued  executions,  in  order  to  ob- 
tain, by  legal  diligence,  priority  of  payment ;  and  she  insist- 
ed on  her  right  so  to  do. 

T.  dl.  jEmmer,  for  die  defendant,  Martha  Le  Roy^  now  XotmhtrAtK 
moived  to  dissolve  the  injunction.  He  aited  Stat.  3  and  4. 
W.  and  M.  c.  14.  s.  4.  (made  perpetual  by  6  W.  3.  e.  14.) 
as  containing  a  clause,  not  inserted  in  our  act.  (1  A".  R.  L. 
316.  sesi.  36.  ch.  93.  $.  1.)  1  Fonhl  Eqtu  b.l.e.  4.8.  14. 
noU  i.  1  Madd.  Ch.  Pr.  ^254.  He  insisted  that  the  assets 
were  legale  and  liable  to  legal  preferences  under  our 
statute. 

T.  L.  Ogden  and  Boydj  contrtkj  contended,  that  as  by 
the  will,  the  lands  were  devised  for  the  payment  of  debts, 
they  became  eqttUabh  assets.  They  cited  Luptan  v.  Lup' 
^<m,  2  Johns.  Ch.  /?«p.6l4.  ToUer's  L.   of  Ex.  289.  413^ 


654  CASES  IN  CHANCERY. 

IS20.  414,415.  2  Aik.  50.  1  Madd.  Ch.  Pr.  473.  359.  438. 
Mo$tB  V.  Mw^airaydf  1  Johm.  Ch.  Rep.  119. 130. 3  Johns. 
Ch.  Rep.  53,59.  349.  1  Feman45.  Free,  in  Ch.  430.  GOb. 
Equ.  Rep.  HI.  2  Fern.  708.  1  P.  Wms.  430.  1  Bro. 
135,  136.  n.  2  £ro.  94.  7  Fesey,  314.  8  Fetey,  26.  1 
Rob.  on  WUle,  211. 216.  n.  3. 

The  Chancellor.  The  testator  in  this  case  devised  all 
his  estate,  real  and  personal,  to  four  trustees,  (of  whom  three 
were  made  execators,)  in  fee,  and  in  tmst  to  pay  his  debts, 
and  then  to  distribnte  the  residue.  Such  a  devise  in  trust 
places  the  asseto  under  the  jurisdiction  of  this  Court.  A 
Court  oflaw  does  not  take  cognisance  of  a  trust,  but  the 
notice  of  it  belongs,  peculiarly  and  exclusively,  to  this 
Court. 

Before  the  statute  of  3  W.t^M.^  if  the  testator  devised 
bis  lands  for  the  payment  of  his  debts,  all  the  creditors  were 
to  be  paid  pari  paeeu^  or  ia  rateable  proportions,  for  it  was 
to  be  presumed  that  the  testator  meant  to  do  equal  jus- 
tice to  all.  Thus  in  a  case  before  Lord  Nottingham,  in  2681, 
(Anon.  2  Ch.  Ca.  54.)  the  testator  devised  his  lands  to  trus- 
tees to  pay  debts,  and  the  trustees  being  themselves  credi- 
tors, paid  themselves  in  full,  and  left  other  creditors  unsatis- 
fied, who  then  filed  their  bill  for  a  rateable  payment 
The  Chancellor  held,  that  under  that  devise,  all  creditors 
were  to  be  paid  equally,  and  that  the  trustees  could  not 
give  themselves  a  preference. 

The  statute  of  fF.  tfM.  did  not  interfere  with  this  doc- 
trine of  equitable  assets,  but  rather  gave  it,  as  it  has  been  said, 
a  parliamentary  sanction.  That  statute  (3  W.  ^  M.  c. 
14.)  was  made/or  a  relief  of  creditors  againet  fraudulent  de» 
vises  ;  and  so  the  preamble  to  it,  as  well  as  its  title,  express- 
ly declares.  It  does  not  apply  to  the  case  of  a  devise  to 
Irusteesfor  the  payment  of  debts, » for  such  a  devise  is  in 
furtherance  of  justice,  and  of  the  avowed  policy  and  par- 
pose    of  the  statute.     To  mark   that  policy  the  more 


CASES  LV  CHANCERY.  65^ 

distinctly,  the  4th  section  of  the  statute  expressly  excepted  1820. 
froon  its  operalion  devises  of  lands  for  (be  payment  of  debts 
or  children's  portions.  The  omission  of  this  proviso  in  our 
statute  cannot  make  the  least  alteration  in  its  construction. 
It  must  have  been  omitted,  because  it  was  unnecessary,  and 
was  doubtless  inserted  in  the  English  statute  for  greater 
caution*  It  is  impossible  to  sn^iose  that  an  honest  devise 
for  payment  of  debts,  could  be  affected  by  a  statute  made 
on  purpose  to  protect  creditors  against  fraudulent  devises. 
The  devisees  mtended  by  the  statute,  were  those  who  took  a 
lenejkiai  interest  under  the  will,  to  the  injury  <^  creditors. 
The  statute  does  net  apply  to  cases  of  trusts  created  by  will 
to  pay  debts.  This  we  cannot,  for  a  moment,  suppose.  The 
general  provisions  in  the  Englishj  and  in  our  statute, 
(which  are  the  same,)  apply  only  to  suits  at  law  against 
heirs  and  devisees  claiming  the  entire  interest  for  them-^ 
selves,  and  agunst  whom  judgment  and  exeeotion 
may  be  awarded,  for  the  lands  which  have  come  to  their 
hands ;  but  a  judgment  and  execution  at  law  against  a  na- 
ked trustee  holding  lands  in  trust  for  others,  could  not  af- 
fect the  rights  of  the  cestuy  que  trust. 

It  is  observed  by  Fotdflanque,  (5.  1.  c.  4.  sec.  14.  note.) 
in  a  passage  referred  to  by  the  counsel,  that  bond  creditors 
are  liable  tobe  *'  prejudiced"  by  the  power  to  devise  for 
the  payment  of  debts  reserved  by  the  statute  of  3  W.  fy  JK, 
because,  that  under  such  a  devise  simple  contract  creditors 
are  entided  to  be  paid  paripassuj  and  bond  creditors  will 
thus  lose  their  legal  priority.  But  that  is  a  prejudice,  if  it' 
can  be  so  catted,  that  ttie  statute  never  intended  to  remove, 
because,  as  I  observed  before,  the  whole  object  of  it  was  to 
defeat  fraudulent  devises ;  and  the  payment  of  debts  by  a 
just  and  equal  distribution  of  the  debtor's  fund,  is  not  a 
hardship,  and  much  less  »  fraudulent  provision  towards  any 
person.  It  is  an  act  of  such  justice  and  pure  equity,  that 
the  Legislature  has  always  been  solicitous  to  encourage  it 


6£6  OASES  IN  CHANCERY. 

1890.  TiMS  tlie  tiatvte  provfaks,  (1.  JV*.  R.  JU  453;)  that 
when  real  eiCaie  is  ioldby  order  of  the  Court  of  Probales, 
or  of  a  Surrogate,  for  the  payment  of  debts,  the  proceeds 
are  tobecBetribated  among  the  creditoiSi  in  pn^ortioii  to 
their  debts,  without  giving  preference  to  specialUes.  The 
anigneet  of  insolvent  debtors  are  also  directed,  by  ano- 
ther statute  ( 1  A*.  jR.  lu  469.)  to  make  distribution 
equally  among  creditors,  without  giving,  preference  to 
jqiecialties*  The  same  rale  is  also  directed  by  apjltber 
atatate  to  be  observed  (1  N.R.L.  161.)  by  tn]y||ees 
of  absent  or  absconding  debtors.  And  we  may  safely 
coadude,  that  though  the  first  section  or  proviso  in  the  £n- 
f^Utk  statute  of  W,  if  M.  was  omitted  in  our  statute,  the 
omission  could  not  have  been  intended  to  perpetuate  the 
cenflsoa  kw  doctrine  of  prefesences  between  creditors,  in 
case  such  a  trust  should  be  created  by  wilL  Such  a 
devise  ia  trust  must  be  a  valid.devise,  and  sulyect  to  equi* 
^  distribution.  That  will  not  be  disputed.  It  must  follow, 
then,  ofcoorse,  without  some  express  statute  provision 
toi  the  contrary,  that  the  fund  is  to  be  regarded  as  equi- 
table assets. 

lolFmsmoafc^.  D^Jkt,  (1  P.  Wms.  428.)  it  was  admit- 
ted, that  if  lamls  be  devised  ibr  the  payment  of  debt9|.fhey 
were  to  be  cansideeed  as  equitable  assets,  and  bonds,  and 
stauple  contract  debu  were  to  be  paid  equally.  ,In  D^ 
v.  Deg^  (2  P.  Wm».  412.)  a  disUnction  seemed  to  be 
made  between  a  devise  to  executors,  and  a  deifise  to  siran- 
gers  to  pay  debts;  but  in  that  case,  it  was  admitted^  t^  if 
the  devise  was  to  executors,  md  to  a  third  penw^  (as  was 
the  case  m  the  present  instance,)  the  same  coqchpsion.  ,fol- 
lowed.  But  this  distinction  has  been  since  exploded,  and 
the  law  of  the  Court  on  the  subject  was  fully  discussed  and 
settled  by  Lord  Camden,  in  Silk  v.  Primt.  (1  Bro,  ^38. 
note.  Dickena,  384.)  The  testator,  in  that  case,  changed 
all  his  real  estate  with  the  payment  of  his  debts,  and  direct^ 
ed.  his  executors,  and  their  heirs^  to  sell  it,  if  wanted  for  that 


<Lui/JJ^ 


CASES  IN  CHANCERT.  657 

purpose.    The  Master  of  the  Rolls  decreed,  that  th^  assets      1820. 
arising  from  the  sale  were  to  be  considered  equitable  assets,    ^^^^^/^^^ 
oti  the  groand,  that  the  devise  was  to  the  executors  and  their        'y^' 
heirs,  bj  which  means  the  descent  to  the  heir  was  broken.     ^"^  ^^' 
This  decree  was  affirmed,  on  appeal,  in  1768,  by  Lord  Cam- 
deny  and  he  observed,  that  the  assets  did  not  come  to  the 
executors  in  their  character  as  executors,  and  the  rule  was 
settled,  that  the  assets  were  not  legal,  unless  the  executors 
took  them  qua  executors.    A  devise  to  executors,  and  their 
beirs,  made  tfaein  trustees  ;  and  though  the  Teal  and  personal 
estate  were  made  one  fund  by  the  will,  yet  Lord   Camden  _ 
did  not  regard  that  objection,  but  said  that  Chancery  mar- 
shalled the  assets.    The  charge,  in  that  case,  was  considered 
as  amounting  to  a  trust,  and  being  a  trust,  equity  directed 
the  execution  of  it  upon  equitable  principles. 

In  Newtcn  v.  Bennett  {\  Bro.  135.)  Lord  ITnurhw  refers 
red  to  tile  former  case,  and  said,  that  an  estate  devised  to  an 
executor  to  sell,  was  equitable  assets ;  and  from  some  correct 
notes  of  this  case,  (7  Vesey,  321.  322.  8  Veseif^  90.)  it  ap- 
pears, that  be  did  not  consider  it  to  be  requisite  that  the  de- 
scent should  even  be  broken  by  the  devise,  to  render  the 
assets  equitable.  It  has  since  been  repeatedly  held,  (B4silef 
V.  lEkinsy  7  Fetey,  319.  Shepkerd  v.  LtUwidge^  8  Vesejf^ 
36;)  that  a  mere  charge  of  the  debts  upon  the  real  estate  by 
will,  makes  it  equitable  assets^  even  though  the  descent  be 
not  broken.  It  is  sufficient  that  the  estate  be  devised  .upon 
trust  to  pay  debto ;  and  a  charge  of  the  debts  upon  the  real 
estate,  is,  in  substance  and  effect,  a  devise  pro  tauto.  This 
was  the  doctrine  of  Lord  Eldon  in  those  cas(es ;  and  he  made 
this  clear  and  pertinent  observation,  that  a  provision  by 
will,  effectual  in  law  or  equity  for  payment  of  creditors,  was 
not  a  fraudulent  devise  within  the  statute.  And  I  may  add, 
that  such  a  devise  is  equally  valid  and  innocent,  and  com- 
mendable withal,  as  it  would  be  und^r  the  protection  of 
the  proviso  in  the  English  statute. 

Vol.  IV.  83        •     ^ 


umA^ 


uUJ 


CASES  IN  CHANCERY. 

1830.  The  G»e  now  before  me  steers  clear  of  every  difficoky. 

It  comes  witMn  all  the  cases,  ancient  and  modern.  Here 
the  descent  is  broken,  and  here  is  a  devise  in  fee,  and  to  a 
stranger,  as  well  as  to  the  executors* 

Seeing,  then,  that  here  has  been  a  trust  created  by  will,  for 
the  payment  of  debts,  this  Court  is  bound  to  take  care  that 
the  trust  is  executed ;  and  to  interpose,  if  necessary,  against  a 
proceeding  at  law  intended  to  defeat  it.  Lord  EMon  ad- 
mitted this  consequence  in  Shepherd  v.  Luimdge.  The 
widow  of  the  testator  has  been  purchasiqg  in  debts  dne 
from  the  estate,  and  suing  them  at  law,  with  the  avow^ 
purpose  of  gaining,  by  her  diligence,  a  legal  preference  over 
olber  creditors.  This  has  been  done  with  knowledge  of  the 
provisions  in  the  will,  in  which  she  had  a  personal  interest 
and  with  full  notice  of  the  trust.  Her  acts  have  tended  to 
defeat  the  trust,  and  to  prevent  this  Court  from  causing  it 
to  be  execoied  by  a  fair  and  equal  distribution  of  the  fiiad 
rateably  among  the  creditors.  In  such  a  case,  a  race  of 
legal  diligence  cannot  be  permitted,  nor  can  such  a  creditor, 
and  more  especially  a  voluntaiy  purchaser  of  debts,  wha 
was  a  party  under  the  will,  and  had  due  notice  of  iis  pco* 
visions,  be  suffered  to  change  the  character  of  the  assets,  and 
torn  them  from  equitable  iolo  legal*.  This  would  ba  to^r- 
jestthe  trust  from  ibe  jurisdiction  of  tiiis  Courts  and  dtttrqy. 
the  rights  of  the  eei(t(i  que  tru$U»  who  are  the  crediiprs  fU. 
large. 

Motion  to  dissolve  the  iqfoaclioB  denied* 


CASES  IN  CHANCERY. 


M'CoMB  and  Weeks,  Executors  or  Ooilvib,  agaitut 
Wright. 


659 

1820. 


M'COMB 
WBIflBT* 


tt  »eems,  that  there  is  no  difference  in  the  oonstniction  of  the  1  tth  and 
15tb  sections  of  the  sUUute  ofjraudi,  (sess.  10.  ch.  44.  IJV*.  it.  £« 
'95.}  or  the  4th  and  17th  aections  of  29  Car.  2.  c  3.  as  to  i^hat  is  a 
snfficient  sigfoing  of  the  contract  by  the  party  to  be  cbarg^. 

Ad  auctioneer  is  an  agent  lawfully  authorized  by  the  purchaser,  either 
*  of  lands  or  goods,  at  auction,  to  sign  the  contract  of  sale  for  him,  a^ 
the  highest  bidder ;  and  writing  bis  name,  as  the  highest  bidder,  in 
the  memorandum  of  the  sale,  by  the  auctioneer,  immediately  on  re* 
cetving  his  bid  and  knocking  down  the  hammer,  is  a  sufficient  sign<* 
ing  of  the  contract  within  the  statute  of  frauds,  so  aa  to  bind  the  pur* 
chaser. 

'Where  the  defendant  bids,  at  auction,  for  another  person,  but  does  not» 
at  the  time  the  lot  is  kaocked  down  to  him,  nor  on  the  day  of  sale, 
disclose  to  the  plaintiffs,  nor  to  the  auctioneer,  the  name  of  his  prin* 
cipal,  he  is  responsible  as  the  purchaser. 

If  there  is  any  doubt  or  difficulty  as  to  the  title,  it  will  be  referred  to  a 
Master  to  examine,  and  rep<Mt  thereon* 

THOMAS  OGJLVIE,  by  his  last  wlU, dated  the  8th  of  OM^jaik, 

and     Duea^ 
Sq^ember^  1812,  empowered  his  ezecntors  to  sell  his  estate  at     btr  i<Mft. 

auction,  and  to  execute  deeds  for  tlie  real  estate,  to  the  par* 

chasers  in  fee ;  and  to  divide  the  proceeds  among  his  chit* 

dren,  and  appointed  bis  wife  and  the  plaintiffs^  executors. 

The  testator  died  on  the  18th  of  ^orcA,  1816,andhis  wife  died 

on  the  12th  o(May,  1818.  The  plaintiffs,  on  the  13th  o(Ja^ 

nuarjf^  1819,  sold  at  auction  a  lot  of  land  in  Beekman  Street, 

of  which  the  testator  died  seised,  to  the  defendant,  who  was 

the  highest  bidder,  at  8,900  dollars.    There  was  a  printed 

paper  containing  the  terms  of  sale :  to  wit,  that  the  property 

was  free  and  clear  of  all  incumbrance,  and  the  title  nnex-» 

eeptionable :  ten  per  cent  to  be  paid  on  the  day  of  salei 

and  the  remainder  on  the  1st  of  JMSsy,  when  deeds  wart  to 


660  CASES  IN  CHANCERY; 

1820;  be  given ;  5,000  dollars  on  the  lot  in  Beekman  Street^  might 
remain  on  mortgage*  At  the  bottom  was  added,  in  wri* 
ting,  ^<  interest  to  be  paid  half  yearly.  The  lot  in  Beekman 
Street^  to  be  sold  snbject  to  the  opening  and  improving  of 
Beekman  Street.^^  The  auctioneers,  immediately  after  the 
sale,  endorsed  oh  this  paper :  "  Lot  in  Beekman  Street, 
bought  by  Isaac  fTr^Ai,  for  8,900  doHars.  Aew- For*, 
January  13th,  1819.  Hoffman  fy  Glas$;"  as  a  memoran- 
dum of  the  facts.  The  defendant  bid,  and  the  lot  was 
struck  off  to  him  in  the  usual  manner.  The  day  after  tlie 
sale,  the  defendant  paid  to  the  auctioneers  the  deposit  of 
890  dollars,  according  to  the  conditions  of  sale.  The  bill 
charged,  that  the  defendant,  by  Hoffman  ^  GUus,  auction- 
eers, as  his  agents,  signed  an  agreement,  or  memorandum, 
in  writing,  attached  to  the  printed  conditions  of  sale,  ac- 
knowledging himself  to  be  the  purchaser,  &c  That  in  Ft- 
hruary  following  the  time  of  sale,  the  title  deeds  were  deli- 
vered to  the  defendant,  and  remained  with  him  for  a  month,  to 
which  he  made  no  objection  until  about  the  Ist  of  Mag;  that 
on  the  1st  of  May,  the  plaintifis  tendered  the  deed  of  con- 
veyance to  him,  and  the  possession,  oa  bb  pajuflg  Uie 
residue  of  the  purchase  money,  which  the  defisodantrefos^. 
Prayer,  that  the  defendant  may  be  decreed  specificdiy  to 
.perform  his  contract,  and  to  pay  the  residue  of  the  jmcchase 
money,  on  the  plaintiffs  executing  to  him  a  proper  deed,  be 
and  for  general  relief. 

The  defendant,  in  bis  answer,  admitted  the  sale  atanc* 
tion,  and  that  sooie  memorandum  of  the  purchase  was  made 
by  the  auctioneers,  J9.  ^  <?.,  at  the  tioie ;  that  he  was  au- 
thorized by  JeremicJi  Thompson  to  bid  for  him,  aad  did  bid 
accordingly,  the  sum  of  8,900  dollars.  He  denied  that  the 
auctioneers  were  his  agents.  He  admitted  the  terms  an]  coDr 
difioas  of  the  sale,  and  that,  immediately  after,  he  received  of  ^ 
J.  T.  890  dollars,  being  ten  per  cent,  of  the  purchasfi  mor 
ney,  which  he  paid  to  the  auctioneers,  to  whom  he  deciam^ 
lha$  the  purcha^  was  not  for  himself,  but  for  J,T.  He 


CASES  IN  CHANCERT.  661 

admitted,  that  on  the  day  of  sale,  or  a  few  days  thereafter,  1820. 
he  requested  the  plaintiA  to  have  the- deed  made  to  J.  T. 
That  the  pktintifis  never  objected,  bat  treated  with  J.  T.  ^ 
the  purchaser,  and  had  a  deed  made  oat  to  him,  and  which 
they  tendered  to  /•  T.  as  early  as  the  1st  of  AprQ.  That 
J.  71  caused  the  title  to  be  investigated  and  examined  by 
cooDsel,  who  gave  an  opinion  in  writing,  that  the  title  was  . 
defective,  and,  for  that  reason,  /•  T.  declined  accepting  the 
deed.  That  the  plaintiffs  negociated  with  7.  T.  as  the  prin- 
cipal in  the  purchase.  He  admitted,  that  the  plaintifis  ten- 
dered to  him  a  deed  aboat  the  1st  of  Jlfay,  and  showed  him 
the  opinion  of  :tta^ counsel  in  favoar  of  the  title;  and  Uiat 
he  reCbsed  to  accept  the  deed.  He  submitted,  that  /.  T. 
ought  to  have  been  made  a  party,  and  alleged  the  statute  of 
frauds,  of  which  he  claimed  the  benefit,  as  if  pleaded,  &cc. 

The  cause  was  brought  to  a  hearing  on  the  pleadings  and  ouober  aoKA. 
proofs. 

JR^  and  B.  W.  Wwnwr^  for  the  plaintifis.  To  show, 
that  the  memorandum  of  the'  contract  of  sale  made  by  the 
auctioneers,  was  sufiksient  to  satisfy  the  statute  of  frauds, 
they  cited  2  Tmnt.  B^.  S8.  4  Tamt.  Rep.  209.  3  Ve- 
sey  if  Beameif  57.  3  Merwd^i  Rep.  62.  3  Burr.  R^. 
1921.    7  JBa«(,  665.  569.     \A  Johns.  Rep.  AM. 

T.  A.  Emmet,  contra.  He  cited  1  Eip.  K  P.  Rep. 
101.  2  E»p.  JV*.  P.  Rep.  669.  1  Bob.  Sf  Putt.  306. 
7  F«i^,  S41.  13  Vetey,  466.  Sugien'i  Laws  of  Fend. 
ch.  1;  p.  26.  8  East,  248.  10  East,  283.  1  Taunt.  Rep. 
430.    BTaunt.no. 

Tors  CBAVCtLLOB.  The  leading  question  in  this  case 
is,  wbethertbere  was  a  valid  purchase  by  the  defendant, 
widitn  the  statute  of  frauds. 

The  premises  were  sufficiently  described  in  the  printed 
advertisement  of  the  time  and  place  of  the  sale  at  auction. 


163  CISBS  IN  CBANCEltT* 

Tbe  terns  of  tale  were  alio  particolarly  stated,  vk :  ten  ftr 
cent,  to  ht  paid  an  Ae  day  afBaU^  and  the  reauinier  on  tie 
first  day  of  Mug  foUamng^  when  the  deed  and  poMieeeum 
wndd  be  gwrn^  and  5,000  doBar$  af  tke  purehai$  money 
were  to  remain  an  mortgage  at  the  option  of  the  pm^ehaser. 
To  tbeie  printed  teraU  there  was  added,  in  wridogy  at  tbe 
bottom,  'Mhe  inteiest  to  be  paid  balf  y^rly,  and  the  lot 
to  be  ioU  subject  to  the  assessment  of  opening  and  im- 
proving Beekman  Streets* 

It  is  proved  by  tbe  anctioneers,  thi^t  the  lot  was  sdd  to 
the  defendant,  subject  to  tbe  terms  and  conditions  stated  and 
set  forth  in  these  printed  and  additional  written  terms, 
andthat  on  tbe  day  after  tbe  sale,  the  defendant  called  and 
paid  to  them  the  ten  per  cent  on  the  purchase  money.  The 
defendant  admits  tbe  condition  of  sale,  and  particularly  that 
the  lot  was  sold  subject  to  the  isssessments  for  opening  and 
improving  the  street  The  terms  of  sale  were  well  under^ 
stood  previous  to  the  sale,  and  the  defendant  never  made 
any  objection  or  pretended  to  any  misunderstandhig  on 
that  point  The  sale  was  also  conducted  in  the  usual 
manner;  the  defendant  signiied  the  bid  at  which  tbe 
lot  was  struck  off  to  him,  in  the  customary  manner,  and  tbe 
auctioneers  immediately  made  a  memorandum  of  the  fiict 
with  a  pencil,  in  these  words,  *'  lot  in  Beekman  Street 
bought  by  haae  Wright  for  6,000  dollars.  ''They,  also,  im- 
mediately inserted  the  defendant's  name  in  writing  in  an 
indorsement  in  the  same  words  on  the  back  of  the  paper  to 
which  the  printed  advertisement  was  attached,  and  on  which 
the  additional  conditions  were  written,  and  to  which  in- 
dorsement tbe  auctioneers'  names  were  subscribed. 

The  sale  was  in  January^  and  no  difficulty  or  impedi' 
ment  arose  as  to  the  contract  of  sale,  or  as  to  tbe  comple- 
tion of  the  purchase,  until  objections  were  made  in  j9|pn7 
following  to  tbe  tide,  and  on  that  ground  the  refusal  to  per- 
form  the  contract  was  placed.     The  suggestion  that    the 


CASKS  IN  CHANdRT.  069 

contract  w^h  MtAihyUm  stattHe  ef  frCHids,  iMciitte  tiw  tie-      ie^« 
fendant  bod  net  Afmd  any  agraenenc  or  nMnorambm, 
was  qaile  aa  aAerthouglitt  of  which  no  trace  appears  until 
we  come  to  (be  defendant's  answer. 

The  ^estion  has  been  raised  and  wdl  discussed  by  tho 
cowuely  whether  the  anctiooeets  Were  competent  agents  ef 
ike  purchaser,  for  the  insertion  of  his  name  in  the  memoran'- 
itm  of  the  sak«  It  will  net  be  disputed,  that  if  the  pur* 
chaser's  name  appears  hi  the  body  of  the  memorandum^ 
aUd  was  inserted  there  by  himself  or  by  his  authorised 
m/em,  it  is  a  signing  within  the  statute  of  frauds.  This  was 
aetlkd  by  the  Court  of  Errors  in   Cla$<mr.  Bmteg.  (14 

The  words  of  our  statute  are,  (1  X.R.L.p.  78.ffse.  11.) 
that  *'  no  action  be  brought  to  charge  any  person  upon 
any  contractor  sale  of  tandsi  or  any  interest  in  or  concern- 
ing them,  unless  the  agreement,  or  some  memorandum  or 
note  thereof^  shall  ba  in  writiiig^  and  signed  by  the  party  toi 
be  charged  ti^rewith,.or  some  other  ^person  theriMinto  by  him 
lawfully  aiitborized."  The  words  of  the  statute  in  rela* 
tion  to  tl^  fale  of  goods  and  which  are  to  be  considered  in 
ci|i|neptipn  with  the  otber  provision,  relating  to  lands,  rioee 
tbe  deciaiops  on  both  the  sections  are  finequently  com* 
pared  together,  are  as  follows :  (»&•  $ee.  15.)  <'  No  con« 
tract  for  the  sale  of  any  goocU  for  the  price  of  10/.  or  up- 
nefurds^  ahall  \fk  good,  unless  earnest  be  paid,  &c*  or  that 
8<^pe  note^^r  memorandum  in  writing  of  tiie  said  bar* 
g^n.be  pomade  and  signed  by  the  parties  to  be  charged,  or 
their  ^ei^t  thereunto  lawfully  autfaoriKed." 

^t  appears  to  be  now  settled,  by  the  English  authorities, 
that  the  coQstruction  of  each  of  these  secdons,  as  to  what  is  a 
signing  by  the  party  to  be  charged^  is  and  ought  to  be  the 
same,  and  that  the  auctioneer  is  a  competent  agent  to  sign, 
for  the  purchaser  ^tber  of  lands  or  goods  at  auction ;  and 
the  insertion  of  his  name  as  the  highest  bidder  in  the 
memorandum  of  the  sale  by  the  auctioneer,  immediately  on 


CASES  IN  CHANCERY. 

r^eeiviog  bis  bid,  and  striking  down  ibe  htaittier,  is  a 
signing  widiin  the  statute,  so  as  to  bind  die  parchaser. 

The  case  of  Simon  v.  MotivaSf  (3  Burr.  1921.  1 
Black.  JRgi.  599.)  in  1776,  is  the  earliest  case  we  have  on 
the  subject.  That  was  a  snit  against  a  purchaser  of  goods 
at  auction  who  did  not  take  them.  He  bid  for  one  Dmrant, 
but  did  not  name  him  as  principal.  The  auctioneer,  when 
he  knocked  down  the  goods  to  him,  put  down  the  defen- 
dant's  name  in  the  usual  manner  as  the  purchaser,  tad  Che 
defendant  came  the  next  day  and  saw  the  goods  weighed. 
The  question  was,  whether  this  was  a  contract  in  writing 
within  the  statute  of  frauds.  The  Court  of  K.  B.  held 
elearly,  that  the  auctioneer  must  be  considered  as 
agent  of  the  buyer,  after  knocking  down  the  hammer,  and 
that  setting  his  name  down  in  writing  was  sniBcient  to 
take  the  case  out  of  the  statute.  The  auctioneer  was  con- 
sidered to  be,  to  many  intents,  the  agent  of  both  parties. 
He  was  agent  to  the  buyer,  pro  tempore,  and  giving  in  his 
name  was  an  authority  to  the  auctioneer  to  set  down  the 
contract. 

The  Judges  in  that  case  threw  out  a  doubt  whether 
sales  at  auction  were  within  the  policy  and  intention  of  the 
statute  of  frauds  ;  but  that  if  they  were,  the  requisites  of  the 
act  were  complied  with.^ 

Another  decision  on  the  same  section  of  the  statute,  took 
place,  after  an  interval  of  forty  years.  I  allude  to  the  case 
of  Hinde  v.  JVhiiehouse,  (7  East,  558.^  decided*  in  the  JT. 
B.J  in  1806.  That  was  the  case  of  a  sale  of  goods,  and  the 
auctioneer  immediately  wrote  the  name  of  the  purchaser 
against  the  lot  of  goods  purchased ;  the  purchaser  being 
sued  by  the  vendor,  he  insisted  that  there  was  no  memoron- 
dum  in  writing,  within  the  statute,  to  charge  him.  But  the 
Court  held,  that  the  auctioneer  must  be  taken  to  be  the 
agent  of  both  parties,  so  as  to  bind  the  purchaser  by  bis 
signature.  It  was  considered  that  the  practice  had  be- 
come so  settled,  and  had  been  so  uniformly  held,  since  the 


Wright. 


GA»BS  IN  CHANGE;RT.  665 

tm,M.Smm  y^JUMfot.  ti»t  tt^e  aaQtioiieer  was,  at  the      1820. 
saj(^  ibp  ag^Dt  of  both  parties,  that  it  wauld  be  daogeroaii    "m^t^^^^ 
.     t9>  «h^ke  the  rule.  _^  ▼. 

.   These  are  cases  relating  to  the  sales  of  goods;  and  I  shall 
;    fiJ;>^  potice  a  series  of  decisions  on  the  other  section  of  the 
,i(^te,  nplattiig  to,  judes  of  land. 

r,  The  first  9ase  was  a  nisi  prius  decision  of  Ch.  J.  Et/re,  in 
\\   .^tas^d  V.  Mmo»,  in  1794.   (1  Esp.  K  P.  101.)  Copy- 
c  .  hfil^  Upd*  bad  been  pot  up  at  aactiooy.and  knocked  down 
,,   to.t^  defendant  and  bis  name  was  written  in  the  catalogue, 
r.    .^^bist  the  lot,  as  the  purchaser.  He  refusedto  pay  and  com- 
i     pl0^  the  purchase*  and  set  up  as  a  defence  the  statute  of 
..    frauds..  The  Chief  Justice  admitted  the  defence  to  be  good, 
and  that  the  case  oiSiwya  v.  Moti»o$  appJiied  only  to  a  sale 
., .   ofgopds.    A&erw9^f  in  BMckmaster  \.  Hcarrojpf  {iVeaey^ 
941*)  the  same  point  arose  before  the  Master  of  the  Rolls, 
in  Chancery.    Certain  estates  were  sold  ^t  auction  to  an 
agent  of  Ff,  and  the  agent,  immediately  after  the  sale,  de- 
,  ..  dar^  that  he  boqgbt  for  F«,  wbo  offered  to  pay  the  deposit 
of  10  per  cent,  and  the  auction  duty,  to  the  auctioneer.    A 
.,hUl  for  specific  perforquanpe  was  brought  by  the  heir  of  F., 
,  tt^e  vendee,  against  the  representatives,  including  the  resi- 
duary legatee  of  fT.the  auctioneer.  The  Master  of  the  Rolls 
dismissed  the.  bill,  and  observed,  as  Ch.  J.  Eyre  did,  that 
Simony.  Mpiivos  did  not  extend  to  land,  and  that  the  name 
of  the  vendee,  being  put  down  by  the  auctioneer,  was  not 
\    Sqfficient 

It  is  to  be  observed,  that  it  did  not  appear  in  that  case, 
according  to  the  report  of  it,  that  the  auctioneer  actually 
wrote  down  in  a  memorandum^  the  name  of  the  purchaser. 
The  case,  therefore,  is  no  authority,  beyond  the  dictum  of  the 
Court.  This  same  case  was  afterwards  heard,  on  appeal, 
before  Lord  Ch.  Erskine^  (13  Vesey^  456.)  and  he  said, 
as  Lord  Eldon  had  done  before  him,  that  the  statute  in 
bott  clauses,  admitted  of  but  one  construction;  that  if 
the  auctioneer  put  down  the  name  of  the  purchaser,  there 
Vol.  IV.  48 


m  CASeb  IN  CHAKCtRY. 

1820.  Wbs  ft  eMtrttet  in  writing  by  all  ii^t,  obd  b»  iboM  to 
disposed  to  say  the  sutote  was  salisfied.  Bnti  be  Observed^ 
that  there  was  no  dear  evidence  of  any  wifttM  munerailH 
dum  so  signed  at  the  time. 

The  opinion  of  Lord  £Mon,  reftrred  to  in  tkat  ctM,  mm^ 
in  Coles  v.  Trecothidc.  (9  Vtseg,  S49.)  He  there  eM*- 
liressed  a  strong  opinion,  that  an  auetloneer,  taking  dowa 
the  name  of  the  boyer,  was  a  sigaiog  within  the  statiUe,  ai 
to  lands,  and  that  it  was  itnpossible  to  hold  Otberwisey  a»l 
leave  the  case  of  Simon  v.  Motkft^  ondisturbed.  ^  It  Was,'^ 
he  said,  *'  very  singular,  that  after,  and  without  diMaribiag 
that  case,  it  was  held  at  nut  priutj  by  Lord  Cb.  J> 
£yre,  that  it  would  not  do  at  to  bod.  Why  not?  Th* 
Ibrtki  of  the  two  clauses  k  not  the  same,  but  the  tenM)  as  to 
the  memorandum  in  wriliBg)  were  eiactly  the  same.''  h 
was  clearly  now  settled,  he  observed,  thai  an  agent  need 
hot  be  authorized  in  writing. 

Thus  far,  the  weight  of  authority  is,  at  least,  etfUil  in 
favour  of  extending  the  doctrine  in  Simon  v.  Motiimi^  t6 
the  section  relating  to  lands.  It  is  rather  stronger  on  tlilU 
side,  since  the  opinions  of  Lord  fUdtm  and  Lord  EtMm 
are  the  latest  opinions,  and  are  founded  on  more  oonsidera« 
tion  of  the  subject,  and  more  argument.  Hie  observation  of 
Lord  Eldon^  that  the  two  clauses  of  the  Statute  cannot  be ' 
distinguished  in  this  respect,  i^  unansweftible,  and  rendert 
the  decision  as  to  auction  sales  of  goods,  an  authority  per- 
fectly applicable  to  sales  of  land. 

But  I  proceed  to  later  cases,  which  show  that  the  point  it 
now  entirely  settled  at  law  and  in  equity.  Indeed,  as  Lord 
Eldon  observed,  (18  Vcsey,  183.)  Chancery  professes  tO 
ibilow  the  Courts  of  law  in  the  construction  of  the  statute  of 
iVauds. 

In  tlmmerson  v.  HeelU,  (2  Taunton^  38.)  there  was  a  Sate 
at  auction  of  a  crop  of  turnips  then  growing  upon  the  land^ 
and  the  defendant,  being  the  highest  bidder,  was  declaml 
to  be  the  purchaser,  and  his  name  was  written  in  the  tale 


liWlpijF  tbe  wdiwemr,  QjgfqAti^  |b?  lot  of  mruipg  sold.  Hf 
•igoed  no  ngrwueot,  oor  did  tb^  aucdpo^er,  otherwise  thao 
bj  pvttiog  down  bU  Mm0  m  h  pwrclifis^r. 

The  Court  of  C.  B„  decided  ihat  tbis  was  ao  interest  i^ 
bnd  wjibie  tbe  ilk  s^tiop  (llth  of  our  act]  of  tbe  statute 
0f  frauds;  Ibat  tbe  aocMopeer  wa^agepi  for  tbe  purcbae 
oer»  and  tbe  statMie  satiAfied,  becaose,  cbe  memoranduvi  in 
vvititt^  was  sigaed  by.  ao  agent  for  tbe  parcy  to  be  cbarged* 
He  writes  down  tbe  purchaser's  namei  by  auUioriiy  of  tb^ 
ptircbaaer,  wbo  bid«9  aiM)  anoquoces  bis  bid  to  tbe  auction- 
eer lor  that  purpose.  He  is»  therefore,  an  agent  for  the  pun- 
chaser,  and  a  contract  signed  by  such  an  agent,  is  binding; 
and  an  agent  for  the  buyer  nerd  not  be  authorized  to  writing* 

This  plain  and  simple  slatement  of  the  casei  by  Sir  J. 
Mansfieidy  seems  lo  render  tbe  argament  too  clear  tor  much 
Hlustratioii. 

The  next  case,  on  the  same  point,  and  to  the  same  eAcl, 
k  dMi  of  WhiU  V.  Prodor,  (4  raunlen,  209.)  decided  in 
the  same  Court,  in  i8ii«  One  of  ttie  conditions  of  tbe  sale 
of  ap  estate,  in  that  case,  was,  that  the  bidder  should  sign  a 
contract  for  tbe  piirchase.  Tbe  defendant,  by  his  agent, 
was  tbe  highest  bidder,  and  tbe  auctioneer  iioiQediately  en- 
tered bis  oame,  as  tbe  purchaser,  and  (he  price,  in  a  mento- 
rmium  paper  of  the  lot  and  terms.  There  was  no  other 
signatare,  and  tbe  defendant,  by  bis  agent,  refused  to  sigp 
the  written  contract  of  the  purchase.  The  name  of  th^ 
auctioneer  was  not  written  on  tbe  paper-  The  Court  beld, 
(bat  tbe  omission  of  the  auctioneer's  name  was  immaterial, 
aad  that  this  case  could  uot  be  distinguished  from  tbe  other. 
**  Entering  the  oame  of  the  buy^r,  by  the  auctioneer,  in  hijB 
book,  was  Just  th?  san^  thing  as  if  (be  buyer  bad  writte^i 
his  own  name." 

These  decisioos  at  law  were  followed  by  Sir  Wm.  Qrqut^ 
m  Km^9  V.  PraeUnr,  in  1814.  (3  F^m.  ^  Bea.  67.)  T\» 
defendant,  by  bis  agent,  bid  at  aMctiop  for  an  estate,  and  it 
was  struck  off  to  him,  and  the  auctioneer  immediately  made 


a68  CASES  IN  CHANCERT. 

isao.  a  mmoraniim  in  his  sale  book,  that  die  defeftdmt  wm  the 
purchaser.  The  defendant,  when  the  parties  retired  to  settl* 
the  deposit,  refused  to  pay  the  deposit,  or  sign  the  agre^ 
ment.  The  bill  was  then  filed  against  the  vndor,  to 
compel  a  specific  performance,  and  it  was  accordingly  de- 
creed. The  Mast^  of  the  Rolls,  said  he  felt  himself  bound 
by  the  two  consecutive  jodgmenU  in  a  Court  of  law,  thoagh 
if  the  question  was  open»  he  should  say  the  auctioneer  was 
not  tbe  agent  of  the  buyer. 

The  question  before  me  is,  therefore,  defimtively  aetded 
in  the  English  Courts,  and  they  all  proceed  on  the  dcbissoa 
in  Simon  y.  Mativos^  by  Lord  Mmufieldf  upwards  of  fifty 
years  ago ;  that  case  settled  the  foct  of  the  agency  of  the 
auctioneer,  for  the  buyer,  when  he  enters  his  name,  by  hia 
direction,  upon  his  bid,  in  the  memora$iduM  of  the  sak^ 
which  is  a  bill  of  particulars  of  all  the  essential  tems  of 
the  contract.  If  that  case  was  well  decided,  all  the  cases 
that  followed  it  were  correctly  decided,  lor  there  it  ao  dis- 
tinction in  the  construction  of  the  two  sections  of  the  alth 
tute,  as  to  what  is  a  proper  signature  of  the  bi^er  by  bis 
agent.,  That  case  is  a  binding  authority,  and  ought  not  V^ 
be  shaken,  for  it  has  been  the  uniform  rule  ever  since,  as 
well  with  us  as  ui  England;  and  it  appears  to  me,  that  theie 
is  no  answering  tlie  short  and  decisive  reasoning  which  ihe 
English  Judges  have  employed  in  support  of  that  coostmcr 
tion. 

The  present  case  comes  up  to  those  in  the  English  CiHU$$i 
in  all  points,  and  is  stronger  than  most  of  them.  Here  was 
no  condition  of  sale  that  the  buyer  was  to  sign  a  contract 
for  the  purchase,  as  in  White  v.  Proctor.  Here  was  no 
quick  renunciation  of  the  purchase,  or  alleged  mistake^  or 
misrepresentation,  as  in  another  of  the  cases  cited.  The 
defendant  here  called  the  next  day  and  paid  the  deposit,  and 
never  thought  of  any  other  objection  ttian  the  delect  of  title, 
until  the  bill  was  filed.    I  have  no  difficulty,  tberafoie^  in 


CASES  IN  CHANCERY.  «69 

condadittg,  yuit  ibe  ddendant  was  legally  bound  by  the       182D. 
sale. 

Nor  do  I  apprehend  any  great  inconvenience  from  adhe- 
ring to  that  settled  construction  of  the  statote  of  frauds. 
The  history  of  auction  sales  does  not  warrant  any  such  ap- 
prehension. They  have  too  much  publicity  and  solemnity 
attending  them,  to  admit  of  much  fraud  or  mistake ;  and 
Lord  Mmsfidd  and  his  brethren,  thought  these  circum- 
stances so  strong,  that -they  were  led  to  doubt  whetlier  auc- 
tion sales  were  even  within  the  statute.  To  apply  the  sta- 
tute to  the  case  before  me,  would  work  a  mischief  not  within 
its  intention.  A  sale  was  made,  in  this  case,  in  the  usual 
manner;  and  all  parties  considered  the  contract  as  valid  and 
binding,  provided  the  title  was  good.  The  defendant  car- 
ries it  partly  into  effect ;  and  aAer  several  months  of  negoci- 
ation,  the  defect  of  title  is  alleged.  If  true,  in  fact,  it  is  a 
good,  objection,  but  the  defendant  is  not  contented  to  abide 
by  that  olgection.  Perhaps,  the  property  has  since  fallen  in 
valne,  and  the  defendant  now  sets  up,  as  a  defence,  that  the 
case  is  within  the  statute  of  frauds.  This  operates  like  a 
fraud  upon  the  plainUffs,  who  have  thereby  lost  an  opportu- 
nity to  sell. 

%  But,  it  is  further  objected,  that  the  defendant  purchased 
as  d^f  agent  of  one  Jeremiah  Thompson,  who  ought  to 
have  been  made  a  party,  if  not  the  sole  party,  since  [the 
defendant,  after  the  sale,  disclosed  that  Thompson  was  the 
principal,  and  the  plaintiffs  negociated  with  him  concerning 
the  deed. 

The  answer  to  tins  is,  that  the  defendant  purchased  as 
principal,  and  did  not  disclose  to  the  plaintiffs,  nor  to  the 
auctioneers,  eidier  at  the  sale,  or  on  the  next  day,  when  he 
paid  the  deposit  money,  that  he  acted  in  the  character  of 
agent  of  Thompson*  The  contract  was  made  with  him,  as 
principal,  and  he  cannot  withdraw  himself  afterwards  from 
responsibility  as  such.  To  admit  a  party  to  do  this,  would 
lead  to  all  kind  of  evasion,  abuse,  and  fraud.    In  Simon  v. 


«T0  cAsn  nr  chancirt. 

isao.  Moims,  the  defendanl  bid  for  raother  penon,  Iml  dM  dqc 
Dame  him  at  the  auction,  as  principal,  and  he  was  held 
reiponsible  a«  Uie  buyer*  It  is  not  true,  in  poiiii  of 
.  fact,  that  the  plainttirs  ever  re^ogoi^^  Thmp$Qn  as  the 
purchaser,  and  discharged  (be  defendant.  They  mfomaif 
treated  with  the  defendant  as  tbe  party  bound  to  tbeni,  and 
were  willing  to  insert  T%Ofnp^on*s  name  as  a  grantee,  astwa 
ly  to  accommodate  the  defendanlt  The  contract  was  etf 
tireiy  and  absolutely  with  the  defendant!  there  was  no 
necessity  for  making  Tkamptan  a  party  to  this  suit,  for  tbe 
sub^contract  between  the  defendant  and  Thompion^  was  rm 
inter  alios  acta^  and  had  nothing  to  do  with  the  prittmy  ^^on- 
tract  between  the  plaintiffs  and  the  defendant 

I  shall,  accordingly,  *^  declare,  that  the  contract  of  tak 
between  the  parties  was  lawfully  executed,  and  binding  upon 
the  defendant  by  the  insertion  of  his  name  inthefllellloralM2iM^ 
which  the  auctioneers,  as  his  agents  for  that  parpoae»  did, 
in  writing,  immediately  after  taking  down  his  bid;  and  I 
shall  further  declare,  that  the  defendant  did  not,  and  «o«]d 
not,  without  the  consent  and  agreement  of  the  pkimiA,  (and 
no  such  consent  and  agreement  appears^)  withdraw  hUnaolf 
from  the  obligation  of  the  contract  by  presenting  TAam^ 
ton  as  his  substitute,  when  he  did  not  disclose,  mtber  to  tbe 
plaintiffs,  or  to  the  auctioneers,  at  the  time  of  enlari^  iota 
the  contract,  that  he  acted  as  agent  for  Tlump$m^    And  i 
shall  direct  the  usual  reference  to  a  Master,  to  exasaiM  wi- 
ther a  good  tide  can  be  given  by  the  plaintiffsi  for  fthe  hoM9p 
and  lot  sold  to  tbe  defendant ;  and  that  he  give  to  the  defead- 
aot^s  solicitor  due  notice  of  the  examination,  and  that  the 
evidence  taken  in  chief,  in  this  case,  on  the  point  pf  lilk»  be 
submitted  to  the  Master,  together  with  such  other  oeaspetept 
proof  as  the  parties,  or  either  of  them,  may  think  praper  te 
furnish ;  and  that  he  report  an  abstract  of  soeh  titie^  tugBr 
ther  with  his  opinion  thereon,  with  all  convenient  spaed-^'     . 

Decree  •coprdingiy  * 


OA0SS  IN  GHANCERTi 


«1 


A.  tiliiiNlLEBBbrr  abd  othets  against  tiikbvrtf  aod  oth^rt. 

1%ls  C61IH  ^oeft  not,  of'eolifte,  intdrCbrd  to  aid  or  elslbroe  exeeutioiM 
into  jodg^metttft  M  lft#.  If  a  CMtfitor  bMIkb  tbe  lid  of  this  Co«rt 
^i^iSa&t  th«  Mal>il§tol#  of  hjh  debtor*  he  miiAt  abaw  m  jud^tnetit  at 
.  li|#  cr«atui|f  a  lien  00  aooh  estate  :  aod  if  be  seeks  aid  in  rei^ard  to 
thepenonal  estate,  he  must  show  an  execation  giring^  him  a  legal 
preference  or  lien  on  the  goods  and  chattels,  which  he  has  pursued 
to  every  available  extent  at  law,  before  be  can  resort  to  equity  tdt 
teYief. 

It'  it  Mvt  siittoient  tlHkt  tHe  t>laitttiff  has  become  A   jodgttietlt  oreditery 
iii  tbe  intorroediate  time  between  the  biU  and  the  answer.  And 
^bere  tbe  defendant  has  made  all  the  discovery  sought  for  in  the 
bilK  he  may  object  to  the  relief,  at  the  hearing,  on  the  ground  that . 
the  plaintiff  does  not  show  a  judgment  and  execution  at  law. 


Ttl£  bill  tiras  fied  July  3, 1818,  against  MoAeta  BtmMif  Mv.  14/&  and 
jonr.,  SOai  Smith,  OHvtt  (hdvet,  Ira  West,  Rus$d  Smithi  ^-^^ 
ftnd  BeftjimfA  H^nAi^twi,  tlrost^ea  of  tbe  Gene$ee  Manu^ 
fiufaring  Company,  and  stated,  among  other  tbiogs,  that  ia 
Oetoher,  IBllj  Russd  Smith,  one  of  the  defendants,  ap^ 
piled  to  the  plaintifls,  to  purchase  goods  on  credit,  and  of* 
fered  ibe  notes  of  the  Gme$ee  Manufatitaing  Company^ 
wMeh  was  incorporated  in  Mnrth,  1811,  as  security* 
HiatS.  represented  hittiseir  and  the  five  other  defendants 
as  Matter  of  die  company ;  that  the  company,  whose  ma*^ 
cbfhery  bad  cost  15,000  doUa»,  was  perfectly  solvent,  and 
tbeif  business  prosperous,  and  referred  the  plaintijBTs  to  B^ 
SunXingtM,on^o(iiK  defendants,  for  information;  that 
JEC  sbowed  the  plahttifT,  A  J9.,  a  letted  from  the  five  other 
trustees,  represendng  tbe  company  as  solvent  and  prosper^- 
ous,  and  pledging  their  individual  responsibility,  to  the 
ktnotmt  of  S,000  dollars,  for  cotton,  which  H.  was  to  bay  oi 
a  credtc*  That  confiding  in  these  representations,  the 
plaintifis.  A,  B.,  and  J.  B.  sold  to  jR.  S.,  on  tbe  20th  Octo^ 
ier,  Idl?!  goods  to  the  amount  of  3,789  dollars  and  79 


672 


CASES  IN  CHANCERY. 


1820. 


cenUy  at  six  months  credit,  aod  took  his  note  fiw  the 
amoont;  and  the  other  two  plaintiA,  DwryBa  ^  flayer, 
at  the  same  time,  sold  to  R.  S.  goods  to  the  aaioaiit  of 
1,854  dollars,  on  the  same  credit,  and  A.  B.fy  J.  B.  pimin- 
tiffs,  also  received  two  notes  for  3,944  dollars  each,  of  the 
Genesee  Mamfactmring  Compamff  one  pajraUe  Jatmary 
Ist,  1818,  and  the  other  on  the  1st  Jmmmryy  1819,  at  col- 
lateral security,  for  the  goods  parchased  of  all  the  phun- 
tiffs.  That  the  notes  of  R.  S.  became  dne  and  remainednn- 
paid  ;  and  that  one  of  the  notes  of  the  Oenesee  Mantfiteiu- 
ring  Company,  abo  became  dae  and  payment  was  reimed, 
&c.  That  the  plaintifis,  A.  Sf  J.  JB.,  caosed  the  said  note  to 
be  pot  in  suit,  which  sait  was  now  pending  nndeterodned  m 
the  Supreme  Court.  That,  afterwards,  the  defendants,  ex- 
cept Huntington^  with  a  view  to  possess  themselves  of  the 
property  of  the  company,  for  their  own  benefit,  and  in  vio- 
lation of  their  trust,  and  of  the  rights  of  the  plaintiffi,  &aa- 
dulently  caused  a  judgment  to  be  entered  up  on  a  bond  and 
warrant  of  attorney  executed  by  the  company,  in  favour  of 
the  defendant  H.  for  1,926  dollars  and  33  cents,  on  the  2dd 
March,  1819;  and  a  fi.fa.  to  be  issued  on  the  said  judg^ 
meat,  by  virtue  of  which,  all  the  machinery  and  personal 
property  of  the  company  were  seized  and  sold,  on  a  few  days 
notice,  without  the  knowledge  of  theplaintifls,  for^OO  dollars, 
and  those  defendants,  or  some  of  them,  became  the  purcha- 
sers ;  and  that  the  said  defendants,  also,  caused  the  real  estate 
of  the  company  to  be  sold  under  the^.^  &c.  Prayer,  that 
the  said  judgment  may  be  decreed  null  and  void,  and  the 
real  estate  of  the  company  discharged  from  it ;  that  the 
sale  of  the  personal  property  may  be  declared  void  y  and 
that  the  defendants  be  enjoined  from  removing  or  disposing 
of  the  machinery,  and  odier  personal  proper^,  of  the  com- 
pany, and  from  all  proceedings  mider  the  judgtnent,  or 
from  confessing  any  judgment  to  others;  and  fbr  general 
relief,  &c. 


CASES  IN  CHANCERY.  673 

The  defendants,  J?.,  S.  S.,  C,  and  W.j  in  their  answer,  laao. 
said,  that  in  October^  1817,  they  authorized  R.  Smiik  to  pur- 
chase cotton  for  the  manufactory,  and  the  defendants,  fi.,  C, 
W^  4r  ^«  <S«»  signed  a  writing,  engaging  to  be  responsible 
for  an  amount  not  exceeding  3,000  dollars,  either  as  trus- 
tees, or  individually.  That  R.  S.  purchased  of  the  defend- 
ant H.f  in  NeuhTark^  cotton  to  the  amount  of  1,896  dollars 
and  77  cents,  and  gave  his  notes  for  the  amount,  and  the 
said  writing,  as  collateral  security.  That  they  gave  this  gua- 
ranty as  sureties  for  the  company,  and  not  on  their  own  ac* 
count  That  the  notes  of  R.  S.  being  unpaid,  H.  gave 
them  notice  that  he  should  look  to  them  on  the  guaranty ; 
that  to  secure  themselves,  tliey  proposed  to  H.  to  confess  a 
judgment  for  the  amount  of  the  debt,  which  was  according- 
ly done,  and  an  execution  issued  thereon  in  jlprU,  1818,  by 
which  the  machinery  and  personal  property  of  the  company 
were  sold  for  565  dollars,  the  greater  part  of  which  was  pur- 
chased by  the  defendant  B.,  and  the  residue  by  JV.  That 
this  property  cost  about  23,000  dollars ;  but  that  it  would  not 
sell  for  more  than  the  amount  at  which  they  purchased  it,  in 
cash.  They  admitted,  that  the  two  notes  stated  in  the  bill 
were  given  by  £.,  as  agent  of  the  company,  and  by  order 
of  the  trustees. 

The  defendant,  Huntingtoiij  in  his  answer,  stated,  that  £., 
C  and  W.  wrote  to  him,  in  Mareh^  1818,  as  trustees  of  the 
company,  and  proposed  to  give  him  a  judgment,  as  securi- 
ty for  bis  debt;  that  the  defendant,  in  his  answer,  submit* 
led  the  business  entirely  to  the  direction  of  the  other  de- 
fendants, and  sent  a  letter  to  be  handed  to  an  attorney,  to 
have  the  judgment  entered  up,  and  the  execution  issued,  as 
they  might  direct.  The  judgment  was  entered  on  a  bond 
given  by  fi.,  by  order  of  the  company,  and  under  their  coiv- 
porate  seal.  He  admitted,  that  779  dollars  had  been  since 
paid  in  part  of  the  amount  of  the  debt  due  to  him. 

A  number  of  witnesses  were  examined ;  and  the  cause 
Was  brought  to  a  hearing  in  June  last,  when  the  bill  was 

Vol.  IV.  85 


674 


CASES  IN  CHANCERY. 


isao. 


14UL 


disnitsed,  on  the  grooad,  that  the  pluntiffs  did  not  state 
themflelves  to  be  Judgment  creditors ;  and  that  it  appeared 
by  the  bill,  ifaat  the  80i(  at  law  which  was  brought  by  twa 
of  the  plaintiffs,  as  trustees  for  all  the  plaintiffs^  on  a  note 
given  by  tb^  Oenetee  Mmmtfacturing  Company^  was  ^  peod- 
iog  and  undetermined*" 

A  rtheming  having  been  ordered^  and  the  cause  coming 
on  to  be  reheard,  it  was  admitted,  that  the  judgment  was 
entered  up  in  the  suit  of.  the  two  first  named  plaintiffs,  on 
the  note  as  mentioned  in  the  bill)  on  the  ISch  of  JStugutt^ 
1818. 


T.  A.  Emmet  and  O.  Brindcerhtff^  for  the  plaintiffs,  con- 
tended, !•  That  the  defendants  should  have  taken  ndvan* 
tage  of  any  alleged  defect  in  the  bill,  by  demurrer;  and  that 
it  was  too  late  to  raise  the  ol^eetion  after  tiiey  had  answer* 
ed.  (2  Jltk.  136.  2  Jokru.  CA.  JB^.  369.  2  Ceinies^ 
Ca$eB  in  Error,  40.  66.) 

'  2.  That  the  plaintiffs,  having  stated  themselves  to  be  ore-* 
ditors  of  the  defendants,  and  having  obtained  jadgmem  be* 
fore  the  bearing,  the  bill  was  good.  (3  P.  Wins.  3Sl* 
1  Jltk.  265.  note.) 

S.  That  a  supplemental  bill  may  be  filed  after  a  diuse 
has  been  beard«  (3  Jltk.  110.  217.  1  Madd.  Ch.  Fr. 
406.     1  P.  Wms.  445.) 

4.  That  the  judgment  confessed  in  favour  of  JET.,  and  all 
subsequent  proceedings,  ought  to  be  set  aside;  1.  Because 
the  judgment  was  confessed  by  the  trustees,  for  their  indivi- 
dual  indemnity,  and  in  fraud  of  their  ce^ttit  que  trutie ; 
2.  Because,  two  of  the  defendanto,  being  irusttes,  became 
purchasers  under  the  sheriff's  sale;  3*  Because,  the  price 
at  which  the  property  was  sold)  was  wholly  inadequate. 


Oriffiuj  for  the  defendants,  contended,  1.  That  the  bill 
ought  to  be  dismissed  for  want  of  equity ;  for  no  creditor 


CASES  IN  CHANCERY. 


«!» 


is  entided  to  the  aid  of  this  Court)  until  he  has  proceeded 
to  judgment  and  execution  at  law. 

2.  That  the  judgment  in  favour  of  the  defendant  ii,  was 
bona  fide  and  valid,  and  ought  not  to  be  disturbed  \  p.  Thai 
the  sale,  under  the  execution,  was  regular,  and  ought  nol  to 
be  disturbed. 

The  cause  stood  over  for  consideration  to  this  day. 


1890t 


Deeem&er 
TAih. 


^  The  Chaitcellob.  The  cause  is  now  brought  to  a  re* 
hearing  on  the  fiici  admitted  by  tbe  counsel  for tbedefendants, 
X\k9X  judgment  was  entered  in  the  suit  at  law,  in  August,  1818^ 
between  the  filing  of  the  bill  and  the  coming  in  of  the  an- 
swers, and  the  question  is,  whether,  with  thai  fad  eoneedei^ 
tbe  plaintiffs  are  entitled  to  tbe  relief  sought  The  prayer 
of  tbe  bill  js  not  merely  for  discovery ;  Jt  is  that  the  judg- 
ment confessed  to  HwxAngtvn,  and  tbe  execution  and  sale 
thereon,  be  set  aside,  and  that  the  defendants  be  enjoined 
from  disposing  of  the  personal  property  of  the  company. 

I  should  be  very  much  inclined  to-direct  a  re-sale  of  the 
personal  property  of  the  company  purchased  in  by  the  de- 
fendants. Brown  and  Weat,  if  the  plaintifis  had  placed  them- 
selves in  a  situation  to  entitie  them  to  such  a  special  interfe- 
rence in  aid  of  their  remedy  at  law.  The  defendants  who 
purchased,  were  trustees  of  the  company,  and  the  execution 
on  fittnn'n^on^s  judgment  appears  to  have  been  issued,  and 
the  sale  and  purchase  made  by  those  trustees,  chiefly  for 
their  personal  advantage  and  indemnity.  The  property  of 
the  company  was  sold  in  a  very  hurried  manner^  and  at  an 
enormous  sacrifice,  under  their  direction ;  and  the  object  of 
the  trustees,  and  particularly  of  jBroton,  tbe  chief  agent,  was 
to  change  the  title  of  the  property  which  they  held  as  trus- 
tees, from  tbe  company  to  themselves.  I  think  such  an  ar- 
rangement is  too  suspicious  in  itself,  and  too  dangerous  in  its 
tendency,  to  be  permitted,  but  upon  the  condition  of  hav- 
ing the  property  put  up  again  for  «a£e,  at  the  inttance  9fer^ 
ditan,  at  the  price  which  the  trustees  bid.    The  facts  speak 


•76  CASES  IN  CHANCERY. 

1800.  In  a  0troiig  laogoage.  Here  was  an  executioti  of  a  creditor 
procured  aod  issued  under  ibe  direction  of  B.  ^  W.  as  defend- 
ants, against  them,  on  trust  property,  in  their  possession  as 
trustees,  and  purchased  in  by  themselves  for  their  own  benefit. 
Tiie  doctrine  in  Davaue  y*  Fanning^  (2  Johns.  CL  Rqf* 
262»)  is  applicable  to  the  case. 

I  do  not  perceive  that  any  fraud  is  to  be  imputed  to  the 
defendant  IL  Tbe  execution  was  issued  under  his  authori- 
ty, but  be  was  no  party,  in  fact,  to  tbe  proceedings  under  it; 
he  only  left  the  defendants  as  friendly  debtors,  to  secure 
him  as  well  as  they  could.  There  is  no  doubt  that  his  debt 
fairly  arose,  and  is  jusdy  due.  It  is  the  manner  in  which  they 
managed  tbe  judgment  and  execution  for  their  own  benefit, 
and  not  for  his,  that  constitutes  the  ground  of  complaint.  As 
far  as  he  has  received  the  avails  of  his  execution,  he  is  enti- 
tled to  retain  them ;  and  he  is  entiUed  to  go  on  with  his  exe- 
cution against  the  real  estate.  Tbe  remedy  that  the  plain- 
tifi*s  would  be  entided  to,  if  a  proper  case  was  made  out, 
would  be  against  the  personal  property  so  purchased  in  by 
the  two  trustees* 

But,  I  am  sorry  to  say^  that  the  plaintifis  have  not  shown 
enough,  wlien  they  only  show  themselves  to  be  judgment 
creditors.  If  they  want  relief,  touching  the  personal  assets 
of  their  debtor,  they  must  show  that  they  have  taken  out 
ea^ectHton  atlawj  and  pursued  it,  to  every  available  ^extent; 
against  tbe  property,  before  they  can  resort  to  this  Court  for 
relief.  I  apprehend  this  to  be  tbe  setded  rule  in  Chancery; 
and  that  this  Court  does  not,  as  of  course,  assume  jurisdic* 
tion,  in  taking  executions  upon  judgments  at  law  into  its  own 
bands.  Such  power  would  be  oppressive  to  the  debtor  and 
10  the  Court.  The  presumption  is,  that  the  Court  wluch 
renders  judgment,  is  competent  to  enforce  it;  and  it  is  oody 
in  special  cases,  in  which  property  cannot  be  found  to  satis- 
fy it,  U)at  this  Court  interferes  to  discover  and  reach  the  pro- 
perty. But  tbe  legal  remedy  by  execution  must  first  he 
4ried^    This  Court  is  not  to  know,  by  anticipation^  that 


CASES  IN  CHANCERY.  677 

h  will  b6  ineffectual.  Upoa  such  an  allegation,  it  might  1820, 
assooie  the  collection  of  all  simple  contract  debts,  in  the 
first  instance,  without  even  requiring  the  creditor  to  prose* 
cute  his  demand  to  judgment  at  law.  It  is  sufficient^  how- 
ever, to  observe,  that  I  find  the  rule  to  have  been  long,  and 
uniformly,  established,  that  ^*  to  procure  relief  in  equity  by 
a  bill  brought  to  assist  the  execution  of  a  judgment  at  law, 
the  creditor  must  show,  that  he  has  proceeded  at  law  to  the 
extent  necessary  to  give  him  a  complete  title."  If  he  seeks 
aid  as  to  real  estate,  he  must  show  a  judgment  creating  a 
lien  upon  such  estate ;  if  he  seeks  aid  in  respect  to  per- 
sonal estate,  he  must  show  an  execution  giving  him  a  legal 
preference  or  lien  upon  the  chattels. 

•^  have  frequently  alluded  {fViggins  v.  Armstrongy  2 
Johm.  Ch.  jRep.  144.  HendriJa  v.  Robinson,  Id.  290.) 
to  this  rule ;  but  I  will  once  more  refer  to  the  cases  in  sup- 
port of  it|  and  to  the  distinction  by  which  this  case  is  attempt- 
ed to  be  withdrawn  from  the  general  rule. 

In  4ngelly.  Draper,  (1  Vem.  399.)  the  plaintiff  had  ob- 
tained judgment  against  5.,  and  tlie  defendant  had  got 
goods  of  the  debtor  into  his  hands  sufficient  to  satisfy  the 
debt  due  to  him,  and  to  leave  ''  a  great  overplus.**  The 
bill  was  for  discovery  and  account,  and  was  dismissed  upon 
demurrer,  because  the  plaintiff  had  not  actually  sued  out 
execution  before  he  had  brought  his  bill.  In  1  P.  Wtns. 
445.  a  case  prior  to  that  was  referred  to,  in  which  Lord 
Notivngham  had  said,  that  a  plaintiff  must  go  as  far  as  he 
could  at  law,  by  lodging  a  fi^fa.  in  the  sheriff's  hands,  and 
gelUng  nMa  bona  returned,  and  then  be  might  file  a  bill  to 
afiect  the  personal  estate.  Again,  in  Shirley  v.  Watts,  (3 
Ak.  200.)  a  bill  by  a  judgment  creditor  to  redeem  a  mort- 
gage of  a  leasehold  estate,  was  dismissed,  on  the  authority  of 
Amgdl  v.  Draper,  because  the  creditor  had  not  sued  out  a 
ju  fa.,  fori  until  then,  he  had  "  no  lien  on  the  leasehold 
estate."  The  case  of  Kii^  v.  Marissal  (3  Atk.  192.  and 
riled  also  in  3  jitk.  200.)  is,  also,  to  the  same  point.    A  ere- 


•'8  CASES  IN  CHANCERY. 

^J820^  ditor  had  obtained  judgment  and  execution  at  law,  and 
^gg„^  levied  on  leasehold  property,  which,  with  other  effects,  had 
■ow  been  mortgaged  after  judgment  and  before  execation. 
'*«>'"•  ^^  Hardwieke,  on  the  exeeuiidn  leing  produced,  aUowed 
the  judgment  creditor  to  redeem.  In  Bvnden  v.  Kennedy, 
(3  Atk.  739.)  an  execution  creditor  was  allowed  to  redeem  a 
leasehold  estate;  and  Lord  EUenborougk,  in  ScoUv.  Scho- 
ley,  (8  East,  467.)  refers  to  some  of  these  cases,  to  prove  that 
"an  execution  creditor,"  as  be  terms  him,  may  have  a  de- 
cree in  equity  for  the  sale  of  a  mortgage  term,  in  satisfaction 
of  his  rights.  When  Lord  Eldon,  in  Momtferd  v.  T^ 
lor,  (6  Fwey,  786.)  seemed  to  admit  that  a  judgment  ere- 
ditor  might  come  here  for  the  discovery  of  property,  in  t^ 
to  make  his  judgment  salable,  he  spoke  in  refereneettti 
the  case  before  him,  in  which  the  plaintiff  had  pfevioudy 
sued  out  an  elegU  and  found  nothing.  Some  of  these  lat- 
ter cases  are  peculiarly  forcible,  since  they  require  a  pre- 
vious execution  at  law,  even  in  cases  in  which  the  creditor 
is  pursuing  a  mere  right  in  equity,  not- tangible  at  law,  or 
vendible  under  ti  JL  fa. 

There  are  some  distinctions  made  in  the  books  on  this 
sulyect,  but  none  that  affect  the  authority  of  these  decisions, 
in  any  essential  point.  Thus  in  Mantiingham  v.  BoSngbroh, 
in  1777,  (if  we  may  judge  from  the  citation  of  it  in  Mtf.  Tr 
p.  US.  and  Cooper-*  Tr.p.  149.)  it  was  said,  though  an  ex- 
ecuUon  be  necessary,  yet  the  rettim  of  it,  nuOa  bom,  need 
not  be  shown.  In  the  note  in  Cooper,  this  seems  to  be 
doubted,  and  the  decision  of  Lord"  Nottingham  is  refemd 
to;  but  it  is  quite  uncertain  what  was  the  point  decided.  In 
Iiaithby>t  note  to  the  case  in  Vernon,  a  different  account  of 
the  decision  is  given,  for  he  says  that  a  demurrer  to  the  biD, 
because  no  elegit  had  been  sued  out,  was  overruled.  Until 
we  have  some  correct  report  of  the  case,  it  is  impossible  to 
phceany  reliance  upon  it;  and  if  an  execution  must  be  pre- 
viously  Issued,  before  this  Court  can  take  cognisance  ofthe 


CASES  IN  CHANCERY. 


679 


suit  at  taw,  for  the  purpose  of  helping  it,  the  good  sense  of  1620. 
the  thing  would  require  a  return  of  the  execution,  showing 
what  had  been  done  under  it.  In  Taylor  v*  HiUj  (1  Eq. 
Ca.  Abr.  132.  ph  15.)  before  Lord  K%ng,  in  1705,  the  biU 
was  by  a  judgment  creditor,  before  execution^  for  discovery  " 
of  particular  specified  efiects  of  his  debtor  in  the  hands  of  a 
third  person,  and  it  was  allowed,  upo&  demurrer.  But  the 
Chancellor  said,  it  would  not  lie  against  the  debtor  himsdf 
Dor  against  a  third  person,  to  have  a  general  discovery.  So, 
in  the  modem  case  otLeith  v.  Pope,  {Dickensj  575.)  a  judg- 
ment creditor  filed  a  bill  for  the  discovery  of  assets,  under 
the  idea  that  the  debtor  had  made  a  voluntary  assignment, 
and  Lord  Tkurlow  overruled  a  demurrer  to  the  whole  bill  as 
*'  too  large*''  It  is  to  be  observed,  that  this  was  a  bill  for  a 
iUcovtry  of  assets ;  and  the  marginal  note  to  the  ease  admits 
that  an.  execution  bad  been  taken  out,  and  so  the  case  entirely 
concurs  with  all  the  prior  decisions. 

The  prosent  case  is  vol  for  discovery  merely.  It  seeks 
the  broadest  relie£  The  plaintifis,  when  they  filed  their 
Inll,  were  only  simple  contract  creditors  of  the  defendants, 
upon  a  promissory  note  which  they  were  prosecuting  at  law ; 
and  the  only  additional  &£t  in  the  case  now  is,  that  since 
the  filing  of  this  bill,  they  have  entered  judgment  at  law 
upon  their  note.  I  presume  there  is  no  case  in  which  re- 
lief was  ever  granted  by  this  Court  against  the  chattels  of 
the  debtor,  upon  suoli  a  state  of  facts. 

Nor  do  I  consider  that  the  defendants  have  waived  thdr 
objection  by  submitting  to  answer.  They  have  given  dl 
the  discovery  sought,  and  the  objection  as  to  relief  may  be 
taken  at  the  hearing.  It  is  taken  in  this  case,  because  the 
plaintifis  show  no  judgment  and  execution  at  law.  The 
question  is  not  as  to  a  submission  to  the  jurisdiction  of  the 
Court,  but  whether  the  plaintifis,  by  their  bill,  have  entitled 
themselves  to  the  relief  sought;  and  wh^bcr  the  admission  of 
the  fact,  that  they  became  judgment  creditonif  an  the  inter- 


4  * 


9 

\ 


680  CASES  IN  CHANCERY-  '     . 

1 820.       mediate Ucne b^weeo the^ill and  the answerl^'gives themaoy 
^    better  title  to  the  relief*  "  ■  ^ 

^'     I  am  oropinioQ  it  does  Qot,  and  that  the  bill  must  conse- 
quently be  dismissed,  withont  costs,  as  to  The  defendants, 
•  ISrofvne^  SzSmiihj   Cvlver,  and  West^  and'^ith  costs  as  to 
the  defendant^  Huntington.    The  aid  of  this  Court  cannot 
be  necessary  as  to  th*e  real  estate  of  the  Genesee  Company^ 
because,  it  lies  open  for  sale  according  to  the  course  of  the 
Courts  of  la#.    The  creditor  who  has  the  pnor  judgment, 
«.        has  the  legal  preference,  aii3  the  plaintiffs  have  their  election 
citlicr  to  buy  in  the  prior  Judgments,  or  to  purchase  the  real 
property  under  the  execution  upon  the  elder  judgment,  or 
^  consent  to  t^ke  ttie  surplus  that  may  arise  on  fhe  sheriff's 
sale,  ifier^atisiyiiig  the  iucgtnbrances  that  have  priority. 
^  This  case  affords  no  ground  for  an  interference  tollcbing  the 

reat  estate,  since  jthe  legal  remedies  are  plain  and  cdRain ; 
and  as  to  the  claim  against  the  defendants  for  a  re-sale  un^ 
-(*  der  the  decree  of  this  Court  of  the  personal  property  pnr- 

4  chased  by  tbe  trustees,  the  plaintiffs  fail  from  the  want  of 

sbowinC' themselves  entitled  to  relief,  as  execution  creditors, 
'by  an  execution  duly  issued  and  leviefl,  .or  returned,  so  as 
to  haVe  thereby  acquirad  a  legal  preference  to  tbe  chattel 
»  interests* 
Decree:  The  following  decKe  was  entered:  ^*It  is  declared,  that 

^       *         nothing  appears  to  impeach  tM  considc?ation,  dr  VaKdky 
«,      of  the  jadgiiient  in  the  pleadings  meqiioned,  in  favour  of  the 
^  ^  '  defendant,  H.,  qor  his  riglit  ami  title  to  the  process  of  tbe 

'^  personal  cstale  of  the  "Cknesee  Manu^cturing  Company ^  sold 
^         under  his  execution,  and  paid  to  him,  nor  bfc  right  and  title 
^  tP  collect  the  residue  of  his  judgment  by  the  means  provi- 

ded by  law ;  and  that  the  Genesee  Manufacturing  Company^ 
1^  well  as  other  debtors,  wore  authorized  to  give  preferences 
.,.    ^^  iiBona  crtditors,  for  a  dtbt  justly  due.    It  is  therefore  or* 

'*^  "^        doted^  ^.nhatrthe  bill  as  to  the  defendant,  H.,  be  disdtasedi 
Vith  cosft.  %fi^  ii  M  further  declared^  that  the  plaintiffs 
^^  M  W^^  ^^^  ^title(f,'  ^  tlie  time  dft  filing  thdr  bill;  to  qoM^n 


^ 


*  t  *  "     * 


■*■■  V 


> 


*; 


A 


^   < 


,•*•:    ♦ 


•  :  ^   eAsss  m  eHAKCERy.  .  • 

-:- 4'         *  ;-  ^4       *    ..'  *    . 

jl  in  thb  Coiv0^  the  ^isposiAons  4|if  tfe  retl  propJhy  of  the 
f^^Qenesee  JiSfmufofiufing  Ctjinpahy^  nor  ate^itbey  now 

*     entitled  to  qu&tio%  the  dispo^itionis'^.of  their  personal  p^- 

,  perty,  inasnrach,  as  at  the  time  of  filing  tlieir  bill,  they  had  > 
not  acqaired^aijien  at  law  upod  the  real  estate^  as  judgmiibt 
Creditors,  nor  have  they,  as  ye^^acqi^ired^as  execution  cre- 
ditors, a  legal  preference  to  the  per^naf  property,  by 
means  of  an  execution  duly  issued  and  levied  or  returne^,  nor 
shown  that^hey  canfiot  obtain  ^tisfaction  ^  their  debt  byP  ^'  ^ 

haviflig  tried  in  vain  the  ordip|ry  pro<^ss  of  such  execu-    ^  41 

tion  at  law.     JJnd  it  i$  further,  declared^  that  though  the  "de^*    j^        ^ 
-fendant^,  who  a^  trnslees  of  the  said  company^  and  par-*  ^    J;   .     ' 
chased  in  the  pejrsonal  property  of  the  (jpmpany,  under  the  ' 

exeCation^of  the  defendant,  f/.,  may  be  liable  to  hava^that 
properu^  redeemed  and  resold,  for  the  benefit^fthe  Credkors  '        ^  v 

se^ng  the  same,  aftil*  dedjuctii^j^  the  price4hey  gaveg»  and  "4       '  *  '     ^  ^        ^ 
,Athe  just-expenses  incurred  th^on  $  yet,  none  bu^  an  execa-^ 

^  *  tion  creditor  at  law,  is  ensiled  to  ask  for  such  assistance  from  t  ^ 

'*    this  Court,  in  respect* to  tbe'^personal  estate.    It  is  thereupon  ^  ^    ^    ^  .      ^ 

y/urtber  ordered,  8zc.  that  th».bill,  as  to  ftll  the  other  defen-    ^  '     *^  '     , 

danlf  Who  have  irbswered,  be  dismissed  without  0»sts,  ^fti^  ^      V  '^   **'  ^ 

Vithout  prejudice  to  the   right  of  the   piaiftifis^   V^bring^'^^ 

a  new  suit  for  the  purpose  aforesaid,  in  the  prope^character  i  >       a^  |^. 

of  jndgmeiffanAeletulion  c;|cBlor8.'^  (a)  ^  t    -     *^- 

■**  ^  ■•         "^   /  **  .  ' 


'4 


♦  li*    *  ^ 


* 


*      m      ^**  • 

(DASES  IN  CHANCEMT. 


Jk.^l^TiLUABCi  Bgaimt  Bbowv  Cbd  others* 


V 


Accreditor,  to  aititle  himself  to  the  aid  of  this  Cob^kin  th^  teqff^ty 
of  his  debt,  nrastAow  that  be^as  prosecuted  hisMebtor  at  Jaw,  U^ 
jadg^ent  Midexecutioo,  so  as  to  hare  gained  a  legal  Itea  and  prie- . 
ferenca^  at  th^me  of  filing  the  bill,  or  at  least  before  isitU  joined 
,    ill  thil  Court. 

^his  Court,  as"^<^  as  a  Coallof  law,  allows  a  debW  to  give  a 
^  '   '^         y        wrefereoce  to.  one  Creditor  oKftt  toother.    And  whore  a  ^debtor, 
\  .        ^       ininsolrpntcircai08tan{)es,confqs8e{8a  judgment  for  a  debtjttsHljr 

f      -    ^  due,  such  judgment  ca-ediltor  will  retain  bis  priority.      ^    *     . 
^     '^         ^ ,?       *  '  *^        14  however,  th^deS^or,  makes  use  of  the  judgment  so  ConfessSo,  to  ef- 
^         ,'    y      \  ^  '       feet  a  sale  or  chaog^e  of  hie  property,  for  his  i|wn  purpoi^s,  an^  the  * 
*f  pr^ecgr  is  irtd  at  a  great  saeiifice,  and  pvrchased  in  bj  the  debtor, 

.    }'         **  *  ^     y    thii  Court  will  teterfere,  and  eithei:  allow  it  to  be  reJeemei,  or  ppt 

'^  '.  *    ^    .^      up  again,  at  the4>rtce  at  whicW  it  was  sold,  and  resold  for  (}ie||pi^ 

^  ^  '  1    fit  of  Ae  tKfier ^creditors,  as  to  al%^  surplus  beyondthat  price. 

MD.l&,andr 
I         ^    f  JKc^^  THE  biU,  filed  in   May,  1(^8,   ayiiDst  the  defendants      ' 

' '  ^      ^      ,,  .\    *      named  in  the*  last  causep  and  Datid  Brown^  an<f*  Frgadb  / 
^  ••        ^  *  ♦ '         »  ^  JBrotiWjS^tfedthfttthe  plaintiff  heldduee  promissoiy  notes,  ' 
'*     \^     y.^i  dated    Oc^oA^  S»t81 6*  given  4n  the  naneAr  of  the   6aU»s^~ 
^i        . '^•i       .'^/Jlfanfj/ictonn^  Cempoiijr,  and  signed  by  the   defendaot,^. 
^  '\  yfi'f  ^y  PTf^^i*  of'tlbe  tr^tees,  payable  in  o9e^4rqf  4hd  tiftee*  ' 

^    .     ,  V  yeal%  from  thfe  dates,  rtspectively,  being  for  t  baltece  due 

^^  OB  a  cotilract  lor  erecting  a  building  for  the  coropanj^^oill 

'         /t*    ^J^      ^  ft    of  which  nbtes  *ar  di^  >fi  Cteoi#,4817,  and  i^nftuned 


y.^  .  ^  ■'    unpaid,  and  a  suil  was  con»mM«to«l  by ,  the  plaintiff  ^ 

\          /  '"      .    ^  **^^  company  Ml  Jtfay,  lBi6.  The  bill  llieQ  stiKpd^  jiidgauMfft 

.    r          .  -       •  ^  4!Qnlessedin  fdvour  of  Htmti^on,  aadipaDceAiiigstiM^ 

i        >  *            ^  '  ^  in  th«  last  |pse,  and  alledged  Ihat  the  ^eljt  was  caXrpGll  ^ 

•^  %    ^  *     ,  .  '    <ed  on  the  fur^^^^  credit^^atid  responsibility  of*  the4d«reft<f 

*^    *^j  %Qts,tnistees  of  thecottopaog^ ;  and  tbat^lhe  jodgmeat  w&^ 

^  ,  ^  tbnfes|ed  with  a  view'  to'  defraud   the  plaintiff,  im'd^tto^ 

^     p.     ^\^  ^   ciltoitocs#rth^company,S»:.  "^ That itfJUay,  1818^ JVfa^ 

-'•'^     ^  Qnmm  fy'Cdtot  whi<$fi  firm  the  defendant  .Af.  ^.^  presi*«* 


If 


\:       '  '■  ^  ••  %       #  i* 


^^•*» '    ■         .     ♦ 


^    ^      ,      '^     >     CASES  IN  Cq^NCERT.      t        *  i*  ^8? 

dent  of  tbe  coinpaii)%  is  a  partoer,  sned  th^  cony  any  at  \9^,   'Jl8^ 
aiaf  t&at  tbe  trustees  intend  .to  confess  a  judgment,  so*  as    *^  ^^^^ 
to  give  ^e  saidT A  ^,  Co.,  a  priorhy  over  the  plUntiff^od 
Others ;    and  that  tke  jfebt  claimed  hf  ttein  J|eing  6,|06 ' 
cfbSars,  was  for  installments  paid^afid  not  aeompaTiy  debc^  '«' 
&c.     Pfnyer  for  a  discovery,  line!  that  the  delfendant#  jpajr  ^'^     «^* 
.  be  enjoined  froin  filing  the  real  estate  of  the  company  unr         '^  ' 
der  the Ji.  fa.  in  favour  of  H.,  and  that  the  preten4ed  «ale\^    ' 
of  the  personal,  property  mi^t  be  vacat£^d  ;    *and  that       I » 
Francis  Broten  <Sr  Co.  miglk  be  enjoined  from  proceedii^g^in  .      .     ^ 
their  suit,  and  tbe  tru^ees  restrained  from  .cgofesaing  judg-    "^   - 
ment  thereini  and '  ftiigfat  Be  deofoed  to  pay  to  the  plain^fi*,^     *    • 
thedAtdueto  hip  ;  and  for  general  relief.  '    t  '.      ^ 

*  l^e-defendants'  J^nB.,*  D.  B.,  F.  B.,   S.^^T.^and  1?.,     ^  * 
«  pint  in  ft  joint  and^several  ^swer  4  M.  B.  admifibd  that  he^ 
'  had' been  thej)riiicipal>gentof  the'^ompanysinG^  itslfncoi^  *   ^ 
'  poration,  acting  under  the  app6i4bne|^t  ia|yl  dfre<nion   olr      ^ 
^e  trustees ;  that  he  sigtied-^  cdn^ion  af  ju^n%it  in  fa-      m  '    '  ^ 
.  v^r  of  iranci^jj^rcni^n^  Co.  on^t^  16rfi^fJ^y)tl81fi,fo^    .7      * 
•>£^34l  dillar^,  6  cents^i  on  which  an  excciifl^risu^,  w||ich  ^      #.    ^ 
wy  stayed  by  tbe  injunction.'  >That  40  f(^s  or  itutafir^  ^^^' 
^mmt^T  p^ments  therein,  constitiitea  q^y  p%rt  of  ihe  said. .  "^^ 

^    M$»    Th^answer  furth^  stated  the  mapiar  in  \vhici|.»'the^  T    •, 
debt  dui^  H.  !|as  cchtfracted,  and^be;  judghent  'imd  s«bse-^  X  '     -" 
'^U^nj^ procee^ilgs '.tfefeon.   The  d^fei\4anl,H.9  al^li^  put  j^      "^    '  -\ 
liift  answer,  stating  th^ttraniactilifl^relative.  to  Hfae  purchase  ^  ^   -' 

Wlbe  cotton  oAiiiii»'aiid-lb»-co||fes|ioad^th^  judgment  by*    ^         #    *" 
.  ^ihe  trustees,  8mv«     *^  -  .  %   /         '  %     ^"^  •! 

Theevidence^tyfiii'in  fhe«aofie  refated  cluMy  ^- -tiip  ^  ^  ^    'i, 
'  4to)^  and  puijAase  o#the  propeAy'  (f(  the  company  amder^      ^  «  ^  *" 
^y^^ft^  And  *t  sippeared  ffom  iNprpofs,  thy  jihe  ppin-  ^ . 

'^ttf  recdvlred  a  JM^ment^ jb^  default/^g^inst  tbe  oppipahy, 
I  Slh  4ahmtJlfm%  ai^ti^  fir^  iK>te9^  {6m  4iI  |btfta|9-  .^un}  ^  ^  *^    ^    ' 


▼;  .       *        '■ 


The  cause  Hood  over  for  c^lidltafion  tftbis  diQr.  ^ 


i^r        *  .€  ^  tb  stay  the  edhipany  from  ^afe6siD|j^%iy judgment  taj^ncnir 
^     1^     *  *««>  ^  6»^Brovm  fy  Cittt»d  that  J|UMel%  may  lv*lecreed  |o  be  paidi    . 
«  *    '  Tbis'^^H^  fat|{  within  ^e  decisioa  jlis^^ade  in  the  sakj^ 

^  ^  of  BHnkerh^y.  2fil|H<?>  iwsoi^  as  tb^  plajtui^l^  l^«-. 

4-        ♦*  '     ^   .|bbUiiiedJidg(^»fcwftM^w*i<>n>^^ 
•  *      ,  to  this  (jji^i  t^  assit  l^np^  in^  tli#  <uit*    li  do^  Lsdetf^^    » 

>  "^     4M^  iuHifi^r,.diit4ince'iMtM  Aqj^  £«e»  jM^ed  inih^  €<m$^     . 

ip  ^     >  the  Dl^pfl|*h(L^c!^tiAiSd  the  proseciition  of  hiit  si^jjf^ 

^  ^  '.  *^*    Jbiw  i^ndiifg  this  bill,  har^bl^liied  |kdgmeii  ^nu  one  ^ 

^  ^  '%    „l    t    **    his  pronfl*^gi;^^oWt  Bmif4ribe  judgment  bad  been 

*"  «*'ed  ij^s#son  b^re  fililflK^^JsJ^in,  he  i|^  not  b^irlP^    « 

«.  ^  Tn  axondj^u  ti^pufiwe  the  pers9i*|(^§ropertj^v^^ 

^     n  f  "^  beea  puurhased  iii'by  XwSafMie  dQfeu^ip^  who  wbrg  ga%-, .  ^ 

V    '         tT*'     ^       ^^^'  "^8  4hfc' execufiog  ^under    .^ntin^lMliVjudi^]^  ^ 
s  ^^  Y/'4mii  showing  t|^t1ie«b»d  a^o.  taken  ou||e]^uriQO»^0i)^ 

^  #        ^  '    endeyoure^d  to  sljis^y  HKlsjlebt  uodeiijt.^   ^*MJ^*t^*     ^ 

^^  •  \-   ij^       *  so  fu^Jjf  ik^ul^A  |»i  Jhe  case,  of  ^^nA^Jefir.  .^J^, 


I^.H 


^  4 


♦      4 


^       .      *bASE0  IN  CHAN.CEiyr.     '      ^ 

pittcbased  ^by  one  of  the  uusteoi  of  ib#.  c«9iipli|iy«  wbo  .  .1820. 
^n^a^  q^edatty  aiithorraed  to  btiy  for  the  eonpany,  and  iin* 
^  1%  a  paMfiae  bylhetni$lBet  to  be  responsib^  aslr^iieSy 
pB  well  «8  10  their  iodividoal. capacities.    It  ig  imposiible 
$f>  inisigtoe  a  debt  more  justly  d\m  from  the  company ;  and 
Ihey  bad  a  right  to  give-a  preference  and  to,  confess  judg- 
a^ebfrio  vocfa  arcreditor.    If  tbe  executioa  under  that  jodg-* 
moot  was  abused  by  the  trustees  in  the  tele  and  purchase, 
by  tfalm  of  ib#  corporate  property/  they  are  responsftle 
(oT  ^at  abnse»  not  the    creditor  who  had  no  knowledge 
of  itl;    Such  con()uct  bad  "no  retrospective  efiect  opon'  the 
laUdltjr  %f '  the  judgment;  and  Hmtington  was  clearly 
« (^titled  to  retaiRthe  procieeds  iJl  the  eiecotion  firhich  has 
^  been^paid  to  him. . .  ^  ' 

.    .   l?0Drt^t>f  eqoity,  ae  well  as  Courts  of  law^  allovfla  debt- 
or *tpgive^'ptefprencetaf  one  creditor  over '  another.    In 
;  SmMy.  Oudky,  {3  P.  fr9it.^427.)a«  debtor  in  insolvent 
cir<^staftces»  assigned  personi^  pioperty  to  a  particular 
crefljftor  K^^ecure  his  debt ;  ^d  this  was  do^e  withiyut  lus 
privilyjor  kUpwMge ;  but  asit  Was  jTor  a  just  debt,  the  Mas- 
ter of  the  Rolls  gave  efleclt  to  the  assignment    Other  cases 
f  Id  the  saaae  point  were  referr^  to  in,  Hendricks  v.  Robin^ 
^  ton ;  (2  JoAns.  (Jh.lfyps>  306*)  stid  unless  we  were  to  over* 
'  'tarn  a  dlrifs'^of  aothbritieS»4we1:ould  not  question  the  right 
>     ofi  thefdobtor^to  coufeN  a  jodgfliient  iu  favour  of  a  particu* 
jar  ^redil^,  for  lUi  honest  d^t  tb0n  duei  aud  that  such 
Jpid^ment  will  hold  its  prio^qr*    Vfp  h^v^^  indeed,  oftsvk 
occksion'to^  observe,  wjith  reglrel,  that  the  race  of  legal  dili- 
gence^bet^eea  credttofi»,  ao^be  right  of  th^  debtor  to  pay» 
.    ypr  secure  oiie  creditor  in  prefer^ce  to  another,  gives  occa* 
ttot)  to*  the  roost  ungual  4i|tribption  of 'an  insolvent's  e«» 
«*   i^\  bu{  in  ^ases  not  provided  (or  by  statute,  the  proceeding 
'caniiot'fOi^in'krily  becomro1led.-''This  Court  does 'secure 
■||D  equttaole  distribution  of  the  real  and  personal  assets  of 

1^  tho^dkceas^  debtor,  upon  tbf  lenfisi  dfid  uhder  the  limita- 

s       .  '  >         ..'.-^ 

a       "     •        ^  '  > 


^  t 

6» 


n*. 


-If    * 


'-♦  r. 


4  \ 


^^ 


\ 


Baowir. 


686  .      •    .       Ci^ES  IN  CHANCERY.  * 

1820.       tions  explained  at  large  in  the  late  case  of  Thompson  v. 
^"^'^^^   Brwjon  and  othert.*    But  the  doctrine  in  that  case  does  not 

WII.LIAK8 

y-^^      ap|fly  to  the  estates  of  debtors  in  fiill  life,  for  liere  is  ao 
equitable  trust  created  and  attached  to  the  distribefioa  of 
*  4h/e,p.6l9.  the  effects  in  the  latter  case. 

There  are  itiBm$  that  went  to  constitute  a  considerable 
part  of  the  judgment  confessed  by  the  tmstSes  in  favi«ir  of 
*  Francis  Brown  fy  Company^  that  may  well  give  ground  for 
discussion,  at  the  instance  of  creditors ;  and  if  the  plamtiff 
had  come  here  as  a  judgment  greditor,  hg.  would  have  been 
*  entided  |o  have  opened  an  inqniry  into  the  conaderation  of 

that  judgment  But  I  cannot  admit  him  to  thrft  inqaiiy 
upon  a  bill  filed  by  him  as  a  simple  contract  debtor,  merdy 
because  he  puts  in,  as  an  exhibit^  in  the  mass  of  proof,  the 
record  of  a  judgment  at  law  obtained  since  the  j^leadings 
were  closed.  The  tame  must  be  decided  upon  the  all^^- 
tions  in  the  pleadings,  and  thi^  proofs  in,  relation  to  them. 
Whether  iRe  prior,  and  ^tiUt  unsatisfied  judgment  of  Hutn- 
iington,  and  (if  we  may  allude  to  a  fact  in  the  preceding 
cause)  the  prior  judgment  of  Brinkerhcffj  woald  render 
.«uch  an  inquiry  expedient  on  the  part  of  this  plaintiff,  it  is 
not  for  me  to  say.  He  was  premature  with  his  bill  in  this 
suit,  for  such  a  purpose,  and  fw  the  reason  assigned  in  Wig- 
gins V.  Armstrong.    (2  Johns.  CL  /icp.  144.^ 

All  I  can  say  is,  that  when  a  plaintiff  shall  appear  %Uh.« 
proper  tide  to  such  relief,  I  should  be  ^ngly  ^cfmed,. 
upon  a  case  lil^e.tbi^  to  inftti(ute  an  inquiry,,  by  refer^^ 
into  the  charges  constituting  the  consideration  |^  thjs  judg- 
ment coBfesse4  by  the  company  io  j\  Srown  a|d  othess^ 
and  also  to  give  to  the  execution  creditor  who  rai^t  app^Jr 
a  remedy  against  the  personal  property  purchased  ui  by  the 
trustees,  by  allowing  it  to  be  redeemed,'^and  %y  fy/ii^ii 
re-sold  for  the  benefit  of  such  craditor,  .ps  to  ai|y4iupIos 
price  beyond  what  the  trustees  Wd  and  pdid.      '  ,  \  ^ 

I  shall,  therefore,  dismiss  (his  bill  as  agaimit  the  d^kiir 


iT 


I 


I  CASES  IN  CMANCfiliy.  687 

ant  KwpAi^giMi^  witb^CDSts,  but  without  costs,  and  without      1820.  ^     i.   It,  , 

,  prejudice,  as  against  the  other  dl^fendants.    .  '        >  Si^^^-^*'    . 

'  ,  M'DKiufirTT 

Decree  accofdingly.(a)         g^^.  J 


(o^  Vide  Brinkerhoff  ▼.  Bromiy  ante,  p.  671*  and  M^Denmitt  ▼.  SVrangi  pott 


M'S^BMFtT  and  others  againsi  Stbono  and  others. 

Thia  CouTt  hm  po#er  to  assist  a  jadgment  cveditor  t%  diacov^r  and     * 
reach  tlie  property  of  a  debtor,  which  is  beyond  the  reach  of  an 
exec\^tion  at  law.     To  get  possession  of  the  equitable  interest  of 
a  debtor,  as  a  zesnlting  trust  in  goods  and  chattels,  the  judgment 
creditor  must  come  into  this  Court 
'  Bat,' before  a  judgment  creditor  can  be  entitled  to  the  aid  of  the 

•  Cjpart,  agaipst  the  goods  and  chattels  dl  his  debtor,  or  against  any 
.  «quitable  interest  oCauch  debtor  in  them,  he  must  first  .hare  iikem  '  ^ 

o«t  eaecetion  at  law;  and  ^^used  it  to  be  levied  er  retained,  so  as 
thereby  to  show  a  failure  of  his  remedy  at  law, 

Ajodgment  creditor  who  so  takes  out  execution  at  law,  but  is  unable  * 
to  reach  a  residuary  trust  interest  in  the  chattels  of  his  debtor,  and 
files  hii  bill  for  the  aid  bf  this  Court,  gains,  by  his  execution  ^^ 
'^egal  Aligenbe,  a  legal  prefbrence  to  the  assiitftnce^ '  of  this  Court, 
o»a  lien  on  the  ei|uiuble  intefest^  whioh  cannot  be  aflfected  or  hn- 
naired  by  any  subaequeot  assifnment  of  that  efuity  by  tfte  debtor, 
eit|ll9r  to,the  benefit  of  all  his  creditors  g^erally,  asunder  the  iui 
solvent  actf  or  fmr  the  benefit  of  a.partiouIajr  cie^tpr. 

And  although  it  is  the  favourite  p^cy  of  this  Court  to  ^distribute  the 
iUtfU  among  all  the  creditors,  paripasnt  /^et  when  such  a  judicial 
praierencehas  been  establidied  by  the  superior  legal  diligence  of 
aikycred^r,  that  preference  will  be  elserred  ii||th'e  dUtribotion 

.    oftbe'a»eti«  '  «       ' 

• 

.  SUBPLEMENTAL  bill, filed  September 2;^l81d,  ag^nst  JVdo.isjAaiid 
the  defendants,  as  asiignees  of  Jam^  Robertson^  an  in-  ^^*  ^^* 
'  solvent  debtor,   setting  forth  the  miginal  iiil  of  discove* 
i7»  filediSe6n{p99  9d,  lOOtf^  against  Robentson^  WhiU  Mat-  • 

-     .  k    «  e  '         ■ 


f-f 


7  »        •*         ■' 


\ 


.jt  .. 


aS8  ^     ^  *        OMS^BS  In  CHAKCEKT^ 

J^^*     •!«».      /«*,  and /to*«frC- 4%,  atidtlwirt^wert.     TIfe   |ilaii- 

*  /    ,    *   r  ^^^^'^^''^'^tiffs  were  judg»^crediuSw  of  ^o6ertton,    «i|d  Uieir  «ev«. 

^^  If^*' *raf  jadgmeiUtWi«ntcred  iil)#oin,the  6th  to  th^ 

%  ^^  '         ^^'^'      Man.  1808,  and  execotions  were  issued  jhereon  to  the  Bheriff 

«r       .  •  ]  of  the  city  a^d  coioty  of  ASw-Vor*,  who  levied  on  the  alip 

^      .         '  CinaniiA'  and  three  other1[||ig|^  as  tbe.propeity  oC^.,  and 

returned  that  he  maid  notraiseohe  q^oney  thereon,  as  the 


\  « 


Uihips  were  Waimedby  ¥irtaM>f  bills  of  sale  ai(|  «^ign- 
*     ments  from  R.  ,       *  ^4 

The  defendtttits  put  in  their  answer  t*  Ae*  snpptemental 
V      ''4>i^  October  30,*  IB  19;  and  a  replicati^  was  ffled,  and 
*  ^ro(A  taken  in  the  cause.    The  material  facij  appearinj^, 
4  froni  the  fadings  and  proofs  are  sufficienliy  stated   ill  the 

'      *  opinion  delivere4T>y  the  Court        ■'  **"    - 

V  j\Gra.  mh.  The  cause  was,  this  day,  brooght  to  a  .hearing.    "^ 


^. 


S.  Jone^  for  the  plAillbrs.     He  cited  2  Bl  Camm.  §96. 

-  »  *  Per%^^  sec  55.   8  Johns.'  Rep.  38fc'iJ^  Johns     tt^.  T3. 

1  Temon,  ^8,  399.  1.  Pr.    Wni.  444»    2  Atk.  477.  ^3 

,  jJrt.  200.  739.    Amblerj  79.   1  MaddoeVs  Eqiu  Pn  418. 

f  ajbAiit.CA./Jip.283.296.  312.  ^  *     >      , 

«       •  .  fVdb,  contnu'   He  cim}  5  JtfAiu.  Aip.  335. * 386.  ^ 

Mru-Vk.  Rep.  ^69.  * 

l>0e.  Sd</^'       •  The  cause  stood  ofqr  for  consideration  until  ^  d^qr* 

The  Qhanosllob^   The  fllatement  of  a  4^  (acta  will 
,  ^,    ^       sufficiently  bring  up  to  view  a  ifery  impoitaqt  qoeiljNi 
arising,  hnd  dilftj|i8sed  in  this  cas^.  /  ^  t 

«     «        \^     .    Jame^  £o&eHso«9  ^n«he  27th  of  ufjMtZ,  18a8,t«i^ 

*WJtite  MatlackfjUD.  the  ship  Ctncinfiariy  upon  tit^  toseH 

'\  ""   *     her^iand,  out  of  the*  proceeds,  to  discharge  certain  deifc  apd 

.    ^engageoieiics  olRob&rtson^  and  tf  account  4br  the  sarolus  to 

'  •     Robertson,  hiaiielf,  or  to' his  assignees,  if'  any  should  lilbe 

4k  .  %  *■ 

'  '  •  •«     • 

^  •      r  *  *     .    •  •  •>  ^         -•♦    ■ 


<4> 


4 
> 


V       0ASB8  IN  CttJMJEfir.'    *       ,  .^* 

i  m^nOme^  be  a^pcmled  under  the^iiMlveiil  aet    M:  af- 
.terw^i^s  tposferred  his^tro^t  tp  «/2{(y%  and  the  sUip   iws 
add  by  .^yn,  with  the  cofpeDt  of  tl^  plaintii^  on  the  Mk 
•     o£  Mtrdtj  1809,  and  the  surplus  proceeds,  amoanfiog  to. 
5,400  dollars,  after  satisfyipg  the  trosli,  were'iseeured -by  a 
Ho^    dated  ^9^  JU^reh^  1^0,    ps^able  In  six    months, , 
.^  taken  in  part  pay^aent  of  ibe  sbipi^   The  note  was  de- 
potriied  with  the. defendants^  as  stakefaolijers^by  jUtyn^  With 
the  approbation  of  the  ^Islintifls,  in  tnist  to  reteive'Hhe  mo- 1 
aey  jrh^  dM%  ||i(f  hold  it  subject  to  the   oc^^er  of  this 
.Couoj^in'the  original  suit  then  pending',  and  o(  which   the 
defeudanlB  then  had  notice*    The.  deport  of  the  note,- by 
^ti»is  arrangement,  wa^s  dn  t|^e  3Qih  March,  1609  ;  aod^in 
'    Jum  following,  Roh^tson  was  discharged  under '  the  insol- 
vent act,  and  the  defendants  were  appointed  tus  assignees* 
The  note  was  paid   to  the  defenj^aots  when  it  fell  due,  and 
•i||fyiiow«  setups  a  right  to  distibute  the  <4Doney,as  as- 
'  ftign^  of  jRo669^oa,  rateably  among  all  hk  creditors^   The 
r   plaintiA,  on  the  qfber  hand,  claim  it  as  judgment  and  execu-  < 
l)on  ereditors  at  law,  ^titledto  a  prefereuceover  the  geq- 
"' eral  creditors.  -     ... 

'^  The  plaintiffs  ''severally  obtained  judgments  at  l^w 
*  against  iio6er^ni  in  VI2ay,  J^sV  and  in  May  and  June^* 
1808,  they  severally  issued wBXecutioos  agaMst  the'  estate  of 
"  ^Rohertson^  wHich  were»  levied  onth^  ship,  fts  far  forth  as 
siDsh  a  l^vy  could  be  made  consistent  with  the  priqr' assign- 
ment. Early  in  JtJy,  1808,  the  plainUffa.  gave  notice  to 
Mffn  of  iheir  judgments,  execntiom  and  levy,  and  that  tWy  ^  \^  T  ^ 
.^Imild  look  to  him  fojmhe  surplus,  after  sfitisfying  the  vali4 
trusts  'l?hich  had  priority  totbe  lien  of  their  executions.  '  *  ^ 

i   The  question^  then,' is,  have  ibe'plainti^,  as  axecutiott'      ^     ^' 
credi^irs  at  law,  ft  priority  of  right  ovefr  the  ^creditqre:  *at 
u   large,  to  these  surplus  proceeds,  being  the. 5,400  d^btrs  so-    ";    '* 
received  by  the  dtfendaiMS  wh  A  the  note  fell  d»e,  in  5^-^ 


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i'   ^  ^i'  .■":-:'-^^  ,,    >"!^^        -•      -^ ' 

V  •  .*^d|p.*         The  faqploB,  after  satHfying  the  olgectt  oTi^  aMfffr* 

^.       ^       ^»S^^^'  ''^^'^  ^^"^  which  n|  asiiuii^iil^lbb  cturio  have  bdcii  fitir 

^««  .^,  ,/{     >«Klvdid^,)b^|*iiged,Maresa|kioeuUraaV  They 

,    .^^     ^^w^>     ,p^^  ^  l,^^  belofeg^.  «>  aiiy  othei^  perAii^.fdl=  the  a^ 

-  C  "^^    dgoees  were  liot  creMed,  aolil  aAer  the  sale  of  the  l^s 

^  "^        <f  ^^^  liquidoli^  of  the  60Jcpl^8,  anc}  tha  depdrtt  ^^  ^  ^^vp^ 

^  f  s"^  '*''.         whh  iha^efi^2iiti«  J^JDr.was  this  relHii|»ag  Uost  thetewh*. 

.'^     ^       .   ject^of  ftmai^aBd^aleat  lawy    It  wasjk.mere  aqaitj,  end; 

\      i  *  #  -^         could  oaly  be'reacfiedjyy  die  aid  of  \lm  CoaK.    TUe  mu 

\  "^^  ««lecided  ia  ^iUm'  and  f\mifnt  v/  Fenw;  (|  Jehm. 

^     >    ^       ^.    ^      ?  JU^  3^.^, and  i)^  same  doctrine  was  teclaretf^  Ifi  theK. 

'     *  '     ^  ^.-^   "^  B:\nSeo(t^.Sf^ley^  f{^Ed0,M6T)    A jndgmetft  cndSt- 

'    '^  »  <        .^  ^      tor^ustgointoe<{lity  toioDtain  pdSs^onoftheeqoitaUe^ 

^  ^  ini^fest  of'  bis^btor;  and  if  he  has  taken  and  exhaiwl^all  • 

'  ^     '  ^"    ^   '  Aeiaeaiis  ii^hisM^riit  law,  he  will  be  eatkled  to  the&l 

^     l^  ^r      ^  of  this^Mrtt^^iseover  aiMlw^^pply  th6j)ro|lerQr 

•  *  .,    W*^  f-  ^'  '^^  exeotttioo.  -  In  jPhiyaril  VgBagmau^*  the  cases  .were  e^* 
/  '.%  ^^  *"       *  amineft^mching^tbe  power  of  this  Court  to  enable  det^ 

*  .  4      «>  '  ditor  to  reach  i||?ost  lyoperty  iHsyond  the  reaclu>f  an  execiH 

^          ^  ^n  at  law,  sq;d4  conchded^Ht^  tl|(  Coart  had,  and  ongte 

^          ^          ^  ^    *  tf'Wve^tkls  power.  But  thyi^casestands^on  stronger  grooori 

^     ^    4      ''    ^  ;    dia%  if  it  rested  nmely  on  \fae  general  jariscfictie*  of  diis  'f 

•  l^  ^      "^  ...  C/onrt  opoB  jresiduary  trusty inieMlts  in.  cbattelsffer  the 
,  '^     ^'      •  ^  .  ^    ll^intifi  come  in  the  chaiacter 4  of  exectfiioh  €redShu-i^tu^ 

I        ^  have  therefagi  aeqpjred,^by  means  of  their  ezecjf^tioi^aUui^  ' 

f  «  * .  ^^^^  this^Court  regards  as  a  legal,  preference,  or  li£  in 

..JJI*    *  *•  ^'    the  property  so  placed  in  trn§t*        .  r  .  .^ 

t     ^  ^  The  cases  on  thh^  P^%,  were  ah  recently,  reviewed  in 

^  ^    .  <-inte,||«71.  ^rine^hoff  v.  ^roiiWjt  and 'H  Would,  be  useless  la'AotioL 

jf    .:     ^       them  again.     Vhe  C€#e  of  HAidrich^.  R^Knson^  (2  /oibu. 
.;  *^  •   ,     '  *"  *  V      ^*'  *^  ^^'^  ^**?  "^*  intcTifere  with  the  'anesuoa  nbe- 
, .;  '  ther  aUf^xe^tion  ct^itor  at  law  might  not  acqinfe  n^^igh^ 

^    ^  ,*  ^       to.be  ri^cpgni^d^nd  enforc^  in  this  CQurt,  to  the;  florplns,  . 

'     i  "^      torresu^ing^trustfberonjifin^  to  the^btor,  after  the  purpoMi 
""        4^  of'4fie  prior  assignmenfo^^the  ^battel  iMer^tiiad  beM|.aii* 
*      ^:  ^^s  "     *ewered.    Inthat  case,  there  Was  ^0  sur]^siajth^'han2s  of  « 


r 


.*     '•*  ♦ 


*    •♦'•'   ,t  **''^V.^.  ^\^^ 


•4      .  "^     i-     '  ft  *        k  • '  •     *■ 


jU  na  ^U4V#»i>v       ^  ^ 


^      t 


U  CASES  IN  CHi^OKRT.  .  ^         ,    *^.  ,.  '«W 

'-      .^  -*  •  •    '       A.'  "'        *•'    *  "^^ 

JMMMm'^  CAam|)<Mi*    The  gl«al  pDlDt%im'«iaS|  wbe-    ^S%- 

.tj^eMhe  Mttgiknenl^  ^  Ibera,  wat  vi4h1  o»  TraibdaMnVa^d,^^;^^^ 
^  ^  whetkcti^che  phiiQtiA  cddd'diYffl  tbe  procieeds  of  tb^  pro-^       i/  m    '*" 
perij  aasSgned,  fjbtn  ibe  fair  and  kwfiit'«trtmtt  cnMdkj^     »rEtiy^  ^      >♦  -^ 
''.tbii^  assignments,  wWb  were  rarddi  bdoA  'the  phiiA^      "(  ll 

«b«d  eveii  colbineticed' bis-,  soft  at  law.    I  regani  ibe4dw    ^   *>  f  "*    ' 

to  be  dearly  settletl,  that  before  a  ju^foxent  creditor  ciK      ">^    1(»  '^ 
come  here  for  aid  againsn  the  goods  aikf  chattels  x^  fak     ^'    /      \       .  i 

iW»tor,  or  agsSost  «|y  eqi^table  jmerest  wMd^  be  may''    ^  ^  .^  ^  i' 
We  tbartid,  he  mult  firet  take  oot  ejte^^p^Dif,  an^'cftaflfe'    "^^     '  "^  #*"  ^^ 

ittt  be  lelied.or  retorned,  sb  as  to  sboW  thereb^  thait  fcW  '    -  %i  ^  .  ,>  . 

^  remedy  at  law  fafls^  and  that  he  tm,  tflso,  acquired,. by  dfot  "^  *^^  ^^      ^  ^ 
J  act  of  diligence,  a^legal  prefereoceto  the  debtor's  intei^t^    .^      ^  i  ^ 

The^ai^lus  of  the  debtor's  interest,  ip  the  present  case,--.  T,  ^  ^ 

•  remained  ^disposed  of 'Hjf  the  dAtor  toifwbom  it  reMted,  ^'   :    t^       '   '^    ^  "^ 
■when  tlfe  plaintfflsfile^  their  faatr^ki  thiS  Court.  If|bey  had  a  ^*         '*  J^  »^ 

right  to  it  aS  judgment:^rediteQrs^  by  bavlbg  siidt  out  exeeutioCL        *  ^      *    . 

ail  law,  and  having  filed  their  bill  ({efoCe  any  otheisjgdgmenl  %     \\^  '  ■    ' 

creditors  had  dotie  either,  th^ right ^uld  dot  be  gfiected'..^  ^    jfb  , 

.  by  a  subsequent  assigntfient  of  that  equity  by  tlie  debtor.  ^  ^ 

And  whether  that  subsc^uoRt  assignment  was  for  tb^  heA^^^       .  ^  ^ 

*  ^f  the  creditors  in  general,  ^  it  ^as  in  ^is  cas^,  ofifof  the   #  ^       ^^    W^  *  ^ 
benefit  of  some  ssdividual  creditor,  cannot  alter  the  appli^     •   ^     ^       'j   ^  j, 
cation  of  the  t>rinciple.    It  wa/not  innhepo«^er  of  ^  *V^i^*     ^    .^ 
debtor  V>  ^ttidraw.a^jatsuVplos  from  the  lien  .#|^  acqiiii^,  ^  1         i 
in  the  view  of  this  Courts  l>y 'the  execution.    Admitting       «       «  '  '   ,      i 
that  the  plaintiffs  had  si^cquired;  by  theirexeclitions  at  lamr,  a  *^     '4     Tjl 

"   t^^  preference  to  the  itssistance  of  thii„  i^<^i  (stfld  "none  ^  -   '^"  ^  •  ^ 

■.but  execution  fcrcditpTs  atla^re  ejgtitled  t^  th?kt  aasi^jt^jej  '^ .  .  *"      ^       v    ' 

that  preference  ought  not,  in  justic^  to  tie  taken  away,      i*    >  *\ 
Though  it  &  Hhe  flfyQurite  j^licy  of  Air  Court  tplSbtri*  -  jj'  *  ^         f  *  •  "^  •  r 
b'ute  assets  equalfy  among  creditor8|^mj?af«^,  yet,  whey-  .,% 

%  eiper  a  judicial  preference  has  i^een  establisbecl,  by  the  st^     ^  *.      ♦'       *^  ) 
rior  legal  tlSigence  of  any  cre(litor,^t  preferenqe^is  always^  *  '  t^  ^\       ,  - 
pres^ea  in  th3S  didtribmioiK-df  Assets  by  this  Court.    1"hil    ?• 


^    ^         BM  .  CASES  iN  CHANCERY,  i.      "\ 

\^        ^^  *  ^  -  .  , 

'  *1l820r      >M>n  OD  the  aatliorities  in  the  late  case  of  ThMnpMM  v.  Bravm 

*  ^^^^^"'JL^  *  ^*^  oiAen •*    If  the  pl^Miffs,  iiMlea<^  of  seeking  OMTeiy  fbaT 

MPeAutt-  ^^^j^^  proceeds  of  the  ship,  had  charged  tbe  assignment  to 
V  t^         ^^flTRoifG.      1^^^  1^^,,  fraod^ient,  and  had  obtained  a  decnee,  setting  it 
•AiTcp-eift*  aAde  as  void,  it  cannot  be  doabted  but  that  their  ezecatimsp 
\      '^      after  the  inpedimeni  of  the  assignment  was  removedi  wonUL 
41  y'    ^    '       iaVe  held  the  wh^e  solyect  assigned,  in  preference  1o  other 
^  «>     treditors  who  had  no  soeb-execvtions.   Instead  of  sediiog  to 

^  ^     ,        '  recover  the  whole  valoe^f  the  ship,  they  cQnCent  themselves, 

^  ^     4n  this  case,  with  asliing  the  aid  of  this  Court  for  tfie  sup- 

^  '  ^  '        plus  re^Atiog  to  their  debtor ;  and  nO  good  reason  appCfeurs 

i*^^  «e  *^  ^  ^y  ^^^  ^^^  priority  br lien  should  not  be  as  avaihible  for  * 

*  V  *  '^     ^'    %     r  a  pfiirt,  as  for  the  whole. 

^  *'  ^  .It  may  be  laid'doVn  as  a  rule  of  equity,  that  an  execution 

y        ^  credito/at  law  has  a  right  to  come  here  and  redeem  an  in-  ^ 
-   V  ^  *  cumbrafice  upon  a  cHhtt^l  interest,  in  like  manner  ai^a  jud^' 

.  i       ^  meat  creditor  at  law  B^entitled  to  redeem  an  incuipbrance 

p^  ^  ^  upon  the  teal  estate;  end  the  party  so  redeeming  will  be  ea- 
^  ..^  '*  ^  titled,  in  either  case,  to  a  prderence,  according  to  his  1^^ 
4       "*  priority.    The  plaintiffs,  in  this  case,  had  acquired  that  right 

'1  .       *  .%  of  redelnpdon  when  the  ship  Cxwinnaii  was  sold,  by  agree- 

V   '    :  ^     >^«  ^    ment,  ii^thout  prejaoice  t0  their  rights ;  and  instead  of  seek* 

^     "         ing  to  redeem^  they  are  equally  entitled  to  come  here  and 
^<i^^^   claim  the  8urplus.T 
*  ^  9  .1  $haU|^ccordii|e^y,  decree,  that  the  defendantt  pay  to 

...  *  ^  f    ^  the  plaintiffs  the  5,400 dollars, 'so  received  Mij  them  in  truat, ' 

*   I         ^        '^  in 'SeptemZer,  1809 ;  and  that  it  he  referred  to  a  master  to 
f  \     ^>  ;.  inquire  ^d  regort  what  disposition  was  made ^  of  that  mo- 

y  ^  ney  by  the  defeo^nts,  and  whetherat  was  kept  iq  bank  by 

y     itself,  or  wds  mingledirith  their  owa  moneys,  an<}^employed 
'   ^    in  likfe  manner ;  that  be  ^mpute  jintereA  on  that  sum, 
^      ^      ^  from  the  time  it  w3$  [||id  to  the  defendant!,  up  t6  tt|e  date 
^  ^  .^  **     of , his  report,  reserving,  ^tfowever,  the' 'question  of  iotereil,    . 

^  f%       .    until  the  coding  in  of  *thfe  report;  an^  tbatt^  srtd  moneys 

"    ^'     to  be  paid^y  the  defendauts^if  no^  ftuffielent  U)  satisfy  the 
..    ^  m,  '     -judgments  of  .the  i^la\nti0s,  wit£  mferest  oii^tl]^jt|iagment% 

^       ^  ^  .^  '.  ''    .  '^    ^  ,*    ""      '•'JL.'*     • 


A 


V       *'. 


» 


1- 


OASES  IN  CHANCERY*  .  M3 

for  Ae  real  sam  recovered  aod  dm^  indndiog  losir  coits  of      18M. 
those  jadgHKnts  and  of  this  suit,  be  paid  to  all  of  tbem  rate-    ^^^^^^  -     ' 
ably*  in  prooortioii  to  the  amoiiot  due  to  each  of  them  re-         ▼. 
spectively,  as  aforesaid ;  and  that  the  money  be  paid  to  the  ............... 

solicitor  for  the  plai^fi,  &r  the  purpose  of  such  distribu- 
tion* r 

Decree  acoordiiigly.(a)  %  i 

(m)  Vide  Brinkerhqffy,  Browrif  emit,  671.  and  WUUamt  v.  Brornif  anUf  682.     -  ,    ' 


R.  K.  Allen  and  Thobp  agaimt  Randolph  and  others.     .         %^ 

Ajflea  must  be  perfect  in  itself,  so  that  if  true  in  fact,  it  will  put  A  end 

to  the  cau^.  ^ 

If  cirfhxmstaiices  of  fraud  are  charged  in  the  l»tl,  they  must  be  denied 
>  by  a  general  avermentr  at  least. 

Where  the  bill  charged  misrepresentation,  coercion,  and  fraud,  in  pro. 
caring  a  release  of  a  debt,  and  the  defendant  put  in  a  plea  and  an- 
Birer;  and  in  his  plea,  insis^  on  the  release  in  bar,  without  no* 
tic^  the  allegation  of  fraud,  though  in  the  antwer  it  was  fuUy  an- 
swered and  denied,  the  plea  was  held  bad* 

Where  A,  assigned  and  made  over  to  5.  a  debt  and^demaiild  against 
12.,  and  the  proceeds  of  goods  delivered  by  A,  to  12.  to  sell  on  ^c-     ,  « 
count :    Held,  that  all  the  right  and  interest  of  A^  -as  the  creditor  of         .  -.  T ;;  ^ 
It. ,  pass^  by  the  assignment,  and  that  a  release  of  all  detaandsi  ia 
law  and  equity  by  SU  to  H.,  as  assignee,  gtvea  on  a  compromise  with  ^ 

.  him,  was  valid  an4  effectual.  *  j  • 

THE  bill  stated,  among  other  things,  that  the  phtintiflf  DtcHBih. 
^and  D.  K.  4tt^^  were  partners  in  trade,  under  the  firm  of 
R.  4*  -D*  Jf;  ^exij  and  became  insolvent  on  the.J6th  of         s' 
AprU,  1B18.    Thati^.  JT.  A.^  being  arrested  and  imprison- 
.ed,  applied  for  his  discharge  under  tb#9ttL  section  of  the 
insolvent  act,  and  having  assigned  hit^estate  to  the  plaintifl^ 
^  TAorp,  according  totlieact,  was,  on  the  16th  of  J9ecein6er,  I 

1818,  discharged  Aom  his  debts.'  That  before  their  failure,  ' 

U,  ^  D.  K.  'Men,  delivered  tp  the  defendai^s,  Randolph  ^         ^     '^ 

*  ■       *s.  •  *  .    *  S  * 


'     Jt 

A 


# 
^ 


eM      .^  *  CASK  IN  CHANGUlT. 

laW.  SkMtgei  various  pareels  of  goods,  at  vmoiui  times,  to  te 
du^psd  to  difereat  placas,  aocl  soMTor  tbeir  accooM,  att  lif 
which  were  particakriy  stated  in  the  biH^  'and  amMnting 
10  riiove  30,000  doUaH;  aM  the  bill  cbaifgedt  tlml  Che  de- 
faadaats,  A.  <r  S.,  bad  never  accounted  for  die  proceeds  of 
the  goods  or  moneys  received  by  them,  to  R.^D.  K.  A*^ 
before  the  isssigninent  and  discharge  of  D.  K.  If.,  nor  to  tbe . 
plaintiffs,  A.  and  T.,  since*  That  before  their  fiiilnr^  JL 
^  D.  K.  A.y  being  indebted  to  the  defendant  S^  by  hHlfed, 
for  9,964  dollars,  and  to  JD.  A.  for  moneys  lent  tfrtbem, 
the  said  D.  A.  being  also  jrespMsible  for  a  demand  at  one 
F*  A.  T.  against  them,  for  10,000  dollars,  they,' on  the  19di 
of  JMsy,  1818,  assigned  to  the'  defendant,  SJddmore^  aaKMig 
other  things,  the  debt  or  demand  of  the  said  R.  tf3.K*A. 
agmnst  the  defendants,  Randciph  ^  Savage^  and  Ae  pro- 
ceeds of  the  goods  so  delivered  to  them  as  aforesud,  in  tmst 
to  recover  and  collect  the  same,  and  by  means  tbereof,  to 
pay  the  moneys  doe  to  biro,  the  said  Stadmort^  and  to  Ih^ 
vid  A.f  &.C.  and  to  indemnify  David  A.n  &cc.  and  to  pay  die 
residne  or  surplus  to  A.  9f  D.  K.  A.,  their  execators,  admi- 
nistrators or  assigns. 

The  bill  stated,  that  Randolph  ^  Savage  refused  to  ac- 
count to  Slddmorej  and  being  pressed  by  him  for  payment, 
offered  to  pay  2,000  dollars  on  account  of  the  demand,  and 
give  their  notes  for  2,000  dollars  more,  if  S.  would  dis- 
charge them ;  and  that  if  S.  would  not  accept  that  oftr,  tbey 
would  not  pay  any  thing.  That  Shidmote^  iqiprehenme 
of  the  insolvency  of  A*  4"  S.^  thought  it  prudent  to  accq»t 
the  offer;  and  on  the  7th  of  Aprils  1819,  R.  ^  5,  ao^ord* 
iDgly^  paid  the  2»000  dollars,  and  gave  three  notes,  payidble 
in  SO,  60,  and  90  days,  for  the  odier  2,000  dollars.^  The 
first  and  second  notes  were  paid,  but  R.  if  84  failed  before 
the  third  fell  due,  and  compounded  with  aH,  or  mostpf  tb^ 
creditors.  That  before  the  money  and  notes  we^  delivered, 
Skidmore^  as  assignee,  8a:.  executed  a  discharge  or  rdeas^  lo 
Randolph  ^  Smage^  and  delivered  to  them  the  haoh  of 

"4  .       -.  ■. 


,  fit       » 


•A 


■1-  ^».  * 


q:i9» «» CHANcwy,  *        .  •  wft      ■♦  *    ^ 


t.         •' 


\ 


aiMMDt  h0pt^  tLtfD.K.  A  of  «n  ^  goodfl^  tsc.  whkh 
reicoM,  ^&G.  was  iQ«slM  on  "by  ii.  4^  S*  m  acondi^oii 
precedeni  to  ibeir  payiqg  ibe  4,000  d^ars*    ThebiQ 

obargedy  tbi|f  thm  dkcbfurge  aod  release  were  obtained  by    *^**''*""'  -^       * 

tbe  dfifeodaolfi  R.f^S.  flrom  SkidtmrCi  bylnisreproieiitar  v.     ^. 

tioOy  Goerction  and  fraud;  that  tbey  foald  not  avail  the«i-  -  ' 

8d?es  of  it ;  :and  tbat  Skidmore  bad  #o  autbqp^  or  power   *. 
to  give  it,  except  upon  a  fair  and  (iUl  setikment  of  tbe  ac-  ^  '* 

count  with  R..  ^  &,  &c.    Praa/erf  that  the  deUendants,  it, 
^  Si»,  nay  be  decreed  to  come  ta  an  account  with  tbe        ^^ 
plaintiffiii  for  the  goods  so  delivered  to  them,  or  for  the  pro- 
ceeds thereci^  and  to  pay  to  tbe  plaintiflb  what  sboold  be  *" 
imuxd  due  to  them,  and  that  'the  defendant,  St^idmare^  ap-*  '^ 
count  fof  the  moneys  he  has  received^  and  for  general  relief.  * 
'    The  <IefiindaAt8,  Randolph  ^  SoMigv,  pntin  their  |i(ea                       ^^      i 
andaiiraer,  on  the  Ifitb' of  Saplem&eir,  182Q»  They  pleaded,   ''                 *         ^ 

;.  ^fter  protesting,  lie  that  beftre  theiUing  of  the  bill,  &c.  to  ^ 

yf^t,  on  the  "J  th  of  AfrU,  1^19,  Skidmore^  as  assignee,  be.  by     ' 

/'  his*  deed  of  release,  in  consideration  of  4,000  dollars,  re^eas-     ^ 

V  ed  and  discharged  them  from  all  demands  in  law  or  equity,; 

by  means  of  the  said  assignment,  and  prayed  judgment,  &c, 

\  Tbe  plea  was  silent  as  to  the  allegations  of  misrepresentation 

MiA  fraud,  buf  the  same  were  fu%  denied^apd  rebelled  in 

j^  tho.answer.  ^ 

* 
*   7.  A^  Enm^  and  JIf  Otun,  for  tbe  defendants,  in  support 
o£  the  pUtk  and  answer.  ^« 

i 

'**    J.  *(Mfc/«i^  contra.        ^      4 

.  **■  ■ 
^Hi  Chakcslloil    The  first  olyjction  to  tbe  plea  is, 

that  Skidmpreg^ihe  assignee  of  R.  SfD.  K.  AUen^  had  no 

anthcjrity  to  compromise  oc  compound  with  the  defendants 

'  Bandolph  if  S^fvage^  as  to  the  deq^and  assigned  to  him.    I 

do  not  perceive  the  force  of  this,  otyectioti.     Skidmore  was 

iolti^mi^re  agent  to  collect  the  debt^  of  the  Mens,    "[rbe 


4 


» > 


AM  CXSES  IK  CHAVCERT.  ^   < 

m 

1820.      bffl  «tat^  fhat  they  did,  by  an  asBignmeDt  delivefed'to  iSfeuf- 
^i-^^  '"^'   jnore,  **  Msign  aiid  make  over  to  UA  their  d*ebt  or  demand 
^^      in  thebai  stated;  against  R.  ^  S.,  and  the  proceecTs  of  the 
•  »4y>oLF»  „  g^j^  delivered.^*    This  deed  or  writing  passed  their  right 
and  interest  as' creditors  of  R.  fy  S. ;  and  the  debtors  had  a 
right  to  treat  with  fSUdknore,  and   deal  with  him  as  the 
real  oihier.    The  tnfsts  raised  by    the  assignment  ap- 
ri  pHed  to  the  debt  or  proceeds  which  should   come  into   bis 

hands,  and  R.  ^r  S.  had  no  concern  with  those  tmstl'.  They 
coold  not  sii^ely  deal  wttb  any  other  person  than  the  assignee' of 
the  demand  ;  any  settlement  thiy  might  make  with  him, 
if  made  in  good  faith,  and  not  by  fraud  or  coflnsion  'with 
him,  was  valid  and  binding.  The  release  or  disclmrge  giv- 
en by  the  assignee,  upon  the  settlement,  was  one  that^he  was 
competent  to  give,  and  they  to  receive.  It  discharged  them 
from  **  all  demands  in  law  and  equity  by  means  of  the  as- 
ugnment.'*  It  was,  therefore,  co-eitensive  with  the  debt 
and  demand  whieh  passed  by  the  assignment. 
^  The  only  real  difficulty  in  this  case  is,  that  there  Woo 
general  averment  in  the  plea  denying  the  charges  in  ike 
bill,  which,  if  true,  would  avoid  the  plea.  The  bill  charms 
that  the  release  was  procured  by  misrepresentation  coeir- 
cion,  add  fraud,  and  though  this  charge  is  denied  in.  the 
answer  accompanying  the  plea,  there  is  not  even  i^jiSi^ 
averment  to  that  eAet  in  the  jplea.  The  released  pleira- 
ed  nakedly,  as  was  the  award  in  the  two  Exchequer  ca^ 
of  Pope  V.  Buh  anit  Edmandson  v.  HearUyl  (1  AnA. 
59.  97.)  But  in  the  latter'of  those  cases,  the  Court  said, 
they  did  not  mean  to  extend  the  authority  of  them  be- 
yond the  case  of  awards.  In  Lhyd  v.  Smiih^  (1  Jkst. 
258.)  aAerwards,  in  the  same  Court,  such  a  naked  plea 
*  of  a  release  charged  by  the  bill  to  have  been  procured 
by  fraud,  was  not  allowed,  in  the^bat  instance,  but  fperved 
to  the  hearing.  In  Bayley  v.  Adamt^  (6  Vaey^  586.)  the 
authority  of  those  cases  was  very  much  shaken  ;  amPit  sttoi- 
ed  to  be  considered  by  Lord  Eldm  as  the  better  rule,  that 


>  ^ 


CASES  IN  CHANCERT.  ^97 

the  charges  in  the  bill  mast  be  met  by  way  of  general  aver-      1 820. 

ment  in  the  plea,  as  well  as  particularly  in  the  answer.    The 

rule  is  so  laid  down  in  Mif.  Tr.  216. ;  and  the  decision  in 

Davie  v.  Chester^  in  Chancery,  in  1780,  is  referred  to,  as 

containing  a  decision  directly  to  the  point    The  sense  of 

the  rule  is,  that  a  plea  must  be  perfect  in  itself,  so  that,  if 

true  in  point  of  fact,  there  may  be  an  end  of  the  cause. 

Bat  if  the  circumstances  of  fraud  under  which  the  release 

is  charged  to  have  been  procured,  be  not  denied  in  the  plea, 

it  may  be  true  that  such  a  release  was  given,   and  yet  this 

may  be  of  no  effect. 

I  shall,  therefore,  as  was  done  in  the  Exchequer  cases, 
and  as  Lord  Eld(m  consented  to  in  BayUy  v«  Adams^  allow 
the  defendant  to  amend  his  plea ;  the  amendment  to  be  by 
inserting  a  general  averment  or  denial  of  the  facts  charged 
in  the  bill,  which  go  to  show  that  the  release  was  fraudulent- 
ly or  improperly  procured.  The  amendment  to  be  made 
in  three  weeks  aAer  service  of  a  copy  of  this  rule,  and  a 
copy  served  grcUis  on  the  solicitor  for  the  plaintiff;  and 
in  default  thereof,  the  plea  to  be  deemed  overruled,  and  with 
liberty  to  the  plaintiffs  to  except  to  the  answer  of  the  de- 
fendant, Randolph^  the  survivor  of  R.  if  S. 

As  the  cause  was  brought  to  a  hearing,  not  only  on  the 
defect  in  the  plea,  but  on  the  meriu  of  the  defence  touching 
the  competency  of  Skidmare  to  execute  a  release,  I  shall  not 
grant  costs  upon  this  order,  but  reserve  the  question  of  cpjits 
to  the  conclusion  of  the  cause.  ^ 

Decree  accordingly. 


BND  OF  TQE  CA8E8. 


Vol.  IV.  88 


ORDER  OP  COURT. 

June  21gt,  1820. 

<«  Obd£&ed,  That  the  stated  terms  of  this  Court  shall 
hereafter  be  held  on  the  fourth  Mondays  of  May  aud  OcUh 
hery  in  the  city  of  Kew-Tork;  and  on  the  fourth  Mcndayt 
of  March  and  August^  in  the  city  of  Albany}  and  that  the 
86th  rule  of  this  Court  be,  and  the  same  is,  hereby  repeal- 
ed; a[nd  that  the  term  of  March  be  substitnted  for  the  term 
of  January,  mentioned  in  the  80th  rule." 


INDEX. 


A. 

ACCOUNT. 

Ftde  ExicuTOB  AND  Administrator. 
Devise,  2.  6.  7.  Pleading,  VI. 
Practice,  XI.  Trust  and  Trus- 
tee, 111. 

ADMINISTRATION. 

Ptde  Executor  AND  Administrator. 

ADMINISTRATOR. 

Vide  Executor  and  Administrator. 

ADULTERY. 

Fide  Baron  and  Feme,  2. 

AGENT. 

Fide  Solicitor  and  Attorney. 
Practice,    XIV.      Vendor   and 
Purchaser,  3.  5. 

AGREEMENT. 

I.    Comtruction^   ^ecty  waiver^ 
and  rescinding  of  an  agreement* 
II.    Specific  performance. 

I,  Conetructiont   effect,  waiver^  and 
reidndiHg  of  an  agreement. 

1.   An  agreement  for  a  lease  pre  • 


•omed,  from  length  of  tim^»  and 
possession  and  payment  of  rent 
by  the  tenant ;  and  the  land- 
lord decreed,  accordingly,  to 
execute  a  lease  in  fee  to  ih^ 
tenant,  with  the  usoal  coye- 
nants  contained  in  frack  leasep  of 
the  lands  in  the  same  tract  or 
manor.  Ham  v.  Sehuylert  1 
2.  Equity  will  not  force  a  mere 
Toluntary  agreement,  not  ralid 
at  law,  especially  against  a  le- 
gal claim  for  a  ju9t  debt,  and 
where  there  is  no  considera- 
tion, accident,  or  fraud.  Afui* 
turn  y.  Seymour,  497 


11.  Specific  petforma  nee* 

3.  On  a  contract  for  the  sale  of 
land,  the  payment  of  the  pur- 
chase money  by  the  plaintiff)^ 
was  made  a  condition  precedent 
to  the  conyeyance ;  and  after  a 
default  the  defendant  accepted 
part  of  thepurchase  money ;  but 
the  plaintiff,  though  repeatedly- 
called  upon,  refused  to  complete 
the  payment.  The  defendant^ 
after  giying  notice  of  his  Inten* 
tion  to  do  so,  sold  and  cony^- 
ed  the  land  to  another;  and 
the  plaintiff,  afterwards,  ten- 
deried  the  money  due  oo  Uie 
contract,  and  filed  his  bill  for  a 


700 


INDEX. 


specific  perfonnance  of  the  con- 
tract :  Held,  that  a  specific  per- 
formance coald  not  he  decreed  ; 
nor  could  the  bill  be  sustained 
for  a  compensation  in  damages. 
Hatch  v.  Cobb,  559 

4.  It  seems f  that  even  if  the  defen- 
dant ha,d  not  sold  the  land  to 
another,  before  the  plaintifi 
filed  bis  bill,  be  would  not,  af- 
ter such  default  and  delay,  on 
his  part,  be  entitled  to  a  speci- 
fic performance,  as  no  accident, 
mistake,  or  fraud,  had  interve- 
ned, to  prevent  the  perfor- 
mance on  bis  part«  t6. 

Fisde  Laches,  Length  op  Tims  a5o 
Pbssf  ssfoN,  1.  4,  d«  lifJUNCTioir, 
L  4.  111.  9.  Fraud,  3.  Award. 
Bailmeht.    Divorce,  5.    Juris* 

*     DICtlON,  ]]. 

ALIMONY. 

Vide  DivoRcs,  2. 

AMENDMENT. 

Fide  Practice,  V, 

ANSWER. 

Vide  Plaediko,  VI. 

APPEARANCE. 

Vide  Practice,  VI. 

ASSESSMENTS. 

Vide  Jurisnctioii,  5,  6. 

ASSETS. 

1.  A  devise  of  all  a  creditor's  es- 
tate real  and  persona),  in  trt$9i^ 
to  pay  debts  and  to  distribute 
the  residue,  places  the  assets 
under  tbe  jurisdiction  of  this 
Coart.    Benson  v.  Le  Roy.-  651 


2.  The  statute,  teu.  36.  ch.  93. 
{IN.R.L.  316.)  does  not  in- 
terfere with  tbe  doctrine  of 
equitable  assets,  by  which  all 
the  creditors  are  to  be  patdjift- 
ri  passu ;  for  the  omission  of 
tbe  4th  section,  or  proviso  of 
the  En^UA  statute,  (3  IF.  4-  M. 
€«  14.)  which  excepted  de? ises 
of  lands  for  the  payment  of 
debts,  does  not  vary  the  con- 
struction, ik. 

Vide  Executor  ard  ADMiirnTRAroR, 
3.  5,  6,  7,  8,  9,  10,  11,  12.  14, 
15.     JURISDICTIOR,  15,  16.  30. 

ASSIGNMENT. 

Where  .^.  assigned  and  made  over 
to  S.  a  debt  and  demand  against 
R.  and  also  the  proceeds  of 
goods  delivered  by  A.  io  It  U> 
sell  on  account ;  Held^  that  all 
tbe  right  and  interest  of  dtf.,  as 
creditor  of /£.,  paa^d  by  the  as- 
signment ;  and  that  a  release  of 
all  demands  in  law  and  equity. 
by  5.  to  R. ,  as  assignee,  |^ven 
on  a  compromise  with  hiasg  was 
valitl  and  efiectuaL  AUen  t. 
Randolph.  693 

Vide  Insolvekt  Debtor,  1,  2. 
Debtor  and  Creditor,  3,  4%  S. 
Ship  Owners,  1,  2.  Partrer- 
SHIF,  3,  4,  5.  Bankrupt,  6. 
Foreign  Laws.  1,  2.4,  5.  Frau* 
dulent  Conveyances,  3. 

ATTACHMENT.. 

Fide  Practice,  L'j,  2,S. 

AUCTION. 

Vide  Fraudulent  CoHV£VAircES,4»» 
6.  Vendor  and  Purcrlaser^  3. 
5,  6. 


INDEX. 


701 


AWARD. 

K  This  Court  will  correct  a  mu- 
(ake  of  an  extrajudicial  natare, 
io  an  award  of  arbitrators,  and 
decree  a  performance  of  it  tii 
specie.     BovkY,  Wither,       405 

2.  As  where  the  sabject  of  cootro- 
▼ersy  was  land  which  the  ar- 
bitrators were  to  appraise,  and 
the  plaintiff  was  to  convey  the 
«ame  to  the  defendant  who  was 
to  pay  the  amount  of  the  ap- 
l^raisemeot,  and  the  arbitrators, 
by  a  mere  clerical  mistake,  so 
erroneously  described  the  land 
in  tlie  award,  as  to  include  one 
acre  only,  instead  of  My  aces, 
it  was  decreed  that  the  award  be 
corrected  according  to  the  truth 
of  the  fact ;  and  that  there  be 
a  spedfic  performance  of  it 
accordingly.  ib. 

B. 

BAILMENT. 

The  defendants,  being  stock  and  ex- 
chnnge  brokers,  in  the  course 
of  their  business,  received  of 
the  plaintiff  430  shares  of  Uni' 
ied  Siatet  bank  stock,  and  which, 
it  was  agreed,  in  Fefcmary,  1818, 
that  they  should  hold  as  col- 
lateral security  for  the  pay- 
fuent  of  a  note  given  to  them  by 
the  plaintiff,  for  monies  advan- 
ced to  him,  and  payable  on  the 
20th  January,  1819;  and  that 
they  should  be  at  liberty,  in 
case  the  note  was  not  paid,  at 
the  time,  to  make  immediate 
sale  ^  the  stock,  accounting  to 
the  plaintiff,  for  any  surplus, 
and  holding  faimrreHPonsible  for 
any  deficiency :  Hdld,  that  as 
4he  defendants,  at  all  times, 
since  the  giving  of  the  note  by 


the  plaintiff,  were  possessed  of 
shares  standing  in  their  names, 
and  under  their  absolute  and 
rightful  control,  and  subject  to 
DO  contract,  to  an  amount  far 
exceeding  the  number  of  shares 
deposited  with  them  by  the 
plaintiff,  (and  which  were  not 
marked  or  identified  as  his  par- 
ticular property  but  blended 
with  the  mass  of  shares  of  the 
same  stock  held  and  owned  by 
the  defendants)  and  were  ready 
and  able,  at  any  time,  to  trans- 
fer the  430  shares  to  the  plain- 
tiff, on  payment  of  the  note, 
they  were  not  bound  to  ac- 
count to  the  plaintiff  for  his 
stock,  at  the  highest  price  at 
which  shares  were  sold  by  them^ 
at  any  time  during  that  period ; 
but  that  the  like  number  of 
shares  held  by  the  defendants 
when  the  note  became  due, 
were  to  be  considered  as  the 
shares  so  deposited  by  the 
plaintiff ;  and  which  the  defen- 
dantswere  at  liberty  to  sell, 
according  to  the  agreemeat,  to 
reimburse  the  aitioont  of  the 
note  which  remained  unpaid. 
J^ourse  V.  Prime,  490 

BANKRUPT. 

1.  It  is  a  principle  of  international 
law,  to  take  notice  of  and  give 
effect  to  the  title  of  foreign  as- 
signees ;  and  assignees  of  a  fo- 
reign bankrupt  may  sue  here 
for  debts  due  to  the  bankrupt's 
estate,  either  as  such  assignees, 
or  in  the  name  of  the  bankrupt. 
Holmes  v.  Remsen,  460 

2.  The  same  principle  of  general 
law,  that  governs  marriage 
contracts,  testamentary  disposi- 
tions, and  the  succession  to  the 
personal  eatate  of  an  intestate, 


702 


INDEX 


•pplies  to  the  diitribvtioQ  of 
the  estate  of  a  foreign  bank- 
ropt.  460 

3.  The  principle  of  intermtional 
Inw  on  this  snbject,  ia  a  mle  of 
decision,  not  a  qaestion  of  ja« 
risdiction  ;  and  does  not  affect 
the  rights  of  territorial  sove- 
reignty, ib. 

4.  Bot  the  title  of  the  foreign  as- 
signees takes  effect  only  from 
the  date  of  the  assignment  to 
them,  and  has  no  relation  to  the 
time  of  the  bankruptcy  commit- 
ted, lb. 

B.  For  the  doctrine  of  re/oltba,  in 
reg^  to  bankrupts,  is  a  posi- 
dye  rule  of  mere  municipal 
policy  ;  and  the  rule  of  comity 
between  nations  does  not  re- 
quire its  adoption.  ib, 

ۥ  Therefore,  an  assignment  by 
the  commissioners  of  bankrupts, 
in  England^  of  all  the  estate 
and  eham  tn  action  of  the 
bankrupti  passes  a  debi  due  by 
a  citizen  of  this  state  to  the 
English  bankrupt  ib. 

7.  And  if  such  assignment  is  prior 
in  time  to  an  attachment  of  the 
same  debt  here,  at  the  instance 
of  an  Atncriean  creditor  of  the 
bankrupt,  issued  under  the  act 
for  relief  against  absent  debtors, 
&c.  a  sulwequent  payment  of 
the  debt  to  the  foreign  assignees 
in  England,  is  a  bar  to  a  suit 
brought  here  by  the  trustees 
under  the  act,  against  the  debt- 
or here.  ib. 

8.  A  concurrent  separato  assign- 
ment made  by  the  foreign  bank- 
rupt to  the  same  assignees,  on 
the  same  trusts,  though  it  may 
strengthen  the  case  before  the 
Court,  makes  no  difference  in 

»    the  application  of  the  general 

doctrine.  ib, 

$.  The  effect  is  the  same  whether 


the  transliir  is  made  by  Umself, 
or  by  the  law  of  the  place  of 
his  domicil,  for  him.  40o 

BARON  AND  FEME. 

1.  This  Court  will  hiy  hold  of  the 
property  of  a  wife,  which  may 
be  within  its  power,  for  the 
purpose  of  providing  amainte- 
nance  for  her,  when  she  Is  aban- 
doned by  her  husband,  oc  pre* 
vented  by  his  ill  treatment  from 
cohabiting  with  him.  Dumond 
Y.Magec^  318 

2.  Where  a  husband  abandoned 
his  wife,  and  married  another 
woman,  with  whom  he  continued 
to  live,  for  twenty  years,  he  was 
held  to  have  forfeited  aU  just 
claim  to  his  wife's  distributive 
share  to  personal  estate  inherit- 
ed by  her.  A. 

3.  And  the  Court  directed  the 
principal  of  the  wife's  share  to 
be  brought  into  Court,  and 
placed  at  interest;  and,  after 
her  death,  the  principal  to  go 
to  her  children,  by  her  lawful 
husband,  or  to  their  represen- 
tatives :  she  having,  after  being 
abandoned  by  her  husband,  op* 
on  report  and  belief  of  his  death, 
married  another*  ib. 

Fide  DivoRcn. 
BILL. 
Fide  Pleadinos,  IH. 
BOND. 

The  penalty  of  a  bond  cannot  be 
made  to  cover  any  other  debt 
or  demand  than  that  mentiooed 
in  the  condition.  Troup  t. 
Wood  and  Sherwood,  228 


INDEX. 


705 


CIVILITER  MORTUUS. 

A  person  conyicted  of  felony,  and 
sentenced  to  imprisonment  in 
tbe  state  prison  for  life,  is 
civiliUr  mortuus.  Troup  v. 
Wood  and  Sherwood,  228 

COLLATERAL  SECURITY. 

Ftde  Mortgage,  II.  6. 

CONSTITUTION  OF  THE  UNI- 
TED STATES. 

!•  Under  the  Constitution  of  the 
United  States,  citizens  of  each 
state  are  entitled  to  free  in- 
gress and  egress  to  and  from 
any  other  state,  and  to  all  the 
immunities  of  citizens  in  every 
state.     lAvingiton  y*  Tompkitu, 

430 

2.  The  goyernment  of  the  United 
States  having  sole  and  exclusive 
jurisdiction  over  all  differences 
between  two  or  more  states,  all 
acts  of  reprisal  between  the 
states  are  unnecessary  and  un- 
lawful, ib, 

CONSTITUTION  OF  NEW- 
YORK. 

Ttde  Steam  Boats,  1. 

^  CONTEMPT. 

Ftde  Practice,  I.  XIII.  48,  49. 

CONTRACT. 

Vide  Agreement. 
CONTRIBUTION. 

1  •  The  doctrine  of  contribstion  is 
not  so  much  founded  on  con- 
tract, as   on   the  principle  of 


equity  and  justice,  that  where 
the  interest  is  common,  the  bur- 
den also  should  be  comoHMi;  and 
the  principle,  that  equality  of 
right  requires  equality  of  bur- 
den, has  a  more  eYtensive  and 
effectual  operation  in  a  court  of 
equity,  than  in  a  court  of  law. 
Cmmpbeli  v.  Messier,  334 

2.  Thus,  where  there  was  an  old 
party  wall  between  two  owners 
of  houses,  in  the  city  of  JVew- 
Yorky  and  one  of  them  being 
desirous  to  build  a  new  house 
on  his  lot,  pulled  down  his  old 
house,  and  with  it  the  party 
wall,  which  was  ruinous,  and 
rebuilt  it  with  his  new  house, 
the  owner  of  the  contiguous 
house  and  lot  is  bound  to  con- 
tribute rateably  to  the  cost  of 
the  new  party  wall.  it. 

•3.  He  is«ot,  however,  bound  to 
contribute  to  buildii^  the  new 
wall  higher  than  the  old  ,•  nor, 
if  materials  more  costly,  or  of  a 
different  nature,  are  used  in  it, 
is  he  bound  to  pay  any  part  of 
the  extra  expense.  ib. 

4.  Where,  in  a  bill  filed  by  a  mort- 
gagor, to  redeem,  against  the  ad- 
ministrators of  a  mortgagee  in 
possession,  and  others  claiming 
under  him,  the  defendants  were 
decreed  to  pay  a  certain  sum 
for  the  rents  and  profits  of  the 
land,  after  deducting  the  mort- 
gage debt ;  and  the  decree  being 
silent  as  to  the  proportion  which 
each  defendant  was  to  pay,  one 
of  the  defendants  paid  the 
whole,  and  the  plaintiff  gave 
him  liberty  to  make  use  of  the 
decree  to  reimburse  himself: 
ffe/d,  that  he  could  use  the  de- 
cree only  for  his  protection  and 
indemnity,  so  far  as  his  co-de- 
fendants were  bound  to  contri- 
bute. Scribner  v.  Hickok  and 
others,  530 


704 


INDEX. 


5.  And  the  conrt,  on  petition  and 
motion  of  a  co-defendant,  direct- 
ed the  contribntion  to  be  en- 
forced under  the  decree,  so  far 
only  as  the  right  was  clearly 
ascertained.  ib. 

6.  A  defendant  who  has  made  pay- 
ments for  his  co-defendant  to- 
wards satisfying  a  prior  mort- 
gage, and  beyond  his  proportion 
of  the  harden,  is  to  be  deemed 
snbstituted  for  the  plaintiff,  to 
that  extent,  and  as  far  as  the 
fact  appears  from  the  proceed- 
ings in  the  caose.  Lawrence  r. 
Cornell^  645 

Fide  DowBR,  3. 

CORPORATIONS. 

I.  A  foreign  corporation^  or  an  in- 
corporated bank  of  another 
state,  may  sue  in  their  corpo- 
rate name,  and  file  a  bill  for  the 
sale  of  land  in  this  state,  ander 
a  mortgage  taken  to  secure  mo- 
ney lent  Silver  Lake  Bank  v. 
J^orth,  370 

2.  If  the  loan  and  the  mortg^ 
were  concurrent  acta,  it  is  with- 
in the  reason  and  spirit  of  the 
act  of  incorporation  by  which 
the  corporation  is  antborized 
to  take  mortgages,  &c  for  the 
security  of  debts  previously 
contracted.  ib. 

3.  But  it  seems,  that  this  court  will 
not,  in  a  collateral  way,  decide 
a  question  of  trdnuer  of  a  char* 
ter,  by  setting  aside  a  bona  Jide 
contract.  t6. 

4.  If  an  incorporated  bank  of  ano- 
ther state  lends  money,  and 
takes  a  mortga^  in  this  state, 
it  is  not  a  violation  of  the  act  of 
the  legislature  of  this  state, 
passed  April  21,  1818,  relative 
to  banks,  &c,  (seM.  36.  ch.  71.) 
for  restraining  unincorporated 


associations  from  carrying  on 
banking  business.  t6. 

6.  In  private  unincorporated  asso- 
ciations of  individuals,  the  ma- 
jority cannot  bind  the  minority, 
unless  by  specisd  agreeoEient 
Lxdnf^Hon  Y.Lynch^  573 

costs: 

1.  A  defendant  who  answered  an 
original  bill,  afler  a  decree 
against  him,  petitioned  for  a  re- 
hearing^  which  was  granted,  and 
the  plaintiflb  filed  a  billdf  revi' 
var  and  supplement^  to  which 
the  defendant  answered  and 
disclaimed  ;  he  was  held  not  to 
be  entitled  to  costs,  on  the  &s- 
missal  of  the  bill.  Skaver  v. 
Radley,  310 

2.  On  the  dismissal  of  the  bill  costs 
were  denied  to  the  defendants, 
on  the  ground  of  lathes  on  their 
part,  and  hardship  on  the  part 
of  the  plaintiff.  i6. 

3.  Where  the  defendant  set  up  a 
judgment  and  a  mor^;age,  which 
judgment  was  proved  to  have 
been  satisfied,  and  claimed  more 
than  was  due  on  the  mortgage, 
he  was  held  not  to  bie  entitled 
to  costs  against  the  plaintiff. 
Brinckerhqff  v.  Lansing,   65,  79 

4.  And  the  plaintiff,  though  he  suc- 
ceeded in  disproving  the  claim 
of  the  defendant,  but  failed  in 
supporting  his  charge  (hat  the 
mortgage  was  also  satisfied,  and 
fraudulently  kept  on  foot,  was 
held  not  entitled  to  costs.       ib» 

5.  ^  A  defendant  who  had  no  inter- 

est in  the  controversy,  and  was 
not  a  necessary  party,  but  united 
with  the  other  defendants  in 
setting  up  a  defence  which  was 
not  true,  was  held  not  entitle 
to  costs  ;  though  they  would 
have  been  otherwise  allowed  to 
him.  ib» 


INDEX. 


705 


6. 

9. 


fi*  .Coslsoot  allowed  toother  par- 
ijt  00  a  bill  for  a  perpetual  in- 
janctioD  to  quiet  the  possession. 
T)e  Riemer  j.  CaniiUw^  86.  93 
*t,  Cofiteewerded  on  a  clecree  cor- 
rectiog  a  mistake  in  a  contract, 
in  «  bill  Aff  tbat  purpose,  and 
ibr  specific  pefformance.  Kei$» 
•elbritek  ?,  Livuigiimi,  144 

Op  a  bill  for  discovery  merely, 
the  defendant  is  entitled  to  costs. 
Butnet  r.  Sanders^  603 

But  where  the  plaintiff,  who  is 
.  entitled  to  discovery,  goes  first 
.  to  the  defendant,  and  asks  for 
,  the  information  souabt,  which, 
though  in  the  power  of  the  de- 
feodaat  to  give,  is  refused;  and 
the  plaintiff  is,  therefore,  com- 
pelled ,lo  file  a  bin  a^nst  the 
defendant,  to  obtain  the  discove- 
ry, and  he  answers  fully^  he  will 
QOt  be  entitled  to  costs,         i^. 
i  0.   Where  a  pbintiff  asked  for  fur- 
ther twe  to  except  to  the  an- 
swer, which  was  granted  ;  and, 
ako,  for  leave  to  amend  his  bill 
after  such  auswer,  and  after  a 
plea  accompanying  it,  but  not 
,         noticed  for  aigument ;  the  plain* 
tiff,  on  being  allowed  to  amend 
his  bill,  was  ordered  to  pay^vt 
d^ars^  for  the  extra  costs  of  the 
farther  answer,  and  the  taxMe 
costs  of  the  plea,   in  ca^e  it 
should  become  usdess,  in  con- 
'       sequence    of    the    bill   being 
amended.     French  v.  Shetwell, 

*♦  ^6 

1 1.   Where  the  will  of  the  testator 

is  so  ambiguously  expressed, 

as  to  render  it  proper  for  the 

executor  to  take  the  direction 

^  of  the  court,  the  costs  will  be 

^'      ordered  to  be  paid  out  of  thd 

fund  in  controversy.     Rogers  v. 

-RpM,  608 

V^de    Dower,  4.     Idiots  and   Lit- 
NATICS,   1,2. 
Vol.  IV.  89 


CRfiDiTOR. 
Vidi^  Debtor  ioro  CaiDiTQR. 

D. 

DEBTOR  AND  CREDITOR. 

I.  if  one  judgment  creditor  has  a 
>iglit  to  go  upon  two  ^iiids,  and 
ft  second  JTidgment  creditor  upon 
one  of  them,  belonging  to  the 
same  debtor,  the  former  may  be 
compelled  to  apply  first  to  the 
fund  not  reached  by  the  second 
judgment,  so  that  both  ju<^- 
mentsmay  be  satisfied.  Dotty. 

akofO^^  ]  7 

t.  But  if  the  first  credHvr  has  a 
judgment  i^nst  A.  and  B.,  and 
the  second  creditor  against  B« 
only,  the  latter  cannot  compel 
the  former  to  tUke  the  land  of 
A.  only ;  it  not  appearing  whe* 
ther  A.  or  B.  ought  to  pay  the 
debt  due  to  the  first  creditor  ; 
nor  any  equltoMe  right  shown 
in  B.  to  have  the  debt  charged 
on  A*  alone. '  n,^ 

3*   An  assignment  by  a  debtor  of 
"  aH  his  estate,  real  and  per- 
sonal,  and  of  all  books,  vouch- 
ers andsecurities  rriati  ve  there- 
to,»*  in  trust,  ibr  the  benefit  of 
all  his  creditors,  passes  all  bis 
estate  and  interest,    equiuble 
and  legal  ?  and,  therefore,  in- 
cludes ttoek  of  the  United  States, 
befo^re  voluabirily  assigned  by 
the  debtor,  when  insolvent,  in 
frost,  ibr  the  Benefit  of  his  wife 
and  children  ;  and  the  trustees 
under  the  voluntary  settlement 
were  decreed  to  hold  the  stock 
sabject  te  the  order  and  dispo- 
aition  of  the  trustees  under  the 
general  assignment.    Baynrdv. 
Hqffman,  450 


706 


INDEX. 


4.  Ad  wiffQinent  by  a  debtor  to 
Imifoet  u>rtbe  benefit  of  all  his 
crediton,  10  valid,  without  the 
previoQs  aoseot  of  the  creditors. 
fficoU  V.  MumMt,  622 

6.  Bat  where  the  auignment  is 
made  directly  to  the  creditors, 
without  the  interveDtion  of  trus- 
tees, the  assent  of  the  creditors 
is  requisite  to  give  validity  to 
the  deed  of  assigBment.         ib. 

6»  A  suit  by  one  creditor  against 
an  heir,  and  a  decree  for  the 
sale  of  the  assets  descended, 
will  enure  for  the  benefit  of  all 
the  creditors,  and  draw  the  dis- 
tribution of  the  aasets  to  this 
court.      Tkampson  v.    Brown, 

619 

7.  So,  also,  in  the  case  of  eiecu- 
tors  and  administrators.  ib, 

8.  If  a  creditor  seeks  the  aid  of 
this  court,  sigaiost  the  rtal  estate 
of  his  debtor,  he  must  first  show 
a  judgment  at  law,  creating  a 
^teii  on  such  estate ;  and  if  he 
seeks  aid  in  rc^ganl  to  the  per- 
sonal estate,  he  must  show  an 
execution,  giving  him  a  legal 
preference,  or  lien  on  thego^ 
and  chattels,  which  he  has  pur- 
sued to  every  available  extent 
at  law.    BruJcerkoff'  v.  Brown, 

671 
S.  P.  Williams  v.  Brown^  682 

S.  P.  M'Dermut  v.  Sirong^  6S7 

9.  This  court,  as  well  as  a  court  of 
law,  allows  a  creditor  to  give  a 
preference  to  one  debtor  over 
another.      Williams  v.  BroTun, 

682 

10.  As,  where  a  debtor  in  insolvent 
circumstances^  confesses  a  judg- 
ment in  favaur  of  a  particular 
creditor,  fi>r  a.  debt  justly  due, 
the  iudgmenl  creditor  will  re- 
tain bis  priority*  ib. 

11.  If,  however,  the  debtor  makes 
use  of  the  judgment  so  confess- 


ed, for  his  own  purpose,  to  ef- 
fect a  sale  and  change  of  the 
property,  and  it  is  sold  at  a 
great  sacrifice,  and  purchased  in 
by  him,  this  court  will  allow  it 
to  be  redeemed,  or  to  be  set  op 
again,  at  the  price  at  which  it 
was  sold,  and  resold  for  the  be- 
nefit of  the  other  creditors,  m 
to  any  surplus  beyond  that 
price.  ib* 

12.  This  court  assists  a  judgment 
creditor  to  discover  and  reach 
the  property  of  a  debtorywhich 
is  beyond  the  reach  of  an  exe- 
cution at  law»  M'DtrmfOt  v. 
Stnmg^  687 

13.  A  judgment  creditor  who  has 
taken  out  execution  at  law,  and 
had  it  levied  and  retomed,  but 
has  failed  in  obtaining  satis&c- 
tion  at  law,  or  to  reach  a  re- 
siduary trust  interest  in  the 
chattels  of  his  debtor,  and  files 
his  biU  for  the  aid  of  this  court, 
gains,  by  his  legal  diligence,  a 
legal  prrferenee  to  ^  assisiance 
of  this  court,  which  cannot  be 
affected  or  impaired  by  any  sub- 
sequent assignment  of  that  equi- 
ty, by  the  debtor,  either  for 
the  benefit  of  all  his  creditors 
generally,  as  under  the  insol- 
vent act,  or  for  the  benefit  of  a 

.  particular  creditor.  ib. 

14.  Though  it  is  the  faFOurite  po- 
licy of  ibis  court,  to  distribute 
the  assets  of  a  debtor  equally 
among  all  his  creditors,  part 
passu  ;  yet  when  such  a  judicial 
preference  has  been  esliMished 
by  the  superior  legal  dii%ence 
of  any  creditor,  that  preference 
will  be  preserved.in  the  4»tri- 
botion  of  the  assets*  ib. 


Fide  JuRrsDicTioif .    Executor  aitd 

ADminSTRATOR. 


INDEX. 


707 


DECREE. 

Fide  Phaoticb,  XII.    Iitfant. 

DEED. 

Where  a  sheriff's  deed,  hy  fuUtake^ 
M  eot  inelade  aUthe  parcel  of 
laod  or  whole  premisea,  adver- 
tised and'hitefMlted^  to  be  sold,  and 
the  defendant,  and  all  parties,  8. 
supposed  the  deed  consprised 
the  whole,  and  the  parchaser 
bid  and  paid  a  price  according- 
ly ;  the  defendant  was  perpetn* 
ally  enjoined  from  prosecuting 
an  ejectment  at  law,  to  recover 
the  part  not  incladed  in  the 
deed,  and^vas  decreed  to  release 
to  the  plaintiff  all  his  right  and  ^  3. 
title  to  the  same.  De  Rieaur 
y.  CeMtaion,  85 

4. 
DEFAULT. 

^*  PftAcrice,  VI.  22.  XII.  40.  46. 

DEMURRER.  6. 

Vide  Pliadings,  V. 

DEVISE. 

6. 
1.  A  testator  possessed  of  a  large 
real  and  personal  estate,  be- 
queathed to  his  wife  his  house-  7. 
hold  furniture,  &c.  and  **  her 
etnnfortabte  support  and  main* 
tenance  out  of  his  estate,  to  be, 
from  time  to  time,  rendered  and 
paid  ti>  her  by  his  executors, 
and  the  trse  of  one  room  in  his 
dwelling  house,  during  all  such 
time  as  she  should  continue  to 
be  his  widow,  and  no  longer," 
and  devised  the  rest  of  hn  es- 
tate to  his  children  :  Held^  that 
though  the  charge  of  a  4:oi&for(- 
able  support    and  maintenance 


mi^t  fall  on  the  real  as  well  as 
the  personal  estate,  it  did  not 
affect  th6  widow's  right  of 
dower,  there  being  nothing  in- 
consistent in  the  two  claims, 
and  no  eipress  declaration  of 
the  testator  on  the  subject ;  and 
that,  therefore,  the  widow  was 
not  to  be  put  to  her  election. 
Smith  T.  Kniskem,  9 

By  a  devise  of  all  the  rent  and 
reiidue  of  the  real  estate  of  the 
testator,  the  rente  and  profits^ 
from  the  testator's  death  to  the 
time  of  vesting  the  estate,  will 
pass ;  and  whoever  takes  the 
legal  estate  in  the  mean  time, 
will  be  answerable  for  the  pro* 
fits.     Rx^erew.  RosSy  388 

The  rents  and  profits,  as  well  as 
the  estate  itself,  may  be  given, 
by  way  of  executory  deviee.  ib. 
The  heir  at  law  may  be  con- 
sidered as  a  trmtee^  when  it  is 
neee^ary  to  carry  the  inten- 
tion of  the  testator  into  effect. 

ib. 
The  rents -and  profits  may  accu- 
mulate in  the  bands  of  the  heir 
at  law,  for  the  benefit  of  the 
eiecotory  devisee,  until  the 
vesting  of  the  estate.  ib. 

Or  the  court  mayt,  if  necessary, 
appoint  a  receiver  Off  the  rents 
and  profits,  for  that  purpose.  -  -ib. 
Where  the  executory  devisee 
was  illegitimate,  and  it  did  not 
appear  that  the  testator  had  any 
lawful  heir,  and  no  person  ap- 
peared to  claim  the  inheritance, 
the  execiUor  of  the  testator  who 
had  taken  possession  of  the  real 
estate,  and  was  appointed  guar* 
dtan  of  the  ezeoetery  devisee, 
and  reeeived  the  rents  and  pro- 
fits from  the  death  of  the  testa- 
tor to  the  happeniog  bf  the 
event  on  which  the  estate  was 
to  vest,   was  held  accountable 


708 


I  N  D  E3r. 


for  them  to  the  execiKory  de- 
visee. »*. 
8.  A  devise  of  all  the  testttor'a 
estate,  real  and  penonal,  in 
trust,  to  pay  debtt,  and  ttien  to 
distribnte  the  reaidoe,plncefl  the 
assets  under  the  jurimlictioB  of 
this  court    Ben$M  r.  Ia  Roy. 

DISCOVERT. 
Fide  pLEimNGS,  III.  If,  IS,  13,  14* 

DISTRIBUTION  OF  ASSETS. 
Fide  AfTSETS.    EsecvtoH  Aitb  Aj>- 

MIRISTRATOR.  JtratSDICTION. 

Debtor  and  Crepitor. 
DIVORCE. 

1.  Where  a  dirorce,  a  menta  ct 
tkoro^  for  crud  and  inhuman 
treatment  of  the  wife,  by  the 
husband,  is  decreed,  the  sepa- 
ration will  be  matde  perpetual^ 
with  a  proviso  that  the  parties 
may,  at  any  time,  by  their  mu- 
tual and  voluntary  act,  apply  to 
the  Court  for  leave  to  be  dis- 
char^d  from  the  decree.  Bar- 
rere  v.  Barrtre^  lH 

t.  The  wife,  under  the  circum- 
stances of  the  case,  was  al- 
lowed to  retain  the  custody  of 
an  infant  son,  subject  to  the  fu- 
ture order  and  direction  of  the 
Court ;  and  the  huflhand  was 
directed  to  pay  a  certain  sum 
for  the  support  of  his  wife  ^nd 
child,  and  the  costs  of  the  suit 

ih. 

3.  A  husband  eannot  file  a  hill 
against  his  wife  for  a  divorce  a 
fMfua  €$  Morb,  on  the  ground 
of  cruelty,  desertion,  or  im- 
popcr  coDduct.  FanVmfUm 
▼.  ¥m  Feghtin^^  dol 

4.  So  that,  if  in  an  answer  to  a  bill 


filed  by ^ke  wlis:agpaBil:tbe  Iras- 
band  fbr  a  divotoe,  nsdar  the 
statute,  OB  the  grouad  of  cmel 
treatmemt,  the  husband  denies 
the  chiKi|;e,  aB^aett  up  acta  of 
cruel  and  abusive  treataMut  on 
Hm  partofUle  wiie^  and  asks 
fer  a  divM^e,  the  btt  wiU  be 
dismissed.  tfr. 

6»  The  Court  will  not  take  notice 
of  any  consent  or  agreeaMnt  of 
the  parties,  to  a  divoice  a  mm* 
$a  et  thorom  ib. 

DOWER. 

3«  Where  a  testator,  posaeased  of 
real  aad  personid  eatate«  devised 
to  his  wife  his  household  fur- 
niture, ^.  and  a  **  comfortable 
support  and  maioteQance  out  of 
his  estate,  to  be,  from  time  to 
time,  rendere49Dd  paid  toJier 
by  Us  eiecutors,"  kc^^  Bdd^ 
that  though  the  change  of  a 
comfortable  support  and  nmin* 
tenance  might  fall  upon  the 
real  as  well  as  the  personal  es- 
tate ;  yet,  there  being  no  ex- 
press declaration  of  £e  testa- 
tor op  the  sul^ect,  nor  any  thing 
inconsistent  in  the  two  daims, 
it  did  not  affect  the  widow^a 
right'  of  dower,  and  she  was 
not,  therefore,  to  be  put  tn 
her  election.  Smith  v.  Ji^iw- 
kemj  9 

2.  On  a  bill  for  dbmsr,  Aa  wdew 
was  held  entitled  to  the  value 
oi  the  munt  pr4^  ariaingfrom 
the  use  of  the  undivided  third 
of  the  premises  of  which  her 
husband  died  seised,  from  the 
death  of  l\er  bosband»  eydnajre 
of  the  improvements  aioce  made 
thereon.      Bcueu  V.  Tkurhur, 

-   .  ep4 

3w   And  there  being  seve^  heirs 

and  .terre-tenante»  the  amount 

was  directed    to  be  assessed 


I  N  »EX 


709 


dbrdiiif  Co  the  ttme  of  their  en- 

jeyment  of  die  premises.        t6. 

4.    But  ds  tbe  widew  bed  never 

-  olaimeAfacr  dewep»  and  there 

was  no  ofpositioQ  or  Fexetion 

.  -on  ikm  part  of  the  de^dmts, 

coHs-wtt^  denied  her*  «6. 


E. 

ELECTION. 

Where  the  plaintiff  brings  a  snit  at 
law,  and  obtains  a  judgment,  and 
at  the  same  time  files  his  bill 
against  the  defendant  in  this 
'  conrt,  for  the  same  matter,  he 
will  be  pdt  io  his  etecHon, 
either  to  proceed  at  law  or  in 
this  cOtiTt ;  and  if  he  elect  to 

Srbceed  at  hiw,  his  bill  will  be 
Ismissed  ;  but'  if  he  elects  to 
proceed*  in  this  eourt,  he  will  be 
^joined  T|*ett  proceeding  under 
the  judgment,  without  the  leave 
of  this  court.  Roger$  t.  Fos- 
hnrgh,  84 

Vide  DowKR,  f . 

EqpiTABLE  ESTATE. 

P'^ide    MoltTGAGE,    I.     JVRISDrCTIOV, 

26,  21.  29.  • 

;  EqplTY  OF  REDEMPTION. 

Fide  Mortgage,  III. 

EVIDENCE* 

Parot  Evidence  to  explain^  very,  or 
contradict  iffriiten  insirutnents. 

1.   Parol  proof  is  admissible  to  cor- 

'  rect  a  mtstefce'  in  a  written  coe- 

'"''     tract,  in  favour  of  the  plaintiff 


seeking;  a  specific  performance 
of  that'  contract;  especially, 
where  the  contract,  in  the  first 
instance,  is  imperfect  without 
referring  to  facts  /aliunde, 
Keiuelbraek  r.  lAvingetqn^  1 44 
2.  As,  where  there  was  qn  agree- 
ment  to  execute  a  lease  (or 
three  lives,  ^^  contaiuieg  the 
usual  clauses,  restrictions,  and 
reservations  contained  in  leases 
given  by  the  defendant  ;'*  it  be- 
ing necessary,  by  proof  d^koi^ 
the  agreement,  to  ascertain 
what  were  the  usuid  chinses, 
kc.  in  such  a  lease  ;  it  was  held 
lo  be  open  to  the  plaintiff,  also,  . 
to  show»  by  parol  evidence,  that 
it  was  af^reed  and  understood, 
at  the  time,  that  a  particular 
reservation  -was  not  to  be  in- 
serted in  the  lease  which  the 

.  defendant  was  to  execute.   .  ih. 

3a  Parol  proof  to  correct  a  mistake 

in  a  contract  is  admissible,  as 

well  in  favour  of  the,  plaintiff, 

as  the  defendant.  ih, 

4«   Parol  evidence  is  admissibre  to 

.  show  that  a  mortgage  only,  not 
an  absolute  sale,  was  intended  ; 

.  and  that  the  defendant  had 
fraudulently  attempted  to  .con- 
vert the  loan  into  a  sale. 
Strong  V.  Stefwatiy  167 

Fide  Latres,  LsNaTa  or  Titu;  and 
Poas&ssioN* 

EXCEPTIONS. 

In  Answer,  "uniff  Practice,  XI.  35, 

To  Master's  Report,  vide  Practice, 
XL9S.a7. 

\      EXECUTION. 

#T(f«;DkBir)iR  a*v  CRSDiTen«  1^  2.  8. 
IS.  JuDGMEKT,C9.^  JlfonroiAos,  7. 


710 


INDEX. 


EXECUTOR  AND  ADMINISTRA- 
TOR. 

AcHofu  6y  and  against^  aecawU,aUow- 
ancei,  and  costs  in  suck  actions. 

U  Where  a  plaintiff  claimed  as  le- 
gatee and  aa  a  creditor,  and 
proved  only  his  rigbt  as  le- 
gatee ;  and  the  defendants,  who 
were  execiftorf,had  caused  g^eat 
expense  and  delay,  by  raising 
nnionnded  objections,  jieither 
party  were  allowed  costs.  Broism 
T.  Rickets,  303 

2.  Executors  and  administrators,  or 
trustees,  acting  with  good  faith, 
and  withoat  any  wilful  default 
or  fraud,  will  not  be  responsible 
for  losses  that  may  arise. 
Thompson  y.  Brown,  419 

3.  .Where  an  executor,  or  other 

trustee,  mismanages  the  estate 
confided  to  his  care,  or  puts  the 
assets  in  jeopardy,  by  his  actual 
or  impending  insolvency,  the 
court  will  restrain  him  from 
all  further  intermeddling  with 
the  estate,  and  compel  him  to 
restore  the  fonds  in  his  hands. 
Elmendoffy,  Lansing,  562 

4.  An  executor,  on  a  bill  filed 
against  him  by  his  co-executors, 
was  restrained  A*om  all  further 
interference  in  the  maf?Hgement 
of  the  estate,  and  ordered  to 
restore  to  the  plaintiffs  a  bond 
and  note  of  the  estate  in  his  pos- 
session,  but  not  to  account  for 
the  money  he  had  received  on 
the  bond,  or  to  pay  the  costs  of 
the  suit.  ib, 

5.  Where  an  administrator  of  a  de< 
ceased  partner,  without  apply- 
ing to  the  court  for  its  direction, 
bona  fide,  permitted  the  sur- 
Tiiring  partner  to  sell  the  joint 
stock,  in  the  usual  course  of  the 


trade,  for  the  joiAt  benefit  of 
himself  and  tlie  intestate's  es- 
tate, he  was  held  not  to  be  res- 
ponsible to  the  creditors  for  any 
loss  ;  though  he  might  htpertwu- 
ally  liable  far  any  debts  con- 
tracted by  such  aasomed  part- 
ner.    Thompson  r.  Bromn,  619 

6.  But,  if  the  administrator  pots 
into  the  hands  of  the  sorriTing 
partner,  a^sete  which  be  bad  in 
his  own  hands  and  under  his 
own  control,  to  trade  with,  he 
will  be  responsible  for  the  loss. 

tfr. 

7.  A  creditor  may  come  into  this 
court  against  an  executor  or  ad- 
ministrator, for  a  discorery  of 
assets.  ib. 

8.  Upon  the  uirual  decree  to  ac- 
count, in  a  suit  by  one  or  more 
creditors  against  an  executor 
or  administrator,  either  sepa* 
rately  Ibr  themselyes,  or  spe- 
cially, in  behalf  of  themselves 
and  ail  other  creditors  who  win 
come  in,  &c.  the  decree  is  for 
the  benefit  of  all  the  creditors, 
and  in  the  nature  of  a  judgment 
for  all :  and  all  the  creditors 
are  entitled,  and  should  hare 
notice  for  that  purpose,  to  come 
in  and  prove  their  ^ebts  before 
the  master ;  and  they  arc  to  be 
paid,   rateably,  after  judgment 
creditors  are  satisfied,  without 
preference,  or  regard  to  the  le- 
g^al  prt(n>i(y  of  specialty,  ov<>r 
simple  contract  creditors.      t6. 

9.  Such  A  suit  and  decree  for  the 
sale  of  (he  assets,  draws  to  this 
court  the  entire  distribuBon  of 
them.  iS, 

10.  A  decree  in  this  court,  is  equiva- 
lent to  a  judgment  at  law,  j^pd 
if  prior  in  time,  it  is  to  be  first 
paid.  ih, 

1 1 .  And  from  the  date  of  the  decree, 
and  a  due  djlBclosure  of  assets. 


INDEX. 


7H 


zia  ifijunction  will  be  gnmted, 
im  the  motioD  of  either  party, 
to  etaj  all  proceedings  of  the 
creditors  at  law.  ib. 

12.  Bot  creditors  will  not  be  re- 
strained  from  proceeding  at  law, 
merely  on  a  bill  being  filed 
against  the  executor  or  admin- 
islraior  in  this  court ;  and  a 
jcidgmeot  at  law  obtained  before 
a  decree  in  this  court,  will  be 
protected  in  its  priority.  %b, 
IS.  A  widow  find  administratrix, 
who  under  her  claim  of  dower, 
■  and  a»  guardian  lo  her  infant 
children,  had  received  the  rents 
and  profits  of  the  real  estate, 
and  applied  them  to  the  neces- 
sary maintenance  of  the  chil- 
dren, prior  to  due  notice  and 
application  of  creditors,  was  not 
held  to  account  for  the  rents 
and  profits  so  received  and  ex- 
pended, ib, 

14.  The  doctrine  of  equitable  assets, 
.    by  which  all  the  creditors  are 

paid  part  pasiUy  is  not  affected 
by  the  statute  ;  seM.  36,  ch.  93. 
(1  JV.  A.  L.  36.)  for  the  omis- 
sion of  the  4th  section  of  the 
English  statute,  (3  W.  k  M. 
114.)  which  excepts  devises  of 
lands  to  pay  debts,  does  not 
vary  its  construction.  Benton 
Y.LeRoy^        .  681 

1 5.  And  a  devise  of  all  the  testator's 
estate,  real  and  personal,  in 
truti  to  pay  debts  and  to  distri- 
bute the  residue,  places  the 
assets  under  the  jurisdiction  of 
this  court.  ib. 

Fide  Set  Off,  3.  Trust- amd 
Trvstbb,  U,  15,  16.  Power,  1,  2. 
Devise.    Debtor  aud  Creditor. 

EXECUTORY  DEVISE. 

Vide  Devise,  3.  3.  7. 


FEME  COVERT. 

Fide  Baron  aho  Feme. 

FOREIGN  ATTACHMENT. 

Fide  Foreign  Laws.    Bankrupt. 

FOREIGN  CORPORATIONS. 

Fide  Corporations. 

^FORECLOSURE. 

Fide  MoRTeAGE,  III. 

FORFEITURE  OR  PENALTY. 

Fide  JtTRisnicTiON,  7,  8.  12. 

FOREIGN  LAWS. 

1.  A  debt  due  by  Can  American 
citizen  f  to  M.  a  Brititk  subject 
.  resident  in  Lcmdon^  was  reco- 
vered by  foreign  attachment,and 
a  judgment  thereon,  in  the 
Mayor's  Court  of  tjie  city  of 
Ldmdonj  in  due  course  of  law, 
out  of  monies  which  had  come 
to  the  hands  of  the  agents  of  C. 
in  L  s  Held,  that  the  payment 
of  the  debt  by  the  agents  of  C. 
being  compulsory  and  by  the 
judgment  of  a  court  of  compe- 
tent jarisdiction,  was  a  bar  to  a 
suit  brought  here  to  recover  the 
same  debt,  either  bv  M.,  or  by 
trustees  of  the  creditors  of  M., 
under  a  process  of  attachment 
which  had  been  issued  here,  at 
the  instance  of  an  American  cre- 
ditor of  M.,  pursuant  to  the  act 
giving  relief  against  absent 
debtors,    &c.  previoua  to  the 


712 


INDEX 


prooBM  of  foreign  attachnoDt 
in  Lfmion^    Hoime$  r,  Renuen^ 

460 

2.  For  tho  title  of  the  foreign  as- 
signees, and  of  the  Anerkan 
trattees,  heing  equally  Talid  ooi- 
der  die  laws  of  their  respective 
Gonntries,  the  debt  is  well  paid 
to  the  party  who  has  used  the 
greatest  legal  diligence  to  re- 
cover it. .  ib. 

3.  The  succession  to,  and  distribu- 
tion of,  personal  property,  is  re- 
gulated by  the  lex  domtcSn  ;  not 
by  the  kx  loei  ret  nte.  ib, 

4.  A  Toluntary  assignment,  made 
bona^fide^  bj  a  ddbtor,  of  all  his 
property,  for  the  benefit  of  all 
his  creditors,  is  Talid,  and  will 
pass  debU  due  to  him  in  foreign 
countries.  ft6. 

5«  So  will  an  assignment  under  a 
bankrupt  law  of  his  country, 
either  because  it  is  equivalent 
to  a  voluntary  assignment  by 
the  debtor ;  or  because  the  do" 
micil  of  the  owner  draws  to  it 
his  personal  property  ;  or  be- 
cause, it  is  an  established  rule 
of  cam^y  among  nations.        f6« 

6.  Foreign  laws  may  be  proved  by 
witnesses  m  matters  of  £ict. 
Bruik  V.  Ifmmt,  620 

Fide  Bavkkopt. 

FRAUD. 

I.  Where  the  •  attorney  of  the 
plaintiff  attended  the  sale  of  a 
torm  of  the  defendant,  under 
an  execution;  and  tlie  farm, 
which  was  worth  two  thousand 
dollars,  was  sold  to  the  attorney 
for  ten  dollars,  the  gross  inad- 
equacy of  the  price,  connected 
with  the  fact,  that  the  sale 
was  on  a  stormy  day,  when  no 
person  but  the  attorney    and 


depuly  sheriff  were  iiresent, 
was  held  sufficient,  to  warrant 
the  inference  o(  frmtdp  Hem' 
eU  V.  Baker,  118 

2.  Where  a  judgmenlvand  ^sM/dQa- 
tion,  which  bad  boM  fully  paid 
and  satisfied,  were  kept  on  fi>ot 
by  the  assignees  of  the  jadgraeot, 
fraudulenUy,  for  the  purpose 
of  speculating  on  the  pcoperty 
of  the  debtor,  and  which  the 
defendants,  assignees  of  the 
judgment,  purchased  at  the 
sheriff's  sale,  they  were  de- 
creed to  esecufe  a  release  of  dl 
the  title  and  interest  no  ac- 
quired, to  the  owfter  of  the 
lands,  so  fraudulently  S4>ld  on 
etecutioo,  mid  to  deliver  np 
the  possession  thereof,  pay  tbe 
rents  and  profits,  and  damages 
for  any  waste  committed,  with 
all  costs,  &c.  Tra^  v.  Wood 
mtd  Skenood,  228 

3.  An  agreement  by  the  owner  of 
an  execution,  on  which  lands 
to  an  amonnt  in  valoe  far  ex- 
ceeding the  debt  had  been 
seized,  to  prevent  the  usual 
competition  at  the  shertff*8  sale, 
nnd  in  order  to  leave  a  balance 
due  on  tbe  execution,  fbr  the 
purpose  of  having  lands  of  the 
debtor  in  other  counties  seized 
and  sold,  is  fraudulent :  and  the 
execution  is  deemed  in  law  to 
be  satisfied.  ib. 

4.  J.  S.  sold  and  conveyed  a  lot  of 
land  to  H.  and  took  a  mort- 
gage to  secure  part  of  the  pur- 
chase money.  The  mortgage 
was  dtthr  recorded,  in  the 
county  of  Oftondago,  where  tbe 
land  was  situated ;  but  H.  ne- 
glected to  have  his  deed  recor- 
ded, pursuant  to  the  statute. 
The  defendants  having  pur- 
chasedthe  ctaiui  of  a  person  in 
possession  without  title^   pro- 


INDEX. 


713 


cured  a  release  and  qViit  claim 
from  /.  5.  for  the  consideratioQ 
of  ten  dollars,  though  the 
lot  was  worth  six  thousand 
dollars,  and  had  it  recorded 
before  the  deed  of  H.  Held^ 
that  the  subsequent  release  and 
quit  claim  by  J.  S.  was  fraudu- 
lent, the  record  of  the  mort- 
gage being  sufficient  evidence 
that  /.  S.  had  then  no  title  : 
and  the  defendants  were  de- 
creed to  release  all  claim  to/f., 
so  as  to  quiet  his  title.  Lupton 
V.  Cornell,  262 

FRAUDULENT  CONVEYANCES, 

1.  A  voluntary  settlement,  either 
of  lands  or  chatteb,  by  a  per* 
son  indebted  at  the  time,  is 
void  as  against  creditors.  Bay- 
ard V.  Hoffman^  460 

2.  Whether  the  statute  of  frauds 
(1  JV.  R.  L,  76.  sess.  10.  c. 
44.  Idth  Eliz.  c.  6.)  applies  to 
a  settlement  of  that  kind  of 
property  which  could  not  be 
•reached  by  legal  process,  if  no 
settlement  had  been  made, 
such  as  choBes  in  action,  mo- 
ney in  the  funds,  &c.  ?  ^ucere. 

ib. 

3.  An  assignment  by  a  debtor  of 
<*  all  his  estate,  real  and  per- 
sonal, and  of  all  books,  vouchers 
and  securities  relative  thereto," 
in  trust,  for  the  benefit  of  all 
his  creditors,  passes  all  his  es- 
tate and  interest,  equitable 
and  legal,  and  his  rights  of  ac- 
tion, or  as  cestui  que  trust ;  and, 
therefore,  includes  stock  of  the 
United  States  before  voluntarily 
assigned  by  the  debtor,  when 
insolvent,  in  trust,  for  the  be- 
nefit of  his  wife  and  children  ; 
and  the  trustees .  under  (he  vo- 

VoL.  IV.  90 


luntary  settlement,  were  de-t 
creed  to  hold  the  stock,  sub- 
ject to  the  order  and  disposition 
of  the  trustees  of  the  creditors 
under  the  general  assignment. 

ib. 

4.  //  seems,  that  there  is  no  differ- 
ence in  the  construction  of  the 
11th  and  15th  sections  of  the 
statute  of  frauds,  {sess.  10.  c. 
44.  1  X.R.  L.  75.)  or  the 
4th  and  17th  sections  of  29 
Car,  2.  c.  3.  as  to  what  is  a  suf- 
ficient signing  of  a  contract  by 
the  party  to  be  chained. 
M'Omh  V.  Wright,  '  659 

6.  An  auctioneer  is  an  agent  law- 
fully authorized  by  the  purcha- 
ser of  lands  or  goods,  at  auc- 
tion, to  sign  the  contract  of  a 
sale  for  him,  as  the  highest  bid- 
der, ih, 
6.  Writing  the  purchaser's  name, 
as  the  highest  bidder,  on  the 
'  memorandum  of  sale,  by  the 
auctioneer,  immediately  on  re- 
ceiving the  bid,  and  knocking 
down  the  hammer,  is  a  sufficient 
signing  of  the  contract,  within 
the  statute  of  frauds,  so  as  to 
bind  the  purchaser.               ih. 

FREIGHT  AND  CHARTER 
PARTY. 

1.  When  a  ship  puts  into  an  inter- 
mediate port,  in  distress,  and  is 
condemned  as  unseaworthy;  and 
it  becomes  necessary,  for  the 
trsmsportation  of  the  cargo 
saved,  to  its  destined  port,  to 
hire  another  ship,  the  cargo, 
on  its  arrival  at  the  port  of  des- 
tination, is  chargeable  with  the 
increase  of  freight  arising  from 
the  charter  of  the  new  ship  : 
That  isy  the  extra  freight  be- 
yond what  the  freight  would 


114 


INDEX. 


hare  been  under  the  original 
charter  parCjr,  if  the  necessity 
of  biriDg  another  ship  had 
not  intenrened.  SeivrUr.  Sco- 
veil,  218 

%.  The  owner  of  the  goods  is  not 
answerable  both  for  the  old  and 
new  freight.  ib. 

9.  To  ascertain  snch  extra  freight, 
the  proper  role  seems  to  be,  to 
detennioe  the  difference  be- 
tween the  amount  of  the  freight 
nnder  the  original  charter  par* 
^,  and  the  roieoi^/e/ret^i^^  for 
the  goods  saved,  to  the  port  of 
necessity,  added  to  the  freight 
pf  the  new  ship  hired  to  cari^ 
on  the  goods.  ib, 

4.  The  extra  freight  for  the  re* 
newed  voyage,  in  snch  case,  is 
a  lien  on  Uie  -cargo.  ib, 

Fi4e  Partnership,  4, 6. 

FUGITIVES  FROM  JUSTICE. 

1 .  It  is  the  law  of  nations  to  deliver 
up  offenders  charged  with  felo- 
nies aod  other  high  crimes,  and 
who  have  fled  from  the  country 
where  such  crimes  were  com- 
mitted,  into  a  foreign  and  friend- 
ly jurisdiction.  Matter  of  Wa^' 
kirn,  106 

5.  It  is  the  duty  of  the  civil  magis- 
trate to  commit  snch  fugitives 
from  justice,  to  the  end,  that  a 
reasonable  time  may  be  afford- 
ed Sat  the  government  here  to 
deliver  them  up,  or  for  the  fo- 
reigngovernment  to  make  appli- 
cation to  the  proper  authorities 
here  for  their  surrender.      ib. 

3.  But  if  such  application  is  not 
made  in  a  reasonable  time,  the 
party  ought  to  be  discharged. 

ib. 

4.  The  evidence  to  detain  a 
fugitive  from  justice,  for  the 

.   purpose  of  his  being  surrenders 


ed,  ought  to  be  sucb  as  wonid 
be  sufficient  to  commit  him  for 
trial,  if  the  offence  was  com- 
mitted here.  ih, 

B.  The  27th  artiele  of  the  treaty 
of  179a,  between  the  UniUd 
States  and  Great  Britain,  was 
merely  declaratory  of  the  law 
of  nations  on  this  subject;  and 
since  the  expiration  of  that 
treaty,  tiie  general  principles  of 
Uie  ^iw  of  nations  remain  obli- 
gatory on  the  two  nations.      t1(. 

6.  Therefore,  the  Chancellor,  or 
a  Judge,  in  vacation,  has  jjuna- 
diction  to  examine  a  prtsooer 
brought  before  him,  on  habede 
e«rpiw,  and  who  bad  been  taken 
in  custody  on  a  charge  of  (M?, 
or  felony,  committed  in  Canada, 
or  a  foreign  state,  from  which 
he  had  fled ;  and  if  sufficient 
evidence  appears  against  him,  to 
remand  him  ;  otherwise,  to  dis- 
charge him.  ih. 

G. 

GUARDIAN. 

Fide  Irfaiit,  1.  7.    Practicb,  II.  9. 
Trust  and  Trustee,  II.  10. 14. 


H. 

HABEAS  CORPUS. 

Fide  Ihpavt,  1,  2.    Fuoitives  from 
Justice,  6. 

HEARING. 

Fide  Pragticb,  X» 

HEIRS  AND  DEVISEES. 

1.   A  creditor  may  file  a  bill  in  this 
court  against  lieirs  and  deviaeee 


INDEX. 


916 


for  an  accooDt,  and  for  a  sale 
and  diatribotioD  of  the  real  es- 
tate descended  or  devised,  in 
order  to  make  good  any  defi- 
ciency of  personal  assets. 
Thompitm  ▼•  Brown^  619 

2.  Bot  the  real  estate  will  not  be 
directed  to  be  sold,  until  the 
amount  of  the  debts  and  thede- 
iciency  of  the  personal  estate 
have  been  duly  ascertained.  »&. 

5.  It  is  no  ob|ectioa  to  the  sale  of 
the  real  estate  for  the  payment 
of  debts,  that  the  heirs  are  in- 
fants, ib. 

4*  And  where  there  is  a  decree  for 
the  sale  of  the  ium<«  descended, 
it  enures  for  the  benefit  of  all 
the  creditors^  and  draws  the  en- 
tire distribution  of  the  assets 
into  this  court.  ib. 

Fide  Devise. 

HUSBAND  AND  WIFE. 

Fide  Baron  aro  Feme. 


I. 

IDIOTS  AND  LUNATICS. 

I.  Where,  on  the  petition  of  a  re- 
lation of  a  lunatic,  and  who  had 
received  from  him  a  deed  of  a 
farm,  ^  few  days  before  the 
finding  of  the  inquisition  of  lu- 
nacy, an  issue  was  awarded  to 
try  the  fact  of  lunacy,  and  on 
the  trial,  the  party  was  found  to 
have  been  a  lunatic  for  several 
years  preceding,  the  party  tra- 
versing the  inquisition  was  or- 
dered to  pay  costs.    Matter  of 


Folger, 


169 


^.  The  prosecutor  of  a  charge  of 
lunacy  is  not,  of  course,  order- 
^  to  pay  costs,  where  the  party 
is  found,  by  the  inquisition,  to 


be  of  sound  mind,  if  the  prose- 
cution has  been  in  good  faith, 
and  upon  probable  grounds. 
Brotoer  V.  Pisker^  441 

3.  A  person  deaf  and  dumb  from 
his  nativity,  is  not^  therefore^ 
an  idiot,  or  non  compos  tneiUis ; 
thoi^h  such,  perhaps,  may  be 
the  l^al  presumpttoD,  until  his 
mental  capacity  is  proved,  on 
inquiry  and  examination  for  that 
purpose.  ib. 

Fide  Har&iaoe,  I,  2,  3. 

INFANT. 

1;  Where  an  infimt  is  brought  up 
on  habeas  corpus^  the  court  will 
inquire  wheUier  he  is  onder 
any  illegal  restraint ;  and  if  he 
is,  will  set  him  at  liberty ;  but  if 
there  is  no  improper  restraint, 
the  court  will  not,  in  this  sum- 
mary way,  decide  upon  the 
right  of  guardianship,  or  deliver 
over  the  infant  to  the  custody  of 
another.  MaUer  of  H^oUstone- 
craft,  80 

2.  If  the  infant  is  Competent  to 
fbrm  a  ju^ment  and  declare  his 
election,  the  court,  after  exami- 
nation,  will  allow  him  to  go 
where  he  pleases;  otherwise 
the  court  wiU  exercise  its  judg- 
ment for  hiip.  ib* 

3.  Maintenance  will  be  allowed  out 
of  the  capital  of  an  infant's  estate, 
where  the  principal  is  small, 
otherwise  it  must  be  out  o#  the 
interest.     Matter  of  Bo9tmick^ 

100 

4.  Application  for  matnteiiance  may. 
be  by  petition^  without  bill.    %b» 

5.  A  parent  may  be  allowed  to  be 
reimbursed  out  of  the  iofdut's 
estate,  for />Wt  maintenance,  ib. 

6.  Where  a  deed  was  ordered  to 
be  cancelled  as  fraudulent  an4 
roid,  on  a  bill  for  jthat'purpose, 


71^. 


INDEX. 


filed  agsuDSt  the  representaiif  ea 
of  the  grantee,  and  a  perpetual 
injunction  granted  against  using 
the  deed  or  record  of  it  in  e?i- 
deiice  ;  The  decree  was  declar- 
ed binding  on  such  of  the  de- 
fendants, as  were  infants,  unless 
within  six  months  afler  coming 
of  age,  they  should^show  cause 
to  the  contrary,  on  being  served 
with  process  for  that  purpose. 
Bu9knel  y,  Harford,  300 

7.  The  act  concerning  infants,  9th 
JlprUy  1814.  («c«.  37.  ch.  108.) 
and  the  act  in  addition  thereto, 
March  24th,  1815,  {sess.  38.  ch, 
106.)  authorizing  the  sale  of  an 
infant's  real  estate,  under  the 
order  and  direction  of  the  court, 
do  not  apply  to  the  case  of  a  fe- 
male infant  who  is  married. 
Matter  of  Whitaker,  378 

8.  It  is  not  the  usual  practice  of 
the  court  to  appoint  a  guardian 
to  an  infant,  who  is  a  feme  co^ 
vert;  nor  can  the  husband  be 
guardian  for  his  wife,  in  such 
case,  as  to  the  sale  of  her  lands. 

ib. 
9*  These  acts  were  intended  for 
the  better  education  and  main- 
tenance of  infants,  and  for  their 
special  beneiit  ;  not  that  the 
proceeds  of  the  sale  should  be 
placed  at  the  disposition  of  the 
husband  of  the  infant.  ib. 

10.  It  seemsy  that  a  female  ward  of 
this  court  is  not,  of  courset  dis- 
charged from  its  protection,  by 
marriage,  or  without  an  order 
of  the  court  for  that  purpose. 

t6. 

INJUNCTION. 

I.  In  what  cases  granted y  and 
against  whom, 
II.  To  stay  waste  or  trespass. 
III.  To  stay  proceedings  at  law, 
iV.  Injunction  for  other  purpo- 
set* 


V.  Whesi  dissolved. 
VI.  When  made  perpeiual* 

I.  In  what    cases    granted^    and 
against  wham. 

1.  An  injunction  is  never  granted 
against  persons  who  are  not 
parties  to  the  suit.  Fellows  v. 
Fellows,  25 

2.  Where  new  facts  are  stated  in  a 
supplemental  bill,  a  fresh  injunc- 
tion may  be  awarded,  though 
the  former  injunction  was  dis- 
solved on  the  merits.  Fanning 
V.  Dunham^  36 

3.  An  injunction  will  be  granted, 
to  restrain  persons  from  naviga- 
ting with  Steam  Boats,  in  viola- 
tion of  the  exclusive  privilege 
granted  to  Livingston  and  Ful- 
ton,  on  the  waters  lying  between 
Staien  Island  and  Powles  Hook 
dnd  the  Jersey  Shore  ;  the  same 
being  within  the  jurisdiction  of 
this  state.  Livingston  y.  Og- 
den  and  Gibbons,  48 

4.  Where  the  defendants,  a  bank- 
ing company,  agreed  with  B. 
to  hold  the  bills  of  the  plain- 
tiffs, a  banking  company,  sub- 
ject to  his  order,  and  B.  en- 
gaged to  accept  the  drafts  of  the 
defendants,  at  ten  days  sight, 
for  the  amount,  no  injunction 
lies  to  restrain  the  bills  in  their 
possession,  or  from  demanding 
payment  of  them  of  the  plaintifis, 
for  the  agreement  with  B.  mere- 
ly suspended  the  right  of  the 
defendants  to  demand  payment 
of  the  bills,  until  10  days  after 
the  acceptance  of  their  drafts 
by  B, ;  and  the. suspension  ceased 
when  B.  made  default,  in  ac- 
cepting and  paying  the  drafts. 
WaAington  and  Warren  Bank 
v.  Farmer^s  Bank,  62 

5.  A  creditor  in  M'ew  Jersey, 
where  all  the  parties  resided, 


INDEX. 


717 


took  from  the  maker  of  a 
promissory  note  indorsed  by 
the  plaintiff,  a  bond  and  mort- 
gage, which  was  ample  securi- 
ty for  the  debt ;  aad  instead  of 
resorting  to  the  mortgage,  or 
the  debtor,  sued  the  plaintiff, 
who  was  transiently  in  this 
state »  at  law  :  this  court  grant- 
ed an  injunction  to  stay  the  suit 
at  law,  until  the  creditor  had 
paTsoed  his  remedy  on  the 
mortgage  in  New- Jersey.  Hays 
r.  Ward,  123 

6.  Where  an  injunction  has  been 
already  granted,  a  second  in- 
jnnction  will  not  be  granted, 
while  the  other  is  in  force,  un- 
less the  first  has  been  with- 
drawn by  some  tigreement  be- 
tween the  parties,  and  satisfac- 
tory reasons  shown  for  a  re- 
newal of  it.  Livingston  v.  Crib* 
bonsy  571 

7.  Nor  will  an  injunction  be  gran- 
ted to  restrain  the  defendant, 
who  was  charged  by  the  plain- 
tiff with  navigating  the  waters 
of  this  state  with  a  Steam  Boat^ 
in  violation  of  the  plaintiff's  ex- 
clusive right,  from  removing  his 
boat,  pending  an  action  at  law, 
brought  to  recover  the  boat  as 
forfeited  under  the  act  of  the 
Ut  April  J  1811;  unless  there 
is  a  direct  and  positive  charge 
of  danger  that  the  boat  will  be 
eloigned,  pending  the  suit  at 
law.  ib. 

11.  Injunction  to  stay  waste  or  trcs* 
pass. 

C.  An  injunction  to  stay  Ts^asfe^ 
will  not  be  granted,  where  the 
right  is  doubtful,  or  where  the 
defendant  is  in  possession,  claim- 
ing adversely,  and  the  plaintiff 
has  brought  an  action  of  eject- 


ment to  recover  the  possession, 
at  law,  which  is  undetermined. 
Storm  V.  Mann,  SI 

III.  Injunction  to  stay  proceedings  at 
law, 

9.  An  agreement  on  the  part  of  a 
creditor  to  collect  the  money 
rateably^  of  the  several  parties 
to  a  note,  on  their  giving  a 
bond  and  judgment  for  the 
amount,  was  enforced,  by  enjoin- 
ing all  further  proceeding  on  the 
judgment  against  the  plaintiff, 
on  his  paying  into  court  his 
rateable  proportion,  kc.  Briggs 
V.  Law,  22 

IV.  Injunction  for  other  purposes. 

10.  Injunction  granted  to  restrain 
commissioners  from  proceeding 
to  sell  lands,  to  pay  the  sums  as- 
sessed, under  the  act  to  amend 
the  aet^  entitled,  an  act  to  incor- 
porate the  Ulster  and  Orange 
Branch  Turnpike  Company,  (sess. 
40.  ch.  213.)  for  making  the 
road,  so  as  to  give  the  owners 
of  the  lands  an  opportunity  to 
coiDplete  the  road  themselves^ 
through  their  own  lands,  within 
the  second  section  of  the  act, 
according  to  its  true  construc- 
tion. Couch  V.  P,  and  D,  of 
the  Ulster  and  Orange  Branch 
Turnpike  Company,  26 

Fide  V.  VI. 

V,  When  dissolved. 

11.  When  the  an«;s;er  of  the  defen- 
dants denies  all  the  equity  of 
the  bill,  the  injunction  will  be 
dissolved  of  course.  Couch  v. 
Ulster  and  Orange  Turnpike 
Company,  26 


716 


INDEX 


12.  Where  an  injnnctioD  had  been 
granted,  to  stay  a  sale  under  a 
power  contained  in  a  mortgage* 
a  few  days  before  the  expira- 
tion of  the  fix  tnonihs*  notice,  it 
was  dissolved,  after  answer,  on 
terms:  viz.  giving  six  weeks 
farther  notice  of  the  time  and 
place  of  sale,  and  a  reference, 
in  the  mean  time,  to  a  master  to 
ascertain  the  balance  due,  &c. 
JVtcholt  T.  Wason,  1 15 

13.  When  an  injanction  is  allowed 
by  the  Chancellor^  the  defen- 
dant, before  he  pats  in  an  an- 
swer, may  move  to  dissolve 
the  injanction,  on  the  ground 
of  a  want  of  equity  in  the  bill, 

'MifUum  V.  Seymour^  1 73 

14.  Where  the  defendant,  in  an- 
swer to  an  injunction  bill,  ad- 
mits the  eqoity  of  the  bill,  but 
sets  up  new  matter  of  defence 
on  which  he  relies,  the  injunc- 
tion will  be  continued  to  the 
hearing,     MirUum  v.  Seymour^ 

497 

VI.  When  made  perpetual, 

15.  Where  the  plaintiff  and  those 
under  whom  he  clains,  have 
been  in  the  quiet  and  uninter- 
rupted possession  of  land,  for 
above  tweniy-five  years  :  an  in- 
junction restraining  the  defen- 
dants,  (the  Corporation  of  the 
City  of  J^ew-York)  from  enter- 
ing and  digging  down  the  ground 
so  possessed  by  the  plaintiff, 
was  graoted  and  made  perpetu- 
al, or  until  the  defendants  shall 
have  established,  by  due  course 
of  law,  their  right  to  the  ground 
in  question.  Varick  v.  The 
Corporation  of  the  City  of  NeW' 
York,  53 

16.  Where  on  a  sale  of  land,  mills, 
&c.  in  the  possession  of  the  de- 
fendants, under    an  execution 


against  them,  the  deed  execa* 
ted  by  the  sheriff,  by  mistake^ 
did  not  include  the  whole  prem- 
ises advertised  and  sold,  the 
sheriff  having  taken  the  de- 
scription from  an  original  title 
deed  for  72  acres,  witboat  ad- 
verting to  subsequent  convey- 
ances, of  9ome  small  parcels, 
adjoining  the  original  premises: 
the  defendants  and  all  parties 
supposing  the  sheriff's  deed  in- 
cluded the  whole,  and  the  pur- 
chaser having  bid  and  paid  a 
price  accordingly :  Decreed, 
that  the  defendants  be  perpetu- 
ally enjoined  from  prosecuting 
the  ejectment^  suit  at  law, 
brought  by  them  to  recover 
the  parcels  of  land  not  included 
in  the  sheriff's  deed  to  the  pur- 
chaser ;  and  that  they  exeente 
to  the  purchaser  a  release  of 
all  their  right  and  title  to  the 
same.     De  Riemer  v.  CcmtilUm, 

85 
17.  Where  a  deed  was  ordered  to 
be  cancelled,  as  fraudulent  and 
void,  the  defendants  and  all 
persons  claiming  under  it,  were 
perpetually  enjoined  from  using 
the  record  of  it,  as  evidence  of 
title.     Busknd  v.  Hatfordy  901 

Fide  Steam  Boats.     Jixrisoictioit. 
Practice. 

INSOLVENT  DEBTOR. 

1.  An  insolvent  debtor  may,  bona 
fide,  assign  his  property  to  trus- 
tees, before  it  has  become  bound 
by  any  lien,  in  trust,  for  the  be- 
nefit of  all  his  creditors ;  and 
the  assent  of  the  creditors  is  not 
necessary  to  give  legal  validity 
to  the  deed  of  assignmenL  JVt- 
coll  V.  Munifordf ,  522 

2.  But  where  the  assignment  is  di- 
rectly to  the  creditors,  without 


INDEX. 


719 


the  intenrention  of  trustees,  the 
assent  of  the  creditors  is  requi- 
site to  give  it  legal  validity,   ib. 

Fide  Debtor  aitd  Creditor^  3,  4, 
5.  9.  10. 

INTEREST. 

On  a  bead  conditiooed  to  pay  with 
interest  at  six  per  ceut,  for  the 
security  of  which  a  mortage  is 
taken,  the  obligee,  after  a  for- 
feiture of  the  bond,  is  not  enti- 
tled to  seven  per  cent,  the 
lawful  interest  ;  but  interest 
is  to  be  paid  according  to  the 
contract,  until  it  ceases  to  ope- 
rate, by  being  merged  in  the 
decree.    MUler  v.  Burroughs^ 

436 

Fide  Trust  and  Trustee,  III.  18, 
19.  21. 


J. 

JOINT  OWNERS. 

Fide  Ship-Owners,  1,  2,  3.     Part- 
nership. 

JUDGMENT. 

1.  Where  a  judgment  at  law,  by 
confession  on  a  warrant  of  at- 
torney, appears  regular  and  for- 
mal, according  to  the  record, 
this  Court  will  not  interfere 
with  or  impeach  it,  on  (he 
ground  of  any  alleged  irregu- 
larity, or  informality,  in  enter- 
ing it  up ;  but  will  consider  the 
rights  acquired  under  such  judg- 
ment as  valid  in  law  ;  especial- 
ly, where  several  years  have 
elapsed  since  the  ju(4;ment,  and 
the  defendants  have  acquiesced 
in  it,'  and  in  an  execution. and 


sale  under  it.     De  Riemer  v. 
CarUillon^  35^ 

2.  A  judgment,  after  it  has  been 
fully  paid  and  satisfied,  cannot 
be  kept  on  foot  to  cover  any 
new  demands  of  the  plaintiff. 
Troup  V.  Wood  and  Skerwood, 

228 

3.  Where  the  sheriff  seizes  suffi- 
cient property  of  the  debtor, 
under  an  execution,  the  debtor 
is  discharged  from  the  judg- 
ment, and  the  plaintiff  must  look 
to  the  sheriff  for  his  money,  ib. 

Fide  Jurisdiction.    Fraud.    Scire 
Facias. 

JURISDICTION. 

1.  Whether  this  court  will  take 
cognisance  of  a  cause  where  the 
amount  in  controversy  does  not 
exceed  the  sum  of  fifty  dollars  ? 
Or  grant  an  injunction  to  stay 
execution  on  a  judgment  in  a 
justice's  court  ?  Qic<sr6.  Moore 
V.  LifttU,  183 

2.  This  Court  possessing  an  exclu- 
sive jurisdiction  over  cases  of 
lunacy  and  matrimonial  causes, 
will  sustain  a  suit  instituted  to 
pronounce  the  nullity  of  a  mar- 
riage with  a  lunatic.  WigfUman 
V.  Wightman,  343 

3.  So,  where  a  marriage  is  unlaw- 
ful and  void,  ab  initio,  being  con- 
trary to  the  law  of  nature,  as 
between  persons,  ascendants  or 
descendants,  in  the  lineal  line  of 
consanguinity,  or  between  bro- 
thers  and  sisters,  iq  the  collate- 
ral line,  this  Court,  in  a  suit  in- 
stituted for  that  purpose,  will 
declare  the  marriage  null  and 
void.  ,-^, 

4.  Whether  the  Court,  there  be- 
ing no  statute  regulating  mar- 
riages.or  defining  the  prohibited 
degrees,  which  render  them  un- 
lawful, will  go  further,  and  de- 


720 


INDEX. 


dare  marriages  between  per- 
sons in  other  degprees  of  collate' 
ral  consanguinity  or  affinity, 
void  ?  Qucere.  ib. 

B,  This  Coart  has  no  povrer  to  in- 
terfere with,  or  to  set  aside  an 
astesament  on  the  proprietors 
and  occupants  of  lots,  to  defi^y 
the  expense  of  a  common  sewer, 
made  by  Commissioners,  under 
the  direction  of  the  Mayor,  Al- 
dermen and  Commonalty  of  the 
city  of  ^ew'Yorky  pursuant  to 
an  act  of  the  Legislature  for  that 
porpose,  on  the  ground  merely 
of  a  mistake  in  judgment  of  the 
Commissioners  of  estimate  and 
assessment,  in  not  including  all 
the  owners  or  occupants  inteud- 
ed  to  be  benefited  by  the  sewer: 
there  being  no  allegation  of  bad 
faith  or  partiality  in  the  Com- 
missioners, in  making  the  as-  11. 
sessment,  which,  afler  being  ra- 
tified by  the  Common  Council, 
is  declared,  by  the  act,  to  be 
final  and  conclusive.  Le  Roy  v. 
Corporation  of  the  City  of  JSTeW' 
Yorky  362 

6.  The  only  remedy,  if  any,  for    12. 
the  party  aggrieved  in  such  case, 

is  at  law.  ib. 

7.  This  Court  does  not  lend  its  aid 
to  devest  an    estate,  for    the 
breach   of  a  condition  subse-    13. 
quent.   Livingston  v.  Tompkins ^ 

415 

8.  It  does  not  assist  the  recovery 
of  a  penalty  or  forfeitures  or 
any  thing  in  the  nature  of  a  for- 
feiture, ib, 

9.  It  will  only  interfere  to  protect 
the  property  from  waste  and 
destruction,  or  to  prevent  its 
removal  out  of  the  jurisdiction 
of  the  court,  pending  an  action 
at  law  to  recover  the  posses- 
sion, ib. 

10.   Where  the  plaintiff  granted  to    14. 
the    defendant   the    exclusive 


right  of  navigating  with  steam 
boats,  for  a  certain  time,  be- 
tween  the  city   of  Jiew-York 
and  the  Quaraniine  Grotsnd  on 
Staten  bland,  kc*     And  it  waff 
provided  in  th^  grant  or  assign 
ment,  that  if  the  state  or  legis- 
lature of  J>feW' Jersey  should,  at 
any  time  thereafter,  obstnict  or 
prevent  the  plaintiff  from  navi- 
gating with  steam  boats  the  wa 
ters  of  that  state,  that  thence- 
forth the  grant  should  cease  and 
be  void,  &c.    Held,  that  thoogh 
the  casus  fatderis  may  have  oc- 
curred, yet  this  Court  would 
not  interfere  to  restrain  tiie  de- 
fendant   from    continoing    his 
right  under  the  grant  to  him, 
until  the  plaintiff  had  establish- 
ed the  fact  al  law,  and  his  right 
to  resume  the  grant.  t^. 

Equity  will  not  aid  or  enforce  a 
mere  voluntary  agreement^  not 
valid  at  law,  especially  against 
a  legal  claim  for  a  just  debt,  and 
where  there  is  no  considera- 
tion, accident,  or  fraud.  Jlfui- 
ium  V.  Seymour,  497 

This  Court  does  not,  unless  un- 
der very  special  circumstances, 
sustain  a  bill  for  a  compensation 
in  damages,  for  breach  of  an 
agreement  Hatch  v.  Cobb,  559 
Where  there  is  neither  accident 
nor  mistake,  misrepresentation 
nor  fraud,  this  Court  has  no  ja* 
risdiction  to  afford  relief  to  a 
party,  on  the  ground  that  he  has 
lost  his  remedy  at  law,  through 
mere  ignorance  of  a  fact^  the 
knowledge  of  which  might  have 
been  obtained  by  due  diligence 
and  inquiry,  or  by  a  bill  of  dis- 
covery.    Penny  v.  Martin,  566 

Fide  Partnership. 

The  power  of  this  Court  to  ap- 
ply the  remedy  in  the  case,  is 


INDEX. 


m 


eo-exteoure  with  its  jurisdiction 
over  the  subject  matter.  £er- 
shaw  T.  Thompson^  609 

16.  A  suit  by  one  creditor  against 
an  heir 9  and  a  decree  for  the  sale 
ot  the  assets  descended,  will 
enure  for  the  benefit  of  aJl  the 
creditors,  and  draw  the  entire 
distribution  of  the  assets  into 
this  court.    Thompson  t.  Brown^ 

619 

16.  So,  in  the  case  of  executors  and 
administrators.  ib* 

17.  So,  where  a  testator  devised  all 
bis  estate,  real  and  personal,  to 
trustees,  three  of  whom  were 
his  executors,  in  trust,  to  pay 
his  debts,  and  then  to  distribute 
the  residue.  It  was  held,  ihat 
by  the  trust,  the  assets  were 
placed  under  the  jurisdiction  of 
this  court.     Benson  t.  Le  Roy^ 

661 
IB.  And  this  court  will,  therefore, 
enjoin  a  suit  brought  by  a  cre- 
ditor, at  law,  for  the  purpose 
of  gaining  a  preference  over 
other  creditors.  ib, 

19.  This  court  does  not,  of  course, 
interfere  to  aid  or  enforce  an 
execution  at  law.  Brinkerhtff 
V.  Brovm,  671 

20.  If  a  creditor  seeks  the  aid  of  this 
court  against  the  real  estate  of 
his  debtor,  he  must  first  show  a 
judgment  at  law  creating  a  lien 
on  such  estate  ;  and  ff  he  seeks 
aid  in  regard  to  the  personal 
estate,  he  must  show  an  execu- 
tion, giving  him  a  legal  prefer- 
ence or  lien  on  the  goods  and 
chattels,  which  he  has  pursued, 
to  every  arailable  extent,  at 
law,  before  he  can  resort  to 
equity,  for  relief.  ib» 

21.  It.is  not  sufficient  that  the  plain* 
tifif  has  become  a  judgment  ere* 
ditor,  in  the  intermediate  time 
between  the  bill  and  the  an- 

VoL.  IV*  91 


swer.  And,  where  the  defend* 
ant  has  made  all  the  discovery 
sought  for  in  the  bill,  he  may 
object  to  the  relief,  at  the  hear- 
ing, on  the  ground  that  the 
plaintiff  does  not  show  a  judg- 
ment and  execution  at  law.     t6. 

22.  A  creditor,  ta<entitle  himself  to 
the  aid  of  this  court,  in  the  re- 
covery of  his  debt,  must  show 
that  he  has  prosecuted  his  debt- 
or, at  law,  to  judgment  and  exe- 
cution, so  as  to  have  gained  a 
legal  lien  and  preference,  at  the 
time  of  filing  his  bill,  or,  at 
least,  before  issue  joined  in  the 
cause.   fVilliams  v.  Brown^  682 

S.  P.  M^Dermutt  v.  Strongs         687 

23.  This  court,  as  well  as  a  court 
of  law,  allows  a  debtor  to  give  a 
preference  to  one  creditor  oyer 
another.  Williams  v.  Brocvn,  682 

24.  And  where  a  debtor  in  insolvent 
circumstances,  confesses  a  judg- 
ment, for  a  debt  juntly  due,  the 
judgment  creditor  will  retain  his 

{priority.  ih. 

f,  however,  the  debtor  makes 
use  of  the  judgment  so  confess* 
ed,  to  effect  a  sale  or  change  of 
the  property  for  his  own  pur- 
poses, and  the  property  is  sold 
at  a  great  sacrifice,  and  pur- 
chased in  by  the  debtor,  this 
court  will  interfere,  and  either 
allow  it  to  be  redeemed,  or  put 
up  again,  at  the  price  at  which 
it  was  sold,  and  resold,  fbr  the 
benefit  of  the  other  creditors, 
as  to  any  surplus  beyond  that 
price.  «6. 

26.  This  court  has  power  to  assist 
a  judgment  creditor  to  discover 
and  reach  the  property  of  a 
debtor,  which  is  beyond  the 
reach  of  an  execution  at  tiiv. 
M'DermuU  v.  Strongs  687 

27.  To  get  possession  of  the  equita- 
ble interest  of  a  debtor,  as  a  re* 


Ttr 


INDEX 


stiltitig  trofit,  ID  goods  or  chtt- 
tels,  the  creditor  must  come  in- 
to this  court.  ib\ 

28.  Bat,  before  a  judgment  creditor 
can  be  entitled  to  the  aid  of  this 
court,  he  must  show  an  execu- 
tion issued,  levied  and  returned » 
and  a  failure  of  his  remedy  at 
law.  ib. 

2ft.  A  judgment  creditor  who  so 
takes  out  execution  at  law,  but 
is  unable  to  reach  a  residuary 
trust  interest  in  the  chattels  of 
bis  debtor,  and  files  his  bill  for 
the  aid  of  this  court,  gains,  by 
his  execution  and  l^al  dili- 
gence, a  legal  preference  to  the 
\  tueistanee  of  this  Court,  or  a  lien 
on  the  equitable  interest,  which 
cannot  be  affected  or  impaired 
by  any  subsequent  assignment 
of  that  equity,  by  the  debtor, 
either  for  the  benefit  of  all  his 
creditors,  generally,  as  under 
the  insolvent  act,  or  for  the  be- 
nefit of  a  particular  creditor,  t^. 

So.  Thooffh  it  is  the  favourite  po- 
licy of  this  court,  to  distribute 
the  aaeteot  a  debtor,  among  all 
his  creditors,  pari  passu  ;  yet 
when  such  a  judicial  preference 
has  been  established^  by  the  su- 
perior legal  diligence  of  any 
creditor,  that  preference  wiU 
be  observed  in  the  distribution 
of  the  assets.  ib, 

iTide  Harriaqe,  2,  3,  4,  5.    Moar- 
.  GAGE,  23,  24.  27.    Fugitives 
noM  Justice.     Paactjce,  III. 
32.    Surrogate,  1. 


LACHES.    LENGTH  OP    TIME, 
AND  POSSESSION. 

1«  Where  a  farm  bad  been  occupi- 
ed and   cultivated    for  above 


e4;hty  years,  during  which  time 
the  original  tenant  and  his  des- 
cendants uniformly  paid  rent  to 
the  landlord,  built  houses,  and 
made  valuable  and  permanent 
improvements  on  the  realises  : 
Heidi  that  a  lease  in  fee,  at  the 
acknowledged  rent,  was  to  be 
presumed  to  have  been  origi- 
nally given,  or,  at  least,  that 
there  was  an  agreement  for  a 
lease,  under  which  the  tenant 
took  possession,  and  upon  the 
faith  of,  and  in  execution  of 
which,  he  made  his  improve- 
ments.  Ham  V.  Schuyler^  1 

2.  Equity,  as  well  as  a  court  of  law 
may  make  such  a  presumption 
from  length  of  time  and  posses- 
sion, ib. 

3.  Where  a  person  having  the  legal 
title  to  lands,  but  in  trust  for  Uie 
defendants,  sold  and  conveyed 
his  right  and  title,  for  a  valua* 
ble  consideration,  to  a  banafide 
purchaser,  without  notice,  who 
remained  in  poeeession  o(  the 
land,  for  eighteen  years  before 
his  death,  and  devised  the  same 
by  his  will :  Held^  that  after  the 
lapse  of  thirty  years  from  the 
date  of  the  deed,  there  being  no 
evidence  of  its  being  fhiudulent, 
the  devisees  of  such  purchaser 
were  entitled  to  hold  the  lands 
discharged  from  the  trust.  Coxe 
Y.  Smith' and  others^  271 

4.  Lapse  of  time  operates,  in  equi- 
ty, only  by  way  of  evidence,  as 
affording  a  presumption  of  pay- 
ment. lAvingston  v.  Idving-^ 
ston,  287 

5.  Therefore,  where  the  defend- 
ant admitted  the  original  cove- 
nant to  pay  rent,  and  did  not,  iu 
his  answer,  pretend  to  any  pay- 
ment :  Held^  that  he  could  not 
insist  on  the  lapse  of  time,  be- 
ing twenty  years  from  the  date 
of  the  covenant  to  the  filing  of 


IiWP»?C. 


9«3 


tbe  billy   as  presamptire  evi- 
dence pfpaymeDt  ib. 

6.  Where  there  was  a  perpetual 
lease,  reserying  an  annQal  rent, 
and  DO  rent  had  been  demanded 
fpr forty  fatir  years  from  the  date 
of  the  lease ;  eo  a  bill  for  a  dis- 
covery, by  the  lessor,  on  the 
ground  of  a  loss  of  the  counter- 
part of  the  lease  :  Held^  that 
the  lapse  of  time  was  sufficient 
evidence  that  the  rent  had  been 
extingqished  by  some  act  or 
deed  of  the  party  entitled  to  it. 
Lhingston  v,  Livingston,      294 

7.  Where  the  defendant,  a  6ona^({e 
jmrchaser,  withoqt  notice,  and 
those  under  whoQi  he  claimed, 
bad  been  in  possession  of  land 
above  tvoenty-six  years,  before 
the  plaintiffs  filed  their  bill  to 
enforce  their  claim,  founded  on 
ao  implied  trust,  the  bill  was 
dismissed,  without  costs.  Ska- 
ver  y,  Radley,  310 

LANDLORD  AND  TENANT. 

Vide  Laches,  Lvngth  of  Time  and 
Possession,  1.  5,  6. 

LAW  OF  NATIONS. 

Fide  Fugitives  prom  Justice. 
LEGACY. 

1.  Though  one  legatee  may  sue 
alone  for  his  specific  legacy  ; 
yet  where  he  claims,  also,  as  a 
residuary  legatee,  all  the  Tesid- 
uary  legatees  must  be  made  par- 
ties of  the  suit.  Davoue  v.  /an- 
fling,  1 99 

2.  Though  the  name  of  the  legatee 
is  entirely  mistaken  by  the  tes- 
tator, as  *'  Cornelia  Thompson" 
for  Caroline  Thomas  ;  yet  the 
bequest  is  good  ;  and  the  inten- 
tion of  the   testator,  and  the 


misnomer,  being  satisfactorily 
shown,  the  legacy  w^s  ordered 
to  be  paid  to  the  person  in- 
tended.   Thomas  v.  Stevens^  607 

.     LEX  LOCL 

Fide  FoHBiGjv  Laws. 

LIEN. 

Fide  Ship  Owners,  2.     Juilis^ic- 
Tiow,  20.  2?.  29, 

LIS  PENDENS. 

Fide  Notice,  1,  2, 

LOST  DEED. 

Fide  Pleading,  IlL  12. 

LUNATICS. 
Fide  Idiots  and  Lunatics. 

M. 

MARRIAGE. 

1 .  Though  a  marriage  with  a  iuna- 
tic  is  absolutely  void,  yet,  as 
well  for  the  sake  of  the  good 
order  of  society,  as  the  quiet 
and  relief  of  the  party,  its  nul- 
lity should  be  declared  by  the 
decision  of  some  court  of  com- 
petent jurisdiction.     Wightmah 

V.  WighJtrnan,  343 

2.  And  this  court,  possessing  an 
exclusive  jurisdiction  over  ca- 
ses of  lunacy  and  matrimonial 
causes,  is  the  proper,  and,  in- 
deed, since  there  are  no  ecclesi* 
astical  Courts  having  cogoi^ 
zance  of  such  causes,  the  only 
tribunal  to  afford  relief  in  such 
a  case,  and  sustain  a  suit  iostitii. 


7f4 


INDEX. 


ted  to  pronoQoce  the  nnllitj  of 
the  marriage.  •&• 

3.  Therefore,  where  a  person* 
insane  at  the  time  of  her  mar- 
riage, aAer  her  retam  to  a  la- 
cid  interval,  refused  to  ratify  or 
consummate  it,  and  filed  her  bill 
to  annol  it,  this  coart  decreed 
the  marriage  null  and  void,  and 
the  parties  absolved  from  its 
obligations.  t^. 

4.  So,  where  a  marriage  is  unlaw- 
ful and  void,  ab  initio,  being 
contrary  to  the  law  of  nature^ 
as  between  persons,  ascend- 
ants or  descendants,  in  the 
lineal  line  of  consanguinity)  or 
between  brothers  and  sisters, 
in  the  coUatertU  line,  this  court  ^ 
will  declare  such  a  marriage,  in 
a  suit  instituted  for  the  purpose, 
noli  and  void.  ib. 

&  Whether  the  court,  there  be- 
ing no  statute  regulatiiig  mar- 
riages, or  defining  the  prohibi- 
ted degrees  which  render  them 
unlawful,  will  go  further,  and 
declare  marriages  void  between 
persons  in  the  other  degrees  of 
collateral  consanguinity  or  af- 
finity ?    Qu€ere,  %b, 

MARSHALLING  OF  ASSETS. 

Vide  Assets.     Ezbcutor  and  Ad- 

MllfflSTRATOR.      JVBISDICTIOIT. 

MASTER  OF  A  SHIP. 


1.  his  the  duty  of  a  master  of  a 
ship,  when  his  vessel  is  disa- 
bled in  the  coarse  of  the  voy- 
age, to  procure  another  ship, 
if  he  can,  to  take  on  the  cargo, 
to  its  destined  port.  SearU  v. 
Seovellt  218 

2.  He  is  in  such  case,  from  tieces- 
sity,  agent  for  the  owner  of  the 
cargo ;  and  his  acts  in  relation 


thereto  are  binding  upon  it   H, 

3.  And  if  he  hires  a  new  ship,  the 
extra  freight  for  the  renewed 
voyage,  becomes  a  Hen  on  the 
cargo,  ib» 

4.  He  has  no  right  to  seH  the  car- 
go at  the  port  of  the  neceasitj^ 
and  there  pot  an  end  to  the  ad- 
venture, if  he  can  hire  another 
vessel,  to  carry  on  the  cirgo 
to  its  port  of  destination.       iL 

MORTGAGE. 

1.  Of  ike  mortgage  generally^ 
IL  RifiHry  of  the  mortgage,  amimi^ 
tiee,  a$  it  ejfeeti  the  mortgagee. 
III.  Equity  of  redemption ,  foreclosure 
and  iale ;  and  mode  of  putting 
the  purduuer  into  poeeeuion  of 
tkepremiees. 


I.  Of  the  mortgage  goneraUy^ 

1,  Where  a  mortgagee  wa^  com- 
pelled, for  his  own  secnritf,  to 
satisfy  an  ezecation  on  a  prior 
lodgment,  in  favour  of  anoChert 
he  was  held,  by  right  of  sol^ti- 
tution»  to  stand  in  the  plaee  of 
the  judgment  creditor,  and  en- 
titled, on  a  sale  of  the  nwrt- 
gaged  premises,  to  receive  out 
of  the  fund  the  amount  of  the 
judgment,  as  well  as  the  mort- 
gage debt.  Silver  Lake  Btmk 
V.  J^orth,  «70 

II.  Regietry  o^mortgage^  and  notice, 
a»  it  e^ette  a  mortgagee. 

S.  Where  a  prior  mor^gee;'  or 
incumbrancer,  witnesses  a  sub- 
sequent conveyance  or  mert« 
gage,  knowing  its  contents, 
without  disclosing  his  own  in- 
■  cnmbrance,  he  will  be  post- 
poned or  barred.  Brmkeri^ 
▼•  Lantingf  65 


I  N  D  E  I. 


T£5 


3^  Tliid  mle,  bewerer,  do^s  not 
'  apply  where  the  prigi*  mort- 
gage is  6n\y  registered f  for  then 
-  the  sabsequent  mortgagee  is 
charged  with  notice.  ib. 

4»  To  affect  the  right  of  such  pri- 
or mortgi^ee,  mere  silence  is 
not  sufficient :  there  must  be 
actual  fraud  charged  and  proved ; 
< .  aach  as  false  representations, 
'  or  denial,  on  inquiry,  or  art- 
ful assurance  of  good  title,  or 
decepti?e  silence,  when  infor- 
mation is  asked.  %b. 

5.  And  the  burden  of  proving 
aueh  fraud  lies  on  the  subse- 
quent purchaser  or  mortgagee. 

ib. 

0*  A  mortgage  given  to  secure  a 
certain  sum  according  to  the 
condition  of  a  certain  bond  of 
the  same  date,  which  was  con- 
ditioned to  pay  that  sum,  or  in- 
demnify  the  mortgagee  against  a 
note  tor  the  same  sum,  made  by 
the  mortgagor,  and  endorsed  by 
'  the  mortgagee,  and  discounted 
at  the  Bank^  for  the  accommo- 
dation of  the  mortgagor,  will 
continue,  as  a  subsisting  and 
valid  security,  as  long  as  such 
note  shall  be  rtm  or  kept  alive 
in  the  Banib,  in  whole  or  in  part, 
by  renewals  thereof,  from  time 
to  time,  according  to  the  cus- 
tomary coarse  of  such  transac- 
tions with  the  bnnk  ;  such 
mortgage  with  a  reference  to 
the  bond  being  sufficient  to  ap- 
prise a  subsequent  purchaser, 
or  mortgagee,  of  the  nature  of 
tbe  debt  secured.  ib. 

Ill,  Equity  of  Redemption  ;  Foreclo^ 
sure  and  Sa/e,  4-c. 

7.  A  bill  to  foreclose  the  equity  of 
redemption  of  a  mortgage,  is  a 
proceeding  in  rem,  and  posses- 
sion follows  the  decree,  and 


will  be  enforced  by  Che  Court. 
.  Kershaw  v.  Thompson^  609 

8.  Where  a  second  mortgage^  was 
proceeding  to  sell  the  mortgag- 
ed premises,  by  virtue  of  a 
power  contained  in  the  mort- 
gage, tbe  court,  as  the  rights  of 
an  infant  were  concerned,  and 
it  appearing  to  be  for  the  inter- 
est of  all  parties,  ordered  the 
sale  to  be  stayed,  and  that  it 
should  be  under  the  direction  of 
a  mastery  associated  with  the 
mortgagee,  on  giving  further 
notice  of  sale  for  six  weeks  ; 
and  that  no  more  of  the  pre- 
mises should  be  sold  than  would 
be  sufficient  to  pay  the  amount 
due  on  the  mortgage,  to  be  com- 
puted by  the  master,  'provided 

•  the  sale  of  a  part  could  be  made 
without  prejudice.  Fan  Bergen 
V.  Demaresiy  37 

9.  On  a  bill  to  redeem,  further 
time  is  not  usually  given  for  the 
payment  of  the  money.  Brink* 
erkqff'Y.  Lansings  66 

10.  Nor  will  the  proceedings  of  the 
mortgagee,  under  a  power  of 
sale  contained  in  tbe  mortgage, 
be  suspended  or  delayed,  until 
the  plaintiffs,  who  are  owners 
of  the  equity  of  redemption,  in 
different  proportions,  have  set 
tied  tne  rateable  proportion 
which  each  is  to  contrive  to- 
wards the  redemption.  ib. 

11.  But  if  the  plaintiK  pay  into 
court,  tbe  mortgage  debt,  in- 
terest and  costs,  the  suit  may  be 
retaioed,  for  a  reasonable  time, 
to  enable  them  to  proceed 
against  one  of  the  defendants, 
who  had  an  interest  in  the  equi- 
ty of  redemption,  to  compel 
him  to  contribute  bis  proportion 
of  such  debt  and  interest.       ib» 

12.  On  a  bill  to  redeem,  or  for  the 
foreclosure  of  a  mortgage,  the 
time  ailowed  for  the  redemption 


7U 


I  M  D  B^. 


ii  ottl;  fis«d  and  certiin  ;  but 
rests  in  the  tound  discretion  of 
tbe  court,  to  be  regulated  by 
circuawUoces.  Pcri$uY,I>unn^ 

140 

13.  Tbe  usual  time,  on  a  bill  to  r«» 
deem,  is  six  mowUuy  from  the 
liquidation  of  the  debt  by  the 
master's  report ;  and,  it  seems, 
that  when  this  time  is  allowed, 
it  will  not  be,  afterwards,  eo« 
larged.  %b, 

14.  On  a  bill  for  foredosurA^  the 
time,  may  be  enlarged  from  six 
months  to  six  months,  or  from 
three  months  to  three  months, 
upon  equitable  terms,  and  ac- 
cording to  the  circumstances  of 
the  case.  t6. 

lb.  But  this  rule  applies  only  to  bills 
of  foredomref  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  far  the  saU  of  the 
mortgaged  premises  according 
to  the  usual  practice  of  the 
court.  ib. 

16.  Where  a  party  fails  to  redeem 
within  the  time  allowed,  on  a 
bill  to  redeem,  it  is  usual  to  dis- 
miss tbe  bill,  which  amouats  to  a 
bar  of  the  equity  of  redemp- 
tion, lb, 

17.  For  where  a  bill  is  dismissed 
on  the  merits,  without  any  di- 
rection that  the  dismissal  shall 
be  without  prejudice,  it  may  be 
pleaded  in  bar  to  a  new  bill  for 
the  same  matter.  ib, 

18.  Where  a  bill  was  not  simply  to 
redeem,  but  to  set  aside  a  mort* 
gage,  three  months  only  were  al- 
lowed to  the  mortgagor.        ib. 

19.  Where  a  mortgagee  has  been 
detained  from  bu  remedy  on  the 
nertgage,  for  many  years,  by  a 
long  and  tedious  litigation,  pay- 
ment may  be  required  io  a  anuch 


shorter  time,  as  thw^  fyyt^  af- 
ter the  final  decision  of  'the 
cause.  ib, 

to.  Parol  evidence  was  admitted  to 
show  that  a  mortgage  only,  and 
tiot  an  absolute  sale,  was  intead- 
ed ;  and  that  the  defendant  had 
fraudulently  attempted  to  con- 
vert the  loan  into  a  sale;  and 
the  plaintiff  wa8,therefore,  held 
entiUed  to  redeem.  Strwg  v. 
Stewart^  167 

81.  If  mortflkged  premises  are  inca- 
pable of  being  sold  in  parcela, 
or  of  being  divided,  wi&out  in- 
jury, the  whole  maybe  sold, 
though  the  whole  debt  is  not 
due  ;  and  the  proceeds  applied 
to  pay  the  interest  and  costs, 
and  the  surplus  to  the  principal 
of  the  debt  CampbeU  v.  Mo' 
eomb^  534 

22.  Where,  in  such  case,  the  bond 
having  become  forfeited  at  law, 
for  the  non  payment  of  tbe  in- 
terest, the  whole  mortgaged 
premises  are  decreed  to  be  sold, 
and  the  mor^ptgor  or  purcffiaser 
of  the  equity  of  redemption, 
befo'^e  tbe  day  of  sale,  pays  the 
interest  and  costs,  the  sale 
^ill  be  stayed  ;  but  the  de- 
cree (^  sale  and  foredosure 
entered,  will  remain  as  further 
security,  to  enforce  the  pay- 
ment of  future  interest,  and  tbe 
instalments  of  tbe  principal,  as 
they  respectively  become  due* 

ib. 

2,3.  Though  the  mortgagee  should 
be  not  only  a  trwtee  but  a  Mferefy 
for  the  debt,  and  though. the 
mortgaged  premises  are  -in  a 
state  of  ruin  and  decay,  and  the 
security  thereby  impaired  and 
rendered  precarious,  he  is  not, 
therefore ,  entitled  to  have  the 
property  sold,  before  tbe  debt 
IS  due,  or  the  debtor  is  in -de- 
fault, ib. 


mtnux. 


ni 


24.  H^f  WfU  UM>  CohH,  itiMM  the 
*  premises  mortgiiged,  beifig  a 
daat  iUid  bridge^  were  injared 
by  8tonM>  interfere  to  cMapel 
tbe  mortgegor  id  posiessioe,  to 
repair  tbem  at  bis  ewn  ez- 
pefise*  t^. 

2^  Oa  tbe  sale  of  premises  QAder  a 
mortgage^  it  was  represented 
that&e  property  was  free  from 
all  iocumbraiices ;  but  after  the 
saU  ind  master's  report^  it  was 
discovered,  that  .the  property 
Was  subject  to  a  city  assessment 
and  tax;  aod  the  purchaser, 
therefore,  refused  to  complete 
the  purchase,  unless  the  incum- 
brances were  remored.  The 
court,  the  facts  beiog  satisfac- 
torily proved,  directed  the  mas- 
ter to  dischai^e  tbe  incum* 
brances  out  of  the  proceeds  of 
the  sale.   Lawrence  v«  Cornell^ 

642 

26.  The  act  passed  AprU  1 8th,  1 820, 
(ssM.  43,  eh.  184.)  directing 
tbe  sheriff  or  other  officer, 
wheJte  lands  are  sold  by  virtue 
of  any  execution,  to  delay  giv- 
ing a  deed  to. the  purchaser,  so 
as  to  give  the  debtor  time  to  re- 
deem within  one  year,  on  cer- 
tain terms,  does  not  apply  to 
the  case  of  a  sale  by  a  master, 
of  mortgaged  premises,  under 
a  decree  of  sale  and  foreclo- 
sure*    Ten  Broeck  v.  Laming^ 

601 

27.  Where,  after  a  foreclosure  and 
sale  of  mortgaged  premises,  the 
mortg^or  or  defendant,  or  any 
person  who  has  come  into  po8« 
session  under  him,  pending  the 
suit,  refuses  to  deliver  up  the 
possession,  on  demand,  to  the 
porefaeser  uader  the  decree, 
tbe  Court>  oa  motion  for  that 
purpose)  will  order  the  posses- 
sion to  be  delivered  to  the  pur- 
chaser, and  not  drive  him  to  his 


aetiett  of  ejeeteeut  at  law , 
though  the  delivery  of  posses- 
sion is  not  made  a  pah  of  the 
decree*  JSeriAaw  v.  Thompsmi 
and  oiherSy  609 

28.  And  in  case  of  diaobedienee  to 
such  order,  an  tnyimc^tofi  issues ; 
and  on  proof  of  its  servicci,  and 
refusal  by  tbe  party  to  obey  it, 
a  writ  of  atmtemce  issues,  of 
course,  to  the  sheriff.  ih. 

29.  But  where  the  delivery  of  pos- 
session is  made  part  of  the  de- 
cree, a  writ  cf  exeeuHwn  is  the 
proper  reoMdy  in  case  of  dis- 
obedience, tfr. 

30.  A  mortgagor,where  the  equity  of 

redemption  has  been  sold  by  a 
sheriff  under  an  execution  at 
law,  has,  by  the  act  of  the  12th 
of  Aprils  1820,  (m>«.  43.  e&. 
184.)  one  year  from  the  sale  to 
redeem  the  hnd  from  the  par- 
chase  }  and,  therefore,  on  a  bill 
to  foreclose,  during  the  year,  he 
ought  to  be  made  a  party  to  the 
sait.     Hallack  v.  SfmOi,       649 

Fide  Interest.    Contribution. 


N. 

NEW-YORK,    CORPORATION 
OF. 

Fide  Injunction,  V.  15. 

NON  COMPOS  MENTIS. 

Fide  Idiots  and  Lunatics. 

NORTH  RIVER  STEAM   BOAT 
COMPANY. 

Fide  Steam  Boats. 

NOTICE. 

1.    Though,  in  a  bill  filed  against  a 


728 


INDEX. 


Irufke  of  lands,  for  an  aocouDt, 
and  a  coofeyance  of  them  to 
the  eeUuif  que  tru$t^  the  descrip- 
tion of  the  lands  is  general*  as 
*'  di?ers  lands  in  O^^'i  Ma* 
fMT^  in  the  patent  of  Spring* 
JUld^^*  it  is  enough  to  put  a  pur- 
chaser of  a  lot  in  Co$by^t  Memory 
on  inquiry  ;  and,  being  charge- 
able with  notice  of  the  penden- 
cy of  the  suit,  and  of  all  the 
facts  in  the  bill,  it  is  good  notice 
to  him  that  the  lot  purchased 
was  a  part  of  the  trust  estate 
mentioned  in  the  bill.  Crreen 
Y.  SlayUr,  38 

2.  A  lii  pendens^  or  constructive 
notice  of  a  suit  pending  against 
a  inutee  for  an  account,  &c.  will 
not  prevent  the  payment  by  the 
debtor  of  a  bond  to  the  trustee^ 
or  to  his  assignee,  being  the  le- 
.gal  owner  of  the  bond,  no  re- 
eeiver  having  been  appointed  by 
the  court  t6. 

Fifi»  Trust  and  Tausteb.    Mort- 

GAOB. 
P. 

PARTITION. 

1.  When  on  a  bill  for  partition,  the 
legal  title  is  disputed  and  doubt- 
ful, the  course  is,  to  send  the 
plaintiff  to  a  court  of  law,  to 
have  his  title  first  established. 
Cbxe  V.  Smi^t  S71 

S.  But  where  the  question  arises 
upon  an  equitable  title  set  up 
by  the  defendants,  this  court 
must  decide  on  the  title.        ib* 

.PARTNERSHIP. 

^f  each  partner  in 

Brty,  is  his 

^ect  to 


partoerslnp  accoanti»  to«    AV^ 

coU  V.  Muntford,  522 

2»  And  that  interest  alone  is  liable 
to  the  separate  creditors  of  each 
partner,  claiming  eitherhy  as- 
signment or  exectttioo*   .       it, 

3.  An  assignee,  therefore,  or  sepa- 
rate creditor  of  ode  partner,  i» 
entitled  only  to  the  share  o( 
such  partner,  after  a  setHement 
of  the  accounts,  and  after  all  the 
just  claims  of  the  other  fnrtner 
are  satisfied.  t^< 

4.  Owners  of  the /rdgMsm4car^o 
of  a  vessel  are  partnets  or  joint 
tenants,  and  the  assigDee  or  se- 
parate creditor  of  one  of  them, 
takes  his  interest,  subject  to  an 
account  between  him  and  bis 
copartner  in  the  voyage.        ib, 

5.  But  where  one  joint  owner  of 
the  freight  and  ca^o  of  a  par- 
ticular vessel,  on  a  particular 
voyage,  assigns  his  interest 
therein,  one  of  them,  who  has 
got  possession  of  the  whole  pro- 
ceeds, cannot  retain  the  share 
so  assigned,  to  satisfy  claims 
which  he  may  have  against  the 
other,  arising  from  former  and 
distinct  voyages  or  adventures, 
in  which  they  have  been  con- 
cerned together  ia  the  same  or 
other  vessels;  they  not  being 
general  partners  ia  trade,  and 
there  not  being  any  connection 
between  the  different. voyages 
or  adventures.  ib* 

6.  The  Court  may  appoint  m  per- 
son to  carry  on  trade  fori  an 
infant  partner.  Thompstm  t. 
Brown,  .  :<19 

7.  Where  the  plaintifis  brought  an 
action  at  law  against  two  per- 
sons, as  partners  in  trade,  under 
the  firm  of  R.  k>  Jikg  m^^ecp' 
vered  judgment,  but /or  ,]fhich 
they  were  unable  io  o^t^  sa- 
tisfaction out  of  their  joii^  pro- 


INDEX. 


7»" 


pertj,  or  the  ieparate  property 
ef  JMl,  the  olfaw  partner  not 
liaTing  boen  brought  into  coart, 
on  the  rncMM  prooOM  ;  and  the 
piaialiA,  afiermarda^  diocoFer- 
€di  for  tho  tint  tine,  thmJV*.,  L., 
mm!  P^  Ihree  other  persona, 
were  dermont  pertnert  witiv  R. 
endk.JH.,  and  joimiy  inlerested 
m  the  transaction  otit  of  which 
ttte  plaintiff's  right  of  action 
>  ^    fireoe :   Hdd^  that  this  Court 
.  -liadttto  jeriadictimi  to  afford  re- 
lief against  the  darmami  part- 
Ben.    Feawy  ▼.  iAHsnta,       666 
:#;  The  association  of  the  stock- 
haiders  of  the  «« AbriA  Amr 
*    Simm  Bsol  l^Bnyany,"  is  not  a 
.   <apof1acr«^> ;  bot  Ihe-parties 
«re  t^iaolt  -in  eoBunon  of  the 
property  and  firaaehises  belong- 
ing  to  the  company.     Livings 
9t<m  V.  Lyndk^  673 

V^dt    EztCUTORS    AND    Ax^MIlTISTBA- 

tons,  5,  6. 


PARTT  WALL. 

Vide  CoNTRiBirTiolr. 

PENALTY. 

Vide  JuBiSDTCTioir: 

PLEADINGS. 

f.  PUadingi  generalhf. 
If,  Partiee. 
nil  BUL 
'  IV.  Denmrrer^ 
'    ¥.  Phil. 
▼  L  ^HsvoeT. 

•    L  PUadingi  genertdly. 

1.  Pleadings  should  consist  of  ever- 

ttents  or  allegations  of  facts, 

-    elatM'  with  as  much  bretky  and 

- ' :  precision  as  possiUe  f  not^f  in- 

VoL.  IV.  02 


feience  or  argoment    HnnIy. 
Jbaum,  437 

2.  Impertinenee  in  pleadings  con- 
sists in  setting  forth  whM  is  not 
necessary  to  be  set  forth  ;  as 
stuffing  them  with  recitals  and 
long  digressions  as  to  matters 
wholly  imosaterial.  «  ib. 

3.  Geoerally,  the  bill  and  answer 
ought  not  to  set  fotth  deeds  m 
hmc  verba}  batsomncfaof  them 
only,  as  is  material  to  the  point 
in  question  :  nor  ought  they  to 
be  argumentative  or  rhetorical:  • 

If.  Parties. 

4.  If  the  piwatiff,  who  sees  as  ad- 
ministrator, has  notaoloally  ta- 
ken obt  letters  of  adttinistrationy 
or  If  the  letters  of  administra- 
tion have  not  been  granted  by 
the  proper  officer,  it  mi^'be  ob- 
jected  to  by  plea*  or  in  ihe  an- 
swer, or  by  demurrer ;  and  if 
insisted  on  at  the  hearing,  the' 
bill  will  be  dismissed.  Qoadfi^ 
▼.  Pendleum,  '649 

6.  But  if  letters  of  administration 
are  duly  taken  out  at  any  time 
before  the  hearing,  it  wiH  be 
sufficient,  and  may  be  charged 
by  way  of  supplement  or  amend* 
ment  to  the  bill.  ib. 

^«  On  a  bUl  to  foreolose  a  asort- 
gage,  all  iacumbrancers  existing 
at  the  ooaamencement  of  the 
suit,  must  be  made  parties.  -  En$* 
worth  T.  Land^ertf  -605 

7.  Where  the  objection  of  a  want 
of  parties  is  made  out  of  season, 
the  plaintiff,  instead  of  amend-* 
ing  the  original  bill,  VMj  filo  a 
eupplemenuU  bill,  merely  to 
bring  in  the  parties  wanted ; 
and  the  defendants  in  the  origi- 
nal bill  need  not,  in  such  ^e, 
be  flsade  parties  to  the  snpple-  > 
Qsental  bill.  ti. 


im 


INDEX. 


a.  Oil  a  UU  to  foredo6e  s  mort- 
gage, the  norigagor  wiMMeequi- 
tj  of  redevptioB  liaa  beea  told 
by  the  skeriff  voder  ao  esecu- 
tioD  at  law,  aiiitl  be  aiadeapar- 
17 ;  ai  be  bas,  bj  the  act  ef  the 
IMi  ef  JprU,  18iO,  (mt.  43. 
ciL184.)  ODf  year  from  th«  sale 
la  redeem  the  land  fimn  the 
imrchaee,   and,   therefere^  an 

J  «BSling  right  eif  whieh  he  can- 
not be  deveeted  within  the  jFear. 
IMiutw.  Smith,  649 

JU  Where  a  bill  was  filed  against 
C,  charging  him  with  fraud  and 
breach  of  trwit,  as  administra- 
tor of  B.,  and  the  defendant,  in 
his  pUa,  alleged  that  all  the 
doM 


in  relation  to  die  ea« 
liMle  of  B« ,  were  deate  by  him  and 
F.  foiMy^  as  admiaiatralieni,  to 
which  there  was  no  replicalion  ; 

^  JSbld,  that  en  the  al^gation  in 
the  plea,  F.,  the  co-administra- 
lor,  eqght  to  be  ande  a  party, 
iir^faw  T.  Claw,  116 

lO.  Though  one  legatee  asay  sue 
alone  for  his  specific  legacy,  yet 
where  he  claiam^  also,  as  a  rest'- 
ihiory  kigatee,  all  the  resadaary 
legatees  most  be  made  parties 

•  tethesait.   Davmmv.Fammng^ 

199 

Ik  Ateaigttceipoiation,  orincor- 

poraled  bank  of  another  state, 

•  may  soe  in  their  corporate  name 
Md  Ue  a  hsilfor  the  sale  oHand 
in  this  state,  under  a  mortgage 

<    Id  secure  esoney  lent    mver 
.  isk^Baak  t.  JVer(&,  370 

IlL  Bia. 

18#  If  relief,-  as  well  as  diacoTery, 
he  prayed  ftr«  on  the  giomid  of 
•  kst  dead*  there  must  be  an 
sAdamtof  the  loai.  Lhing^an 
.y%  Idvmumlum^  294 

19.  If  A^bitt  for  diseovery  and  ralief 
be  good  as  te  the  discoreiy,  a 


general  desrarrer  to  the  whole 
hill  is  bad.  ib. 

14.  A  bill  for  duecnerfff  in  aid  of  a 
cause  before  Am  SmrogaU, 
bro«^;ht  for  an  aocoont  and  dia- 
tribntien  of  the  intestate's  es- 
tate, must  chaige  eertaiB&cts 
wilhan  the  knowledge  of  the  de- 
fendant, the  disclosure  of  which 
is  material  and  necossary  la  the 
party's  defence  in  that  Ceart, 
and  that  he  has  no  meane  of 
showing  the  facto,  without  such 
disoorery.  Siymoiir  r.  Siymour^ 

409 

Ibk  But,  it  jscms,  that  where  the  bill 
is  for  diMooery  merely,  and  no 
iojunctieo  is  asked  for,  and  there 
is  a  demurrer  to  the  biN,  the 
Court  will  not  examiae^enicely 
as  to  the  materiality  oi  the  dis- 
covery- t6. 

IV.  JDtfmnrrer. 

16.  Where  it  appears  en  the  6ce  of 
the  bill,  that  there  has  be^n  a 
decree  in  a  former  sait  between 
the  same  parties,  the  defondant 
may  demur.  Dtno^ter,  Ffathring^ 

199 

17.  If  a  btll  blends  together  e  de- 
mand by  the  plaintiff;  as  legatee, 
against  the  defendant,  as  execu- 
tor, with  a  demand  of  the  plain- 
tiff, in  his  nrirate  ei^ttcity,  a- 
gahist  the  defendant,  in  bis  in« 
diriduai  character,  ft  is  good 
cause  of  demurrer ;  and  the  bill 
win  be  dismissed  with  cosli.  ik, 

16.  If  a  bill  for  discovery  and  relief 
be  good  as  to  the  discorenr,  a 
g^eral  denMrrerto  the  whole 
bill  is  bad.  LipmgHonr.  Lhing- 

I 

V.  PUa. 

If.  A  plea  aaust  be  perfect  in  i&elf, 
so,  ss  if  ^e  ia  fact,  it  w^put 


IK  D  BX. 


781 


w  tiid  to  th«  CMW.    Mm  t. 
Rand^^  693 

20.  If  circaoMlaiices  ot  fmad  are 
charged  is  the  Mil,  they  mitt 
be  denied  by  a  geatrel  aver- 
neat,  at  least  •  ib. 

21.  Whi^e  the  bill  charged aisrepre- 
sentatios»  coercion,  and  fniiid» 
in  fMrocaringa  release  of  a  4ebt, 
and  the  defendant  pot  ia  a  plea 
and  anavrer,  and  in  hii  plea,  io- 
•i»ted  OB  the  releaae,  in  bar, 
withoat  noticiog  the  allegation 
of  fraod,  thongh  in  the  answer 
it  was  folly  met  aod  denied, 
the  plea  was  held  bad.  ib. 

f9.  Where  a  bill  is  disoMsaed  od  the 
merits,  withoat 'any  direction 
that  the  dismissal  shall  be  with- 
out prejudice,  it  siay  be  pleaded 
in  bar  to  a  new  bill  for  the  same 
matter.     Ferine  y.  Dunn^     140 

S3.  The  issue,  as  to  the  truth  of  the 
plea,  is  to  be  referred  to  the 
state  of  frcta  at  the  time  the  plea 
is  filed.  Ca9k  ^  Kam  y.  Man- 
ettii,  166 

24.  Where  the  defendants  pleaded 
certain  outstanding  judgments, 
and  the  Court  gave  leare  to  the 
j^aintifii  to  amend  their  bill, 
by  making  the  judgment  credi- 
tors  parties;  and  subsequent  to 
the  order  ior  amendment,  the 
,  judgments  were  satisfied  and 
dildtti^ged ;  aod  the  fdmntiflb, 
.  instead  of  amending,  their  bill, 
replied,  taking  iasoe  on  the  plea; 
.  the  court  ordered  the  plaintifis 
\ .  to  pay  the  coit$  of  the  plea  and 
,  the.  subsequent  proceedin^i,  in 
.,  thirty  di^a^  or  that  the  biU  stand 
dismissed  with  costs :  but  if  the 
costs  were  paid,  then  the  defen- 
dants to  answer  the  bill  in  six 
weeks,  or  that  it  he  taken  pro 
twi^e$to.  ib» 

2&  TbouPgh  a  deesee  in  a  Ibnner 
snitff  to  which  the  plaiotiff  and 
defendant  were  parties,  cannot 


he  pleaded  hi  har«  until  it  is 
signed  aod  enrolled^  it  may  be 
insisted  en  by  way  of  answer. 
Daveme  r.  Fmming^  199 

86.  Where  a  cause  was  brought  to 
a  hearing  on  the  bill  and  answer, 
and  the  bill  was  disnussed  with 
costs,  because  no  person  ap* 
peered  fer  the  plaintiff,  aod  the 
decree  was  eotoHed,  it  was  held 
to  be  no  bar  to  another  suit  for 
the  same  matter.   Raem  v;  Ruit^ 

3W 


VI. 


27.  A  decree  in  a  former  suit  be- 
tween the  same  parties,  not 
signed  and  enaoHed,  thou|^  it 
cannot  he  pleaded  la  bar,  may 
he  lasisted  on  by  way  ef  aiswer. 
Davoue  r*  Fatmingi         -    199 

2S.  Where  a  biU  is  taken  pn>  eon- 
fetiOt  against  a  deliindant  absent 
from  the  state,  he  may  eatae  in, 
after  the  decree,  and  answer 
and  d^end  the  salt.  ib. 

£9.  A  defendant  who  suhmitoto  an- 
swer, must  answer  IMIy«  PkU- 
Up$  T.  Frcooort,  205 

30.  But  the  general  rale  is  siihject 
to  exception  and  modification 
aocordiog  to  the  ciremnstancea 
of  the  case  :  as  where  the  de^ 
fendant  objects  to  a  diseevery 
because  tlie  pldh^ff  has  no  ti* 
tie.  a. 

31.  So,  where  a  bill  waofiled  by  the 
executors  of  a  oreditor,  efaum- 
ing  under  a  judgment  of  more 
than  tfurty'iix  years  standing, 
against  the  legal  representatirea 
ofthedeht4r»  above  tWrty  years 
after  his  deaUi,  without  account- 
ing for  the  delay,  or  showing 
any  attempt  to  recorer  the  debt 
at  law,  and  seeking  a  discore*- 
ry  and  ncdovnt  of  ofselt;  the' 
defendants,  after  admittiimthe 
death  of  the  original  parties  to 


/ 


Tfi 


I  N  D  B  X. 


the  jadgtteBt,  and  Ae  repre- 
■entative  character  of  the  de- 
fendanta,  may  ohfect  to  aaj  dis- 
corery  m  to  otfeit,  or  as  to  the 
material  objects  of  the  bill,  on 
the  ground  of  the  staleDess  of 
the  deflMod,  and  the  great  lapse 
of  time  ib* 

32.  A  defendant  is  not  bound  to  an- 
swer 80  as  to  subject  himsetf  to 
a  penalty  or  forfeiture.  Ldving- 
$ton  V.  Ton^kin$,  432 

33ii  After  a  plea  has  be^n  overruled, 
the  same  defence  nwy  be  in- 
sisted pn»  (j  way  of  answer. 
Goodrich  ▼•  PendUUm^  551 

POWER. 

1.  Where  a  power  is  given  to  ex- 
eoutoTM  to  sell  an  estate,  or  cer- 
tain parts  of  it,  it  is  a  personal 
tnst  and  confidence,  and  they 
cannot  sell  by  attorney.  Ber- 
flsr  V.  i)^,  368 

2«  Thus,  whem  A,  authorised  his 
executors,  fi.  and  C,  to  sell 
certain  lots  of  land,  if,  under 
Ui9  cirouaMtaooes  of  the  times, 
they  should  deeai  it  prudent ; 
and  C.  having  gone  abroad,  sent 
a  power  of  attorney  to  6.,  his 
co-executor,  to  sell  the  land  on 
.  such  terms  as  be  should  deem 
expedient :  Hsld^  that  an  agree- 
ment for  the  sale,  entered  into 
by  B.,  for  himself  and  C,  was 
not  valid,  and  a  bill  filed  for  a 
specific  performance  of  it  was, 
accordingly,  dismissed.  ib, 

JPower  of  sale  in  a  mortgage,  Vide 
Mortgage. 

PRACTICE. 

I.  Filing  BiU,  and  Process. 
II.  Appearance, 


HI.  iZsmovel  o/*  IhM  came  Mto  ^ 
dremt  Comi  of  liht  United 
Suttee, 

IV.  Motifine^  PeMene   amd    Or- 

ders. 
V.  Amending  and  dinmmimg  the 

VI.  Taking  the  bUl  pro  otH^^. 
VII.  PutUng  the  plaintiff^  to  hie  elec' 

te'oti. 
VIIL  Ametiding  the  answer^  or  filing 
a  enppUmental  amemer, 
IX.  Takeng  Uetunumy,  feigned  u- 
sue,  and  other    inttrmediate 
proeeedinge,  , 

X.  Hearing  and  Rdeearing. 
XI.  Rrference  to  a  MaUer^  Repoet 

and  Exeeptione. 
XII.  Decree. 

XIII.  Enecntion  of  Decree. 

XIV.  SoUdtoriomdAgenie. 

I.  Filing  Billj  and  Proeeee. 

1.  Where  an  attachment  is  iaaued 
to  enforce  appearance,  or  to 
answer,  the  body  t>f  the  •  writ » 
general,  but  the  suit,  and  the 
cause  of  the  aMacboient,  are 
endorsed  thereon,  or  appear  in 
a  label  annexed,  so  that  the 
party  may,  Ht  once,  comply, 
without  application  to  the  Court 
Matter  of  Fanderbik,  67 

2.  But  where  the  attachment  is  is- 
sued for  a  contempt  in  disobey- 
ing an  injunction,  an  endorse- 
ment or  label,  specifying  the 
cause  of  action,  is  not  aeces- 
sary»  ib. 

3.  On  an  attachment  for  a  con- 
tempt, or  for  disobeying  an  in- 
junction, the  party  is  not  to  be 
bailed  by  the  sheriff,'  b«t  is  to 
be  brou^  before  the  Ohincel- 
lor,  to  answer  specific  chirges; 
and  be  will  then  be  Dideaed  to 
be  bailed  to  appear,  fram  day 


I  N.DBX. 


73d 


5. 


«. 


to  dqr*  VBlil  the  ptwtjF  cem- 
plftioiBg  htis  prepared  his  inter- 
rogatories, on  which  be  is  to  be 
«x«aiiDed  before  %  master* 
4.  A  ^crqss  bill  mast  be  filed  before 
.  pnhUcation  passed  io  the  origi- 
nal cause.  Govemeur  v.  El- 
mendorfi  357 

II.  Appearance, 

The  vsoal  mode  of  appearing 
in  this  court,  is  by  entering  an 
appearance  with  one  of  the 
clerks  of  the  court.  Livingston 
▼.  Gibhom,  94 

But,  ii  seems^  that  a  notice  by 
the  defendant's  solicitor,  of  an 
appearance,  giren  to  the  plain- 
tifr*s  solicitor,  without  an  entry 
of  the  appearance  on  the  clerk's 
minutes,  would  be  binding  on 
the  party.  ib. 

7.  An  appearance  filed  with  the 
ipegister^  is  an  appearance  on 
the  records  of  the  court. 

Sm  Where  a  defendant  puts  in  an 

'  <    answer,  which  is  read  in  court, 

•>    by  the  consent  of  the  plaiotiflTs 

counsel,  and  ordered  to  be  filed 

.    wkh  the  register^  it  is  an  ap» 

pearance  on  the  records  of  the 

Court.  ib. 

.  9.  A  female  defendant,  unmarried, 
above  sixty  years  of  age,  and 
who  had  been  deaf  and  dumb 
from  her  infancy,  was  admitted 
to  appear  and  defend  by  guar- 
.  dian.     Markle  v.  Markle,     168 

io.  Where  the  plaintifi''s  solicitor, 
at  the  request  of  the  defend- 
ant's solicitor,  sent  him  a  copy 
of  the  bill,*  and  requested  that 
an  answer  might  be  put  in,  it 
was  held  to  be  an  admission  of 
an  appearanoe,  or  waiver  of  a 
'fermal  entry  of  appearance ; 
:^mA  that  the  defendant  was, 
•  therefore,  to  be  considered  as 


ia  Coart,  and  entitled  to  be 

served  with  a  rule  to  put  in  an 
answer,  before  the  bill  could 
be  taken  pro  confesso.  Living-^ 
stony.  WooUey^  365 

in.  Removal  of  €a/va^  inio  the  C»V- 
cuit  Churt  of  the  United  States. 

11.  If  a  defendant  intends  to  remove 
a  cause  into  the  Circuit  Court 
of  the  United  StatUy  he  must 
file  his  'petition,  kc.  for  that 
purpose,  at  the  time  of  enter- 
jng  his  appearance  in  this  Court. 
Livingstone,  Gibbons^  94 

12.  Where  a  defendant  files  his  an- 
swer to  an  injunction  bill,  and 
is  heard  by  his  counsel,  on  the 
merits  of  the  bill  aa^hanswer, 
and  the  Court  makes  a  decretal 
order  in  the  cause,  it  is  too  late 
to  make  application  for  (he  re- 
moval of  the  cause.  ib. 

13.  Where  one  of  two  defendants  is 
a  citizen  of  another  state,  and 
there  is  no  joint  trust,  interest, 
duty*  or  concern,  in  the  sobject 
matter  of  the  controveny,  he 
may  be  alk^ed  to  appear  and 
defend  alone,  so  as  to  enable 
him  to  remove  the  cause,      ib. 

IV.  Motions f  Petitions  and  Orders. 

14.  Though  an  order  dissolving  an 
injunction,,  kc.  XQ»y  be  dis- 
charged by  motion  or  petition, 
on  proper  grounds,  yet  the  most 
regular  course  is  to  discuss  the 
merits  of  the  order  on  th,e  re- 
hearing.     Fanning  v.  Dunham, 

35 

15.  Application  for  an  allowance 
put  of  the  capital  of  an  infant's 

•.estate,  for  his  maintenance, 
may  be  by  petition^  without  bill. 
MaUer  of  Bostwick,  100 


734 


IN  DBX. 


y.  Jlmmimgmdiimimmgih$  Ua. 

16.  The  name  of  a  de&ndani  can- 
not be  ttrock  ontof  a  bill,  on 
motion  of  a  co-delendaat,  with- 
oat  his  consent,  or  notice  of  the 
application.  UmngtUm  ▼•  CM" 
h0U  amd  Qgdm,  94 

17.  Thougha  rule  to  amend  the  bill 
is  of  course,  jet  it  anst  be  ac« 
tnally  entered  with  the  regit- 
ter  i  for  the  clerk  cannot  al- 
low the  records  to  he  amended, 
without  a  certified  order  for 
tbsl  pnrpsoe.  Lues  ▼•  Gfro- 
ham^  170 

18.  The  amendments  should  be 
marked  and  distiofguished,  so 
that  the  J  may  be  easily  seen 
by^e  defendant  \  and  without 
being  blended  with,  or  repeating 
the  original  bill  ib, 

19.  Before  the  plaintiff,  after  rep- 
lication,  will  be    aUowed    to 

.  amend  his  bill,  he  must  obtain 
Jeave  to  withdraw  hb  replica- 
tion i  «id  the  materiality  of  the 
amendmenti  and  th*^  reason 
why  it  was  not  stated  before  i 
must  be  satbfactorily  shown  to 
the  Court.     Tkam  t.  Gemumd^ 

363 

to.  But  if  a  witness  has  been  exam- 
ined, the  pleadingji  cannot  be 
altered  or  amended,  unless  un- 
der very  special  circumstances, 
or  in  consequence  of  some  sub- 
sequent erent,  except  for  the 
purpose  merely  of  ad4ing  par- 
ties. t&. 

21.  The  proper  course,  when  the 
plaintiff  cannot  amend  bis  bill, 
18  to  apply  for  leave  to  file  a 
supplemental  bill.  ib, 

VI.  Taki$»g  biU  fro  e(ntfe$$o» 


set  dewnAe  cnnaeftrl 
m  fterm  ;  Init  bo  nolioe  of  the 
hearing  need  be  giTon  to  thft  de- 
fcadent,  or  affixed  op  iweither 
of  the  piMie  effieee.  Rom  r. 
Wmdr^,  647 

VII.  Putting  ike yUxintig^  io  kU  eUe- 


23 


Where  a  plaintiff  has  broi^^ta 
suit  at  law,  and  obtained  «  j[o4s- 
meot,  and,  at  the  same  tAne, 
filed  his  bill  against  the  de- 
fendant in  this  court,  for  the 
same  matter,  the  court,  on  the 
coming  b  of  the  answer,  will 
put  him  to  his  election,  either 
to  proceed  at  law,  on  the  juds* 
ment,  or  in  the  suit  brou^  in 
this  court ;  and  if  he  elect  to 
proceed  at  law,  the  bill  will  be 
dismissed  with  costs  :  but  if  he 
elects  to  proceed  in  this  oonrt, 
he  will  be  enjoined .  from  pro- 
ceeding under  th&  ju4|9Dent  et 
law,  without  leare  of  this  coart. 
Bogen  ▼•  Voeburghf  84 


VIII.  Amending  tJu 
pUmental 


24. 


26. 


or  ^ly- 


Where  there  is  a  deer  ttMhke 
in  an  answer,  and  pro^r  16  be 
corrected,  the  prectice  h  to 
permit  the  defendant  to  fils  an 
additional  or  supplemental  an- 
swer. Bronm  t.  Girem,  875 
But  this  is  allowed  with  great 
caution  ;  and  only  where 'tere 
is  a  mistake,  properly  sperieiiig, 
as  to  a  matter  of  fact.  H. 


IX.  Taking  teeUman^^  fi^P^  wme, 
amd  efter  intermediate  proceed' , 
inge. 


22,   Where  a  bill  is  taken  pro  eon- 

/esio^  the  plaintiff  cannot,  there*  ..  ,£ 

fore,  taken  decree ;  bnt  must   26.   Where  a  witness  is  about  to 


INDEX. 


Tsa 


dtpAit  Mt  of  Ike  ttite,  perma- 
mmfy  to  reside  abreadl,  the 
Gourti  on  p^Hiimf  ^rified  bj 
lAdoyit,  aod  metioD  lor  that 
«  poipoflo*  wUl  ocder  him  to  be 
examined  d§  bene  ewe,  without 
prefioos  notice  of  the  motion. 
Raekmll  ?.  F\Utom,  165 

27.  A  cro««  bill  matt  be  filed  before 
pablication  in  the  original  cause. 
Chuoem/eur  v.  EUmendorf^    367 

28.  It  is  not  a  matter  of  course  to 
stay  proceedings,  or  enlarge 
pnOlication  in  the  origiiud 
cause,  until  an  answer  is  put 
in  to  a  cros$  bill  filed  after  pro- 
ceeding or  answer  in  the  ori- 
ginal cause ;  ^ot  it  depends  on 

^  special  circumstances.  ib» 

99/  n^hen    there   has  been    rery 
great  delay,  and*  negligence,  on 
the  part  of  the  defendant,  he 
wiM  not  be  allowed  to  file  a 
cross  bill^  nor  to  amend  his  an- 
swer, nor  to  issue  a  commission, 
"    so  as  to  delay  the  plaintiff,    ib. 
30.   To  entitle  the  plaintiff,  before 
'   hearing,  or  publication,  or  issue 
johied,  to  call  for  the  inapec- 
^    tion  of  papers,  accounts,  &c.  it 
is  not  sufficient  that  there  has 
.1>een   a  general  reference  to 
them  in  die  answer,  or  in  the 
•chedole  annexed  to  it.    They 
...M  m««t  be  de9erH€d  with  reeson^ 
!.   iiMeeerteinty  in  the  answer ,  or 
.    ie  the  schedule  annexed  to  it, 
.  sees  to  be  considered,  by  the 
refepeeee,  as  incorporated  in 
«    the  answer,  which  most  admit 
tfiem  to  be  in  the  possession  or 
. .  power  of  the  defiuidant :   and  it 
leust  appear  that  the  plaintiff 
'  hays  an  interest  in  the  produc- 
tion of  the  papers,  books,  or  in- 
struments sought  after.      Wat* 
'  'von  ▼.  Renwiek,  381 

91.'  A  re-examination  of  witnesses 
is  not  of  course,  but  only  on 
special  application  to  the  Court, 


and  on  soAcient  eause  shown, 
by  affidaTit,  or  otherwise,  ac- 
cording to  circumstances.  Hcd- 
lodtr.Smhf  649 

X.  Hearing  and  lUheating. 

32.  It  is  too  late  to  object  to  the 
jurisdiction  of  the  Court,  at  the 
hearing,  after  the  defendant  has 
answered,  and  put  himself  on 
the  merits,  instead  of  demur- 
ring to  so  much  of  the  bill  as 
sedcs  relief.  LivingtUm  y. 
Ltotflgflon,  287 

33.  After  healing,  and  a  final  decree 
in  the  cause,  a  witness  c^nno^ 
here-examined  to  explain  or 
correct  bis  testimony  taken  on 
his  examination  in  chief,  and 
read  at  the  hearing,  unless,  per* 
haps,  under  very  special  cir- 
cumstances.    Only  T.  Murray^ 

4lt 

34.  A  Toluntary  ex  parte  affidavit  of 
a  witness,  to  explain  and  correct 
a  mistake  in  his  fohner  testimo- 
ny, cannot  be  read  at  a  re- 
hearing of  the  cause.  t6. 

XI.  Seftrenee  to  a  MMer^  Report^ 
and  Eaeeptutm* 

36.  There  is  no  precise  time  for 
filing  exceptions  to  the  report 
of  a  master,  on  the  instrfSdency 
of  an  answer,  as  it  does  not  re- 
quire confirmation.  Mfen  r. 
Bradhrd^  434 

36.  On  ffiing  the  report  in  such 
case,  the  plaintiff  may  immedi- 
ately sue  out  a  subpoena  for  a 
better  answer,  and  fi>r  costs  ; 
and  if  die  defendant  does  not 
file  exceptions  to  the  report, 
and  obtain  an  order  for  setting 
them  down  for  hearing,  within 
eight  days  from  the  service  of 
the  iubpanaf  the  plaintiff  may 
sue  out  an  attachment;  aiter 


ns 


INDEX. 


37, 


which    the    defendant   cannot 
except  to  the  report. .  ib. 

If  the  decretal  order  of  refer- 
ence is  silent  as  to  the  mode  of 
calculating  interest,  and  the  mas- 
ter does  not  allow  annualr  rests, 
the  plaintiff  sboold  apply,  on 
the  coining  in  of  the  report,  for 
an  order  on  the  master  to  re- 
port his  reasons  for  rejecting 
the  claim,  or  make  the  rejection 
&  ground  of  exception  to  (he  re- 
port. If  he  does  neither,  and 
the  report  is  confirmed,  he  can- 
not, on  a  final  hearing  on  the 
equity  reserved,  make  the  ob- 
jection to  the  report*  Smith  y. 
Smithy  445 

Fid€  Trvst  and  Trustee » 

XII.  Decree. 


38. 


A  decree  cannot  be  impeached 
hy  an  original  bill,  except  on 
the  ground  of  fraud.  Davoue 
V,  Fanning y  199 

39.  Though  a  decree  in  a  former 
suit,  to  which  the  plaintiff  and 
defendant  were  parties,  cannot 
be  pleaded  in  bar,  until  it  is 
signed  and  enrolled,  it  may  be 
insisted  on  by  way  of  answer. 
And,  when  the  decree  in  the 
former  suit  appears  on  the  face 
of  the  bill,  the  defendant  may 
demur.  -  i6. 

Where  a  bin  is  taken  pro  con- 
jfesso^  ai^inst  a  defendant,  who 
is  absent  from  the  state,  he  may, 
under  toe  statute,  come  in,  after 
the  decree,  and  answer  and  de- 
fend the  suit.  But  he  cannot 
institute  a  new  suit,  while  the 
decree  in  the  former  suit  re- 
mains in  force.  ih. 
Where  a  cause  was  set  down 
for  hearing,  on  lt!e  bill  and  an- 
sweri  and  the  bill  was  dismissed 


40 


41 


with  costs,  becmise  do  person 
appesurad  for  the  plaintiff,  ned 
the  decree  was  enrolled,  it  WM 
held  to  be  no  bar  to  another  suit 
for  thie  same  matter.  Rxme  ▼. 
Rust,  300 

42.  Where  one  of  the  de/eodants 
dies  after  the  argument  of  a 
cause,  and  before  judgment,  the 
decree  may  be  entered,  so  as  to 
have  relation  back  to  t^e  day  p£ 
the  final  hearing.  Campbell  r. 
Messier^  334 

43.  A  decree,  after  it  has  been  en- 
tered, but  before  it  is  enrolled, 
may  be  corrected,  where  tfie 
omission  or  mistake  was  inad- 
▼ertent,  and  is  clearly  ascer- 
tained.    Lawrence  T.'    ComeU^ 

545 

44.  A  decree  is  never  pronounced, 
unless  the  cause  is  regularly  set 
down  for  bearing  in  term,  ex- 
cept when  it  is  submitted  out  of 
term,  by  consent  of  all  parties  ; 
but  the  decree  ma^  be,  after- 
wards, entered  in  term  time,  or 
in  vacation,  at  the  discretion 
of  the  Chancellor.  Rose  ▼. 
IVoodrujffr,  .  /W 

45.  Where  a  bill  is  taken  pirp  con* 
fesso,  the  plaintiff  cannot,  there- 
fore, take  a  decree  ;  bof  most 
set  down  the  cause  for  hearing 
in  term ;  but  no  notice  of  |he 
hearing  need  be  ^ven  to  Ine 
defendant,  or  affixed  m>  in  ei- 
ther of  the  public  offices.     tb$ 

46.  A  decree  of  this,  coart-ie^qui- 
valent  to  a  judgment  at  law;  and 
in  the  case  of  executors  and  ad- 
ministrators, if  It  is  prior,  to  a 
judgment  at  law,*  it  wi<]  be  first 
paid*    Tliompson  V4  Br&wn^  619 


XIII.  Execution  of  Decree: 
47.  If,  after  a  foreclosure  and  sale 


I  N  P  E  X. 


737 


y    of    mortgaged    preoiiges,    the 
mortgagor,  or  defendant,  or  any 
person  who  has  come  into  po8« 
session  nnder  him,  pending  the 
suit,   refuses  to  deliver  up  the 
possession,  on  demand,  to  the 
purchaser  under  the   decree, 
the  court,  on  motion  for  that 
^      purpose,  will  order  the  posses- 
^    ,      sio'n  to  be  delivered  to  the  pur- 
chaser, and  not  drive  him  to  an 
action    of  ejectment   at  law  ; . 
though  the  delivery  of  posses- 
•«  *  sibn  is  not  made  part  of  the  de- 
cree.    Kershaw    v.    7%ompwi», 

609 

48.  In  case  of  disobedience  to  such 
an  ordtry  an   injunction  issues, 

'  of  course,  on  affidavit  of  service 
of  the  order,  &c.  And  on  pi^df 
of  the  service  of  the.  injunction, 
and  a  /efusal  by  the  party  to 

.  comply  fvith  it,  a  writ  qf^'assitt* 
ance  issues,  of  coarse,  to  the 
sheriff.  ^  ib.  ' 

49.  But  where  the  delivery  of  pos- 
session is  made  part  of  the  de- 
ci'ee,  a  writ  of  execution  is  the 
P*oper  remedy,  in  case  of  dis- 

,  obedience.  t6. 

Fide  JvD<iUE:xT,    Infant. 

As  to  Parties,  vide  Pleaoinos,  I. 

,^  As  to  Pleaoinos,  vide  Pleadings. 

XIV.  Solicitors  and  Agents, 

60.  Where  a  solicitor  files  a  bill  in 

-propria  *  persona,  as  plaintiff,  a 

;         notice  served  on  his  agents  as 

solicitor  of  the  court,  is  good 

service,     CkampUn  v.  Fonda  4* 

"  Laniia^y  62 

Fide  Solicitor  and  Attorney. 


PRESUMPTION. 


Fide  Laches,  Length  op  Time  an0 
Possession,  1, 2, 3, 4,  6,  6. 

PRO  CONFESSO. 

Fide  Practice,  VI. 

PROCESS. 

Fide  Practice,  I. 

PROBATE. 

Fide  Sdrrosate. 

REFERENCE. . 

To  a  Master,  vide  Practice,  XI. 

REHEARING. 

Fide  Practice,  X.      * 

R. 

RELEASE. 

Release  by  an    Assignee,    vide  As- 
signment. 

REMOVAL  OF  CAUSES. 

Into  the  Circuit  Court  of  the  United 
States,  vide  Practice,  III. 

RENT. 

I .  Rent  may  be  recovered  in  equity, 
where  the  remedy  has  l^ecome 
difficult  or  doubtful  at  law,  or 
where  there  is  a  perplexity  or 
uncertainty  as  to  the  title,  or  the 
extent  of  the  tenant's  responsi- 
bility.    Livingston  v.  JUvingsion, 

287 


Vol.  IV. 


.93 


c--« 


7M 


I  N^  E  X. 


t.  Where  no  rent  had  beett'demtn- 
ded  for  farty-f<mr  yeer»  from 
the  date  of  the  lease,  oo  a  bill 
of  dMcofery  filed  hj  the  letsor, 
OB  the  groand  of  a  loss  of  the 
coQDterpart  of  the  lease,  it  whs 
held,  that  the  ld|>se  of  time  was 
soffident  eTidence  that  th%  rent 
had  been  ez(iDg;ai8hed  by  some 
aet  or  deed  of  the  party  entitl^ 

•      to  it.     Livingston  v.  Livingiton\ 

294 

Rents  and  Profits,  Vidt  Devise.  . 

REVOCATIOlir.  ' 

Of  a  will,  Fide  Wjll. 

s.- 

saleT 

By  a  Master,  Vide  Mortgage^  III. 
At  Auction,   Vide  Faaudvlekt  Cok-  ^ 

TBYANCBS.   VeVPOR  and  PvRCBA* 
8ER« 

SCIRE  FACIAS. 

Writs  of  eeire  facias^  directed  to  a^ 
person  convioted  of  felony,  and'  • 
sentenced  to  imprisonment  in 
the  State  Prison  for  life,  to  re- 
vive a  judgment  against  him, 
and  nihil  returned  thereon,  can 
have  no  legal  operation  or  ef* 
feet  whatever  ;  for  such  eowoictf 
being  regarded  as  civUiter  mor^ 
IfiiM,  the  scire  faeiae  must  be 
directed  to  his  legal  represen- 
tatives or  terre-tenants.  Troup 
T.  Ifood  and  Sherwood,  288 

SEPARATION. 

From  bed  and  board.     Vide  Baroh 
AMD  Feme. 

SEl-OFF, 


be  seHoff  agaittst  eaeh  other '|i 
equity,  any  more  than  at  law. 
DmU  V.  Cooke,  It 

it.  To  authorise  a  set-off,  the  debt^ 
must  be  mutual,  and  doc  to  and 
from  ^e  same  peicsens,  in  the 
same  capacity.  ib; 

S.  4A  debt  arising  on  a  cootnct  made  - 
.«4lh  an  csMculaf,  casikiot  be  set- 
off asainst  ^  dehl  djae  Aom  thp.  ^ 
•testuor.  tS. 

4.  Uncertain  damages    cannot  be 
^'  ^et-off  in  equity  any  more  than 

♦    at  law.    Unmgstin'T.  LM^' 
iHon,  287 

^,  Therefore,  o^^a  bill  o£disteve- 
ry,  and  for  an  aeco^  V>d  pajr- . 
men(  of  aitein  o«|pjint,'tfae  de- ' 
fendant  is   not    enticbld  to' be 

^-'^  flowed,  by  way  of  ss<-q^,  da-* 
iftage^for  the  .bleach  of  a  cove- 
nant, OB  the  perto^the  grantor, 
Co  allow  him  suffiipient  common 
ofpeuhttf  and  estovers.  ib. 

SETTLEltiirr.    (FoluflMry.} 


1.  A  voluntary  setdement  dlliet  of 
iahds  Iff  chattels,  hj  n^^moo 
indebted  at  the  time,  ia  V90  u 
againft  .creditors.  Bayard  W 
Hqftnan,  >  ^     460 

2.  Whether  the  statute  of  frauds, 
applies  to  a  settleinent  of  thit 
kind  of  property  which  coufd 
not  be  reached  by  legal  prooesaw 
if  no  settlement  had  been  mad^ 
such  as  ehoses  in  action,  money 
in  the  funds,  stock,  Uc,  ?  Quere, 

i 
Vide  Fraubvlent  CofrrsYAKCES. 

SHERIFF. 

Vide  Execution. 

SHIP  OWNERS. 


1.  Joint  and  separate  debts  cannot     .  1.  Ship  owners  are  tenants  in  com* 


\        ft... 


INDEX, 


73» 


ittOQf  ttot  joint  t6Qftf^  or  fart- 
Ben  ;  and  one  of  thenif  where 
the  Tessel  ha»  been  aold,  know- 
ing that  the  share  of  the  others 
had  bden  lawfully  assigMd,  h» 
DO  rigbl  to  possess  hiaiself  pf 
the  whole  prooeeds»  with  a  view 
to  retain  socb  share,  to  s^lsfy 
any  claims  he  may  have  against 
thd^Other,    J^icoU  v.  Mumford, 

Thn  ^assignee  of  one  par^  owner 
of  a  ve«el,  is  entitled  to  his 

'  part,  OE  the  proceeds  thereof, 
withoot  being  subject  to  aniyg^ 
neral  batanc^  of  accoont  be- 
twe^iMhn  owners.  ib. 

But  owfiers   of  the  freight  and 

'  carg9  are  joint  tenants  or  part- 
s' 


Fide  PAaffNBBSBip. 

sqLicitqr  and  attorney. 

Whether  an  atiomtljr  dr  solicitor  of 

'    the  plaintiff  can  purchase  the 

property  of  the  defendant,  at 

sheriff's  sale,  under  an  execa- 

lion,  for  his  benefit?    Qteere. 

'•^  .  Howell  V.  Baker^  118 

SPECinC  PERFORMANCE. 

»  Fide  Award. 


^ 


STATE  JURISDICTION. 

1^  By  the  declaration  of  the  stat- 
ute, passed  ^pril  6tb,  1808,  (1 
A".  R.  L.  238.  iess.  31.  c.  135.) 
i|8  well  as  by  immemorial 
usage,  the  whole  of  ihe  Hudgon 
river,  southward  of  the  boun- 
dary of  the  city  of  ^tew-York^ 
««and  the  whole  of  the  Bay  be- 
tween StaUn  hland  and  Lang  or 
Nassau  Island^  are  within  the 
jurisdiction  of  this  state.  lAv* 
ingiton  V*  Ogden  andGiblnmi^ 
.  48 


2.  Therefore,  a  legpslative  grant 
of  the  exclusive  privilege  of 
navigating  with  Steam  BoaU^ 
*^in  all  creeks,  rivers,  bays, 
and  whatsoever,  within  the  ter- 
ritory or  jurisdiction  of  the 
state,!'  comprehends  all  the  wa* 

•  *  ters  lying  betweeif  StaUn  Isl- 
and and  PowUt  Hook^  and  the 
Jersey  shore^  as  beiog  within  the 
jurisdiction  of  the  state,  either 
as  part  of  the  Hudson  River  or 
the  Bay.  ib, 

3.  The  waters  between  Siaten  IsU 
and  and  the  Whitehall  Landing 
in  the  city  of  JVew-Forft  are 
part  of  the  bay  of  J^ew-York. 
Matter  of  Fanderbilty  57 

STATUTES  CONSTRUED,    EX- 
PLAINED,  OR  CITED. 


1787,^reb.  20.    Sess.    10.  c.     44; 

»         (Frauds,)  450.  659 

1808,  Aprils.     Sess.    31.  c.     144. 

(Juriddiction  of  the  state,)     48 

1813,  April  6.  Sess.  36.  c.  71, 
(B^nk  notes,  and  Banking  asso- 
ciitioDS,)  329 

,  -•—  6.     Sess.    36.   c.      79. 

(Court  of  Probates  and  Surro- 
gates,) 409.  549 

, 12.     Sess.   36,   c.    100, 

(Partition.)  276 

— ^, 13.    Sess.  36.   c.    102. 

(Divorces,)  187 

1814,  April  i).  Sess.  37.  c.  108. 
(Infants,)  378 

1816,  March  24.  Sess.  38.  c.  106. 
(InfaotoO  378 

,  April  11.   Sess.  38.  c.     167. 

(Surrogates,)  549 
, 17.  Sess.  38.  c.      22L 

(Divorces,)  197 

1817,  April  11.  Sess.  40.  c,  213* 
(Ulster  and  Orange  Turnpike,) 

26 

1818,  April  21.  Sess.  41.  c.  277. 
(Habeas  Corpeas,)  106 


740 


INDEX.     * 


1820,  April  12.    Sess.  43.    c.    184. 

(Execations,)  601,  649 

Various   acts    coDcerning    Steam 

.  Boats,  150.  572 

Et  vide  Steam  Boats. 

StfeAM  BOATS. 

1.  The  several  acts  of  the  legis- 
lature of  this  state,  grantiog  and 
securing  to  R,  R.  Livingston^ 
and  Robert  Fulton^  and  their 
I  assigns,  the  sole  and  exclusive 
right  of  using  and  navigating 
boats  or  vessels,  by  steam  or 
fire,  in  the  waters  of  this  state, 
for  a  certain  number  of  years, 
areconstitutional  and  vslid  acts. 
Ogdeny,  Gibbons,  150 

i.  And  this  Court  will  grant  an  in* 
junction  to  restrain  the  citizens 
of  another  state  from  naviga- 
ting the  waters  of  this  state  by 
Vessels  propelled  by  steam,  with- 
out the  consent  of  the  said  R,  R, 
L,  and  R,  F.  or  their  assigns, 
although  such  vessels  may  have 
been  enrolled  and  licensed  un- 
der the  laws  of  the  United 
States,  as  coasting  vessel^.       ib, 

p.  The  runing  ur  employing  Steam 
Boats,  over  the  waters  of  this 
state,  for  the  transportation  of 
passengers  between  the  city  qf 
Ke'A'-York  and  Elizabetht-ovn 
point  in  JS^'trv -Jersey,  directly, 
or  circuitoiisly,  by  one  or  more 
Steam  Boats^  and  sbifliog  the 
ipassengers  from  one  boat  to 
another,  at  any  intermediate 
point  between  those  two  places, 
without  the  consent  of  the  per- 
son to  whom  Livingston  and 
Fulton  had  assigned  the  exclu- 
sive right  of  navigating  5(eam 
Boats  between  those  two  pla- 
ces, is  a  violation  of  the  right  of 
such  assignee  :    and  an  injunc- 

''   'tion  was  granted  to  restrab  the 


defendant  from  so  using  or '  na- 
vigating Steam  Boats,  to  the  io- 
jary  of  the  plaintiff.  Ogdrnv^ 
Gibbons,  174 

4.  Where  the  plaintiff,  (lavin^  an 
exclusive  right  to  navigate;  witk 
Sttam  Boats,  the  -vatets  ^  the 
Bay  of  NeW'York,  and  Aat  part 
of  the  Hudson  rhtr,  joudb  of- 
the  state  prison,  granted  to  the 
defendant  the  exclusive  right 
of  navigating  with  SMm  B^tU 
between  the  city  of  JVev-Forifcy 
and  the  Quarantine  Crround  on 
Staten  Island,  4*0.  and  it  was 
provided  in  the  grant  or  assign- 
ment, that  if  the  state  or  l^is- 
latnre  of  JVev  Jeney  shodTd,  at 
any  time  thereafter,  obstmct  or 
prevent  the  plaintiiOf  from  navi- 
gating with  Steam  Boats^  the 
waters  oftfaat  state,  that  thencei* 
forth  the  grant  should  cease  and 
be  void :  Held  that  thongh  the 
casus  fitderis  may  hav€  oecar* 
red,  yet  this  Comrt-vroald-  not 
interfere  to  restmiii  the  defen- 
dant from  continuing  to  el:er- 
cise  his  right  under  the  grant 
to  htm,  unlit  the  ptim^ff'liad 
established  the  fact ^tiam^  and 
his  right  to  resime  the  grant. 
Livingston  v.  Torr^kins^      -415 

5.  The  association  of  stockholders 
of  the  North  River  Steam  Boat 
Company  is  not  a  copaitnerrBhip, 
but  the  *  parties  are  tenaAts  in 
common  of  the  propeKy-  and 
franchises  of  the  conipanir. 
Livingston  v.  Lynch, '  573 

6.  The  resohittons  passed  by  the 
unanimous  votes  of  Ike  ftock- 
holders,  on  the  iSthandr  14th 
April,  1817,  and  subscrilM  by 
all  of  them,  are  the  j^mdamm* 
ial  articles  or  eonstitntiott  of  the 
company,  by  wtich  tke  former 
articles  of  agreement  of  the 
tethJvly,  1814,  were  abroga- 
ted ;    and  the  com]ian]|  being 


INDEX. 


741 


.  onU  a  private  asiociatioD  of  in- 
'dividoaJs,  these  articles  caaoot 
be  altered  or  revoked,  bat  by 
the  like  uoanimous  cooseot  of 
all  tiie  stockholders.  . .  ib, 
7.  Therefore,  certain  resolutions 
passed  the  5tb  JUay 9  1819,  not 
having  been  consented  to  by  all 

-  the  stockholders,  aod  being  re- 
pugnant to  the  fundametual  ar- 
.  ticlea  of   the  association,  a^e 

nuU  «pd  void.  tb. 

Vid%  Injunction. 

SUBSTITUTION. 

Vii^  MoBTOAOfi,  I.    Contribution. 

SURETY. 

1.  A  surety  who  pays  the  debt,  is 
eotitfaed  to  be  put  in  the  place 
of  the  creditor,,  and  to  all  the 
means )  and  to  every  remedy 
wbicb.  the  creditor  possesses,  to 

.    enforce  payment  from  the  prio- 

-  cipal  debtor.    Ha^  v.  liard^ 

123 
%,  If,  therefore,  a  creditor  takes  a 
•  mortgtig^  from  the  principal 
debtor,  he  does  it  not  only  for 
bis  own  secnrity,  but  for  tbe  in- 
demnity of  his  surety ;  and  he 
most  do  no  act  by  which  it  may 
be  JQvalidated,  in  the  first  in- 
stance, or  be  subsequently  de- 
feated or  destroyed.  t6. 

5.  Whether  tbe  surety  can  compel 
the  creditor  to  resort  first  to  the 
principal*  debtor,  and  exhaust 
his  remedies  against  him,  be- 
fiwe  resorting  to  the  surety? 
^^iMre*  ib. 

4>  Wheve  the  surety  apprehends 

danger  from  the  d^lay  of  the 

creator,  he  may  compel  tbe 

oreditor  to  sue   the  principal 

.    debtor.;  at  least,  on  iodemnify- 

.  *  ing  tb^  creditor  for  the  conse- 


6. 


7. 


qnences  of  risk,  delay,  or  ex- 
pense, ib. 
A  creditor  in  New-Jersey^  where 
all  tbe  parties  resided,  took  from 
the  maker  of  a  promissory  note, 
indorsed  by  the  plaintiff,  a  bqpd 
aod  mortgage,  which  was  amjple 
security  for  the  debt ;  and,  in- 
stead of  resorting  to  the  mort- 
gage or  the  principal  debtor^ 
sued  the  plaintiff  (who  was 
transiently  in  this  state)  at  law  : 
This  court  granted  an  injunction 
to  stay  the  suit  at  law,  until  the 
creditor  had  pursued  his  reme- 
dy on  the  mortgage  in  Neto-Jtr- 
aey.  ib. 
A  creditor  having  a  particular 
fund,  may  be  compelled  to  re- 
sort to  that  fund,  before  he  pur- 
sues the  debtor  personally,  ib. 
Where  an  indorser  of  a  note 
discounted  by  the  Vtiea  htu* 
ranee  Company^  not  being  an  in- 
corporated batiking  associs^i^ion, 
took  from  the  makers  of  the 
note  a  bond  and  judgment  for 
his  indemnity  and  security,  and 
without  any  fraudulent  intent  to 
evade  the  act  restraining  uittn- 
corporated  banking  associations ; 
(2  N.  R.  L.,  236.  sess.  30.  ch. 
71.)  the  bond  and  judgment 
were  deemed  valid  ;  and  the 
Court  refused  to  interfere,  at 
the  instance  of  a  purchaser  un- 
der a  subsequent  judgment,  to 
prevent  the  indorser  from  ob- 
taini ng  payment  of  the  judgment 
to  him,  he  having  been  sued  as 
indorser,  and  a  judgment  reco- 
vered against  him.  Parker  v. 
Rochester,                               329 

8.  A  surety  cannot  sue  the  princi- 
pal debtor  for  his  indemnity  or 
discharge,  before  tbe  debt  is 
due.     Campbell  v.  Macomk,  638 

9.  As  where  a  mortgagee,  holding 
a  mortgage,  as  .a  trustee  for 
others^  waS|  also,  a  guarantee 


.-.<» 


>. 


.^; 


^    » 


Ut 


INDEX. 


V      ff 


or  surety  for  th^  debt,  apd  i\i%, 
mortgaged  premises  were  in  a 
state  of  ruin*  and  decay  from 
storms,  and  the  security  there* 
by  rendered  precarious ;  yet, 
he  cannot  file  a  bill  for  the  sale 
of  the  property,  the  debt  not  be- 
ing due,  nor  the  mortgagor  in 
default.  ib, 

SURROGATES.  '        ' 

t.  A  iurrogate  has  concurrent  ju- 
risdiction with  this  Court,  A 
compel  adnuniiinUf^ri  to-  ac- 
count, and  to  make  distribution 
of  the  estate.  Seymour  v.  Sey- 
tn^uVf  '  409 

-f«  Where  administrators  have  been 
brought  before  the  surrogate 
who  granted  the  letters  of  ad- 
ministration, for  an  account  and 
distribution  of  the  intestate's 
personal  estate,  this  court  will 
not,  without  some  special  and 
satisfactory  reason,  interfere 
with  the  proceedings  of  the 
surrogate,  by  granting  an  in- 
junction, and  sustaining  a  bill 
for  general  relief.  t^. 

3.  A  bill  of  discovery,  in  aid  of  the 
cause  before  the  surrogaie,  must 
chaise  certain  facts  within  the 
knowledge  of  the  defendant,  the 
disclosure  of  which  is  material 
and  necessary  to  the  party *s  de- 
fence in  that  court,  and  that  he 
has  no  means  of  showing  the 
facts  without  such  disco?ery. 

ib. 

4.  The  surrogate  of  the  city  and 
county  of  JVetv-  Yorky  has  no  au- 
thority to  grant  letters  of  admi- 
nistration with  the  wiU  annexed^ 
of  a  person  dying  out  of  the 
state,  not  being  an  inhabitant  of 
the  state.  Goodrich  v.  Ptndlt- 
ion,  549 

5.  His  powers,  though  they  may 
exceed  those  of  the  county  sur- 
rogatesy  who  have  no  power  to 


graiit'  letters  of  adminitftn^^ 
of  the  goods  of  persons  ^wg 
intestate^' oAt  of  the.«tate,»  not 
being  iol^bitants  o£  the  sliUe^ 

•are^^tteo,  in  thi%jre8peot,*by 
the  acts,*  sess.  36u^  79.  i^.  97.- 

'  sesB.  3a  ch   159.  w^  case.^. 
a  noo-9«Ment  of  dne  starte*  %*". 

.  ing  ifUeziaU,  and  lemoing  gowr 
Mni  dSaUeUuiiie  Htifi^  J^09t 
York,  '  •    ^Jrt'    ^*^' 


T.* 


JENAKTS  IN  C«MMO>l^ 
Of  a  Ship. '  Vide  S^if  Owie^s, . 

,    ^    •  ¥reatx        3/*,,\ 

Between  Grmt  ^Britain  andtthifZW' 
ted  SioUa,  vide^FvQiTwia   PitOM. 
Justice.  ^  .  *  V 

TR06T  Alf^jSbSTEEtf.    . 

How  tm^^  are  €mat^  and 
their  incidents.  OMi^  g^s^Jtr^  • 
and  trtui  tf^ate.  '     1  ^^^^ 

Authority  and  dvMff^a  tmi^mL 
Tru$tee^8  accawfi  Ma9^kc9i 
tOt  and  chargts  ogaimL      ^ 


I. 


II 
III. 


I.  How  trusts  are  created^  and  iheit 
incidents.  Cestui  que  trmt  and 
tntst  estate, 

1.  Though  a  trust  be  created  for 
the  benefit  of  a  third  pefson, 
as  a  credi^.or,  without  his  know- 
ledge, at  the  time,  he  may,  af- 
terwards, afinn  the  tnisl,  and 
enforce  its  execution.  Shep- 
herd y.  M*Evtrs,  136 

2.  Where  trustees  baye  sMseepted 
the  trust,  and  entered  on  its  ex- 
ecution, they  caimot,  after^ 
wards,  without  the  cenaeat  of 
the  cestui  que  trusty  or  the  di- 
rections of  the  co«rt»  aanen- 
der  the  trust,  op  disclMirge 
themselyes  from  it.  A. 


t ' 


3. 


1  K  D  EX 


743 


The  rested  interest  ef  a  teitui  ^ 
que  trust,  cannot  be  impaired  or 
'v        destroyed  by  tne  Tolnntary  ^t 
\'  *af  the  trustee  ;'A^t  the  trust 
,<  ^  /  will  follow  the  Itfnd  in  the  bftods 
'^  i>f  the  (Person  to  wbom  U  l|as 
been  c^veyed  bf  Ihe  trus}^,  ^ 
^     '^  wjih  kniDwledee  dt  the  trust*'  . 

.sided  ah'ro6d;and  before  he  ^s, 
**    ^  Inarmed  of ^^  trusty  cceatedT^y  ^ 
*     '<a  dedft  -oChis'delitpr^jibr  the  ^ 
•  '..  iVbeoeEi  ipf  ^liif  xridKoij,.  the; 
;^^    *  trustees,  without  tLe  asaelit  of 
^^    \fiki^tesiut" ^Jf^H,  <tr  the  di- 
'  ^  ^    rection  efthis  opurl/coxiveyed 
' ,    il   the  tmst  estate  to  tthers,  upon 
*fr      other    trusU    aod^  conditions, 
.  1  /   Nij^ichj  ib  ^eiropecalion,  would 
'"'    have'^xcliidedS'.  fropk all  share 
'  ,/er' benefit  id  the  trust  estate  ; 


tbft  trusliaes''yi  the  second  deed 
tUBts  in  We^p^deed,  of  which 


were  beUt  chuiteable  with  the 


E  ' 


^        th%  bad  fuU  knoWtfedge  at  the 
.1^  tipM«  ^     "^  >  ib. 

\  <^4[rit  a  tnlftee  by  itnpHeation^  is  to 
^  ^  <^te  tfClltil^  by^  an  equity,  that 
-  *f<ptty  mult  be  pursued  with- 
*  .*    in  a  raasofhable  time.    Skaver 
i       V:  R&dley,  310 

'^'  6*  A  devise  of  all  the  estate,  real 
and  personal,  of  the  testator,  in 
iruit,  to  pay  debts,  and  to  dis- 
tribute the  residue,  places  the 
assets  under  the  jurisdiction  of 
this  court.     Bttu&n  ▼.  Le  Roy^ 

651 

FUb  LacSBs;  Lapbb  or  Time  and 

POSSESSIOK. 

IL  Sut^i&rity  and  duty  of  a  truuee. 

7;  Where  the  farm  of  a  defendant, 
worth  two  thoQSHnd  dollars,  was 
sold  under  a  judgment  and  exe- 
'  cotioB  on  which  there  was  not 
asore  than  eighty  dollars  due, 
to  the  attorney  of  the  plaintiff, 


8. 


9 


iifho  attended  the  sheriff's  sale, 
for  ten  dollars :  i/e/d,  that  under 
the  circumstances,  the  purchase 
by  the  attorney  was  not  to  be 
considered  as  absolute,  or  as 
originally  intended  for  his  ot^n 
benefit,  out  in  trust  for  the  re* 
spective  interests  of  tlie  parties 
%to  the  execution  ;  and  the  debt- 
•  or,  on  a  bill  filed  by  him  for 
that  purpose,  was  allowed  to 
redeem  the  estate,  on  paying 
the  balance  due  on  the  execu- 
tion, the  amount  paid  by  the  at- 
torney, with  interest  and  costs. 
Hovel  V.  Baker^  1 18 

A  person  entrusted  with  busi- 
ness, dk  an  attorney  or  agent 
for  another,  ought  not  to  be  al- 
lowed to  make  that  business 
an  object  of  interest  or  profit 
to  himself.  ih. 

Whether  an  attorney  orsolli* 
citor  for  the  plaintiff  can  pur- 
chase the  property  of  the  de- 
fendant sold  under  execution, 
for  his  own  benefit  ?  Qwsre.  t6. 
10.  If  a  guardian  or  other  trustee^ 
lends  the  money  of  the  cestui 

Su«  trust,  withont  due  security^ 
e  will  be  responsible,  in  case 
the  borrower  becomes  insol- 
yent.     Smith  y.  Smithy  28 1 

What  is  due  security /or  mo- 
neys loaned  by  a  trustee,  ap- 
pears to  be  a  point  not  fully 
settled.  ib^ 

H  seems,  that,  in  general,  mere 
personal  security  is  not  sufficient 
to  protect  the  trustee  from  re- 
sponsibility, in  case  of  loss,  ib, 
13.  Wbere  a  guardian  took  pro- 
missory notes  of  persons,  sol- 
vent at  the  time  of  taking  the 
account  before  the  master,  un- 
der a  decretal  order  of  the 
court,  on  a  bill  filed  for  an  ac- 
count, and  which  notes  were 
allowed  by  the  master  and  cre- 
dited to  the  guardian,"  who  was 
feady  to  deiirer  them  up  ;  the 


11 


12 


744 


INDEX. 


CQuri  coofinned  the  report  of 
the  master ;  the  notes  being 
for  small  sums,  for  rents,  Sic, 
and  the  credit  and  course  of 
bnsioess  according  to  the  prac- 
.,  tice  of  the  testator,  in  his  life 
time.  t^. 

14.  A  guardian  or  trustee  is  not 
held  to  account  for  any  neglect 
or  breach  of  duty  not  chacged  . 
in  the  bill.  ib. 

15.  An  executor  or  trustee  is  not  al-  * 
lowed  to  use  the  trust  money, 
and   retain  the  profits  arising 
from  it.     Browny.  Rickets^  303 

16.  If  a  trustee  or  executor  mixes 
the  trust  money  with  his  own, 
and  uses  it  in  his  business  or 
trade,  the  profits  of  which  are 
not  knowut  he  mast  pay  inte- 
rest. t6. 

III.  TnuUt^i  accounii.    Allowances 
lo,  and  charges  against, 

17.  Trustees  acting  with  good  faith, 
are  treated  with  liberality  and 
indulgence.  And  if  there  is  no 
wilful  misconduct  or  fraud  on 
the  part  of  a  trustee  or  execu- 
tor, he  will  not  be  held  respon- 
sible for  a  loss,  especially 
where  he  acts  with  the  advice 
of  counsel.  Thompson  v.  Brown^ 

619 

18.  A  trustee  who  mixes  the  trust 
money  with  bis  own,  and  uses  it 
in  his  business  or  trade,  the 
profits  of  which  are  not  known, 
must  pay  interest.  Bro-wn  ▼. 
Rkkets,  303 

19.  But  where  there  was  no  direction 
in  the  order  of  reference  to  the 
master,  to  inquire  into  the  use 
and  profit  of  the  fund,  and  he 
had  charged  the  party  with  in- 
terest^ the  report,  to  prevent  the 
effect  of  surprise  on  the  party, 
was  re-committed  to  the  mas- 
ter to  take  further  proofs  or 


explanations^  and  to  correct  any 
mistakes.  ib, 

20.  ^^''here  the  securities  held  by  a 
trustee,  are  directed  by  a  de- 
cree confirming  a  master's  Re- 
port, to  be  assigned  to  the  ces- 
.  tui  que  *lnM^  the  res^nsibijity 
of  the  trustee  ceases ;  and  there 
*  having^been  no  culpable  negli- 
gence or  default  on  tiis  part 
in  taking  the  securj(ies»  he 
is  not  to  be-  charged  with 
them,  on  making  the*  final  de- 
cree, on  the  equity  reserved, 
though' they  may  have  b^en, 
perhaps,  impaired  by  the  detay 
of  the  litigation  between  the 
parties.  Smith  v.  Smithy  4^b 
21.  if  a  decretal  order  of  refer* 
ence  is  silent  as  to  the  4npde  of 
calculating  interest,  and  the  mis- 
ter does  not  allow  anntioi^rft/f, 
the  plaintiff  sh^ld  apply,  on  the 
coming  in  tif  .the  qotaater^s  report, 
for  an  order  on  (he  Master,  ^o 
report  his  reasons  for  rejecting 
the  claim,  or  ^ake  the  rejec- 
tion, a  ground  of  exertion  tff^fie 
report.  If  he  dofs  neitbei^  ne 
cannot,  on  the  final  hearii^  on 
the  equity  reserved,  make  the 
objection  to  the  report.  t^. 

22.  In  a  suit  by  a  cestui  que  trust  a-' 
gainst  his  trustees,  for  an  ac- 
count, &c.  no  costs  were  allow- 
ed to  the  plaintiff,  the  conduct 
of  the  defendants  being  fair  and 
honest,  and  the  nllegatious  of 
misconduct  unfounded.  ib, 

ride  V^ENDOR  xvD  Pfrchasciu     Ex- 
ecutor AND  Administrator. 

VENDOR  AND  PURCHASER. 

1.  Where  a  bill  was  filed  against  a 
trustee  for  an  account,  and  that 
he  should  convey  to  the  cestm 
que  trusty  the  trust  estate  held 
by  him,  describing  the  same  as 
'*  divers  land  in  Coshy^s  Manors 


li^&ei. 


»45 


in  the  pMm  otSpthkgfiefd,  nd 
detftaiii  Meta  or  pirrceM  of  land 
In  (he  Oriskcaiif  Ptttertt,^  &c. 
An4(hetn»tee,  prefioiis  to  the 
filhsg  of  Ibe  bin,  iTOld  some  of 

.  the  Iflbd  to  8.9  and  took  a  mort- 
age for  the  pwdiase  money, 
In  hia  fedHidaal  nanle,  and  as- 
iigiiedthe  bond  and  mortgage, 
to  H. ;  and  5.,  irho  purchased, 
withdnt  any  knowledge  of  the 
trast,  aftervrardtf,  and  after  the 
fling  of  the  biff,  paid  the  bond' 
md  mortgage  to  H.,  withont  any 
actual  notice  of  the  pending  of 
the  dnit  against  the  trustee,  or 
of  the  trust ;  ffsfd,  diat  S.  was 
chargeable  t^th  notice  of  the 
pendency  of  the  suit  and  of  the 
facts  stated  in  the  bill ;  and  that 
the  description  of  the  lands, 
though  general,  Was  sufficient 
to  put  him  on  inquiry  ;  and, 
iherefore,  good  notice  to  him 
that  the  lots  which  he  purchased 
-  #ere  part  of  the  trust  estate* 
Green  y.  Slayter  and  othersy    38 

2*  But  as  the  trvstee,  no  receiver 
having  been  appointed,  had  a 
legal  authority  to  receive  pay- 
ment of  the  mortgage,  the  pay- 
ment by  5.  to  him,  and  to  H.  his 
assignee,  was  good ;  for  nothing 
but  notice  in  fact^  in  such  a 
case,  can  preyent  a  payment  by 
the  debtor,  to  the  legal  owner 
of  the  bond.  it. 

9.  Where  one  person  bids  for  an- 
other, at  auction,  but  does  not, 
at  the  time  the  lot  is  knocked 
down  to  him,  nor  on  the  day  of 
sale,  disclose  to  the  vendor,  nor 
to  the  auctioneer,  the  name  of 
his  principal,  he  is  responsible 
as  the  purchaser.  Jll^0om6v. 
Wright,  659 

4.  If  there  is  any  doubt  or  diffi- 
culty as  to  the  title,  it  will  be 
referred  to  a  master,  to  examine 
and  report  thereon.  ib. 

Vol.  IV.  94 


6.  An  auctioneer  is  an  agent  faw- 
fuHy  authorized  by  the  purcha- 
ser of  lands  or  goods  at  auction, 
to  sign  the  contract  of  sale  for 
him,  as  the  highest  bidder,  ib. 

6.  And  writing  his  name,  as  the 
highest  bidder,  in  the  tnemoran-- 
dum  of  sale,  by  the  auctioneer, 
immediately  on  receiving  his 
'  bid,  and  knocking  down  the  ham- 
mer, is  a  sufficient  signing  with- 
in the  statute  of  frauds,  to  bind 
the  purchaser.  ib. 

Fide  FRAtnmtBNT  CoHVBTAircB. 

ULSTER  AND  OR  ANGE  BRANCH 
TURNPIKE  COMPANY. 

At^cording  to  the  true  oonstruction 
of  the  Ad  to  amend  the  tfe/,  enii" 
Ued  an  act  to  intorporate  the 
Ulster  and  Orange  Branch  Turn- 
pike Cempawy^  {sese.  40.  ch.  218. 
s.  2.)  the  owners  of  lands  assess- 
ed under  the  act,  are  entitled 
to  make  the  road  through  their 
own  lands,  under  the  inspection 
of  the  company,  by  the  first  of 
Jhtgust,  next  after  the  assessment 
is  mad$_  and  ccmpteted.  Cowh 
y.  Ulster  and  Orange  Branch 
J\tmpike  Ck>mpany,  M 

Fide  InjvtfCTiofit  IV,  V. 

UTICA  INSURANCE  COMPANY. 

Admitting  that  the  Utiea  ineuranee 
.Company  haye  no  banking  pow- 
ers, and  that  notes  and  securities 
for  the  payment  of  money  to 
them,  as  a  banking  association, 
are  void  by  the  act ;  (sees.  96* 
ch.ll.)  yet  a  bond  and  judg- 
ment confessed  thereon,  by  the 
makers  of  a  note  discoonted  by 
the  Company,  for  the  indemnitj 
and  securi^  of  the  endorser, 
without  «ny  fraudulent  mtent  to. 


U6 


INDEX. 


evade  the  law,  are  valid.    Par- 
W  T.  Bock§$ter,  329 


w. 

WASTE. 

Fide  Injvhctioh,  III 

WILL. 

1.  Sobsequent  marriage  afwt  birth 
of  a  child  are  an  implied  revo- 
catioD  of  a  will  either  of  real  or 
personal  estate.  Bru^  y.  fVil- 
ibtftt,  606 

S.  Bat  soch  presumptive  revoca- 
tion may  be  rebutted  by  circum- 
stances, tb, 

3.  It  $eemi,  that  a  subsequent  mar^ 
riage  or  subsequent  birth  of  a 
child  alone,  will  not  amount  to 
an  implied  revocation.  f6. 

4.  Implied  revocations  of  wills  are 
not  within  the  statute  of  frauds. 

lb. 


5.  A  will  duly  executed,  but  re* 
voked  by  a  subsequent  marriage 
and  birth  of  a  child,  cannot  be 
connected  with  a  will  subse- 
quently made,  but  not  executed 
with  the  requisite  ademBitiea 
to  pass  real  estate,  so  as  to  con- 
stitute a  valid  will ;  but  tbe 
estate  descends  to  the  heir  at 
law.  t)&. 

6.  Where  the  will  of  the  testator 
is  so  ambiguously  expressed,  as 
to  render  it  proper  for  tbe  exe- 
cutor to  take  die  direction  of 
the  court,  the  costs  of  the  suit 
will  be  ordered  to  be  paid  out 
of  the  fund  in  controversy. 
Rogers  v.  Rots^  6f» 

Fidt  Devi&e. 

WITNESS. 

Fide  MoRToAGCr    Practicb»  IX.. 


END  OF  VOLUME  IV. 


c, 


£RRATA. 

r$gt  4,liM7.ibr««iiiogrMMfleMt 
13,  line  30«  diU  **  separAte**  befiire 
»  41,  line  30,  for  •'  MsSsmeDt"  rwti  t      ^ 
72»  in  tfat  iTginiil  note,  for  **ciimbruice** 
86,  lint  10,  for  *'  agunst**  read  adjoinini^. 
88,  line  18,  after  **  gold**  niftrl  after  her  daalhf 
90,  line  4,  for  ''jointly^rflaci  justlj. 
IOO»liDe  32,  before  '*pamh'*  imrito, 
'«*' read  tluf. 


-34,for"hi0^ 


110,  line  M,  for  •«  19^  retd  28. 

in,  line  31,  for  •«  oonnty**  read  conntrf. 

113,  line  28,  for  "  this"  rmd  the. 

115,  line  3,  for  **  one  not*^  rtad  not  one. 

121,  line  82,  for «« was**  rmd  were. 

iaB»  line  28,  after  *•  and"  vueH  the  foct  was. 

131,  line  38,  for  ^  lecaritjr**  read  niretjr. 

132,  line  15,  for  *^rea80Bable**  rsod  anMaaonaUe. 

133,  line  1 1,  aftiar  '*  applr  to**  inmi  the  nmty,  befon  wtiMag  ^ 
136, 17th  line  of  the  brad  note,  for  •«  joint**  remi  tmtt 

137,  line  30,  for  ^  proportion**  rtod  pvoportioiiflL 

IM,  line  S,  for  •«  l817^rMd  1787. 

170,  line  17,  for  ••  levied**  read  taaed. 

178,  line  13,  before  •^to  be**  mitrt  wera. 

183,Jiiie  2.  tor  *<pKdiibK**  rtod  protect 

187,  fovt  line  of  bead  note,  for  «>  ttora**  rwd  tk§r% 

180,  line  26,  for  ^  commoo**  read  canon. 

18S,  line  II,  for  ^  emiefMf**  readiMotfifMe. 

189,  line  28,  for  <•  231**  read  331. 

195,  line  6,  for  *'coainMn**  read  canon. 

7,for»»othei^r«odthe. 

200,  lines  24  and  25,  for '*  did  not  hear**  read  not  hearv«' 

J  line  26,  di&  **  theplaintiH:** 

231,  line  22,  for  *'  conceirinr**  read  coQceired. 
234,  line  3,  for  ^  were**  rsod  was. 

281,  in  the  nMk  line  of  the  head  note,  for**  testator*'  read  tnute^ 

282,  line  30,  after  **  made**  inmri  by  them. 

310,  in  the  eUoenik  line  of  the  head  note,  after  <*held*  instrt  n^t. 

lnie2,for«*ifaUiif*'rsadJIUbmit. 

312,  line  0,  for  •*  were**  rwd  was.  ' 

347, 1,  for  "  heedleM**  read  anheeded. 

999,  line  19,  for  **  1818**  read  1810. 

SOU,  line  28,  for  •*  profit**  nod  profits. 

405,  line  3,  for  <*  Gkmna'^*  read  ZimmtrH. 

402,  line  15,  for  *•  months**  read  month. 

433,  line  22,  for  **  sereral**  read  severe. 

438,  line  17,  for  <•  Horrti'  CA.**  read  HarrimnU  CK  Pr. 

464,  line  12,  for  *<>iafti**  readjlaiu. 

465,  line  21,  tnserf  5  before  *«  CnmcA.** 

466,  Une  4,  tnscrf  1  before  *«ilow*s.** 

487,  in  the  marginal  note,  line  27,  tNHrf  it,  after  ^  to.*^ 

51 1,  line  2,  for  **  nammnifMr**  readnoi^pfiiiticr. 

541,  line  29,  ituerl  but,  after  ••  sale.** 

547,  in  the  7th  and  8th  linesof  the  head  note,  deU  the  words,  **  and  the  ql^rk 

must  attend  with  the  record  of  the  bill,  to  be  read  at  the  hearing.*' 
549,  in  the  fAtrd  line  of  the  head  note,  for  <*  residing'*  readdjing. 
696.  line  12,  for "« first**  read>biir<5. 
657,  last  line  bnt  one,  for  ^  withal**  f«ad  with  os. 
661,  line  12,  dOe  «•  the**  btfare  coudmL 


Cj»-t^^ 


^t£y    ^I^^U^^uJa^ 


:;  ■.■.;■    ■"'■^'- 


timi»  oftht  Court  of  Cium«ru-'-^J'^^^f^, 

oflScer,  ^130,472  44 

in  stock  the  sum  of  "  36,475.  04 

1     Bonds  lOid  mortgages  43,150  48 
'     CaiK 


190,097  SO 
Of  which  may  hereafter  be  called  for  ^^    g^^.  g2 
only  the  sum  of  __«_— 

Leafing  a  wrplus  fund  belonging  «>      ^  ^^^  -^ 

1 '  iudiciws  investments  made  by  *|^-.^'«L™  JJ. 

?  lies  remaining  fr»™/"»«  ^^^aVtieJ  A^^^^  ' 

If      WhenUente-dj|«a  fted-Ues^^^^^^^ 

;    in  December,  lf^^'."*®^^^I\~!:-,piv  to  witors  not 

K  :  never  before  done  by  any  efficer  of  afty  court  b 

:.  1  "he  world.  He  has  paid  ♦«  »  «"""f  ^"UTS' 
/  lafer  deducting  the  expenses  of  an  exteiuled  hti- 
i^'gat^on,   more^money'thau   was    deposited   .0 

Si'' We  invite  the  attention  to  this  fact  of  Mr 

p  Brougham,  if  peradventure  our  paper  shall  evei 

r   feach^is  eycs%  order  that  he  "'»J  ^ontras^^^^ , 

•"-  in  the  nevt  discussion  in  the  House  of  Commons 

-  on  the  subject,  with  the  proceedings  of  the  bn- 

•-  ""ishCourtof  Chanceiy  \n  like   circumstances. 

.iflc  may  further  state,  what  is  also  «  ««ct' «^ 

. :  one  that  will  sUrtle  yet  more  the  doubtine  prac- 

I  tufoners  in  Chancery  at  W^tminster  HalUhaJ. 

under  its  present  »ff'"'^'"<'""V*  W^  ta  ^est 
!  carried  through  our  Ccnirt  of  Chancy  m  less 
time  than  a  suit  at  common  law. 


I 

'i 


--"*         VM  -      ^    ^  ^     yj^   ^..    «^^    , 

■*.  ■ ,  ,  .   ■»   *^'  ^  .,.■      •  » 

,.  ;    ;^  CASK  IN  CHA^CngRT.  . '         ^    "      ^    ,:  «(» 

JMiMftini'^  CAami>^4    The  gt«at  pdiBl%m^aS|  wfae-    ^2^  i 

^^    y  perty  assigned,  flbtn  ibe  fair  aod  fewfuF-rtrntil  ewMd  ti^     ^"^^\        #♦  ^ 
^'.thd.^  assignmenttf  wMch  w^  iini#  b«foi% -the  phiriMf      "(  ^^ 

«1i«d  even  colbmeticed  his^.  sait  at  law.    I  Vegaiid  ibe4dw    -   *•>  f  **    ' 

to  be  diearly  iettlecl,  dml  before  a  Jii4|pbent  cMiior  eift      'V/  Si#  *^ 
^    come  here  for  lud  agaiim   the  goo46  ancf  chatteb  <^  hjk     ^    ^      \ 

4M>tor,or  tgsSiat  opy  eqi^table  ^merest  WMc!^  he  may*    ^  ^  ^^  /        ^ 
^    -have   thai^ili,  he  mult  firat' take  oQtexe<ju^W)  itoiaeftttdl^    ^'  '^^  «^*  ' 

.  "^       it  lb'  be  Ie¥le4  or  reoirned,  8b  as  to  sboW  thereby  that  fits  ^    v  v  *  f 

*  remedy  at  taW  faib,  and  that  he  ftai,  ri$o,  aequir^„  by  Hfat  "*  •'V  >      ^  ^    . 
4    •;*  act  of  diligence,  ^kgal  preference  to  the  debtor's  intei^st^    .  ^  ^  ^  i*^  *  ^^  * 

The«arplds  of  the  debtor's  interest,  ip  the  present  case,  v  ^  ^  "* 

^  .f  remained  undisposed  of'bjr  the  debtor  totwhom  it  reMted,^^         t  ^       ^   .^^     "^ 
'^hen  Ofe  plaintiffs  file^  their  hprin  ikfi  Court.  Ifjbly  bad  a  ^*        <  ,^^  v> 

k!ighttoita$jttdgment^redit«Qrs^bybavlbgsuedioutex0Cut!oli        *         ^      *     • 
tfl  law,  and  havti^  filed  their  bill  l^fofe  any  other. joidgmeiik  ^  %     A  '     •    ' 

creditors  ha4  done  either,  thajt  right  ^uld  not'  b$  ^6*^^^  «^.  .      ^    ^    ^  & 
,  by*  a  subsequent  assigmmnt  of  that  equity  by  the  debtor.  '^ 

^d  whether  that  sobsequcMt  assignment  was  for  the  benefit4it^       .  ^  f  . 

'  W  the  creditors  in  general,  as  it  <^af  in  l^is  c&s^,  ofifof*  the*  a^         ^^  ^^   * 
benefit  of  some  iadifidnal  creditor,  cannot  alter  the  appli^     •         ^-       ,^   «,- 
«  cation  of  the  {)rlncip)e.     It  wa^  not  tn'tbepo«^er  of  ^  ^?«^f  •  ' 

debt«iry>  withdraw  v(LatsuFplns  from  fh|  lien  ^acqniced^        *  ^   *      ' 

^      in  the  view  of  this  (ioart^  by 'the  execution.    Adirtiitung       «       »  **   ^ 

that  the  plaintiffs' had  Q\^^ired^  by  thefr  ezeeutions  at  law,  &  '  ^     2,  Jl      '^   * 

"  legal  .preference  to  the  dieistance  of  thie,  (^ojtri^  (afld'-tione  #'  ''  ■    J  ♦  > 

I    ;but  execoUon(&redit<]n*satla^^eejgiitledt^  th^t  assif^toM^  .    *      ^      \ 

that  preference  ought  not,  in  justic^  to  be  taken  -  away,      i*    >  '  %> 
Though  it  Ke  "the  flygurite  pplicy  of  ihis'  Court  \p  iMstri-    ^  *  -f^     ^ , 
bute  assets  ^ualfy  among  credItora|^mj9a«^,yet,  w6e]f*  ^  ^^^ 

»  e^  a  jodieial  preference  has ^een  estabiisbed,  by. tlv^si^l^^     ^^.     .«r       t^  j^ 
rior  Tegal=<lliigence  of  any  creditor,  tjpitpreferenee'is  always^  .*  *  4^,. 
pre^rVett  in  the  distribotiomdf  jfcscts  by  this  Court,    fhit  '  ')••     '    *     '    *    ^ 
^%'  poinjtjippeartdino»tjibui\dantlytothecoufteof  thedisciii*^  '  "    *Jt 

^     :-'  >     *     '■'  *'^'^'   *•*•    ^'^\  ^'        ^\'' 

^       .-.      V         -^  ..'•fc^-       •      .^^4.^^^1• 


•  y 


t- 

r^ 

'           ■  A».    ♦•  A^    •«     :         *■•  t    -^  ^      ^     t 

g92  ."^  CASES  JJr  fcHANCERT.  c 

A  *•  ''4  "  •-.     -    * 

'      tlSSO '      won  on  the  authoritiee  id  the  late  case  of  rAoj»|won  v.  Btoum 
i  *v.<-v2^^  o^oiAer*.*    If  the  plaiBOflh,  ii»t«a<J,ot  MekingraeTBly  ^hc^ 

MiiEAuTT-  ^^^,^^  proceeds  of  the  ship,  had  charged  tbeassiffUBeat  to 
V  A^         ^«TRO!fG.   "  Y»\t  b«en  fraadifleot,  and  had  obtained  a  decme,  settmg  it 
TArfeiTw."  aUdc^as  void,  it  cannol  be  doubted  but  thM  their  ezecuiwu, 
^       .      aficr  the  impediment  of  the  assignment  was  removed,  would 
i  y  taVe  held  the  wh^e  sillgect  assigned,  in  preference  to  other 

^        *   *>     treditors  who  had  no  sucb-exeqitions.  Instead  of  sediing  to 
"^         *  •      ,  recover  the  whole  valiie4)f  the  ship,  they  content' themselveil, 

V  ^     in  th^cas^  witji  asking  the  aid  of  this  Court  for  ^  sur- 

^  ^        plus  rerfldng  to  their  debtor ;  and  no  good  reason  appears 
'  '^^t^S  *  ♦.  why  iheir  legal  prioiily  t>r  lien  should  not  be  as  avaikble  for 

♦•.^>     ^    ^    V  iipiBurt,  as  for  the  whole. 

*  f  f  .  *  It  may  be  laid  down  as  a  rule  of  equity,  that  an  execution 

.»  credit©/ at  laif  has  ft  right  to  come  here  ant  redeem  aH  in-  . 

..  V  ^         .«  cumbrdfice  upon  a  chbu^l  interest,  in  like  manner  asFa  jud^ 

^  ft       *  ment  creditor  at  law  is  entitled  to  redeem  an  incuipbrance 

^  ^       ^      ^     upon  the  f^al  estate;  end  the  party  so  redeeming  will  be  ea- 

j,       \^^    •*  ,  titled,  in  eitfi'er  case,  to  a  prtference,  according  to  his  1^ 

'  ^       "^  priority.    The  plaintifls,  in  this  case,  had  acquired  that  right 

V,*       *  *^.  of  redemption  when  the  sfiip  CindnnaH  was  sold,  by  agree- 

V;  '    -  j^  /•*♦  ^    ment,  Without  prejiickce  t(J  ifieir  rights ;  and  instead  of  seek- 

"ti     "'        log  to  redeem^  they  are  equally  entitled  to  come  here  ^and 

^-^^^j^  claim  the  surplus.^  .      " 

•  ^'-^  V  '         I  ^.allupccordingty,  decree,  diat  the  ^efendtats.  piiy  to 

^ , '  ^  ^    ^'  the  plaintiffs  the  6,400  doliar8,'so  received  tf^  than  in  trust,  • 

^    *  *   I         ^        ''i  inlS^tenAtr^  1809 ;  and  that  it  be  referred  fo  a  mdster  to 

^  i| ,  '^^  .  inquire  ^d  report  what  disposition  was  made  ^  of  that  mo* 

'    >^      *  '  *  ney  by  the  defen^nts,  and  wtietherat  was  kept  iii^baDk^y 

"^  *         J     ^    y     itself,  or  wis  mingled ^ritb  their  own  moneys,  an<^employed 

^'      /*    "*^    .  ''     in  likfe  manner;  that  be  yompute  ^teresA  yi  that  sum, 

^   *  ^  from  the  time  it  wis  |^id  to  the  defendanti,.op  t6  tt(e  date 

>  '*-''     of  vbis  report,  reserving,  ,||;owever,  tb^  questiaa-  of  iotere^ 

tK       .    until  the  COfping  in  of  >ttfe  reppvt;  an^  ilmt  t^  sijjUl moneys 

*    %'     to  be  paid[%y  the  defeqdavtsjfif  not  ftaffieient  to  satisfy^ the 

.    j^         t$,  '     ijudginents  of.the  pla\pt}03,Mt£^r^  on^t^^^  . 

^r'*'*  *■■■•■  *      •  '*'  '*■■■•  '•^  v.. .--^ 


-  t 


OASES  IN  CHANCERY^  €93 


jfcr  Ae  rail  ftwn  raeovered  and  dae»  indadifig  t&eir  cotU  of  1820. 
ttmse  jodgmtDtB  ftDd  of  thb  suit,  be  paid  to  all  of  tbem  rate- 
ably,  h  proportioB  to  the  amount  doe  to  each  of  them  fe- 
sjvectitely,  as  aforesaid ;  and.  that  the  money  be  paid  to  the 
solicitor  for  the  pbdmiffs,  for  the  purpose  of  such  diitribti- 
tion.  ' 

Decree  acoordiDgly.(a)  1 1 

■'  .-  »  * 

(*}  Vide  Brinkvkoffv.  Bnwh  miet  671.  and  WiUiamt  v.  Brwm^  antct  682.  ^    " 


> 


R.  E.  Allen  and  Thorp  agairut  Randolph  and  others.     .         V  ,  .    * 

A|?teiinistlMpev{(Bctinitielf»8otbatif  trueinlact,  itwiUpatdbaiMl 
to  the  cause.  •  ,"  '^ . 

If  cirfhiinstances  of  fraud  are  charged  ha  the  hiU,  they  must  be  denied  » 

» by  a  general  aTermenty.  at  least 

Where  the  bill  charged  misrepresentatioii,  c<)ierc1oD,  and  fraud,  in  pro.  \ 

caring  a  release  of  a  debt,  and  the  defendant  put  in  a  pka  and  an-  - .         « 

svrer;  and  in  his  plea,  insiBted  on  the  relettie  in  bar,  without  no*  ^ 

ticwg  the  allegation  of  fraud,  though  in  the  annoar  it  was  fully  an- 
swered and  denied,  the  plea  was  held  bad*  '  ^  .      .  •        , 

Where  A,  assigned  and  made  over  to  5^.  a  debt  and  demand  against  *  "^ 

22.,  and  the  proceeds  of  goods  delivered  by  A.  toR.  to  sell  on  ac-     ,  ^ 
count :    Hdd,  that  all  the  right  and  interest  of  dS.,  as  the  creditor  of     -    .  *.  t^  ^  ''  « 
A,  pais^  by  the  assignment,  and  that  a  release  of  all  demand^  in  f^    **" 

law  and  equity  by  &  to  i^,  as  assignee,  given  on  a  conproroise  with  ^  *^ 

'  him,  was  vaHd  and  effectual.  *"  j  ^  .    *        « 

THE  bin  stated,  among  other  things,  that  the  phtindfi*  Jke.2BaL         ^      ^'     ^  ^ 
^and  D.  K,  JjUen^  were  partners  in  trade,  under  the  flfm  of  ^ 

R.  ir  D.  jr.-  AHen.  and  became  insolvent  on  the  i6tb  of         V 
Jlpril^  1S18.    That^.  K.  A.,  bdng  arrested  and  imprison- 
.  ed,  applied  for  his  discharge  under  th#9t(^  section  of  the  ^a 

insolvent  act,  and  having  assigned  hia.e8tate  to  the  plaintifl^  \  ^ 

TAotjy,  according  to  the  act,  was,  on  the  16th  of  i^ecem&er,     ^  *  ^ 

1818,  discharged  from  his  debts."*  That  before  their  failure,  ^ 

R,  Sf  D.  K.  Mm^  delivered  tp  the  defendapts,  Randolph  Sr        4^     ^ 

y  ;    •  •'  ^      *       •♦  •    *■ 


h 

A 


6t4 


,    *-      '« 

•>  * 

« 

CASK  lir  CHANGSRt. 

1890.       Smeagty  variom  parcels  of  goodi,  at  Tarioiu  i\m^  lo  bt 
riuppsd  to  dUEBfenl  plac^,  and  soMTor  Iheir  aocoifM,  aU  of 
which  were  particularly  slated  in  the  bSl,  mid  aaiMBtiog 
to  ritove  30,000 doUart;  aikd  the  hilt  chai^ed^  timi  tbe  de- 
fandaiitsy  R.  ^  S.,  bad  never  acconnHed  for  the  proceeds  of 
the  g^oods  or  moneys  received  by  tbem,  to  R.  ^  JD.  K,  A», 
before  the  assignment  and  discbarge  of  D.  K.  If.,  nor  to  tbe . 
plaintiffs,  A.  and  7.,  since.    That  before  tbar  Mur^  A 
^  D.  K.  A.^  being  indebted  to  the  defendant  5.|  by  botod, 
for  9,964  dollars,  and  to  D.  A.  for  moneys  lent  to  them,, 
the  said  I>.  A^  being  also  ..responsible  for  a  demand  of  one 
¥.  A.  T.  against  them,  for  10,000  dollars,  they,-  on  the  13th 
of  Jlfay,  1818,  assigned  to  the  defendant,  Skidmor^^  aaioiig 
other  things,  the  debt  or  demand  of  the  said  A.  tf  H.  K»  A* 
against  the  d^endants,  Randolph  <^  Saimgej  and  the  pro- 
ceeds of  the  goods  so  delivered  to  them  as  aforesaid,  in  tnist 
to  recover  and  collect  the  same,  and  by  means  thereof)  to 
pay  the  moneys  doe  to  him,  the  said  Siu^aiore,  and  to  Do* 
vid  A.J  &c.  and  to  indemnify  David  A*^  Sec.  and  to  pay  the 
residne  or  surplus  to  A.  ^  D,  £  j2.,  their  etecotors,  admi- 
nistrators or  assigns. 

The  bill  stated,  thait  Randolph  ^  Savage  refused  to  ac* 
count  to  Skidmore^  and  being  pressed  by  him  for  payment, 
offered  to  pay  2,000  doUaxs  on  account  of  the  demand,  and 
give  their  notes  ibr  2,000  dollars  more,  if  S.  would  dis- 
charge them ;  and  that  if  S.  wooM  not  accept  that  offer,  thej 
would  not  pay  any  Ibing.  That  Skidmore]  ttpprekenshe 
of  the  insolvency  of  JR.  ^  S.,  thought  it  prudent  to  accept 
the  offer ;  and  on  the  7th  of  AprU,  1819,  R.  ^  S,  accord* 
iogly,  paid  the  2^000  dollars,  and  gave  three  notes,  pajabk 
in  SO,  60,  and  90  days,  for  tbe  odier  2,000  dollars.^  Tlie 
first  and  second  notes  were  pmd,  but  R.  tf  S*  failed  before 
the  third  fell  due,  and  compounded  with  aH,  or  moslpf  their 
creditors.  That  before  the  money  and  notes  frejy  ddivered, 
Skidmore^  as  assignee^  be.  ezecoted  a  discharge  or  rdeass^  to 
Randolph  ^  Smage^  and  delivered  to  them  the  fooi  of 


* 


*»  *■         .  .   '•    '■* 


^ 


/   ;'       caww  rt  CHANct»y,     *      \        .':  et*      *♦*    <» 

^MMDl  k^fUby  ILtfD.K.  A  ^(  nil  the  gooda,  to.  whkh      18Se. 
ris^Mwe, 'to.  w«8  loetstMi  on'^by  IL  ff  S^  as  a  coodiffon 
precedent  tp  tbeif  paying  ibe  4,000  d^ars*    ThebtU 
ciiargedi  lbi|^  tbift  disebarge  and  release  were  obtained  by  ■   ^      .  ^ 

the  diifendants  R^  fc  S.  (torn  SlfiAnwre^  by  miarepragenta:  . .     ,^. 

tioD,  coercion  and  fraad  ^  ibat  tbey  eould  not  avail  tbeq^  *-  > 

adves  of  it ;  "and  tbat  Skidmore  bad  i|io  aiilbqp|^  or  pofver  ■• 
to  give  it,  except  ppon  a  fair  and  (UU  setUeinent  of  tbe  ac-*    '  ^  '^ 

count  with  E.  ir  S.,  ice.    Proffer,  tbat  tbe  defendants,  R.  t*   ^ 

4^  Sif  m^y  6e  decreed  to  come  ta  an  acconnt  with  tbe         ^  ^ 

plaintiA,  for  the  goods  so  delivered  to  them,  or  for  the  pro- 
ceeds thereoi^  and  to  pay  to  ibe  plaintifis  what  sbould  be  " 
found  doe  to  ibem,  and  that  nhe  defendant,  SScidmore,  fu^-.  '^ 
connl  ibf  the  moneys  he  has  r^eived^  and  for  general  relief*  ^^ 

Tbedei&dants,  i{andQ/j3tA  ^  iSa«t|g€,  put  in  their  jifea  ^'^      t^    '^7 

and  anttfer,  on  tbe  1  jith'of  S^pimken^  18^.  They  pleaded,  "'*  *         ": 

V  ^aAer  protesting,  to*  tbat  beftre  tbejitiog  of  the  ball,  be.  to  ^  .. 

Y^t^  on  tbe  *}  th  of  Apr^^  1 Q1 9»  Skidmore^  as  assignee,  to.,  by  -* 

#*  his^  deed  of  release,  in  consideration  of  4,000  dollars,  rc^^sas-     ,, 

■s.  ed  and  discharged  them  from  all  demands  in  law  or  equity,; 
by  means  of  tbe  said  assignment,  and  prayed  judgment,  tor 

j  Tbe  plea  was  silent  as  to  the  allegations  of  misrepres^tation 
^d  fraud,  but  the  same  ivere  ful]|y  denied, and  regelled  in 
^  lhat,an«wer.  ^ 

•;  '     -     " 

'  T.  A.  Enm^  and  JIf  Otufi^  for  tbe  defendants,  m  support 
^' oC  the  i^feia  and  answer.  ^« 

'^   J»  42ai{c2t^i  contra.        *^      4 

t 

•  V 

^Th^  Chancsllob.  The  first  obj^tion  to  tbe  plea  is, 
that  Skidmore^the  assignee  of  R.  6fi).  K.  AlUnj  bad  no 
autltfrity  to  compromise  oic  compound  with  the  defendants 
'  Rmiolfitf  fy  S^page,  as  to  the  de^pand  assigned  to  him.  I 
do  not  percehre  the  force  of  this  olgectioti.  Skidmore  was 
9ot4  niuere  agent  to  collect  tbe  debt^  of  the  AlUens.    The 


4% 

4 


«96  GASES  m  CHANCERY.  ^  < 

1820.      bin  itat^  fliat  the;  did,  by  an  assigmnent  de1Weted*to  ^^dd- 
"^  '">-'   morej  **  astign  and  make  over  to  hiA  their  debt  or  demand 
^        in  the  bill  stated;  against  R.  ^  5.,  and  the  proceedTs  of  the 
•  KiyioLFH. ,  g^^^^  delivered.''    This  deed  or  writing  passed  their  right 
and  interest  as  creditors  of  R.  fy  S. ;  and  the  debtors  bad  a 
-  right  to  treat  with  Skiimort^  and   deal  with  him  as  the 
real  owner.    The  tnffsts  raised  by    the  assignment  ap- 
rf  pHed  to  the  debt  or  proceeds  which  should   come  into  '  his 

bands,  and  J?,  tf  S.  had  no  concern  with  those  trusti'.  *Tbey 
conld  not  S|^ely  deal  whh  any  other  person  than  the  assignee  of 
tbe  demand;  any  settlement  Utity  might  make  witbbiin, 
if  made  in  good  faith,  and  not  by  fraud  or  coHasion  'with 
him,  was  valid  and  binding.  The  release  or  discharge'  giv- 
en by  the  assignee,  upon  the  settlement,  was  one  that.be  was 
competent  to  give,  and  they  to  receive.  It  discharged  them 
from  ^' all  demands  in  law  and  equity  by  means  of  the  as- 
signment." It  was,  therefore,  co-extensive  with  the  debt 
and  demand  whieh  passed  by  the  assignment. 
*  The  only  real  difficulty  in  this  case  is,  that  thei^  is  no 
general  averment  in  tbe  plea  denying  the  charges  in  i^t 
bill,  which,  if  true,  would  avoid  the  plea.  Tbe  bill  chjarees 
that  the  release  was  procured  by  misrepresentation  coier- 
cion,  add  frauds  and  tboogh  this  charge  is  denied  in^  tbe 
answer  accompanying  the  plea,  there  is  not  even  ^  ^e£^ 
averment  to  thai  efl^  in  the  plea.  The  released  piec- 
ed nakedly,  aa  was  the  award  in  the  two  Exchequer  ci^ 
of  Pcpe  V.  BUh  anB  Edmundson  v.  HearUyt  (l  HiA. 
59.  97.)  But  in  the  latter  of  tl^ose  cases,  the  Coart  said, 
they  did  not  mean  to  extend  the  authority  of  tben^  be- 
yond the  case  of  awards*  In  Ltoyd  v.  Smih^  (1  Jmsi, 
268.)  afterwards,  in  the  same  Court,  such  a  naked  plea 
*of  a  release  charged  by 'the  bill  to  have  been  procured 
by  fraud,  was  not  allowed^  in  tbe4fartt  instance,  but  ppserved 
to  the  bearing.  In  BayZey  v.  Adams^  (6  ^ey,  S&^.)  the 
authority  of  those  cases  was  very  much  shaken  ;  ai^t  sttin- 
edtobe  considered  by  Lord  £7don  as  the  better  rule,  that 


#    * 


>  ♦ 


CASES  IN  OHANCERT.  £97 

the  chiu^;e8  in  the  bill  must  be  met  by  way  of  general  aver-      1 820. 

ment  io  the  plea,  as  well  as  particularly  in  the  answer.    The 

rule  is  so  laid  down  in  Mitf,  Tr.  216. ;  and  the  decision  in 

Davit  V.  Chester^  in  Chancery,  in  1780,  is  referred  to,  as 

containing  a  decision  directly  to  the  point.    The  sense  of 

the  rule  is,  that  a  plea  must  be  perfect  in  itself,  so  that,  if 

true  in  point  of  fact,  there  may  be  an  end  of  the  cause. 

But  if  the  circumstances  of  fraud  under  which  the  release 

is  charged  to  have  been  procured,  be  not  denied  in  the  plea, 

it  may  be  true  that  such  a  release  was  given,   and  yet  this 

may  be  of  no  effect 

I  shall,  therefore,  as  was  done  in  the  Exchequer  cases, 
and  as  Lord  Eldan  consented  to  in  Bayley  v.  AdamSi  allow 
the  defendant  to  amend  his  plea ;  the  amendment  to  be  by 
inserting  a  general  averment  or  denial  of  the  facts  charged 
in  the  bill,  which  go  to  show  that  the  release  was  fraudulent- 
ly or  improperly  procured.  The  amendment  to  be  made 
in  three  weeks  after  service  of  a  copy  of  thb  rule,  and  a 
copy  served  gratis  on  the  solicitor  for  the  plaintiff;  and 
in  default  thereof,  the  plea  to  be  deemed  overruled,  and  with 
liberty  to  the  plaintiffs  to  except  to  the  answer  of  the  de- 
fendant, Randolph^  the  survivor  of  R.  ^  S. 

As  the  cause  was  brought  to  a  hearing,  not  only  on  the 
defect  in  the  plea,  but  on  the  merits  of  the  defence  touching 
the  competency  of  Slddmare  to  execute  a  release,  I  shall  not 
grant  costs  upon  this  order,  but  reserve  the  question  of  co^ts 
to  the  conclusion  of  the  cause,  j 

Decree  accordingly. 


BNO  OF  THE  CASES. 


Vol.  IV.  88 


ORDER  OP  COURT. 

June  21gt,  1820. 

<(  Obdeeed,  That  the  stated  terms  of  this  Court  shall 
hereafter  be  held  on  the  fourth  Mondays  of  May  and  Octo- 
ber, in  the  city  of  New-York;  and  on  the  fourth  Mondays 
of  March  and  August^  in  the  city  of  Albany;  and  that  the 
86th  rule  of  this  Court  be,  and  the  same  is,  hereby  repeal- 
ed; and  that  the  term  of  March  be  substituted  for  the  term 
of  January f  mentioned  in  the  80th  rule." 


INDEX. 


A. 

ACCOUNT. 

Ptde  ExECUTOB  AND  Administrator. 
Devise,  2.  5.  7.  Pleadiito,  VI. 
Practice,  XI.  Trust  and  Trus- 
tee, 111. 

ADMINISTRATION. 

Fide  Executor  AND  Administrator. 

ADMINISTRATOR. 

Vide  Executor  and  Administrator. 

ADULTERY. 

Vide  Baron  and  Feme,  2. 

AGENT. 

Vide  Solicitor  and  Attorney. 
Practice,    XIV.      Vendor   and 
Purchaser,  3.  5. 

AGREEMENT. 

1.    Cotuiruciion,   eff^ect,   waiver ^ 
and  rescinding  <>f  an  agreement. 
II.    Specific  performance, 

I.  Construciioni  effect^  waiver ^  and 
rescinding  of  an  agreement. 

1.   An  agreement  for  a  lease  pre  - 


somed,  from  length  of  timf »  and 
possession  and  payment  of  rent 
by  the  tenant ;  and  the  land- 
lord decreed,  accordingly,  to 
ezecate  a  lease  in  fee  to  t|ip 
tenant,  with  the  nsnal  cove- 
nants  contained  in  such  leascp  of 
the  lands  in  the  same  traot  or 
manor.  Ham  ▼.  Schuylerf  1 
2.  Eqnity  will  not  force  a  mere 
voluntary  agreement,  not  yalid 
at  law,  especially  against  a  le- 
gal claim  for  a  just  debt,  and 
where  there  is  no  considera- 
tion, accident,  or  fraod.  Min» 
turn  y.  Seymour,  497 


IL  Specific  performa  nee. 

3.  On  a  contract  for  the  sale  of 
land,  the  payment  of  the  pur- 
chase money  by  the  plainti^ 
was  made  a  condition  precedent 
to  the  conyeyance ;  and  after  a 
default  the  defendant  accepted 
part  of  thepurchase  money ;  but 
the  plaintiff,  though  repeatedly 
called  upon,  refused  to  complete 
the  payment.  The  defendant^ 
after  giving  notice  of  his  inten- 
tion to  do  so,  sold  and  convey- 
ed the  land  to  another;  and 
the  plaintiff,  afterwards*  ten- 
derfid  the  money  due  op  the 
contract,  and  filed  bis  bill  for  a 


700 


INDEX. 


specific  performaDce  of  the  con- 
tract :  Held^  that  a  specific  per- 
formaDce  could  not  be  decreed ; 
Dor  could  the  bill  be  sustained 
for  a  compensation  in  damages. 
Hatch  v.  Cobb,  669 

4.  It  seemi^  that  eyen  if  the  defen- 
dant ha4  not  sold  the  land  to 
another,  before  the  plaintifl 
filed  his  bill,  he  would  not,  af- 
ter such  default  and  delay,  on 
his  part,  be  entitled  to  a  speci- 
fic performance,  as  no  accident, 
mistake,  or  fraud,  had  interve- 
ned, to  prevent  the  perfor- 
mance on  bis  part.  ib. 

VUte  Laores,  Length  of  Tims  asd 
PossrssioR,  1.  4,  6.  IffJVNCTioir, 
1.  4,  ill.  9.  Fraud,  3.  Award* 
BAiLM£ifT.    Divorce,  6.    Juris* 

•    Diotiojr,  ]]. 

ALIMONY. 

Fide  DivoRcc,  S. 

AMENDMENT. 

Fide  Practice,  V. 

ANSWER. 

Fide  Plaediko,  VI. 

APPEARANCE. 

Fide  Practice,  VI. 

ASSESSMENTS. 

Fide  JcEiSDiCTioir,  6,  6, 

ASSETS. 

1*  A  devise  of  all  a  creditor's  es- 
tate real  and  personal,  in  iruei^ 
to  pay  debts  and  to  distribnte 
the  residue,  placee  the  assets 
under  the  jurisdiction  of  this 
Coort.    Benean  v.  Le  Roy.-  661 


2.  The  statute,  <esi.  36.  ch.  93. 
{lJ>f.R.L.  316.)  does  not  in- 
terfere with  the  doctrine  of 
equitable  assets,  bj  which  all 
the  creditors  are  to  be  paidjM- 
ri  patiu ;  for  the  omission  of 
the  4th  section,  or  proviso  of 
the  EngUek  statute,  (3  W.  ^  M. 
c.  14.)  which  excepted  devises 
of  lands  for  the  payment  of 
debts,  does  not  vary  the  con- 
struction, ik. 

Fide  Executor  ard  Adm iristrator, 
3.  6,  6,  7,  8.  d,  10,  11,  12.  14, 
16,    Jurisdiction,  15,  16.  30. 

ASSIGNMENT. 

Where  A.  assigned  and  made  over 
to  &  a  debt  and  demand  i^ost 
IL  and  also  the  proceeds  of 
goods  delivered  by  A.  to  IL  to 
sell  on  account ;  Held,  that  all 
the  right  and  interest  ofJ.,9§ 
creditor  of  A.,  passed  by  the  as- 
signment ;  and  that  a  release  of 
all  demands  in  law  and  equity- 
by  S,  to  R.,  as  assignee,  given 
on  a  compromise  with  hia^  was 
valid  and  effectuaL  AlUn  v. 
Randolph.  693 

Fide  Irsolvert  Debtor,  1,  2. 
Debtor  and  Creditor,  3,  4,  S. 
Ship  Owhers,  I,  2.  Partrpi- 
SHip,  3.  4,  6.  Barkrupt,  6. 
Foreign  Laws,  1 , 2. 4, 6.  Frab- 
dvlert  Conveyanccs,  3. 

ATTACHMENT., 

Fide  Practice,  L  1,  2,S« 

AUCTION. 

Fide  Fraudulert  CoRVKVARCSa,^, 
6.  Vrroorard  Purchaser,  3. 
5,  6. 


I  N  D  EX. 


701 


AWARD. 

U  This  Court  will  correct  a  tiM^ 
take  of  an  extrajudicial  nature, 
in  an  award  of  arbitrators,  and 
decree  a  performance  of  it  in 
meeie.     Biwky.  fVilber,       405 

2«  As  where  the  sobject  of  contro- 
versy was  land  which  the  ar- 
bitrators  were  to  appraise,  and 
the  plamtiff  was  to  convey  the 
same  to  the  defendant  who  was 
to  pay  the  amount  of  the  ap- 
pTaisement,  and  the  arbitrators, 
by  a  mere  clerical  mistake,  so 
erroneously  described  the  land 
in  tiie  award,  as  to  include  one 
acre  only,  instead  of  fifty  aces, 
it  was  decreed  that  the  award  be 
corrected  according  to  the  truth 
of  the  fact ;  and  that  there  be 
a  specific  performance  of  it 
accordingly.  «6* 

B. 

BAILMENT. 

The  defendants,  being  stock  and  ex- 
'change  brokers,  in  the  course 
of  their  business,  received  of 
the  plaintifi*  430  shares  of  C/tit- 
ted  Statet  bank  stock,  and  which, 
it  was  agreed,  in  February ^  1818, 
that  they  should  hold  as  col- 
lateral security  for  the  pay- 
ment of  a  note  given  to  them  by 
the  plaintiff,  for  monies  advan- 
ced to  him,  and  payable  on  the 
20th  January,  1819;  and  that 
they  should  be  at  liberty,  in 
case  the  note  was  not  paid,  at 
the  time,  to  make  immediate 
sale  i^  the  stock,  accounting  to 
the  plaintiff,  for  any  sorplos, 
and  holding  him^resiponsible  for 
any  deficiency :  Held^  that  as 
4he  defendants,  at  all  times, 
i»ince  the  giving  of  the  ndte  by 


the  plaintiff,  were  possessed  of 
shares  standing  in  their  names, 
and  under  their  absolute  and 
rightful  control,  and  sobject  to 
no  contract,  to  an  amount  far 
exceeding  the  number  of  shares 
deposited  with-  them  by  the 
plaintiff,  (and  which  were  not 
marked  or  identified  as  his  par- 
ticular property  but  blended 
with  the  mass  of  shares  of  the 
same  stock  held  and  owned  by 
the  defendants)  and  were  ready 
and  able,  at  any  time,  to  trans- 
fer the  430  shares  to  the  plain- 
tiff, on  payment  of  the  note, 
they  were  not  bound  to  ac- 
count to  the  plaintiff  for  his 
stock,  at  the  highest  price  at 
which  shares  were  sold  by  them» 
at  any  time  during  that  period ; 
but  that  the  like  number  of 
shares  held  by  the  defendants 
when  the  note  became  due, 
were  to  be  considered  as  the 
shares  so  deposited  by  the 
plaintiff ;  and  which  the  defen- 
dants were  at  liberty  to  sell, 
according  to  the  agreement,  to 
reimburse  the  amount  of  the 
note  which  remained  unpaid. 
Nourse  v.  Prime ^  490 

BANKRUPT. 

1.  It  is  a  principle  of  international 
.  law,  to  take  notice  of  and  give 

effect  to  the  title  of  foreign  as- 
signees ;  and  as^signees  of  a  fo- 
reign bankrupt  may  sue  here 
for  debts  due  to  the  bankrupt's 
estate,  either  as  such  assignees, 
or  in  the  name  of  the  bankrupt. 
Holmes  v.  Remsen^  460 

2.  The  same  principle  of  general 
law,  that  governs  marriage 
contracts,  testamentary  disposi- 
tions, and  the  succession  to  the 
personal  eatate  of  an  intestatie, 


70« 


1  N  D  EX. 


ftppliet  to  the  distribvtfOQ  of 
the  estate  of  a  fereign  bank- 
ropt.  460 

3.  The  principle  of  ioteriMitioDal 
law  00  thia  subject,  is  a  rale  of 
decision,  not  a  qoestion  of  ju- 
risdiction ;  and  does  not  affect 
the  rights  of  territorial  sore- 
reignty.  t^. 

4.  But  the  title  of  the  foreign  as- 
signees takes  effect  only  from 
the  date  of  the  assignment  to 
them,  and  has  no  relation  to  the 
time  of  the  bankruptcy  commit- 
ted. f6. 

5.  For  the  doctrine  of  re/oltbii,  in 
re^urd  to  bankrupts,  is  a  posi- 
tive rale  of  mere  monicipal 
policy  ;  and  the  rale  of  amity 
between  nations  does  not  re- 
quire its  adoption.  ih. 

6.  Therefore,  an  assignment  by 
the  commissioners  of  bankrupts, 
in  Englcmd^  of  all  the  estate 
and  ehoui  i%  action  of  the 
bankrupt,  passes  a  dek  due  by 
a  citizen  of  this  state  to  the 
Eii^luh  bankrupt.  ib. 

7.  And  if  such  assignment  is  prior 
in  time  to  an  attachment  of  the 
same  debt  here,  at  the  instance 
of  an  American  creditor  of  the 
bankrupt,  issued  under  the  act 
for  relief  against  absent  debtors, 
^.  a  sul^equent  payment  of 
the  debt  to  the  foreign  assignees 
in  England,  is  a  bar  to  a  suit 
brought  here  by  the  trustees 
under  the  act,  against  the  debt- 
or here,  t^. 

8.  A  concurrent  separate  assign- 
ment made  by  the  foreign  bank* 
rupt  to  the  same  assignees,  on 
the  same  trusts,  though  it  may 
strengthen  the  case  ^fore  the 
Court,  makes  no  difference  id 

•  the  application  of  the  general 
doctrine.  ib, 

9.  The  effect  is  the  same  whether 


the  transfer  is  mtde  by  hiiuelf, 
or  by  the  law  of  the  place  of 
his  domicile  for  him.  460 

BARON  AND  FEME. 

1.  This  Court  will  lay  hold  of  tbe 
property  of  a  wife,  which  may 
be  within  its  power,  for  the 
purpose  of  proriding  amaiote- 
nance  for  her,  when  she  is  sban- 
doned  by  her  husband,  or  jpre- 
vented  by  his  ill  treatment  from 
cohabiting  with  him.  Dumoai 
Y.  Magee^  318 

2.  Where  a  husband  ^jandooed 
his  wife,  and  married  another 
woman,  with  whom  he  cootinoed 
to  live,  for  twenty  years,  he  wm 
held  to  hare  forfeited  aU  just 
claim  to  his  wife's  distributife 
share  to  personal  estate  inherit- 
ed by  her.  A. 

3.  And  the  Court  directed  the 
principal  of  the  wife's  share  to 
be  brought  into  Court,  and 
placed  at  interest ;  and,  after 
her  death,  the  principal  to  go 
to  her  children,  by  her  lawfal 
husband,  or  to  their  represeo- 
tatives  :  she  harins,  after  beiDf 
abandoned  by  her  husband,  op- 
on  report  and  beliel  of  his  death, 
married  another.  «6. 

Fide  DiYoacB. 

BILL. 

Fide  Plbadutos,  III. 

BOND. 

The  penalty  of  a  bond  cannot  be 
made  to  coyer  any  othait  debt 
or  demand  than  that  meatiooed 
in  the  condition.  TVomi  ▼• 
Wood  and  Surwod,  228 


INDEX. 


70S 


c. 

CIVILITER  MORTUUS. 

A  penon  conyicted  of  felony,  and 
seotenced  to  imprisoDmeDt  in 
the  state  prison  for  life,  is 
civiliter  mortuus.  Troup  v. 
Wood  and  Shenood^  228 

COLLATERAL  SECURITY. 

Fide  MoBTGAGEy  II.  6. 

CONSTITUTION  OF  THE  UNI- 
TED  STATES. 

1.  Under  the  Constitution  of  the 
United  States,  citizens  of  each 
state  are  entitled  to  free  in- 
gress and  egress  to  and  from 
any  other  state,  and  to  all  the 
immnnities  of  citizens  in  erery. 
state.    lArnngiUm  ▼•  Tompkinsy 

430 

12.  The  goTemment  of  the  United 
States  having  sole  and  exclasive 
jarisdiction  orer  all  differences 
between  tvro  or  more  states,  all 
acts  of  reprisal  between  the 
states  are  unnecessary  and  un- 
lawful, lb, 

CONSTITUTION  OF  NEW- 
YORK. 

Fuie  Steam  Boats,  I. 

,  CONTEMPT. 

Ftde  Practice,  I.  XIII.  48,  49. 

CONTRACT. 

Vide  Agrbemeitt. 
CONTRIBUTION. 

1 «  The  doctrine  of  contribution  is 
not  so  much  founded  on  con- 
tract, as   on   the  principle  of 


equity  and  justice,  that  where 
the  interest  is  common,  the  bur- 
den also  should  be  coouneii;  and 
the  principle,  that  equality  of 
right  requires  equality  of  bur- 
den, has  a  more  extensive  and 
effectual  operation  in  a  court  of 
equity,  than  in  a  court  of  law. 
Cimpbell  y • .  Meuier^  334 

2.  Thus,  where  there  was  an  old 
party  wall  between  two  owners 
of  houses,  in  the  city  of  New 
Yorky  and  one  of  them  being 
desirous  to  build  a  new  house 
on  his  lot»  pulled  down  his  old 
house,  and  with  it  the  party 
wall,  which  was  ruinous,  and 
rebuilt  it  with  his  new  house, 
the  owner  of  the  xontiguous 
house  and  lot  is  bound  to  con- 
tribute rateably  to  the  cost  of 
the  new  party  wflJl.  ib. 

•3.  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  in  it, 
is  he  bound  to  pay  any  part  of 
the  extra  expense.  ih, 

4.  Where,  in  a  bill  filed  by  a  mort- 
gagor, to  redeem,  against  the  ad- 
ministraton  of  a  mortgageo  in 
possession,  and  others  claiming 
under  him,  the  defendants  were 
decreed  to  pay  a  certain  sum 
for  the  rents  and  profits  of  the 
land,  aAer  deducting  the  mort- 
g^ige  debt ;  and  the  decree  being 
silent  as  to  the  proportion  which 
each  defendant  was  to  pay,  one 
of  the  defendants  paid  the 
whole,  and  the  plaintiff  gaye 
him  liberty  to  make  use  of  the 
decree  to  reimburse  himself: 
ihldy  thai  he  could  use  the  de- 
cree only  for  his  protection  and 
indemnity,  so  far  as  his  co-de- 
fendants were  bound  to  contri- 
bute. Scribner  y.  Hichok  and 
otk$rSy  530 


704 


INDEX. 


6.  And  the  conrt,  on  petition  and 
motion  of  a  co-defendant,  direct- 
ed the  contribution  to  be  en- 
forced under  the  decree,  so  far 
only  as  the  right  was  clearlj 
ascertained.  ib. 

6.  A  defendant  who  has  made  pay- 
ments for  his  co-defendant  to« 
wards  satisfying  a  prior  mort- 
gagee, and  beyond  his  proportion 
of  the  harden,  is  to  be  deemed 
substituted  for  the  plaintiff,  to 
that  extent,  and  as  far  as  the 
fact  appears  from  the  proceed- 
ings in  the  cause.  Laivrencs  f. 
Cornell^  545 

Fide  DowBE,  3. 

CORPORATIONS. 

1.  A  foreign  corporatioD«,  or  an  in- 
corporated bank  of  another 
state,  may  sue  in  their  corpo- 
rate name,  and  file  a  bill  for  the 
sale  of  land  in  this  state,  under 
a  mortgage  taken  to  secure  mo- 
ney lent.  Silver  Lake  Bank  v. 
AortA,  370 

2.  If  the  loan  and  the  mortgage 
were  concurrent  acts,  it  is  with- 
in the  reason  and  spirit  of  the 
act  of  incorporation  by  which 
the  corporation  is  authorized 
to  take  mortgages,  &c.  for  the 
security  of  debts  previously 
contracted.  ib, 

3.  But  it  seems,  that  this  court  will 
not,  in  a  collateral  way,  decide 
a  question  of  miiUier  of  a  char- 
ter, by  setting  aside  a  bona  fide 
contract.  ib, 

4.  If  an  incorporated  bank  of  ano- 
ther state  lends  money,  and 
takes  a  mortgage  in  this  state, 
it  is  not  a  violation  of  the  act  of 
the  legislature  of  this  state, 
passed  ^pn7  21,  1818,  relative 
to  banks,  &c.  {se99,  36.  <h.  71.) 
for  restraining  unincorporated 


associations  from  carrying  on 
banking  business.  «&. 

5.  In  private  unincorporated  asso- 
ciations of  individuals,  the  ma- 
jority cannot  bind  the  minority, 
unless  by  special  agreement 
Lvoing^on  y,  Lynehf  573 

costs; 

1.  A  defendant  who  answered  an 

original  bill,  after  a  decree 
against  htm,  petitioned  for  a  re- 
hearings  which  was  granted,  and 
the  plaintiffs  filed  a  bifl  of  revi^ 
vor  and  iupplement^  to  which 
the  defendant  answered  and 
disclaimed  ;  he  waS  held  not  to 
be  entitled  to  costs,  on  the  dis- 
missal of  the  bill.  IS^ver  v. 
Radley,  310 

2.  On  the  dismissal  of  the  bill  costs 
were  denied  to  the  defendants, 
on  the  ground  of  lathes  on  their 
part,  and  hardship  on  the  part 
of  the  plaintiffs.  t6. 

3.  Where  the  defendant  set  up  a 
judgment  and  a  mortgage,  which 
judgment  was  proved  to  have 
been  satisfied,  and  claimed  more 
than  was  due  on  the  mortgage, 
he  was  held  not  to  be  ientitled 
to  costs  i^inst  the  plainti£ 
Brinckerhfff  v.  Lansings    65,  79 

4.  And  the  plaintiff,  though  he  suc- 
ceeded in  disproving  the  claim 
of  the  defendant,  but  failed  in 
supporting  his  charge  that  the 
mortgage  was  also  satisfied,  and 
fraudulently  kept  on  foot,  was 
held  not  entitled  to  costs.       ib, 

5.  ^  A  defendant  who  had  no  inter- 

est in  the  controversy,  and  was 
not  a  necessary  party,  but  united 
with  the  other  defendants  in 
setting  up  a  defence  which  was 
not  true,  was  held  not  entitled 
to  costs  ;  though  they  would 
have  been  otherwise  allowed  to 
him.  .f&. 


1  N  DEjC. 


705 


8. 
9. 


^*  .Costa  not  allowed  to  either  par- 
tjf  00  a  bill  for  a  perpetoal  iii- 
JQoctioD  to  quiet  the  poesestion* 
Ve  Biemer  ?.  CarUilUmy  BS.  93 
7.  Coeteoworded  oo  a  decree  cor* 
rectiBg  a  mistake  in  a  cootract^ 
in  «  bill  Ibc  that  purpose^  and 
ibr  specific  perfonnance.  Keis* 
•elkfiek  f.  UmngHimy  1 44 

Op  a  bill  for  disco Yezy  merely , 
the  defendant  is  entitled  to  costs. 
Butnei  T.  Sandtrn^  fiOS 

Bat  where  the  plaintiff,  who  i« 
entitled  to  disco?ery,  i^oes  first 
.  to  llie  defendant,  sod  asks  for 
.  the  information  aoiight,  which, 
tnough  in  the  power  of  the  de- 
fendant to  gi?e,  is  refused ;  and 
the  plaintiff  is,  therefore,  com- 
ptUed  to  file  a  bill  a^Mt  the 
defendant,  to  obtain  the  ditfcove- 
rj,  and  he  answers  fully»  he  will 
i¥>t  be  entitled  to  costs,         ib. 
JO.   Where  a  plaintiff  asked  for  fbr- 
ther  tine  to  except  to  tiie  an- 
swer, which  was  granted  ;  and, 
also,  for  leave  to  amend  bis  bill 
after  such  answer,  and  after  a 
plea  accoqapanying  it,  but  not 
noticed  for  argument ;  the  plain- 
tiff, on  being  allowed  to  amend 
his  bill,  was  ordered  to  pay/ve 
dollars^  for  the  extra  costs  of  the 
Airther  answer,  and  the  taxable 
costs  of  the  plea,  in  caae  it 
should  become  useless,  in  con- 
*       sequence    of    the    bill   being 
.        amended.     French  v.  Shetwell, 
,  -506 

1 1.  Where  the  will  of  the  testator 
is  so  ambiguously  expressed, 
as  to  render  it  proper  for  the 
executor  to  take  the  direction 
of  the  court,  the  costs  will  be 
ordered  to  be  paid  out  of  thd 
fund  in  controyersy.  Rogers  r. 
Ross,  608 


P^de    DowcR,  4.     Idiots  anj)   Lu- 
natics, 1,2. 
Vol.  IV.  89 


CREDITOR. 
Fid€  DEBToa  AK»  Cmbditoa. 

a 

OE8TCMI  AND  CREDITOR. 

1*  if  one  judgment  creditor  has  a 
>ight  to  go  upon  two  ftmds,  and 
a  second  judgment  credhor  apon 
one  of  them,  beloDging  to  the 
«ame  debtor,  the  former  may  be 
compelled  to  apply  first  to  the 
fond  not  reached  by  the  second 
judgment,  so  that  both  judg- 
ments may  be  satisfied.  Dorry. 
finaw,  ]  7 

%  But  if  the  first  creditor  has  a 
ju<^ent  against  A.  and  B.,  and 
the  second  creditor  against  B. 
only,  the  latter  cannot  compel 
the  former  to  tike  the  land  of 
A.  only ;  if  not  appearing  whe- 
ther A.  or  B,  ought  to  pay  the 
debt  due  to  the  first  creditor  ; 
nor  any  eqttHable  right  shown 
in  B.  to  hare  the  debt  charged 
on  A«  aleoe. '  t^. 

3r   An  assignment  by  a  debtor  of 
**  aH  his  estate,  real  and  per- 
sonal, and  of  all  books,  Touch- 
ers andsecurlties  relative  there- 
to," in  tnist,  ibr  the  benefit  of 
all  bis  creditors,  passes  all  his 
estate  and  interest,    equitable 
and  legal ;  and,  therefore,  in- 
eludes  stofk  of  the  United  States, 
befi^re  Toluntarily  assigned  by 
the  debtor,  when  insolrent,  ia 
irost,  Ibr  the  benefit  of  his  wife 
and  children  ;  and  the  trustees 
under  the  rolnntary  settlement 
were  decreed  to  hold  the  stock 
subject  to  the  order  and  dispo- 
sitien  of  the  trustees  under  the 
general  assignment.    Baydrd  v. 
Hofftnany  450 


706 


INDEX. 


4.  Ad  •Mirament  by  a  debtor  to 
iruiUen  £>rthe  benefit  of  all  hid 
creditor!,  is  valid,  without  the 
preyioat  aaseot  of  the  creditors. 
McoU  T.  MunMl,  522 

6.  But  where  the  assigoment  is 
made  directly  to  the  creditors, 
without  the  intervention  of  trus« 
tees,  the  assent  of  the  creditors 
is  requisite  to  give  validity  to 
the  deed  of  assignineat.         ib. 

6*  A  suit  by  one  creditor  against 
an  A«tr,  and  a  decree  (of  the 
sale  of  the  assets  descended, 
will  enure  for  the  benefit  of  all 
the  creditors,  and  draw  the  dis- 
tribution of  the  aasets  to  this 
court.      Thompton  v.    Brown, 

619 

7.  So,  also,  in  the  case  of  evecu- 
tora  and  administrators*  ib, 

8.  If  a  creditor  seeks  the  aid  of 
this  court,  against  the  real  estate 
of  hia  debtor,  be  nuist  first  show 
a  judgment  at  law,  creating  a 
iien  on  such  estate ;  and  if  he 
seeks  aid  in  retgavd.  to  the  per- 
fOfKi/  estate,  he  must  show  an 
execution,  giving  him  a  legal 
preference,  or  lien  on  thego^s 
and  chattels,  which  he  has  pur- 
sued to  every  available  extent 
at  law.     Brinkirhqff'  v.  Brown, 

671 
S.  P.  Williams  v.  Brcwn,  682 

^.  P.  M'DermiU  v.  Strongs  6S7 

9.  This  court,  as  well  as  a  court  of 
law,  allows  a  creditor  to  give  a 
preference  to  one  debtor  over 
another.      fVUlianu  v.  BroTim^ 

682 

10.  As,  where  a  debtor  in  insolvent 
circumstances*  confesses  a  judg- 
ment in  favaur  of  a  particular 
creditor,  ibr  a  debt  justly  due, 
the  iud^menl  creditor  will  re- 
tain his  priority.*  ib. 

11.  If,  however,  the  debtor  makes 
use  of  the  judgment  so  confess- 


ed, ibr  his  own  purpose,  to  ef* 
feet  a  sale  and  chaiige  of  the 
property,  and  it  is  sold  at  a 
great  sacrifice,  and  purchased  in 
by  him,  this  court  will  allow  it 
to  be  redeemed,  or  to  be  eetnp 
again,  at  the  price  at  which  it 
was  sold,  and  resold  ifor  the  be- 
nefit of  the  other  creditors,  as 
to  an^  surplus  beyond  that 
price.  ib- 

12.  This  court  assiats  a  judgment 
creditor  to  discover  aad  reach 
the  property  of  a  debtor, which 
is  beyond  the  reach  of  an  exe- 
cution at  law»  MDtm^  v. 
Strong,  687 

13.  A  judgment  creditor  who  has 
taken  out  execution  at  law,  and 
had  it  levied  and  retomed,  hot 
has  failed  in  obtaining  aatisfiic- 
tion  at  law,  or  to  reach  a  re- 
siduary trust  interest  in  the 
chattels  of  his  debtor,  and  files 
his  biU  for  the  aid  of  tlua  court, 
gains,  by  his  legal  diligence,  a 
legal  prrferencs  to^  aseistance 
of  this  court,  which  cannot  be 
affected  or  impaired  by  any  sub- 
sequent assignment  of  that  equi- 
ty, by  the  debtor,  either  for 
the  benefit  of  all  his  crediton 
generally,  as  under  the  insol- 
vent act,  or  for  the  benefit  of  a 

.  particular  creditor.  ib. 

14.  Though  it  is  the.  fiiFoqrtte  po- 
licy of  jthis  court,  to  4istribate 
the  assets  of  a  debtor  equally 
among  all  his  creditors,  pari 
pasiu  ;  yet  when  such  m  jqoicial 
preference  has  been  eeliMisbed 
by  the  superior  legnl  diligence 
of  any  creditor,  that  prelierence 
will  be  preservedtin  the  distri- 
bution of  the  assets,  ib. 


Fide  JuKisDicTioN.    ExecOTQR  akd 

AoininSTRATOR. 


INDEX. 


707 


DECREE* 

Ftrfe  PkAOTiCE,  XII.    Infxm. 

DEED. 

Where  a  sheriff's  deed,  by  imUtake^ 
did  ttot  include  aU  ihe  parcel  of 
land  or  whole  premises,  adyer- 
tisedandhiteiidedto  be  sold,  and 
the  defeadant,  and  ail  parties, 
supposed  the  deed  comprised 
the  whole,  and  the  purchaser 
bid  and  paid  a  price  according- 
ly ;  the  defendant  was  perpetu- 
ally enjoined  from  prosecuting 
an  ejectment  at  law,  to  recover 
the  part  not  included  in  the 
deed,  and -was  decreed  to  release 
to  the  pfaiintiff  all  his  right  and , 
title  to  the  same.  De  Rienur 
V.  Cant&lon,  85 

DEFAULT. 

Hi*  PftAcncG,  VI.  «.  Xfl.  40.  45. 

DEMURRER. 

Fide  Plvadings,  V. 

DEVISE. 

1.  A  testator  possessed  of  a  large 
veal  and  personal  estate,  be- 
queathed to  his  wHe  his  house- 
hold furniture,  kc,  and  **  her 
comfortable  support  and  main- 
tenance  out  of  his  estate,  to  be, 
from  time  to  time,  rendered  and 
paid  to  her  by  his  executors, 
and  the  trse  of  one  room  in  his 
dwelling  house,  during  all  such 
time  as  she  should  continue  to 
be  his  widow,  and  no  longer,'* 
and  devised  the  rest  of  his  es- 
tate to  his  children  :  Held^  that 
though  the  charge  of  a  ^somfort* 
able  support    and  maintenance 


might  fall  on  the  real  as  well  as 
the  personal  estate,  it  did  not 
affect  the  widow's  right  of 
dower,  there  being  nothing  in- 
consistent in  the  two  dairos, 
and  no  express  declaration  of 
the  testator  on  the  subject ;  and 
that,  therefore,  the  widow  was 
not  to  be  put  to  her  election. 
Smith  T.  Kniskerriy  9 

2.  By  a  devise  of  aM  the  rent  and 
rendme  of  the  real  etta/e  of  the 
testator,  the  rente  mnd  frefUs^ 
from  the  testator's  death  to  the 
time  of  vesting  the  estate,  will 
pass ;  and   whoever  takes  the 

-  legal  estate  in  the  mean  time, 
will  be  answerable  for  the  pro* 
fits.     Rogers  v.  i2o«f,  388 

3.  The  rents  and  profits,  as  well  as 
the  estate  itself,  may  be  given, 
by  way  of  executory  devise,    ib. 

4.  The  heir  at  law  may  be  con- 
sidered as  a  trmstee^  when  it  is 
nece^ary  to  carry  the  inten- 
tion of  the  testator  into  effect. 

ib. 

5.  The  rents  and  profits  may  accu- 
mulate in  the  bands  of  the  heir 
at  law,  for  Che  benefit  of  the 
executory  devisee,  until  the 
vesting  of  the  estate.  ib. 

6.  Or  the  court  mayi  if  necessary, 
appoint  a  receiver  of  the  rents 
and  profits,  for  (hat  purpose.  Hb* 

7.  Where  the  executoiy  devisee 
was  illegitimate,  and  it  did  not 
appear  that  the  testator  had  any 
lawful  heir,  and  no  person  ap- 
peared to  claim  the  inheritance, 
the  exeew$or  of  the  testator  who 
had  taken  possession  of  the  real 
estate,  and  was  appointed  guar- 
dian of  the  exeeetory  devisee, 
and  received  the  rents  and  pro- 
fits from  the  death  of  the  testa- 
tor le  the  happenii^  of  the 
event  on  which  the  estate  was 
to  ve^t,   was  held  accountable 


70C 


I  N  D  E3C. 


fbr  tfaem  Co  the  eseculory  de- 
visee, tft. 
8.  A  devise  of  all  the  testator's 
estate,  real  and  personal,  in 
trust,  to  pay  debts,  and  then  to 
distribute  tbe  residiie,plaees  the 
assets  tinder  tbe  jariadietion  of 
this  conrt    Benton  r.  Le  Asy, 

65! 

DISCOVERT. 

Vide  PLEJimNos,  III.  11,  12,  19,  14. 

DISTRIBUTION  OF  ASMBT8. 

Fide  Assets.    ExEcrrofc  aud  Aj>- 

HINISTRATOR.  JtmlSDlCTION. 

Debtoe  and  Ckepitok* 
mVORCE. 

1.  Where  a  divorce,  a  men$a  ct 
thoro^  for  cruel  and  tehamaa 
treatment  of  tbe  wife,  by  the 
htisband,  is  decreed,  the  sepa- 
ration will  be  made  pe rpefiio/, 
with  a  proviso  that  the  parties 
may,  at  any  thne,  by  their  ma- 
tual  and  voluntary  act,  apply  to 
the  Court  for  leave  to  be  dis- 
charged from  the  decree.  Bar- 
rere  v.  Barrtrey  18*t 

t.  The  wife,  under  the  circam- 
stances  of  the  case,  was  al- 
lowed to  retain  the  custody  of 
an  infant  son,  subject  to  the  fu- 
ture order  and  direction  of  tbe 
Court ;  and  the  boslMmd  was 
directed  to  pay  a  certain  sum 
tot  the  8uppS>rt  of  his  wife  Iin4 
child,  and  the  costs  of  the  suit 

ib. 

3.  A  husbasd  cannot  file  a  bill 
against  his  wife  for  a  divorce  a 
miiua  €i  f/bro,  do  the  ground 
of  cruelty,  desertion,  or  im- 
proper coodnet.  FamFightm 
w.  FmmFighUH^^  501 

4.  So  that,  if  in  an  answer  to  a  bill 


filed  by tke wileagflBilrtfae h«. 
band  ior  a  divotce,  tnider  the 
statute,  <m  Uie  grooBd  <#crael 
treatmetit,  the  hoabaiMl  denies 
the  charge,'  floAaets  up  acts  of 
cniel  and  abusive  teeatmeat  on 
^M  partof  tte  wife,  nd  aaka 
fer  a  divome,  tbe  bik  wiU  he 
disnussed.  ib. 

6.  The  Court  will  not  take  notice 
of  any  consent  or  agreeoMot  of 
the  parties,  to  a  divorce  a  men* 
ia  €t  thoro,  ib. 

DOWER. 

}«  Where  a  testator,  possessed  of 
real  and  peisoad  eakate,  devised 
to  his  wife  his  household  fur- 
mtupe,  kt»  and  a  **  comfortable 
support  aad  mainteoance  out  of 
bis  estate,  to  be,  from  time  to 
time,  rendered  and  paid  to  Jier 
by  his  eiecutors,"  &c*.  Seld^ 
that  though  tbe  change  of  a 
comfortable  support  and  nvsio* 
tenance  might  fall  upon  the 
real  as  well  as  the  personal  es- 
tate ;  yet,  there  being  no  ex- 
press declaration  of  &e  testa- 
tor 01^  the  salject,  nor  any  thing 
inconsistent  in  the  two  claims^ 
it  did  not  affect  tbe  widow's 
right'  of  dower,  and  she  was 
not,  therefore,  to  be  pot  te 
her  election.  S$mtk  v.  JKnts- 
kem^  9 

2.  On  a  bttl  ibr  domtir,  the  ^«idow 
was  held  entitled  to  the  Value 
of  the  fnefns  pn^  arisipigfroiD 
the  use  of  the  undivided  third 
ofthep.retmses>  of  which  her 
husband  died  seised,  from  the 
death  of  ^er  husband*  e^cln^j^e 
of  tbe  improvefloenU  siece^made 
thereon,      tiazeu  V.  THurbur^ 

.   J  604 

3.  Aod  there  beioig  s^ve<al  ihein 
and  .terre-tenants,,  the  aoBoont 
was   directed    to  be  assessed 


I  N  DEX 


709 


<idrdiiig  to  ^e  tiioe  of  their  en- 

ytymtnt  of  the  premises*        ib. 

ant  as  tilt  tvidew  ImmI  aeYer 
'  cbamoihmt  dower,  aocl  tbere 
-was  no  opfioitlioQ  or  vexation 
r  oa  Ae  part  of  fke  defendants, 

cotfr-svere  denied  her.  i6. 


E. 

ELECTION. 

Where  the  plaintiff  brings  a  snit  at 
law,  and  obtains  a  judgment,  and 
at  the  same  time  fil^s  his  bill 
against  the  defendant  in  this 
'  conrt,  for  the  same  matter,  he 
tnll  be  pat  to  his  election, 
either  to  proceed  at  law  or  in 
fhisc6trrt;  and  if  he  elect  to 
proceed  at  law,  his  bill  will  be 
dismissed  ;  but'  if  he  elects  to 
proceed'  in  this  court,' he  will  be 
enjoined  from  proceeding  under 
the  Judgment,  without  the  leave 
of  this  court.  Roget9  v.  FoS' 
hvrgh^  84 

Fide  DowBR,  I. 

EjqpiTABLE  ESTATE. 

Fide  MoAtgagb;  I.    Jurisdcctioit, 
26,  «7.  29.  • 

tqpm  OF  REDEMPTION. 

.    ~     Fide  Mortgage,  III. 

EVIDENCE. 

Parot  Eviienee  to  explain,  vary^  or 
contradict  toritien  instrutnentt, 

T.\  Parol  proof  is  admissible  to  cor- 

'  rect  a  ntisicdce'  in  a  wHlten  con- 

*'     tract,  in  favour  of  the  plaintiff 


seeking  a  specific  perfermaoce 
of  that'  contract;  especially, 
where  the  contract,  in  the  first 
instance^  is  io4>erfect  without 
referring  to  facts  Aliunde. 
Keiseelbrack  v.  Livingstqn^     144 

2.  As,  where  there  was  ^a  agree- 
ment to  execute  a  lease  (or 
tbree  lives,  ''  containii^  the 
usual  clauses,  restrictions,  and 
reservations  contained  in  leases 
given  by  the  defendant  ;'*  it  be- 
ing necessary,  by  proof  fUwf^e 
the  agreement,  to  ascertain 
what  were  the  osual  clanses^ 
&c*  in  such  a  lease  ;  it  was  held 
to  be  open  to  the  plaintiff,  also, 
to  show,  hf  parol  evidence,  that 
it  was  ag^reed  and  understood, 
at  the  time,  that  a  particular 
reservation  was  not  to  be  in- 
serted in  the  lease  which  the 
defendant  was  to  execute.   .  t6. 

3* .  Paiol  proof  to  correct  a  mistake 
in  a  contract  is  admissible,  as 
well  in  favour  of  the.  plaintiff, 
as  the  defendant.  .  »6. 

4.  Parol  evidence  is  admissible  to 
show  that  a  mortgage  only,  not 
an  absolute  sale,  was  intended  ; 
.  and  that  the  defendant  had 
fraudulently  attempted  to  con- 
vert the  loan  into  a  sale. 
Strong  V.  Stewart,  167 

Fide  Laches,  Levoth  or  Tims  and 
PoesKssio^. 

fiXCEPriONS. 

In  Answer,  "ttttfe  Practice,  XI.  35, 

•     36. 
•To  Master's  Report,  vide  Practice, 

XL  9b.  m.- 

*  ••  "  '        *    . 

;      EXECUTION- 
Fide\tk%t6n  aAv  Cbjbditm^  1>  2.  8. 

IS.    JUDGMEKT, (iSr   MORTOAOS,  7. 


710 


INDEX. 


EXECUTOR  AND  ADMINISTRA- 
TOR. 

Actions  by  and  against^  aecfntnt^alloW' 
oiBCM,  and  costs  in  suck  actions, 

1.  Where  a  plaintiff  claimed  as  le- 
gatee and  as  a  creditor,  and 
proyed  enljr  his  right  as  le- 
gatee ;  and  the  defendants,  who 
were  execvtorSyhvid  caused  great 
expense  and  delay,  by  raising 
nnfoanded  objections,  jieither 
party  were  allowed  costs,  Brovm 
Y.RtekeU,  303 

2.  Eiecotors  and  administrators,  or 
trustees,  acting  with  good  faith, 
and  without  any  wilful  defnult 
or  fraud,  will  not  be  responsible 
for  losses  that  may  arise* 
nott^son  r.  Brown,  419 

3.  Where  an  executor,  or  other 

trustee,  mismanages  the  estate 
confided  to  his  care,  or  puts  the 
assets  in  jeopardy,  by  his  actual 
or  impending  insolvency,  the 
court  will  restrain  him  from 
all  further  intermeddling  with 
the  estate,  and  compel  hhn  to 
restore  the  funds  in  his  hands. 
Eimtfndorfv.  Lansing.  562 

4.  An  executor,  on  a  bill  filed 
against  him  by  hts  co-executors, 
was  restrained  from  all  further 
interference  in  the  maifHgement 
of  the  estate,  and  ordered  to 
restore  to  the  plaintiffs  a  bond 
and  note  of  the  estate  in  bis  pos- 
session, but  not  to  account  for 
the  money  he  had  received  on 
the  bond,  or  to  pay  the  costs  of 
the  suit  )6. 

5.  Where  an  administrator  of  a  de- 
ceased partner,  without  apply- 
ing to  the  court  for  its  direction, 
bona  fide,  permitted  the  sur« 
Tiring  partner  to  sell  the  joint 
stock,  in  the  usual  course  of  the 


trade,  for  the  joiikt  benefit  of 
himself  and  the  intestate's  es- 
tate, he  was  held  not  to  be  res* 
ponsible  to  the  creditors  for  any 
loss ;  though  he  might  bepenon- 
oi/y  liable  for  aay  debts  con- 
tracted by  auch  assntoed-  part- 
ner.    Thompson  t.  Brofwn,  619 

6.  But,  if  the  admioistrBtor  puts 
into  the  hands  of  the  surYiTing 
partner,  asscU  which  he  had  io 
bis  own  hands  and  under  his 
own  control,  to  trade  with,  be 
will  be  responsible  for  the  loss. 

t6. 

7.  A  creditor  may  come  into  this 
court  against  an  executor  or  ad- 
ministrator, for  a  discorery  of 
assets.  ih. 

8.  Upon  the  usual  decree  to  ac- 
count, in  a  suit  by  one  or  more 
creditors  against  an  execator 
or  administrator,  either  sepa- 
rately for  themselret,  or  spe- 
cially, in  behalf  of  theioselres 
and  air  other  creditors  who  will 
come  in,  &c.  the  decree  ii  for 
the  benefit  of  all  the  creditors, 
and  in  the  nature  of  a  judgment 
for  all :  and  all  the  creditors 
are  entitled,  and  should  hare 
notice  for  that  purpose,  to -come 
in  and  prore  their  Debts  before 
the  master ;  and  they  are  to  be 
paid,  rateably,  after  jadgmeot 
creditors  are  satisfied,  withoul 
preference,  or  regard  to  the  le- 
gal priority  of  specialty,  OTPr 
simple  contract  creditors,      ih. 

9.  Such  B  suit  and  decree  for  the 
sale  of  the  assets,  draws  to  this 
court  the  entire  distribii^n  of 
them.  t^. 

10.  A  decree  in  this  court*  is- equiva- 
lent to  a  judgment  at  law;  mid 
if  prior  in  time,  it  is  to  be  first 
paid.  il,, 

1 1 .  And  from  the  date  of  the  de(;ree, 
and  a  due  djsclosare  oj[  assets, 


INDEX. 


7H 


aD  injuDCtioa  will  be  gmnted, 
<m  the  naoUon  of  either  party, 
to  etay  all  proceedings  of  the 
creditors  at  law.  ib. 

12.  But  creditors  will  not  be  re- 
etraiaed  from  proceeding  at  law, 
merely  on  a  bill  being  filed 
against  the  executor  or  admin- 
istrator in  this  coart ;  and  a 
jodgment  at  law  obtained  before 
a  decree  in  this  coart,  will  be 
protected  in  its  priority.  ib, 
13*  A  widow  mkl  administratrix, 
who  under  her  claim  of  dower, 
and  as  guardian  to  her  in&nt 
children,  had  received  the  rents 
and  profits  of  the  real  estate, 
and  applied  them  to  the  neces- 
sary maintenance  of  the  chil* 
dren,  prior  to  due  notice  and 
application  of  creditors,  was  not 
held  to  account  for  Uie  rents 
and  profits  so  received  and  ex- 
pended, lb. 

1 4.  The  doctrine  of  eqnitable  assets, 
.    by  which  all  the  creditors  are 

paid  pari  poMu,  is  not  affected 
by  the  statute ;  mm.  36,  ch.  93. 
(1  JV.  A.  L.  36.)  for  the  omis- 
sion of  the  4th  section  of  the 
English  statute,  (3  fV.  &  M. 
114.)  which  excepts  devises  of 
lands  to  pay  debts,  does  not 
vary  its  construction.  Benton 
Y.LeRoy^       .  681 

1 5.  And  a  devise  of  all  the  testator's 
estate,  real  and  personal,  in 
trvH  to  pay  debts  and  to  distri- 
bote  the  residue,  places-  the 
aueU  under  the  jurisdiction  of 
this  court  ib, 

Fide  Set  Off,  3.  Trust-  ahd 
Trvstee,  11, 15,  16.  Power,  1,  2. 
Devise.    Debtor  aji d  Creditor. 

EXECUTORY  DEVISE. 

Fide  Devise,  3.  5.  7. 


FEME  COVERT. 

Fide  Baron  ahd  Feme. 

FOREIGN  ATTACHMENT. 

Fide  Foreign  Laws.    Bankrupt. 

FOREIGN  CORPORATIONS. 

Fide  Corporations. 

ITORECLOSURE. 

Ftdfe  Mortoage,  III. 

FORFEITURE  OR  PENALTY. 

Fide  Jurisdiction,  7,  8.  12. 

FOREIGN  LAWS. 

1.  A  debt  due  by  C.  an  American 
citizen  9  to  M.  a  Britith  subject 
resident  in  Ltrndon,  was  reco- 
vered by  foreign  attachme,nt,and 
a  judgment  thereon,  in  the 
Mayor's  Court  of  the  city  .of 
London^  in  due  course  of  law, 
out  of  monies  which  had  come 
to  the  hands  of  the  agents  of  C. 
in  L  8  Held^  that  the  payment 
of  the  debt  by  the  agents  of  C. 
being  compulsory  and  by  the 
judgment  of  a  court  of  compe- 
tent jurisdiction,  was  a  bar  to  a 
Suit  brought  here  to  recover  the 
same  debt,  either  by  M.,  or  by 
trusteei  of  the  creditors  of  M., 
under  a  process  of  attachment 
which  had  been  issued  here,  at 
the  instance  of  an  American  cre- 
ditor of  M.,  pursuant  to  the  act 
giving  relief  against  absent 
debtors,    &c.   previous  to  the 


712 


INDEX 


process  of  foreifa  attachmeDt 
in  Lomdan.    Hohui  r.  Rtmseny 

460 
2*  For  the  title  of  the  foreign  as- 
signees, and  of  the  Aaneriean 
tmsteesy  being  equally  valid  aik* 
der  ttie  laws  of  their  respective 
countries,  the  debt  is  well  paid 
to  the  ps^  who  has  used  the 
greatest  legal  diligence  to  re- 
cover it. .  ib» 

3.  The  succession  to,  and  distribu- 
tion oft  personal  property,  is  re- 
gulated by  the  lex  damiciUi ;  not 
by  the  Ux  lod  rei  skm.  ib. 

4.  A  voluntary  assignment,  made 
honafide^  hv  a  ddbtor.  of  all  his 
property,  ror  the  benefit  of  all 
his  creditors,  is  valid,  and  will 
pass  dehu  due  to  him  in  foreign 
countries.  %b. 

a.  So  will  an  assignment  under  a 
bankrupt  law  of  his  country, 
either  because  it  is  equivalent 
to  a  voluntary  assignment  by 
the  debtor  \  or  because  the  do^ 
wdeil  of  the  owner  draws  to  it 
his  personal  property  ;  or  be- 
cause, it  is  an  established  rule 
of  comity  among  nations.        ib, 

6.  Foreign  laws  may  be  proved  by 
witnesses  as  aratters  of  fact. 
Bruik  V.  H'UkM.  520 

Fide  DAVKauPT. 

FRAUD. 

1.  Where  the  *  attorney  of  the 
plaintiff  attended  the  sale  of  a 
fiirm  of  the  defendant,  under 
an  execution;  and  the  farm, 
which  was  worth  two  thousand 
dollars,  was  sold  to  the  attorney 
for  ten  dollars,  the  gross  inad- 
equacy of  the  price,  connected 
with  the  fact,  that  the  sale 
was  on  a  stormy  day,  when  no 
person  but  the  attorney    and 


deputy  sheriff  were  present, 
was  held  sufficient,  to  wammt 
the  inference  of  Jrtmd,  >  Him' 
eU  V.  Baker.  118 

2.  Where  a  judgment. and. exequ- 
tion,  which  luid  been  folly  paid 
and  satisfied,  were  kept  oo  foot 
by  theassignees  of  the  judgment, 
fraudulenUj,  for  the  purpose 
of  specttlatu^  on  the  property 
of  the  debtor,  and  which  the 
defendants,  assignees  of  the 
judgment,  purchased  at  the 
sheriff's  sale,  they  were  de- 
creed lo  esecute  a  rslsassof  all 
the  title  and  interest  so  ac- 
quired, lo  the  onvner  of  the 
landa,  so  fraudolefttlj  s^  on 
execution,  aad  to  deliver  up 
the  possession  thereof,  pay  the 
rents  and  profits,  and  dnam^ 
for  any  watte  committed,  with 
all  cosu,&c.  Trotf  v.  Wood 
and  Sherwood,  228 

3.  An  agreement  by  the  owner  of 
an  execatioo,  on  which  lands 
to  an  amount  in  valne  far  ex- 
ceeding the  debt  had  been 
seized,  to  prevent  the  usual 
competition  at  the  6heriff\i  sale, 
nnd  in  order  to  leave  a  balance 
due  on  the  execution,  (br  the 
purpose  of  having  lands  of  the 
debtor  in  other  counties  seized 
and  sold,  is  fraudulent :  andtbe 
execution  is  deemed  in  law  to 
be  satisfied.  ib, 

4.  /.  S.  sold  and  conveyed  a  lot  of 
land  to  H.  and  took  a  mort- 
gage to  secure  part  of  the  pur- 
chase money.  The  mortgage 
was  dulv  recorded,  ia  the 
county  of  Ofiofiiii^,  where  the 
land  was  situated ;  but  H.  ne- 
glected  to  have  his  deed  recor- 
ded, pursoant  to  ttm  Statute. 
The  defendants  havtais  pur- 
chasedihe  claim  of  a  Mi^son  ia 
possession  without'  m^  pro- 


INDEX. 


713 


cured  a  release  and  qtiit  claim 
from  J.  S.  for  the  coDsideration 
of  ten  dollars,  though  the 
lot  was  worth  six  thousand 
dollars,  and  had  it  recorded 
before  the  deed  of  H.  Held^ 
that  the  subsequent  release  and 
quit  claim  by  /.  5.  was  fraudu- 
lent, the  record  of  the  mort- 
gage being  sufficient  eyidence 
that  /.  S.  had  then  no  title  : 
and  the  defendants  were  de- 
creed to  release  all  claim  toH.^ 
60  as  to  quiet  his  title.  Lupton 
T.  Cornell,  26« 

FRAUDULENT  CONVEYANCES. 

1.  A  voluntary  settlement,  either 
of  lands  or  chattels,  by  a  per* 
son  indebted  at  the  time,  is 
Toid  as  against  creditors.  Bay- 
ard V.  H^mafif  450 

2.  Whether  the  statute  of  frauds 
(1  JV.  /?.  L.  76.  iess.  10.  c. 
44.  13th  lUiz.  c.  5.)  applies  to 
a  settlement  of  that  kind  of 
property  which  could  not  be 
reached  by  legal  process,  if  no 
settlement  had  been  made, 
such  as  choses  in  action,  mo- 
ney in  the  funds,  &c.  ?  Qucere. 

ib. 

3.  An  assignment  by  a  debtor  of 
**  all  his  estate,  real  and  per- 
sonal, and  of  all  books,  vouchers 
and  securities  relative  thereto," 
in  trust,  for  the  benefit  of  all 
his  creditors,  passes  all  his  es- 
tate and  interest,  equitable 
and  legal,  and  his  rights  of  ac- 
tion, or  as  cestui  que  trust ;  and, 
therefore,  includes  stock  of  the 
United  SratM  before  voluntarily 
assigned  by  the  debtor,  when 
insolvent,  in  trust,  for  the  be* 
nefit  of  his  wife  and  children  ; 
and  the  trustees .  under  the  vo- 

Vol.  IV. 


luntary  settlement,  were    den 
creed  to  hold   the  stock,  sub- 
ject to  the  order  and  disposition 
of  the  trustees  of  the  creditors 
under  the  general  assignment. 

ib, 

4.  It  seems,  that  there  is  no  differ- 
ence in  the  construction  of  the 
11th  and  15th  sections  of  the 
statute  of  frauds,  {sess,  10.  c. 
44.  1  J^.R.  L.  76.)  or  the 
4th  and  17th  sections  of  29 
Car.  2.  c.  3.  as  to  what  is  a  suf- 
ficient signing  of  a  contract  by 
the  party  to  be  charged. 
M'Comb  V.  Wright,  '  659 

5.  An  auctioneer  is  an  agent  law- 
fully authorized  by  the  purcha- 
ser of  lands  or  goods,  at  auc- 
tion, to  sign  the  contract  of  a 
sale  for  him,  as  the  highest  bid- 
der, ib. 

6.  Writing  the  purchaser's  name, 
as    the  highest  bidder,  on  the 

'  memorandum  of  sale,  by  the 
auctioneer,  immediately  on  re- 
ceiving the  bid,  and  knocking 
down  the  hammer,  is  a  sufficient 
signing  of  the  contract,  within 
the  statute  of  frauds,  so  as  to 
bind  the  purchaser.  t6. 

FREIGHT  AND  CHARTER 
PARTY. 

I.  When  a  ship  puts  into  an  inter- 
mediate port,  in  distress^  and  is 
condemned  as  unseaworthy;  and 
it  becomes  necessary,  for  the 
transportation  of  the  cargo 
saved,  to  its  destined  port,  to 
hire  another  ship,  the  cargo, 
on  its  arrival  at  the  port  of  des-' 
tination,  is  chargeable  with  the 
increase  of  freight  arising  from 
the  charter  of  the  new  ship  : 
TJiat  isj  the  extra  freight  be- 
yond what  the  freight  would 

90 


1U 


INDEX. 


bare  been  under  tbe  ori|;inal 
charter  party,  if  tbe  necessitj 
of  hiring  another  ship  had 
not  interrened.  SearU  ▼.  Seo- 
veil,  218 

8.  The  owner  of  the  goods  ii  not 
answerable  both  for  the  old  and 
new  freight.  ib. 

3*  To  ascertain  snch  extra  freight, 
the  proper  role  seems  to  be » to 
determine  the  difference  be- 
tween the  amount  of  tbe  freight 
under  tbe  ortgioal  charter  par* 
tY  9  9nd  the  rateable  freight  f  for 
the  goods  sayed,  to  the  port  of 
necessity,  added  to  the  freight 
pf  the  new  ship  hired  to  carry 
on  the  goods.  ib. 

4.  The  extra  freip^ht  for  the  re-» 
newed  vojrage,  m  snch  case,  is 
a  lien  on  the  «argo.  t6. 

Vide  Pa&thbrsbip,  4, 6. 

FUGITIVES  FROM  JUSTICE. 

1 .  It  is  the  law  of  nations  to  deliver 
up  offenders  charged  with  felo- 
nies and  other  high  crimes,  and 
who  have  fled  from  the  country 
where  such  crimes  were  com- 
mitted, into  a  foreign  and  friend- 
ly jurisdiction.  Matter  of  Wa^' 
kim,  106 

8.  It  is  the  duty  of  tbe  civil  magis- 
trate to  commit  such  fugitives 
from  justice,  to  the  end,  that  a 
reasonable  time  may  be  afford- 
ed for  the  government  here  to 
deliver  tbem  up,  or  for  the  fo- 
reigngoverument  to  make  appli- 
cation to  the  proper  authorities 
here  for  their  surrender,      ib. 

3.  But  if  such  application  is  not 
made  in  a  reasonable  time,  the 
party  ought  to  be  discharged. 

ib. 

4.  The  evidence  to  detain  a 
fugitive  from  justice,  for  the 

.   purpose  of  his  being  surrender*: 


ed,  ought  to  be  such  as  would 
be  sufficient  to  commit  him  for 
trial,  if  the  offence  was  com- 
mitted here.  t^. 

5.  The  27th  artiele  of  the  treaty 
of  1796,  between  the  United 
Staiet  and  Great  Brita^^  was 
merely  declaratory  of  the  law 
of  nations  on  this  subject;  and 
since  the  expiration  of  that 
treaty,  the  general  principles  of 
the  bw  of  nations  remain  obli- 
gatory on  the  two  nations.     A. 

6.  Therefore,  the  Chancellor,  or 
a  Judge,  in  vacation,  has  juris- 
diction to  examine  a  prisoner 
brought  before  him,  on  habeae 
earpu$9  and  who  bad  been  taken 
in  custody  on  a  chai^ge  of  <W^, 
or  felony,  committed  in  Qmada^ 
or  a  foreign  state,  from  which 
he  had  fled ;  and  if  sufficient 
evidence  appears  against  him,  to 
remand  him  ;  otherwise,  to  dis- 
cbarge him.  »(. 

G. 

GUARDIAN. 

Fide  IffrAWT,  1.  7.    Piucrics,  II.  9. 
Trust  avd  Trustss,  II.  10. 14. 


H. 
HABEAS  CORPUS. 
Fide  IvFAVT,  1,  9.   Fuoitives  from 

JtTSTICC,  6. 

HEARING. 

Fide  Practice,  X« 

HEIRS  AND  DEVISEES. 

1.   A  creditor  may  file  a  biH  in  this 
court  against  heirs  and  devisees 


INDEX. 


116 


for  an  aceoaDt,  and  for  a  sale 
aod  dktribatioD  of  the  real  es- 
tate descended  or  devised,  in 
order  to  make  good  any  defi« 
ciency  of  penotuU  assets. 
Thompton  t.  Brown,  619 

2.  Bttt  the  real  estate  will  not  be 
directed  to  be  sold,  until  the 
amount  of  the  debts  and  the  de- 
iciency  of  the  personal  estate 
have  been  dul;|r  ascertained.  t%. 

3.  It  is  no  obpectioo  to  the  sale  of 
the  real  estate  for  the  payment 
of  debts,  that  the  heirs  are  in- 
fimtB.  ib. 

4.  And  where  there  is  a  decree  for 
the  sale  of  the  cute^f  descended, 
it  enures  for  the  benefit  of  all 
the  creditors*  and  draws  the  en- 
tire distribotion  of  the  assets 
into  this  court.  ib. 

Fide  Dbvisb. 

HUSBAND  AND  WIFE. 

Fide  Baron  aro  FnflE. 


f. 

IDIOTS  AND  LUNATICS. 

1.  Where,  on  the  petition  of  a  re- 
lation of  a  lunatic,  and  who  had 
received  from  htm  a  deed  of  a 
farm,  ja,  few  days  before  the 
finding  of  the  inquisition  of  lu- 
nacy, an  issue  was  awarded  to 
try  the  fact  of  lunacy,  and  on 
the  trial,  the  party  was  found  to 
have  been  a  lunatic  for  several 
years  preceding,  the  party  tra- 
versing the  inquisition  was  or- 
dered to  pay  costs.  Matter  of 
Folger,  169 

<i.  The  prosecutor  of  a  charge  of 
lunacy  is  not,  of  course,  order- 
ed to  pscy  costs,  wher?  theparty 
is  found,  by  the  inquisitioo,  to 


be  of  sound  mind,  if  the  prose- 
cution has  been  in  good  &ith, 
and  upon  probable  grounds. 
Brother  V.  Fisher,  441 

3.  A  person  deaf  and  dumb  from 
hi^  nativity,  is  not^  therefore, 
an  idiot,  or  noa  compos  mentis ; 
though  such,  perhaps,  mdy  be 
the  legal  presumption,  until  his 
mental  capacity  is  proved,  on 
inquiry  and  eiaminatioa  for  that 
purpose.  ib. 

Fide  MaREIaoe,  1,  2,  3. 

INFANT. 

!•  Where  an  infent  is  brought  up 
on  habeas  corpus,  the  court  will 
inquire  whether  he  is  under 
any  illegal  restraint ;  and  if  he 
is,  will  set  him  at  liberty ;  but  if 
there  is  no  improper  restraint, 
the  court  will  not,  in  this  sum* 
mary  way,  decide  upon  the 
right  of  guardianship,  or  deliver 
over  the  infiint  to  the  custody  of 
another.  MaUer  of  WoUsUme- 
craft,  8a 

2.  If  the  infimt  is  competent  to 
fbrm  a  judgment  and  declare  his 
election,  the  court,  after  exami- 
nation, will  allow  him  to  go 
where  he  pleases;  otherwise 
the  court  will  eiercise  its  judg- 
ment for  him*  tS. 

3.  Maintenance  will  be  allowed  oul 
of  the  capita]  of  an  iaiant's  estate, 
where  the  princrpal  is  small, 
otherwise  it  must  be  oat  of  the 
interest.     MaUer  </  Boftvtdb, 

100 

4.  Application  for  maintenance  may. 
be  by  petiHon,  without  bill.    ib» 

6.  A  parent  may  be  allowed  to  be 
reimbursed  out  of  the  iofdut's 
estate,  for  pa$t  maintenance,  ib. 

6.  Where  a  deed  was  ordered  to 
be  CMicelled  as  fraudulent  an4 
toid,  on  a  bill  for  ^tpurpoae. 


7W-. 


INDEX. 


filed  agaioit  the  representatives 
of  the  grantee,  and  a  perpetual 
injunction  granted  against  using 
the  deed  or  record  of  it  in  evi- 
dence ;  The  decree  was  declar- 
ed binding  on  such  of  the  de- 
fendants, as  were  infants,  unless 
within  six  months  after  coming 
of  age,  they  should^how  cause 
tQ  the  contrary,  00  being  served 
with  process  for  that  purpose. 
Bushful  v.  Harford,  300 

7*  The  act  concerning  infants,  9th 
Jipril,  1814,  (5e».  37.  ch.  108.) 
and  the  act  in  addition  thereto, 
March  24th,  1815,  (ms.  38.  ch. 
106.)  authorizing  the  sale  of  an 
infant's  real  estate,  under  the 
order  and  direction  of  the  court, 
do  not  apply  (o  the  case  of  a  fe- 
male infant  who  is  married. 
Matter  of  Whitaker,  378 

8«  It  is  not  the  usual  practice  of 
the  court  to  appoint  a  guardian 
to  an  infant,  who  is  a  feme  co* 
vert;  nor  can  the  husband  be 
guaidian  for  his  wife,  in  such 
case,  as  to  the  sale  of  her  lands. 

lb. 

9*  These  acts  were  intended  for 
die  better  education  and  main- 
tenance 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  infant.  t6. 

10*  h  teemtj  that  a  female  ward  of 
this  court  is  not,  of  course,  dis- 
char^^ed  from  its  protection,  by 
marriage,  or  without  an  order 
of  the  court  for  that  purpose. 

»6. 

INJUNCTION. 

I.  In  what  ca$es  granUd^  and 
against  whom. 
II.  I'o  stay  waste  or  trespass. 

III.  To  stay  proceedings  at  law* 

IV.  hijunction  for  other  purpo- 
ses-. 


v.  When  dissolved. 
VI.  When  made  perpetual. 

I.  /»  what    cases    granted^    and 

against  whom. 

1.  An  injunction  is  never  granted 
against  persons  who  are  oot 
parties  to  the  suit.  FeUows  v. 
Fellows,  25 

2.  Where  new  facts  are  stated  in  a 
supplemental  bill,  a  fresh  injunc- 
tion may  be  awarded*  though 
the  former  injunction  was  dis- 
solved on  the  merits.  Fasmimg 
v.  Dunham,  SB 

3.  An  injunction  will  be  granted, 
to  restrain  persons  from  naviga- 
ting with  Steam  Boats,  in  viola- 
tion of  the  exclusive  privilege 
granted  to  Limt^sUm  and  Ful- 
ton, on  the  w€Uers  lyisig  betweer^ 
Staten  bland  and  Powles  Hook 
dnd  the  Jersey  Shore  ;  the  same 
being  within  the  jurisdiction  of 
this  state.  Livingston  v.  Og- 
den  and  Gibbons,  48 

4.  Where  the  defendants,  a  bank- 
ing company,  agreed  with  fi. 
to  hold  the  bills  of  the  plain- 
tifis,  a  banking  company,  sub* 
ject  to  his  order,  and  B.  en- 
gaged to  accept  the  drafts  of  the 
defendants,  at  ten  days  sight, 
for  the  amount,  bo  injunctioD 
lies  to  restrain  the  bills  in  their 
possession,  or  from  demanding 
payment  of  them  of  the  plaintifis, 
for  the  agreement  with  B.  mere- 
ly suspended  the  right  of  the 
defendants  to  demand  payment 
of  the  bills,  until  10  days  after 
the  acceptance  of  their  drafts 
by  B, ;  and  the.suspension  ceased 
when  B.  made  default,  in  ac- 
cepting and  paying  the  drafts. 
WaMngton  and  Warren  Basik 
V.  Farmer^s  Bank,  62 

5.  A    creditor     in    ^few    Jersey, 
where  all  the  parties  resided, 


INDEX. 


717 


took  from  the  maker  of  a 
promissory  note  indorsed  by 
the  plaintiff,  a  bond  and  mort- 
gage, which  was  ample  secari- 
ty  for  the  debt  ;  and  instead  of 
resorting  to  the  mortgage,  or 
the  debtor,  sued  the  plaintiff, 
who  was  transiently  in  this 
state,  at  law  :  this  court  grant- 
ed an  injunction  to  stay  the  suit 
at  law,  until  the  creditor  had 
pursued  his  remedy  on  the 
mortgage  in  Jiew-Jersey.  Hays 
r.Ward,  123 

6.  Where  an  injunction  has  been 
already  granted,  a  second  in- 
junction will  not  be  granted, 
while  the  other  is  in  force,  un- 
less the  first  has  been  with- 
drawn by  some  agreement  be- 
tween the  parties,  and  satisfac- 
tory reasons  shown  for  a  re- 
newal of  it.  Livingston  v.  Crib* 
bons^  571 

7.  Nor  will  ah  injunction  bo  gran- 
ted to  restrain  the  defendant, 
who  was  charged  by  the  plain- 
tiff with  navigating  the  waters 
of  this  state  with  a  Steam  Boatj 
in  violation  of  the  plaintiff's  ex- 
clusive right,  from  removing  his 
boat,  pending  an  action  at  law, 
brought  to  recover  the  boat  as 
forfeited  under  the  act  of  the 
let  April,  1811  ;  unless  there 
is  a  direct  and  positive  charge 
of  danger  that  the  boat  will  be 
eloigned,  pending  the  suit  at 
law.  ib. 

II.  Injunction  to  staywaste  or  tres- 
pass. 

8.  An  injunction  to  stay  waste^ 
will  not  be  granted,  where  the 
right  is  doubtful,  or  where  the 
defendant  is  in  possession,  claim- 
ing adversely,  and  the  plaintiff 
has  brought  an  action  of  eject- 


ment to  teeover  the  possession, 
at  law,  which  is  undetermined. 
Storm  V.  AJann^  21 

III.  Injunction  to  stay  proceedings  at 
law. 

9.  An  agreement  on  the  part  of  a 
creditor  to  collect  the  money 
rateably,  of  the  several  parties 
to  a  note,  on  their  giving  a 
bond  and  judgment  for  the 
amount,  was  enforced,  by  enjoin, 
ing  all  further  proceeding  on  the 
judgment  against  the  plaintiff, 
on  his  paying  into  court  his 
rateable  proportion,  &c.  Briggs 
V.  Law,  22 

IV.  Injunction  for  other  purposes. 

to.  Injunction  granted  to  restrain 
commissioners  from  proceeding 
to  sell  lands,  to  pay  the  sums  as- 
sessed, under  the  act  to  amend 
the  aei^  entitled^  an  act  to  incor- 
porate the  Ulster  and  Orange 
Branch  Turnpike  Company,  (sess. 
40.  ch.  213.)  for  making  the 
road,  so  as  to  give  the  owners 
of  the  lands  an  opportunity  to 
coinplete  the  road  themselves, 
through  their  own  lands,  within 
the  second  section  of  the  act, 
according  to  its  true  construc- 
tion. Couch  V.  P.  and  D.  of 
the  Ulster  and  Orange  Branch 
Turnpike  Company,  26 

Fide  V.  VI. 

V,  When  dissolved. 

11.  When  the  ansver  of  the  defen- 
dants denies  all  the  equity  of 
the  bill,  the  injunction  will  be 
dissolved  of  course.  Couch  v. 
Ulster  and  Orange  Turnpike 
Company,  26 


718 


INDEX. 


12.  Where  an  injanctioD  had  been 
graDted,  to  stay  a  sale  under  a 
power  contained  in  a  mortgage, 
a  few  days  before  the  expira- 
tion of  the  fix  morUhs*  notice,  it 
was  dissolved,  afler  answer,  on 
terms :  viz.  giving  six  weeks 
further  notice  of  the  time  and 
place  of  sale,  and  a  reference, 
in  the  mean  time,  to  a  master  to 
ascertain  the  balance  due,  &c. 
Mchoh  Y.  Wa$on,  115 

13.  When  an  injunction  is  allowed 
by  the  Chancellor,  the  defen- 
dant, before  he  puts  in  an  an- 
swer, may  move  to  dissolve 
the  injunction,  on  the  ground 
of  a  want  of  equity  in  the  bill. 

'MifUum  V,  Seymour ,  1 73 

14.  Where  the  defendant,  in  an- 
swer to  an  injunction  bill,  ad- 
mits the  equity  of  the  bill,  but 
sets  up  new  matter  of  defence 
on  which  he  relies,  the  injunc- 
tion will  be  continued  to  the 
hearing.     Mintum  v.  Seymour^ 

497 

VI.  When  made  perpetual. 

15.  Where  the  plaintiff  and  those 
under  whom  he  clains,  have 
been  in  the  quiet  and  uninter- 
rupted possession  of  land,  for 
above  tweniy-five  year$  :  an  in- 
junction restraining  the  defen- 
dants, (the  Corporation  of  the 
City  of  J^ew'York)  from  enter- 
ing and  digging  down  the  ground 
so  possessed  by  the  plaintiff, 
was  granted  and  made  perpetu- 
al, or  until  the  defendants  shall 
have  established,  by  due  course 
of  law,  their  right  to  the  ground 
in  question.  Varick  v.  The 
Corporation  of  the  City  of  New- 
York,  63 

16.  Where  on  a  sale  of  land,  mills, 
&c.  in  the  possession  of  the  de- 
fendants, under   an  execution 


against  them,  the  deed  execa* 
ted  by  the  sheriff,  by  mistake, 
did  not  include  the  whole  prem- 
ises advertised  and  sold,  the 
sheriff  having  taken  the  de- 
scription from  an  original  title 
deed  for  72  acres,  without  ad- 
verting to  subsequent  convey- 
ances, of  some  small  parceto, 
adjoining  the  original  premises: 
the  defendants  and  all  parties 
supposing  the  sheriff^sdeed  in- 
cluded the  whole,  and  the  pur- 
chaser having  bid  and  imid  a 
price  accor£ngly :  Decreed, 
that  the  defendants  be  perpetu- 
ally enjoined  from  proeecuting 
the  ejectment^  suit  at  law, 
brought  by  them  to  recover 
the  parcels  of  land  not  included 
in  the  sheriff^s  deed  to  the  pur- 
chaser ;  and  that  they  execute 
to  the  purchaser  a  release  of 
all  their  right  and  title  to  the 
same.     De  Riemer  v.  CanHlUm, 

85 
17.  Where  a  deed  was  ordered  to 
be  cancelled,  as  fraudulent  and 
void,  the  defendants  and  all 
persons  claiming  under  it,  were 
perpetually  enjoined  from  using 
the  record  of  it,  as  evidence  of 
title.     Bushnel  v.  Harfardy  301 

Fide  Steam  Boats.    Jvrisdictiov. 
Practice. 

INSOLVENT  DEBTOR. 

1.  An  insolvent  debtor  may,  b<ma 
fide,  assign  his  property  to  trus- 
tees, before  it  has  become  hcmad 
by  any  lien,  in  trust,  for  the  be- 
netit  of  all  his  creditors ;  and 
the  assent  of  the  creditors  is  not 
necessary  to  give  legal  validity 
to  the  deed  of  assignment.  At- 
coll  V.  Mumford, ,  ^22 

2.  But  where  the  assignment  is  dt* 
rectly  to  the  creditors,  withoat 


INDEX. 


719 


the  interTention  of  trostees,  the 
assent  of  the  creditors  is  reqai- 
site  to  give  it  legal  validity,   ib. 

Fide  Debtor  and  Creditor,  3,  4, 
5.  9.  10. 

INTEREST. 

On  a  bond  conditiooed  to  pay  with 
interest  at  six  per  cent,  for  the 
'  security  of  which  a  mortgage  is 
taken,  the  obligee,  after  a  for- 
feiture of  the  l^nd,  is  not  enti- 
tled to  seven  per  cent,  the 
lawful  interest  ;  but  interest 
is  to  be  paid  according  to  the 
contract,  until  it  ceases  to  ope- 
rate, by  being  merged  in  the 
decree.     Miller  t.  Burroughs^ 

436 

Fide  Trust  and  Trustee,  III.  18, 
19.  21. 


J. 
JOINT  OWNERS, 
rikie  Ship-Owkers,  1,2,3. 

NERSHIP. 


Part- 


judgment. 


1. 


Where  a  judgment  at  law,  by 
confession  on  a  warrant  of  at- 
torney, appears  regular  and  for- 
mal, according  to  the  record, 
this  Court  will  not  interfere 
with  or  impeach  it,  on  the 
ground  of  any  alleged  irregu- 
larity, or  informality,  in  enter- 
ing it  up ;  but  will  consider  the 
rights  acquired  under  such  judg- 
ment as  valid  in  law  ;  especial- 
ly, where  several  years  have 
elapsed  since  the  judgment,  and 
the  defendants  have  acquiesced 
in  it,  and  in  an  execution. and 


sale  under  it.     De  Biemer  v. 
CaniiUon^  q^ 

2.  A  judgment,  after  it  has  been 
fully  paid  and  satisfied,  cannot 
be  kept  on  foot  to  cover  any 
new  demands  of  the  plaintiff. 
Troup  V.   Wood  and  Skerwood, 

228 

3.  Where  the  sheriff  seizes  suffi- 
cient property  of  the  debtor, 
under  an  execution,  the  debtor 
IS  discharged  from  the  judg- 
ment, and  the  plaintiff  must  look 
to  the  sheriff  for  his  money,  ib. 

Fide  Jurisdiction.    Fraud.    Scire 
Facias. 


1 


JURISDICTION. 


Whether  this  coort  will  take 
cognisance  of  a  cause  where  the 
amount  in  controversy  does  not 
exceed  the  sum  of  fifty  dollars  ? 
Or  grant  an  injunction  to  stay 
execution  on  a  judgment  in  a 
justice's  court  ?  ^are,  Moore 
V.  Lyttle,  183 

2.  This  Court  possessing  an  exclu- 
sive jurisdiction  over  cases  of 
lunacy  and  matrimonial  causes, 
will  sustain  a  suit  instituted  to 
pronounce  the  nullity  of  a  mar- 
riage with  a  lunatic.  IVightman 
V.  Wigktmany  343 

3.  So,  where  a  marriage  is  unlaw- 
ful and  void,  ab  initio,  being  con* 
trary  to  the  law  of  nature,  as 
between  persons,  ascendants  or 
descendants,  in  the  lineal  line  of 
consanguinity,  or  between  bro- 
thers and  sisters,  in  the  collate* 
ral  line,  this  Court,  in  a  suit  in- 
stituted for  that  purpose,  will 
declare  the  marnage  null  and 
void.  ,-^. 

4.  Whether  the  Court,  there  be- 
ing no  statute  regulating  mar- 
riages,or  defining  the  prohibited 
degrees,  which  render  them  un- 
lawful, will  go  further,  and  de- 


720 


1  N  D  EX 


ebre  aamMgt§  betweeo  per* 
•oof  in  oiker  degrees  of  coUatc- 
rai  c4MHaf^ioitj  or  affioilj, 
Toid  ?  (fuare.  ib. 

b.  Tfii«  Coart  has  oo  power  to  io* 
(erfere  with,  or  io  set  aside  an 
oiunment  on  the  proprietors 
and  occupants  oi  lots,  to  defrajr 
the  expense  of  a  cwnmon  sewer ^ 
made  by  CoBUDissioBers,  under 
the  direction  o(  the  Mayor,  Al- 
dermen and  Commonalty  of  the 
city  of  yeW'York^  pursuant  to 
an  act  of  the  Legislature  for  that 
purpose,  on  the  groond  merely 
of  a  mistake  in  judgment  of  the 
Commissioners  of  estimate  and 
(issessment,  in  not  including  a// 
the  owners  or  occupants  intend- 
ed to  be  bene6ted  by  the  sewer: 
there  being  no  allegation  of  bad 
faith  or  partiality  in  the  Com- 
missioners, in  making  the  as-  11. 
sessment,  which,  after  being  ra- 
tified by  the  Common  Council, 
is  declared,  by  the  act,  to  be 
tinul  and  conclusive.  Le  Roy  v. 
Corporation  of  the  City  of  AVw- 
York,  362 

6.  The  only  remedy,  if  any,  for    12. 
the  party  aggrieved  in  such  case, 

is  at  law.  t6. 

7.  This  Court  does  not  lend  its  aid 
to   devest  an   estate,  for    the 
breach   of  a  condition  subse-    13. 
quent.   Livitig$ton  v.  Tompkins, 

415 

8.  It  does  not  assist  the  recovery 
of  a  penalty  or  forfeitures  or 
any  thing  in  the  nature  of  a  for- 
feiture, ib, 

9.  It  will  only  interfere  to  protect 
the  property  from  waste  and 
destruction,  or  to  prevent  its 
removal  out  of  the  jurisdiction 
of  the  court,  pending  an  action 
at  law  to  recover  the  posses- 
sion, ib. 

10.  Where  the  plaintiff  granted  to    14. 
the    defendant   the    exclusive 


n^  ofDamgatlBg  tritk 
brats,  fi>r  a  certain  time,  be- 
tween the  city  of  Ifeas-York 
and  the  Qmaramiisu  Grmtmd  on 
StmtmbUmdy  kc  And  H  was 
provided  in  th€  grant  or  assign 
ment,  that  if  thie  state  nr  legis- 
latnre  of  Nem^Jerm^  aboald,  at 
any  time  thereafter,  ohstmct  or 
prevent  the  plaintiff  from  navi- 
gating with  steam  boas  the  wa 
ters  of  that  state,  that  thence- 
forth the  grant  should  cease  and 
be  void,  &c.  Held^  that  thoogh 
the  contf  faderis  may  have  oc- 
curred, yet  this  Court  would 
not  interfere  to  restrain  the  de- 
fendant from  continntng  h» 
right  under  the  grant  to  him, 
until  the  plaintiff  had  establish- 
ed the  fact  ai  law,  and  his  right 
to  resume  the  grant.  t^. 

Equity  will  not  aid  or  enforce  a 
mere  voluntary  agreement,  not 
valid  at  law,  especially  against 
a  legal  claim  for  a  just  4^bt,  and 
where  there  is  no  considera- 
tion, accident,  or  fraud.  Min- 
ium T,  Seymour,  497 
This  Court  does  not,  unless  un- 
der very  special  circumstances, 
sustain  a  bill  for  a  compensation 
in  damages,  for  breach  of  an 
agreement.  Hatch  v.  Cobb^  659 
Where  there  is  neither  accident 
nor  mistake,  misrepresentation 
nor  fraud,  this  Court  has  oo  jn* 
risdiction  to  afford  relief  to  a 
party,  oo  the  groond  that  he  has 
lost  his  remedy  at  law,  through 
mere  ignorance  of  a  fact^  the 
knowledge  of  which  roi^^t  hare 
been  obtained  by  dne  diligence 
and  inquiry,  or  by  a  bill  of  dis- 
covery.    Pennyr,  Mardn^  566 

Vide  PAanrsRSBiP. 

The  power  of  this  Court  to  ap- 
ply the  remedy  in  the  case,  is 


INDEX* 


721 


«o<«xteiMiTe  with  its  jorisdiction 
over  the  subject  matter.  JTer- 
$haw  T.  Thompson,  609 

15.  A  suit  by  one  creditor  against 
an  heir,  and  a  decree  for  the  sale 
o(  the  assets  descended,  will 
enure  for  the  benefit  of  all  the 
creditors,  and  draw  the  entire 
distribution  of  the  assets  into 
this  court.    Thompson  j.  Brown, 

619 

16.  So,  in  the  case  of  executors  and 
administrators.  i6» 

17.  So,  where  a  testator  derised  all 
his  estate,  real  and  personal,  to 
trustees,  three  of  whom  were 
his  executors,  in  trust,  to  pay 
his  debts,  and  then  to  distribute 
the  residue.  It  was  held,  chat 
by  the  trust,  the  assets  were 
placed  under  the  jurisdiction  of 
this  court.     Benson  ▼.  Le  Roy, 

661 
IB.  And  this  court  will,  therefore, 
enjoin  a  suit  brought  by  a  cre- 
ditor, at  law,  for  the  purpose 
of  gaining  a  preference  o?er 
other  creditors.  ib, 

19.  This  court  does  not,  of  course, 
interfere  to  aid  or  enforce  an 
execution  at  law.  Brinktrhtff 
V.  Br(y»n,  671 

20.  If  a  creditor  seeks  the  aid  of  this 
court  against  the  real  estate  of 
his  debtor,  he  must  first  show  a 
judgment  at  law  creating  a  lien 
on  such  estate ;  and  if  he  seeks 
aid  in  regard  to  the  personal 
estate,  he  must  show  an  execu- 
tion, giving  him  a  legal  prefer- 
ence or  lien  on  the  goods  and 
chattels,  which  he  has  pursued, 
to  erery  available  extent,  at 
law,  before  he  can  resort  to 
equity,  for  relief.  ib. 

2 1  •   It  .is  not  sufficient  that  the  plain* 

tiff  has  become  a  judgment  ere* 

ditor,  in  the  intermediate  time 

between  the  bill  and  the  an- 

VoL.  IV*  91 


twer*  And,  where  the  defend* 
ant  has  made  all  the  discovery 
sought  for  in  the  bill,  he  may 
object  to  the  relief,  at  the  hear- 
ing, on  the  ground  that  the 
plaintiff  does  not  show  a  judg« 
meot  and  execution  at  law.  ib, 
22.  A  creditor,  to-entitle  himself  to 
the  aid  of  this  court,  in  the  re- 
covery of  his  debt,  must  show 
that  he  has  prosecuted  his  debt- 
or,at  law,  to  judgment  and  exe- 
cution, so  as  to  ha?e  gained  a 
legal  lien  and  preference,  at  the 
time  of  filing  his  bill,  or,  at 
least,  before  issue  joined  in  the 
cause.  Williams  v.  Brown,  6S2 
S.  P.  M^Dermutt  v.  Strong,  687 
25.  This  court,  as  well  as  a  court 
of  law,  allows  a  debtor  to  give  a 
preference  to  one  creditor  over 
another.  Williams  v.  Brown,  682 

24.  And  where  a  debtor  in  insolvent 
circumstances,  confesses  ajudg- 
ment,  for  a  debt  justly  due,  the 
judgment  creditor  will  retain  his 
priority.  t*. 

25.  if,  however*  the  debtor  makes 
use  of  the  judgment  so  confess* 
ed,  to  effect  a  sale  or  change  of 
the  property  for  his  own  pur- 
poses, and  the  property  is  sold 
at  a  great  sacrifice,  and  pur- 
chased in  by  the  debtor,  this 
court  will  interfere,  and  either 
allow  it  to  be  redeemed,  or  put 
up  again,  at  the  price  at  which 
it  was  soldt  and  resold,  fbr  the 
benefit  of  the  otlier  creditors, 
as  to  any  surplus  beyond  that 
price.  ib» 

26.  This  court  has  power  to  assist 
a  judgment  creditor  to  discover 
and  reach  the  property  of  a 
debtor,  which  is  beyond  the 
reach  of  an*  execution  at  Uw. 
M'Dermutt  v.  Strongs  687 

27.  To  get  possession  of  the  equita- 
ble interest  of  a  debtor,  as  a  re« 


7M 


INDEX 


fufting  trt»t»  in  goods  or  chat- 
tels, the  creditor  ttiust  come  in- 
to thk  court.  iB, 

28.  Bat,  before  a  judgment  creditor 
can  be  entitled  to  the  aid  of  this 
court,  he  mast  show  an  execo- 
tion  issned,  leried  and  returned, 
and  a  failure  of  his  remedy  at 
lair.  lb. 

29.  A  judgment  creditor  who  so 
tAkes  out  execution  at  lavr,  but 
is  unable  to  reach  a  residuary 
trust  interest  in  the  chattels  of 
his  debtor,  and  files  his  bill  for 
the  aid  of  this  court,  gains,  by 
his  execution  and  li^  dili- 
gence, a  Ural  preference  to  the 

\  nsMtanee  of  this  Court,  or  a  lien 
on  the  equitable  interest,  which 
cannot  be  affected  or  impaired 
by  any  subsequent  assignment 
of  that  equity,  by  the  debtor, 
either  for  the  benefit  of  all  his 
creditors,  generally,  as  under 
the  insolvent  act,  or  for  the  be- 
nefit of  a  particular  creditor,  ib. 
^.  Though  it  is  the  favourite  po- 
licy of  this  court,  to  distribute 
the  OMHts  of  a  debtor,  among  all 
his  creditors,  pari  passu  ;  yet 
when  such  a  judicial  preference 
has  been  established,  by  the  su- 
perior legal  dihgence  of  any 
creditor,  that  preference  will 
be  observed  in  the  distribution 
of  the  assets,  ib, 

-flit  Marriage,  2,  3,  4,  5.    Mort- 
,  OAOE,  23,  24.  27.    Fugitives 
rmoM  Justice.     Practice,  III. 
92.    Surrogate,  1. 


L. 

LACHES,    LENGTH  OP    TIME, 
AND  POSSESSION. 

!•  Where  a  farm  had  been  occupi- 
ed and   cultivated    for  abo?e 


eighty  yeari,  during  which  time 
the  original  tenant  and  his  des- 
cendants uniformly  paid  rent  to 
Uie  landlord,  built  houses,  and 
made  valuable  and  permanent 
improvements  on  the  remises  : 
Heldy  that  a  lease  in  fee,  at  the 
acknowledged  rent,  was  to  be 
presumed  to  have  been  origi- 
nally given,  or,  at  least,  that 
there  was  an  agreement  for  a 
lease,  under  which  the  tenant 
took  possession,  and  upon  the 
faith  of,  and  in  execution  of 
which,  he  made  his  improve- 
ments.  Ham  V.  Schuifler^         1 

2.  Equity,  as  well  as  a  court  of  law 
may  make  such  a  presumption 
from  length  of  time  and  posses- 
sion, ib. 

3.  Where  a  person  having  the  legal 
title  to  lands,  but  in  trust  for  the 
defendants,  sold  and  conveyed 
his  right  and  title,  for  a  valua- 
ble consideration,  to  a  bomajide 
purchaser,  without  notice,  who 
remained  in  possession  o(  the 
land,  for  eighteen  yeara  befbre 
his  death,  and  devised  the  sanaie 
by  his  will :  Held,  that  after  the 
lapse  of  thirty  years  from  the 
date  of  the  deed,  there  being  no 
evidence  of  its  being  fraudulent, 
the  devisees  of  such  purchiser 
were  entitled  to  hold  the  lands 
discharged  from  the  trust.  Coxe 
V.  Smith*  and  others ^  271 

4.  Lapse  of  time  operates,  in  equi- 
ty, only  by  way  of  evidence,  as 
affording  a  presumption  of  pay- 
ment. Livingstan  v.  Living-^ 
ston,  287 

5.  Therefore,  where  the  defend- 
ant admitted  the  original  cove- 
nant to  pay  rent,  and  did  not,  in 
his  answer,  pretend  to  any  pay- 
ment :  Heldy  that  he  could  not 
insist  on  the  lapse  of  time,  be- 
ing twenty  years  from  the  date 
of  the  covenant  to  the  UiBg  of 


IK9|1?C. 


ns 


the  bill^  as  presomptiFe  evi- 
dence pfpayiQent  ib, 

6.  Where  there  was  a  perpetual 
lease»  reserFiDg  an  anoual  rent, 
and  no  rent  had  been  demanded 
{^ forty  four  year?  from  the  date 
of  the  lease  )  ^q  a  bill  for  a  dis- 
covery, by  the  lessor,  on  the 
ground  of  a  loss  of  the  counter- 
part of  the  lease  :  Held^  that 
the  lapse  of  time  was  sufficient 
evidence  that  the  rent  had  been 
extinguished  by  some  act  or 
deed  of  the  party  entitled  to  it. 
Livingston  v,  Livingston,      294 

7»  Where  the  defendant,  a  bonajide 
purchaser^  withoqt  notic^»  and 
those  under  whoip  he  claimed, 
bad  been  in  possession  of  land 
above  Ujoenty'six  years,  before 
the  plaintiffs  filed  their  bill  to 
enforce  their  claim,  founded  on 
an  implied  tryst,  the  bill  was 
dismissed,  without  costs.  Sha- 
ver r,  Radley,  SIO 

LANDLORD  AND  TENANT. 

Fide  Laches,  Lieivoth  of  Time  and 
Possession,  1.5,  6. 

LAW  OF  NATIONS. 

Vid^  Fugitives  from  Justice. 
LEGACY. 

1.  Though  one  legatee  may  sue 
alone  for  his  specific  legacy  ; 
yet  where  he  claims,  also,  as  a 
residuary  legatee,  all  the  Tesid- 
uary  legatees  must  be  made  par- 
ties of  the  suit.  Davoue  v.  Fan* 
ning,  199 

2.  Though  the  name  of  the  legatee 
is  entirely  mistaken  by  the  tes- 
tator, as  "  Cornelia  Thoinpson^^^ 
for  Caroline  Thomas  ;  yet  the 
bequest  is  good  ;  and  the  iuten- 
tion  of  the   testator,  and   the 


misnomer,  beinj;  satisfiictorily 
shown,  the  legacv  w$is  ordered 
to  be  paid  to  the  person  in- 
tended-   Thomas  v.  Stevens,  607 

.     LEX  LOCL 

Fide  Foreign  Laws. 

LIEN. 

Fide  Ship  Owners,  2.     JuRis|tic- 
TiON,  20.  2?.  29. 

LIS  PENDENS. 

Vide  NoTi€B,  1>  2, 

LOST  DEED. 

Fide  Pleading,  IlL  IS. 

LUNATICS. 
Fide  Idiots  and  Lunatics. 

M. 


1. 


MARRIAGE. 

Though  a  marriage  with  a  luna^ 
tic  is  absolutely  void,  yet,  as 
well  for  the  sake  of  the  gopd 
order  of  society,  as  the  quiet 
and  relief  of  the  party,  its  nul- 
lity should  be  declared  by  the 
decision  of  some  court  of  com- 
petent jurisdiction.  fVightmah 
V.  JVigfUman,  343 

And  this  court,  possessing  aa 
exclusive  jurisdiction  over  ca- 
ses of  lunacy  and  matrimonial 
causes,  is  the  proper,  and,  in- 
deed, since  there  are  no  ecelesi^ 
atticcd  Caurts  having  cogni- 
zance of  such  causes,  the  only 
tribunal  to  afford  relief  in  such 
a  case,  and  sustain  a  suit  instito- 


72^ 


I  N  D  E  ^. 


it  not  fined  9Dd  certiiD  ;  but 
rests  10  the  sound  (tisoretioii  of 
the  court,  to  be  regulatiBd  by 
circuowtsoces,  Pertfie  ▼.  Z)tfnn, 

14U 

13.  The  Qsnal  time,  on  a  bill  to  re* 
deem^  is  six  mofU&t,  from  the 
Uqoidation  of  the  debt  by  the 
master's  report ;  and,  it  seems, 
that  when  tiiis  time  is  allowed, 
it  will  not  be,  afterwards,  en- 
larged. «6. 

14.  On  a  bill  for  foredosurty  the 
time,  may  be  enlarged  from  six 
months  to  six  months,  or  from 
three  months  to  three  months, 
qpon  equitable  terms,  and  ac» 
cording  to  the  circomstaoces  of 
the  case.  ib, 

16.  But  this  rule  applies  only  to  bills 
of  foreelomrCf  strictly  so  called, 
where  the  equity  of  redemption 
is  barred  by  the  decree,  and  a 
complete  title  rested  in  the 
mortgagee  ;  and  not  to  cases  of 
a  decree  for  the  u^  of  the 
mortgaged  premises  according 
to  the  usual  practice  q£  the 
court.  ib, 

16.  Where  a  party  fails  to  redeem 
within  the  time  allowed,  on  a 
bill  to  redeem,  it  is  usual  to  dis- 
miss the  bill,  which  amounts  to  a 
bar  of  the  equity  of  redemp- 
tion, ib, 

17.  For  where  a  bill  is  dismissed 
on  the  merits,  without  any  di- 
rection that  the  dismissal  shall 
be  without  prejudice,  it  may  be 
pleaded  in  bar  to  a  new  bill  for 
the  same  matter.  ib. 

18.  Where  a  bill  was  not  simply  to 
redeem,  but  to  set  aside  a  mort* 
gage,  three  months  only  were  al- 
lowed to  the  iDortgagor.        ib. 

19.  Where  a  mortgagee  has  been 
detained  from  hM  remedy  on  the 
mortgage,  for  many  years,  by  a 
long  and  tedious  litigation,  pay- 
ment may  be  required  ia  a  ^auch 


shorter  time,  as  Aw^  Ays,  «f- 
tet  the  final  depision  of  *the 
cause.  ib» 

$0.  Parol  eyidence  was  admifted  to 
show  that  a  mortgage  only,  and 
not  an  idMolute  side,  was  intend- 
ed ;  and  that  the  defendant  had 
fraudulently  attempted  to  con- 
vert the  loan  into  a  sale ;  and 
the  plaintiff  wa8,therefore,  held 
entitled  to  redeem.  Stnmg  v. 
Stewart  y  167 

St*  If  mortmed  prmaises  are  inca- 
pable of  being  sold  in  parcels, 
or  of  being  divided,  without  in- 
jury, the  whole  maybe  sold, 
though  the  whole  debt  is  not 
due  ;  and  the  proceeds  applied 
to  pay  the  interest  and  costs, 
and  the  surplus  to  the  principal 
of  the  debt.  CampbeU  y.  JbTo- 
com6,  534 

22.  Where,  in  such  case,  the  bond 
having  become  forfeited  at  law, 
for  the  non  payment  of  the  in- 
terest, the  whole  morlgaged 
premises  are  decreed  to  be  sold, 
and  the  mortgagor  or  percfiaaer 
of  the  equity  of  redemption, 
befc^e  the  day  of  sale,  pays  the 
interest  and  costs,  the  sale 
will  be  stayed  ;  but  the  de- 
cree of  sale  and  forectosure 
entered,  will  remain  as  forther 
security,  to  enforce  the  pay- 
ment of  future  interest,  and  the 
instalments  of  the  principal,  as 
they  respectively  become  dae« 

ib. 

2,3*  Though  the  mortgagee  sboald 
be  not  only  a  trwtnYHitzMfrety 
for  the  debt,  and  though  the 
mortgaged  premises  are  in  a 
state  of  ruin  and  decay,  andtke 
seenrity  thereby  impaired  and 
rendered  precarious,  he  is  aot, 
therefore,  entitled  to  have  the 
property  sold,  before  the  debt 
is  due,  or  the  debtor  is  ki  de- 
fault* t^. 


I  K  6  fiX« 


m 


24.  N^»  wtU  tk^  ConHi  wlMfe  the 
'  preouses  mortgpiged,    being   a 

Aaai  and  bridge^  wer^  injured 
by  ttotm^j  interfere  to  cetipel 
tbe  aiortgagor  io  poMeteion,  to 
repair  ^em  at  bis  own  ex- 
pense* tk 

25.  On  the  sale  of  prenuses  nnder  a 
mortgage^  it  was  represented 
that  tbe  property  was  free  from 
all  incumbrances ;  but  after  the 
sale  and  master's  report*  it  was 
discovered,  that  .the  property 
was  subject  to  a  city  assessment 
and  tax;  and  the  purchaser, 
therefore,  refused  to  complete 
the  purchase,  unless  the  incum- 
brances were  removed*  The 
court,  the  facts  being  satisfac* 
torily  proved,  directed  tbe  mas- 
ter to  discharge  the  incum- 
brances out  of  the  proceeds  of 
the  sale.   Lawrence  v*  Camell^ 

542 
ee.  I'he  act  passed  April  12th,  1820, 
(jsit*  43.  ch»,  184.)  directing 
the  sheriff  or  other  officer, 
whei^e  lands  are  sold  by  virtue 
of  any  execution,  to  delay  giv- 
ing a  deed  to  .the  purchaser,  so 
as  to  give  the  debtor  time  to  re- 
deem within  one  year,  on  cer- 
tain terms,  does  not  apply  to 
the  case  of  a  sale  by  a  master, 
of  mortgaged  premises,  under 
a  decree  of  sale  and  foreclo- 
SUfe.     Ten  Broeck  v*  Laming^ 

601 
27.  Where,  after  a  foreclosure  and 
sale  of  naortgaged  premises,  the 
mortgagor  or  defendant,  or  any 
person  who  has  come  into  pos- 
session under  him»  pending  the 
sMit,  refuses  to  deliver  up  the 
possession,  on  demand,  to  the 
purchaser  under  the  decree, 
the  court,  on  motion  for  that 
purpose,  will  order  the  posses- 
sion to  be  delivered  to  tbe  pur- 
chaser, and  not  drive  him  to  his 


action  of  ejecteent  at  hw , 
though  the  delivery  of  posses- 
sion is  not  made  a  pah  of  the 
decree*  JTerMaw  v.  Tkampsim 
and  otkerst  609 

28.  And  in  case  of  disobedience  to 
such  order*  an  injimctiam  iaues ; 
and  on  proof  of  its  service,  and 
refusal  bv  the  party  to  obey  it, 
a  writ  of  assiiUmee  issues,  of 
course,  to  the  sheriff.  ib. 

29.  But  where  the  delivery  of  pos- 
session is  made  part  of  the  de- 
cree, a  vnit  of  execution  is  the 
proper  remedy  in  case  of  dis- 
obedience, ib, 

30.  A  mortgagor,where  the  equity  of 

redemption  has  been  sold  by  a 
sheriff  under  an  execution  at 
law,  has,  by  the  act  of  the  12th 
of  April,  1820,  {se$s.  43.  db. 
184.)  one  year  from  the  sale  to 
redeem  the  land  from  the  pur- 
chase ;  and,  therefore,  on  a  bill 
to  foreclose,  during  the  year,  he 
ought  to  be  made  a  party  to  tbe 
suit.     Halhck  v.  SmiOi^       649 

Vide  Interest.     Contmbutioit. 

N. 

NEW-YORK,    CORPORATION 
OF. 

Fide  IvjuNCTiON,  V.  16. 

NON  COMPOS  MENTIS, 

Vide  Idiots  ajid  Lunatics. 

NORTH  RIVER  STEAM   BOAT 
COMPANY. 

Fide  Steam  Boats. 

NOTICE. 

1.   Though,  in  a  bill  filed  against  a 


728 


INDEX. 


truiUe  of  lapels,  for  ao  aocoant» 
and  a  Goovejfance  of  them  to 
the  ce$$f»y  que  trusty  the  descrip- 
tion of  the  lands  is  general,  as 
**  difers  lands  in  Cotby^s  Jlfo- 
fior,  in  the  patent  of  Spring' 
JUldf^*  it  is  enough  to  pat  a  pur- 
chaser of  a  lot  in  Co$by^$  Ma$Mr, 
on  inquiry  ;  ^^«  being  charge- 
able with  notice  of  the  penden- 
cy of  the  suit,  and  of  all  the 
fiicts  in  the  bill,  it  is  good  notice 
to  him  that  the  lot  purchased 
was  a  part  of  the  trust  estate 
mentioned  in  the  bill.  Green 
y.  SlayUr,  38 

2.  A  Hi  pendent^  or  constructive 
notice  of  a  suit  pending  against 
a  tnuUe  for  an  account,  ^.  will 
not  prevent  the  payment  by  the 
debtor  of  a  bond  to  the  <ni«/ee, 
or  to  his  assignee,  being  the  le- 
.gal  owner  of  the  bond,  no  re- 
eeiver  having  been  appointed  by 
the  court  ih. 

Viitr  T&usT  AND  Tausteb.    Mort- 
gage. 

P. 

PARTITION. 

1.  When  on  a  bill  for  partition,  the 
legal  title  is  disputed  and  doubt- 
fbl,  the  course  is,  to  send  the 
plaintiff  to  a  court  of  law,  to 
have  his  title  first  established. 
CoxtT,SmUh,  271 

S.  But  where  the  question  arises 
upon  an  equitable  title  set  up 
by  the  defendants,  this  court 
must  decide  on  the  title.        ib. 

PARTNERSHIP. 

1.  The  interest  of  each  partner  in 
the  partnership  property,  is  his 
share  in  the  surplus,  sut^ect  to 


pertnenUp  aocoanti,  4c«   At" 
coUT.MMn^ord,  btl 

2»  And  that  interest  alone  is  liable 
to  the  separate  creditoiaof  each 
partner,  claiming  either-by  as- 
signment or  exectttioo.   .       ib, 

3.  An  assignee,  therefore,  or  sepa- 
rate creditor  ai  one  partner,  is 
entitled  only  to  the  share  of 
such  partner,  after  a  settlement 
of  the  accounts,  and  ater  all  the 
just  claims  of  the  other  fiartner 
are  satisfied*  ih, 

4.  Owners  of  the/r«^MsM^Mr^o 
of  a  vessel  are  partners  or  joint 
tenants,  and  the  assii^iee  or  se- 
parate creditor  of  one  of  them, 
takes  bis  interest,  subjeci  to  an 
account  between  him  and  his 
copartner  in  the  voyage-        ^- 

5*  But  where  one  joint  owner  of 
the  freight  and  caigo  of  a  par- 
ticular vessel,  on  a  particular 
voyage,  assigns  his  interest 
therein,  one  of  them,  who  has 
got  possession  of  the  whale  pro- 
ceeds, cannot  retain  the  share 
so  assigned,  to  satisfy  claims 
which  he  may  have  against  the 
other,  arising  from  former  and 
distinct  voyages  or  adventures, 
in  which  they  have  been  con^ 
cemed  together  in  the  same  or 
other  vessels ;  they  not  being 
general  partners  in  trade,  and 
there  not  being  any  connection 
between  the  different  voyages 
or  adventures.  t6« 

6.  The  Court  may  appoint  n  per- 
son to  carry  on  trade  fair  an 
infant  partner.  ThMpstm  t. 
Brown^  „.     .^19 

7.  Where  the  plaintifis  brought  an 
action  at  law  agaia0\  two  per- 
sons, as  partners  in  trade,  under 
the  firm  of  IL  k^M^  lap^'Y^cp- 
vered  judgment,  but  ibiH  jpbicb 
they  were  unable  to  o^^4o  <*' 
tisiactioQ  outof4hmi^ji»i^pro- 


INDEX. 


719" 


pertj,  or  the  separate  property 
of  JMl,  the  other  paMner  not 
ha¥ing  been  brought  into  coart, 
OD  the  metiM  proee«8  ;  and  the 
ptefOlUb,  o/ier«arit,  diacover- 
ed(.ibr  the  iiivt  time,  that  A*.,  L., 
and  P^  three  other  persona, 

•  -   were  dermant  partners  with  R. 

mnA.M.f  and  joiotij  tnlerested 
an  the  traasactioa  out  of  which 
the   piaiotiff's  right  •  of  action 
araae:   HM,  that  this  Court 
••lMMt«o  jaiisdictkm  to  afford  re- 
lief against  the  domuuu  part- 
sen*    Penny  ▼.  ^Isrlta,       666 
't«  The  aaaeciation  of  the  stock- 
faalders  of  the  '*  AorlA  River 
'    Steam  Boat  Ounpomy^^*  is  not  a 
.   etfaftnerMip ;  but  the  parties 
are  tenaiili  -in  eoounon  of  the 
property  aod  franchisee  belong- 
ing to  the  company.     Living' 
etcm  ▼•  £ynM»  673 

Ptde    CztCVTOKS    llVD    Al»UINI8TRA- 
TORS,   6,  6. 

PARTY  WALL. 

Vide  CoirTRiBtTTfolr. 

PENALTY. 

yide  JtmisDiCTioK. 

PLEADINGS. 

f.  Pkadmgi  generalhf. 
II.  Parties. 
hi;  Bill. 

'  It*    MTetHMTTer* 

'   ¥.  Pleti. 
▼  I.  Atuwer. 

•  i    L  Pkadingt  genially. 

1 .  Pleadings  ahoeld  consist  of  aver- 
ments or  allegations  of  facts, 
-    etaM  with  as  much  breTky  and 
' ' :  pMcisloii  as  poselbia ;  aoC  of  in- 
Vol.  IV.  92 


ference  or  argument    Hood  K 

MfMlii«  437 

2.  Imperiinenee  in  pleadings  con- 
sists-in  setting  forth  what  is  not 
necessary  to  be  set  forth  ;  as 
stuffing  them  with  recitals  and 
long  digressions  as  to  matters 
wholly  immaterial.  ^  ib. 

3.  Generally,  the  bill  and  answer 
ought  not  to  set  fotth  deeds  m 
hmever^f  but  so  much  of  them 
only,  as  is  material  to  the  point 
in  question :  nor  ought  Aey  to 
be  argumentatiTO  or  rheloricat  * 

11.  Partiet. 

4.  W  the  plaiatiC  who  sees  as  ad- 
ministrator, has  not  actually  ta- 
ken out  letters  of  administration, 
or  H  the  letters  of  administra- 
tion have  not  been  graited  by 
the  proper  officer,  it  may  he  ob- 
jected to  by  plea«  or  in  4he  an- 
swer, or  by  demurrer ;  and  if 
insisted  on  at  the  hearing,  the* 
bill  will  be  dismissed.  Chodfidi 
T.  Pendleton^  ^649 

5.  But  if  letters  of  administration 
are  duly  taken  out  at  any  time 
before  the  hearing,  it  wiH  be 
sufficient,  and  may  be  charged 
by  way  of  supplement  or  am^nd* 
meat  to  the  bill.  ib. 

^.  On  a  bill  to  foreclose  a  asort- 
gage,  all  iacombrancers  existing 
at  the  ooiMnencement  of  the 
suit,  must  be  made  parties.  *  Em* 
worth  T.  Lambert^  605 

7.  Where  the  objection  of  a  want 
of  parties  is  made  out  of  season, 
the  plaintiff,  instead  of  amend-^ 
ing  the  original  bilW  nay  file  a 
supplemented  bill,  merely  to 
bring  in  the  parties  wanted ; 
and  the  defendants  in  the  origi- 
nal bill  need  not,  in  such  case, 
be  aaade  parties  to  the  supple-  • 
menial  bill.  ib. 


Tail 


INDEX.. 


a.  Ob  a  bin  to  foredose  a  mort- 
gage, the  a»rtgagor  wketeaqai- 

'  tjef  redenptioD  has  btea  sold 
by  the  tber^  anderaii  eaecu- 

'  lion  at  law,  nuit  be  made  a  oar- 
Ij ;  as  he  has,  by  the  act  oi  the 
iMi  ef  Jipnl,  1890,  (mm.  43. 
C&.  184.)  on?  year  from  ths  sale 
to  redeem  the  land  irem  the 
imrehase,   and,   therefiNre,  an 

1  Mating  right  elf  whieh  he  tan- 
sot  be  devested  withio  the  year. 
Oihikw.Smik,  649 

A*  Wheie  a  bill  wm  filed  against 
C,  charging  him  with  fraud  and 
breach  of  trest,  aa  administra- 
tor of  JB.,  and  the  defendant,  in 
Ins  pUa,  alleged  that  all  the 
acts  done  in  relalidn  to  the  ea* 
toto  of  A.  9  ^fW^  dane  by  him  and 
F.  ^ntly,  as  adasiaistrateCT,  to 
Mtoch  there  was  no  replication  : 

^  JAM,  that  en  the  allegatien  in 
the  plea,  F.,  the  eo- administra- 
tor, eqght  to  be  asade  a  party. 
Jin^fom  r.  aav,  116 

M.  Thoqgh  one  legatee  asay  sue 
alone  for  hia  spraAc  legacy,  yet 
where  he  claims,  also,  as  aren- 
Aiary  kigatoe,  all  the  ressduary 
legatees  mast  be  made  parties 
<     ie  the  suit.   DavmmY^Fmmingf 

199 

Ik  Ateaigaicerporatioo,  orincor- 

.  poratod  bank  of  another  stete, 

'    may  aoe  in  their  copponte  name 

aad  file  a  hillfor  Uk  aale  onand 

in  thk  stete,  under  a  moHcage 

-    to  aaenre  moiiey  lest    l^ver 

.  .  Ltkt  Soak  r.  J^^rtk,  370 

IIL  BOl. 

IS.  U  rdiaf^-  as  welt  as  diacovery, 
lie  prayed  fiir«  on  the  giowal  of 
•  lost  deedf  there  must  ba  an 
•flUaaitofUmlom.  LhiwgiUm 
.VkXa^truniaa,  294 

IS.  If  a^biU  for  diacavery  and  ralief 
be  good  aa  to  the  diaooveiy,  a 


general  deararrar  to  the  whole 
billisbad*     -  A. 

14.  A  bill  for  diieanery*  in  aid  of  a 
caoae  before  t&e  SmrogaU, 
broi^^  for  an  aoeooot  and  dia- 
tribotten  of  the  intestate'e  es- 
teto,  must  charge  €artai»&cte 
witiim  the  knowledge  of  the  de- 
fendant, the  diadosare  of  which 
is  material  and  aecossafy  to  the 
party's  defence  in  that  Court, 
and  that  ha  baa  do  aaeaos  of 
ahowing  the  faoli,  without  such 
diaoofrery.  Sgymoar  t.  Siymour^ 

409 

15w  But,  it  Mcms,  that  where  the  bill 
is  for  ii9CafO€ry  merely,  and  no 
iojuncttoii  is  asked  for,  aad  there 
is  a  demurrer  to  the  bM,  the 
Court  wiH  not  examiae^o  nicely 
as  to  the  materiali^  ef  the  dia- 
covery^  ib, 

IV.  DsmtfTf^r. 

16.  Where  it  appears  ea  ^e  face  of 
the  bill,  that  there  has  b^^n  a 
decree  in  a  former  suit  between 
the  same  parties,  the  defendaflt* 
may  demur.  Aiaaaev.  AMmtn^, 

199 

17.  If  a  bill  blends  t^getKern  de- 
mand by  the  phdntidT,  as  leg^e, 
against  the  defendant,  as  execa- 
tor,  with  a  demand  of  the  pbiD- 
tiff,  in  his  vrirate  cq^oity,  a- 
gainat  the  defendant,  in  his  id- 
diriduat  character,  it  ia  good 
cAuae  of  demurrer ;  and  the^  bill 
will  be  dismissed  with  eoata.  a^. 

18.  If  a  bill  fer  dtacovery  and  relief 
be  good  as  to  the  discoTeiir,  « 
general  deoKirrerto  the  whole 
bill  is  bad.  LivmgiUmr.Lhing- 


#<on, 


«94 


V.  PUa. 


It.  A  plea  must  be  peifeei>te  td^tf, 
s#,  aa  if  true  ia  feet,  ft  i(il|f^pQt 


I  IT  D  BX. 


781 


m  €Dd  to  tU  GttM.    Mm  r. 
Bandolpk,  693 

20.  If  circaastancefl  of  fmod  are 
chafgad  ia  the  hUl,  tbey  nust 
be  deoied  by  a  geatral  aver- 
meat,  at  least  •  i6. 

21.  WHere  the  bill isbargedBMirepre- 
MDtatioD^  eoercioa,  and  fraud, 
in  procariog  a  release  of  a  ^ebt, 
and  the  defendant  pat  in  a  plea 
and  answer,  and  in  bil  plea»  in- 
sisted OB  the  release,  in  bar, 
withoot  noticing  the  allegation 
of  fraod,  though  in  the  answer 
it  was  fully  met  and  denied, 
the  plea  was  held  bad.  i6. 

22.  Where  a  biU  is  disnissed  on  the 
merits,  withoot 'any  direction 
that  the  dismissal  shall  be  with- 
oot prejndice,  it  may  be  pleaded 
in  bar  to  a  new  bill  for  the  same 
matter.     Ferine  ▼.  Dtinn,     140 

23.  The  iasuot  as  to  the  truth  of  the 
plea,  is  to  be  referred  to  the 
state  of  iacta  at  the  time  the  plea 
is  filed.  Cook  4>  Kam  y.  Man- 
eiuBf  166 

24.  Where  the  defendants  pleaded 
certain  outstanding  judgments, 
and  the  Court  gave  leave  to  the 
plaiotifis  to   amend  their  bill, 

.   by  making  the  judgment  credi- 
tors parties;  and  subsequent  to 
the  order  fiur  amendment,  the 
,   judgments   were    satisfied,  and 
disoharged ;  and  the  pkuotitib, 
.     instead  of  amending  theur  bill, 
replied,  taking  issue  on  the  plea; 
.    the,  court  ordered  the  plaintiffs 
< .    to  pay  the  coste  of  the  plea  and 
,     the  subsequent  ptoceedinfi,  in 
.,    thirty  daysi  or  tl^t  the  biU  stand 
dismissed  With  costs ;  but  if  the 
costs  were  paid,  then  the  defen- 
dants to  answer  the  bill  in  six 
weeks,  or  thai  it  he  taken  pro 
emifeuo*  ih, 

2&  TboiBgh.  A  decree  in  a  foimet 
auitv  to  which  the  plaintiff  and 
defendant  were  parties,  cannot 


he  pleaded  hi  ter»  uitil  it  is 
signed  and  enroUedi  it  may  be 
msisteden  by  way  of  hoswer. 
Dmmu  Y.  Feuming^  199 

26.  Where  a  cause  was  brought  to 
a  hearing  on  the  bill  and  answer, 
and  the  bill  was  dismissed  with 
costs,  because  no  person  ap* 
peered  for  the  plaintiff^  and  the 
decree  was  enrolled,  it  was  held 
to  be  no  bar  to  another  suit  for 
the  same  matter.   Ratm  v.  Amr, 

M6 


VI. 


27.  A  decree  in  a  former  suit  be- 
tween the  same  parties,  not 
signed  and  ensoHed,  though  it 
cannot  be  pleaded  in  bar,  may 
he  insisted  on  by  way  ef  aaswer. 
iktomf  r4  Fanmngi  -    199 

26.  Where  a  bill  is  takes  pra  can- 
fdes0,  against  a  defendant  absent 
from  the  state*  hemay  eease  in, 
after  the  decree,  and  answer 
and  defeod  the  suit.  f     t(. 

29«  A  defendant  who  suhmitsto  an- 
swer, must  answer  AiUy.  Phil- 
Up$  ▼•  Frsvooil,  205 

30.  But  the  genet al  mle  it  subject 
to  exception  and  modification 
aocording  to  the  ckremnstancea 
of  the  case  :  as  where  the  de« 
fendant  objects  to  a  disevrery 
because  the  plaintiff  has  no  ti» 
tie.  a. 

31.  So,  where  a  bill  was  filed  by  the 
executors  of' a  creditor,  ehum- 
ing  under  a  judgment  of  more 
than  ihirty-nx  years  standing, 
against  the  legal  representatires 
ofthedebtOr»  above  lUffy  years 
after  his  death,  withoot  accoant- 
iag  fer  the  delay,  orshowiog 
any  attempt  to  recoTMr  the  debt 
at  law,  and  seeking  a  dbcoTe- 
ry  and  acdomil  of  aneie;  the' 
defendants,  after  admittii^  the 
death  of  the  original  parties  to 


V6t 


INDEX* 


the  jodfflienC,  and  tlw  repre- 
feotatiT^  character  of  the  de- 
feodanU,  may  obfeet  to  any  dia* 
eofery  aa  to  Mfelt,  or  as  to  the 
material  objects  of  the  bill,  on 
the  ground  of  the  stateness  of 
the  deosand,  and  the  great  lapse 
of  time  ib. 

32.  A  defendant  is  not  bound  to  an- 
swer so  aa  to  subject  himself  to 
a  penalty  or  forfeiture.  Ldving- 
Han  V.  Ton^him,  432 

3&  After  a  plea  has  been  overruled, 
the  same  defence  may  be  in- 
sisted 9n,  by  way  of  answer. 
Ooodrieh  ▼•  PendliUm.  551 


POWER. 

1.  Where  a  pewer  is  given  to  ear* 
eeuiors  to  sell  an  estate,  or  cer- 
tain parts  of  it,  it  is  a  personal 
tr«st  and  confidence,  and  they 
cannot  sell  by  attorney.  Ber- 
jflsr  V.  Dh^,  368 

SL  Thus,  where  A,  authorised  his 
executors,  fi.  and  C,  to  sell 
certain  iots  of  land,  if,  under 
th^  ciroumstaoces  of  the  times, 
they  should  deem  it  prudent ; 
and  C.  having  gone  abroad,  sent 
a  power  of  attorney  to  B.,  his 
co-executor,  to  sell  the  land  on 
.  such  terms  as  he  should  deem 
expedient :  HM^  that  an  agree- 
ment for  the  sale,  entered  into 
by  B.,  for  himself  and  C,  was 
not  valid,  and  a  bill  filed  for  a 
specific  performance  of  it  was, 
accordingly,  dismissed.  %b. 

jPower  of  sale  in  a  mortgage,  Fide 

MORTOAGB. 

PRACTICE. 

I.  Filing  Bill,  and  Proem. 
II.  App^ranee^ 


HI.  Rgm&ml  of  fkt  eamm  tNio  Ae 
dremi  Qmri  tf  ikm  United 
StaUi. 
IV.  MaUmu^  Petitions   and    Or- 

dert* 
V.  Amending  and  Hmnming  Ae 

Ml. 
VI.  Taking  the  bill  pro  eenfmto. 
VII.  Putting  the  plainti^ to  hueUc- 

tion. 
VIIL  Amendi$$g  the  aiuver,  or  filing 
a  mppiemental  ofuwer. 
IX.  Taknig  testumomf,  feignul  is* 
sue,  and  other    imterwmdiat€ 
proceedmgs*  i 

X.  Hearing  and  Reheating, 
XI.  Reference  to  a  MnsOer,  Repast 

and  Exceptions, 
Xil.  Decree, 

XUL  Eneemtion  of  Ikcroe, 
XIV.  Solicitors  and  Agents. 

I.  FUing  Billy  and  Process. 

1.  Where  an  attachmeut  ia  Mraed 
to  enforce  appearanee,  or  to 
answer,  the  body  \if  the 'writ  is 
general,  but  the  suit,  and  the 
cause  of  the  attacbflMnti  are 
endorsed  thereon,  or  appear  in 
a  label  annexed,  «o  that  the 
party  may,  at  onee,  comply, 
without  application  to  the  Court 
Matter  of  Vanderbik,  57 

2.  But  where  the  attachment  is  is- 
sued for  a  contempt  in  disobey- 
ing an  injunction,  an  endbrae- 
ment  or  label,  speciffiog  the 
cause  of  action,  ia  not  neces- 
sary. t6. 

8.  On  an  attachment  for  a  con- 
tempt, or  for  disobeying  an  in- 
junction, the  party  is  not  'to  be 
bailed  by  the  sheriff,*  b«t  ia  to 
be  brought  before  the  dauicel- 
lor,  to  answer  specific  chirges ; 
and  he  will  then  be  oiiM«d  to 
be  bailed  to  appear^  fraan  daj 


I  N.DBX. 


73d 


8. 


to. 


to  dflj»  UBtil  the  ptfCji  c«m- 
plaioiiig  has  prepared  his  inter- 
r(>g;atories,  on  whicb  be  is  to  be 
eiamined  before  « inaster. 
A  ^crq$9  bill  must  be  filed  before 
publication  passed  io  tbe  origi- 
nal cause.  Govemeur  r,  EU- 
mAndorf  357 

II.  Appearance, 

The  usual  mode  of  appearing 
in  tbis  court,  is  by  entering  an 
appearance  witb  one  of  thi^ 
clerks  of  the  court.  Livingston 
T.  GMons,  94 

But,  ii  seenu,  that  a  notice  by 
tbe  defendant's  solicitor,  of  an 
appearance,  given  to  the  plain- 
tiff's solicitor,  fvitboutan  entry 
of  tbe  appearance  on  tbe  clerk's 
minutes,  would  be  binding  on 
the  party.  %b. 

An  appearance  'filed  with  the 
register^  is  an  appearance  on 
the  records  of  the  court. 
Where  9  defendant  puts  in  an 
answer,  which  is  read  in  court, 
by  tbe  consent  of  the  plaintiff's 
counsel,  and  ordered  to  be  filed 
with  tbe  register^  it  is  an  op- 
pearanee  on  the  records  of  the 
Court.  lb. 

A  female  defendant,  unmarried, 
above  sixty  years  of  age,  and 
who  bad  been  deaf  and  dumb 
from  her  infancy,  was  admitted 
to  appear  and  defend  by  guar- 
dian. Markle  v.  Markle,  168 
Where  the  plaintiff's  solicitor, 
at  the  request  of  the  defend- 
sint's  solicitor,  sent  him  a  copy 
of  the  bill*  and  requested  that 
an  answer  might  be  put  in,  it 
was  held  to  be  an  admission  of 
«ii  appearance,  or  waiver  of  a 
'formal  entry  of  appearance  ; 
.MmA  (bat  the  defendant  was, 
therefore,  to  be  considered  as 


in  Court,  «nd  Aotitled  to.  be 
served  with  a  rule  to  put  in  an 
answer,  before  the  bill  could 
be  taken  pro  cot^esso.  Lwing- 
ston  V.  WooUey^  365 

III.  RmnomU  of  Cattse  into  Ike  Cir- 
ciftt  Conrt  of  the  United  StaUs. 

11.  If  a  defendant  intends  to  remove 
a  cause  into  the  Circuit  Court 
of  the  United  States^  be  must 
file  his  'petition,  &c*  lor  that 
purpose,  at  the  time  of  enter- 
ji^  his  appearance  in  this  Court. 
Livingston  v.  Gibbons,  94 

12.  Where  a  defendant  files  bis  an- 
swer to  an  injunction  bill,  and 
is  heard  by  bis  counsel,  on  the 
merits  of  the  bill  an^^nswer, 
and  the  Court  makes  a  decretal 
order  in  tbe  cause,  it  is  too  late 
to  make  application  for  the  re- 
moval of  the  cause.  t6. 

13.  Where  one  of  two  defendttits  is 
a  citizen  of  another  state,  and 
there  is  no  joint  trust,  interest, 
duty*  or  concern,  in  the  subject 
matter  of  the  controversy,  he 
may  be  a1t<^ed  to  appear  and 
defend  alone,  so  as  to  enable 
him  to  remove  the  cause*      ib» 

IV.  Motiont^  Petitions  and  Orders. 

14.  Though  an  order  dissolving  an 
injunction,  &c.  may  be  dis- 
charged by  motion  or  petition, 
on  proper  grounds,  yet  tbe  most 
regular  course  is  to  discuss  the 
merits  of  the  order  on  th^e  re- 
hearing.    Fanning  v.  Dunham, 

36 

15.  Application  for  an  allowance 
put  of  the  capital  of  an  infant's 

•-estate,  for  bis  maintenance, 
may  be  by  cea'/ton,  without  bill. 
Matter  of  Bostwick,  100 


736 


INDEX 


which    the    defendant   caimot 
except  to  the  ref»ert,  *  t6. 

37*  If  the  decretal  order  of  refer- 
ence 18  silent  as  to  the  mode  of 
calculating  interest^  and  the  mas- 
ter does  not  allow  annual  rests^ 
the  plaintiff  should  applj,  on 
the  coming  id  of  the  report,  for 
an  order  on  the  master  to  re- 
port his  reasons  for  rejecting 
the  claim,  or  make  the  rejection 
a  ground  of  exception  to  the  re- 
port. If  he  does  neither,  and 
the  report  is  confirmed,  he  can- 
not, on  a  final  hearing  on  the 
equity  reserved,  make  the  ob- 
jection to  the  report*  •  Smith  r. 
Smiik,  445 

Fidt  Trvbt  and  Trustee. 

XII.  Decree. 

38*  A  decree  cannot  be  impeached 
hj  an  original  bill,  except  on 
the  ground  of  fraud.  Davoue 
T.  Fanning y  199 

39.  Though  a  decree  in  a  former 
suit,  to  which  the  plaintiff  and 
defendant  were  parties,  cannot 
be  pleaded  in  bar,  until  it  is 
signed  and  enrolled,  it  may  be 
insisted  on  by  way  of  answer. 
And,  when  the  decree  in  the 
former  suit  appears  on  the  face 
of  the  bill,  the  defendant  may 
demur.  td. 

40.  Where  a  bill  is  taken  pro  con- 
Jfetto^  against  a  defendant,  who 
is  absent  from  the  state,  he  may, 
under  iue  statute,  come  in,  after 
the  dncree,  and  answer  and  de- 
fend the  suit.  But  he  cannot 
institute  a  new  suit,  while  the 
decree  in  the  former  suit  re- 
mains in  force.  ib, 

41.  Where  a  cause  was  set  down 
for  hearing,,  on  the  bill  and  an- 
swer, and  the  bill  was  dismissed 


with  ce^tB,  beiatiiw  iio  person' 
appeared  for  the  plainttfE;  wfA 

the  decree  was  enrolled,  it  wiui 
held  to  be  no  bar  to  another  suit 
for  the  same  natter.  Bo$$e  r. 
Rust,  300 

42.  Where  one  of  the  defendants 
dies  after  the  argument  of  a 
cause,  and  before  judgment,  the 
decree  may  be  entered,  so  as  to 
have  relation  back  to  t^e  day  ff 
the  final  hearing.  CampheU  f. 
Messier^  334 

43.  A  decree,  after  it  has  been  en- 
tered, but  before  it  is  enrolled, 
may  be  corrected,  where  tfie 
omission  or  mistake  was  inad- 
vertent, and  is  clearly  ascer- 
tained.    Lawrence  T."   Comdly 

645 

44.  A  decree  is  never  pronounced, 
unless  the  cause  is  regularly  set 
down  for  hearing  in  term,  ex- 
cept when  it  is  submitted  out  of 
term,  by  consent  of  all  parties  ; 
but  the  decree  may  be»  after- 
wards, entered  in  term  time,  or 
in  vacation,  at  the  discretion 
of  the  Chancellor.  Ron  ▼. 
Woodruff,  .  .    W 

45.  Where  a  bill  is  taken  pro  coit- 
fetiOy  the  plaintiff  cannot,  thers^ 
fore,  take  a  decree  ;  h«|  must 
set  down  the  canse  for  bearing 
in  term ;  but  no  notice  oC  }l^e 
hearing  need  be  given  tolne 
defendant,  or  affixed  i^  in  ei- 
ther of  the  public  offices,     tb^ 

46.  A  decree  of  this  court:  ie^qai- 
valent  to  a  judgment  at  law;  and 
in  the  case  of  executors  apid  mI- 
ministrators,  if  it  is  prior,  to  a 
judgment  at  law,-  it  wHl  be  first 
paid«    Tkomp9ony*Brf!fwnr^  619 

\    • 
XIII.  Execution  of  Decreif: 

47.  If,  after  a  foreclosure  and  sale 


INDEX. 


737 


;.  of  mortgaged  premises,  the 
mortgagor,  or  defendant,  or  any 
person  who  has  come  into  pos- 
seesion  under  him,  pending  the 
suit,  refuses  to  deliyer  up  the 
possession,  on  demand,  to  the 
purchaser  under  the  decree, 
the  court,  on  motion   for  that 

^  purpose,  will  ordtr  the  posses- 
sion to  be  delivered  to  the  pur- 
chaser, and  not  drive  him  to  an 
action  of  ejectment  at  law  ; . 
though  the  delivery  of  posses- 

«•  •  sibn  is  not  made  part  of  the  de- 
cree.    Kerihaw    v.    Thompson^ 

.609 

48,  In  0a8e  of  disobedience  to  such 
an  ordir,  an   mjunctton  issues, 

'  of  course,  on  affidavit  of  service 
of  the  order,  &c.  And  on  pi^of 
of  the  service  of  the. injunction, 
and  a  /efusal  hy  the  party  to 

.  comply  with  it,  a  wHt  ofassut- 
ance  issues,  of  coarse,  to  the 
sheriff.  ,  ib. 

49.  But  where  the  delivery  of  pos- 
session is  made  part  of  the  de- 
cree, a  wirit  of  execution  is  the 
P*oper  remedy,  in  case  of  dis- 

;^  obedience.  ib, 

rWe  JudOment.    Infant. 
As  to  Parties,  vide  Pleadinqs,  I. 
♦  ^  *^  Pi-BADiNos,  vide  Pleadings. 
J       XIV.  Solicitors  and  Agents. 


FRESUMPTIONT. 


BO.  Where  a  solicitor  files  a  bill  in 
^propria  *  persona^  as  plaintiff,  a 

;  notice  served  on  his  agents  as 
solicitor  of  the  court,  is  good 
service*  CkampUn  v.  Fonda  4* 
Laniing^  62 

Fide  Solicitor  and  Attornev. 


Fide  Laches,  Length  op  Time  and 
Possession,  1, 2,  3,  4,  6,  6. 

PRO  CONFESSO. 

Fide  Practice,  Vf. 

PROCESS. 

Fide  Practice,  I. 

PROBATE. 

Fide  Sdrrooate. 

REFERENCE.  ^ 

To  a  Master,  vide  Practice,  XI. 

REHEARING. 

Fide  Practice,  X.      *^ 

R. 

RELEASE. 

Release  by  an    Assignee,    vide  As- 
signment. 

REMOVAL  OF  CAUSES. 

Into  the  Circuit  Court  of  the  United 
States,  vide  Practice,  III. 

RENT. 

1 .  Rent  may  be  recovered  in  equity, 
where  the  remedy  has  l^ecome 
difficult  or  doubtful  at  law,  or 
where  there  is  a  perplexity  or 
uncertainty  as  to  the  title,  or  the 
extent  of  the  tenant's  responsi- 
bility.    lavingHon  v.  Livingston, 

287 


Vol.  IV, 


93 


•••f 


7S8 


I  N^  E  X. 


2.  Where  no  rent  hid  beett'demmn- 
ded  for  foHy-ffmr  yeerp  from 
the  date  o(  the  lease,  od  a  bill 
of  discovery  filed  by  the  lessor, 
on  the  ground  of  a  loss  of  the 
counterpart  of  the  lease,  it  wh& 
held,  that  the  Itfpse  of  time  was 
sufficient  eridence  that  thte  rent 
had  been  extinguished  by  some 
net  or  deed  of  the  party  entitlcTd 
to  it.     Livingston  v.  Ldvingsion; 

294 

Rents  «nd  Profits,  Fid$  Devise.  . 

REVOCATIOlf.  < 

Of  a  wUI,  Fide  Will. 


saleT 

By  a  Master,  Vide  Mortgage^  III. 

At  Auction,  Vide  Frauduleht  Con-  * 
VBTAKCES.    Vevpor  and  Purcha- 
ser. 

SCIRE  FACIAS. 

Writs  of  scire  facias^  directed  to  a^ 
person  convicted  of  felony,  and'^  • 
sentenced  to  imprisonment  in 
the  State  Prison  for  life,  to  re- 
Tife  a  judgment  against  him, 
and  nihU  returned  thereon,  can 
have  no  legal  operation  or  ef* 
feet  vrhatever ;  for  such  cowuict^ 
being  regarded  as  civiliier  mov' 
itiiM,  the  scire  faciae  most  be 
directed  to  his  legal  represen- 
tatives or  terre-tenants.  Troup 
r.  Wood  and  Sherwood,         SSS 

SEPARATION. 

From  bed  and  board.     Vide  Barov 
AHD  Fenk. 

SELOFF. 


beseliioiragaiMt  ewh  odief  > 
equity,  any  more  than  at  law. 
DoU  V.  Cooke^  H 

£•  To  aothorise  a  set-oC  the  debi^ 
BMMt  be  mutual,  and  due  So  and 
from 'the  same  fetsens,  io  the 
same  capacity •  ib, 

S.  «A  debt  arising  on  a  cootnct  made 
.«4di  an  esecuUit^  canliot  be  set- 
off acainst  ^  debt  d.ae'  nom  tfap  ^ 
-testator.  tS. 

4.  Uncertain  daaaages    cannot  be 
^'  ^et-off  in  equity  my  more  than 

♦  at  law.  Umt^itmi^Y,  tMnm' 
ston,  2?7 

^.  Therefore,  oi)^  a  bill  oidiacoYe- 
ry,  and  for  an  'aeco^\n^  pay-  ^ 
neat  of  arrears  Qfjp|»t,'the  de- 
fendant is   not   eotiClie^  to-  be 

.'  "  allQwed,  by  way  of  ssr-^,  da-' 
iftagei^for  the  .breach  of  a  cove- 
nant, on  the  parto^the  grantor, 
(6  allow  him  so^R^nt  cominm 
ofpatfbKff  and  atavers.  ib. 


SETTLEA^At.    {VokmMky.) 

1.  A  rolttniary  setQenMcnt  niBieV  of 
lahds  <lf  chattels,  ny  «#i|{gsoa 
indebted  at  the  time,  is  v9l  M 
againft  »  creditors.  Bayard  M 
if^fma^  **  ^     4«> 

2.  Whether  the  statute  of  frauds, 
applies  to  a  setUeipent  of  thA 
kind  of  property  which  coufd 
not  be  reached  by  legal  proces^ 
if  no  settlement  had  been  mad^ 
such  as  ckoees  in  action^  UMney 
in  the  funds,  Uocky  &c.  ?'  QiKre. 

$6. 

i 

Vide  Fraudulent  ComrsrAifCES. 

SHERIFF. 

Vide  Execution. 

SHIP  OWlfERS. 


i.  Joint  and  separate  debts  cannot     .  1.  Ship  owners  are  tenants  in  com- 


IN  D£X« 


73» 


f  •    mpuf  BOi  joiat  t«iia9a.or  part- 
Ken  ;  anil  one  of  theuk^  u^here 
\  ^     the  Teasel  haa  been  aold,  know- 
ing that  the  ahare  of  the  others- 
h»i  b^en  lawfully  aasigned,  haa 
'     DO  right  to  poesesa  iiiaMelf  pf 
the  whole  prooeeda,.  with  a  view 
-    '  .   to  retain  such  share,  to  s^^sfy 
'  ^      any  clainis  he  may  have  against 
V     th^other,'  J^icoU  ?,  Mumford, 
'    ^      ^  622 

£.  ZFhe  ^assignee  of  one  par^  owner 
^  a  veas^y  la  entitled  to  his 
'  n  '  part,  OB  the  proceeda  thereef, 
without  being  subject  to  a^y  ge- 
'  .-serai  balanqs  of  accoont  be- 
^     twe^mthft  owners.  ib, 

*    d.  But  owaisfs  of  the  freigH  and 
>  M       *  cargQ  are  joiat  tenants  or  part- 


Vr 


Vid^  PABjrirsRSBiP. 
SOLICITOR  AND  ATTORNEY. 

Whether  an  attorm^  dr  solicitor  of 
•  the  plaintiff  can  purchase  the 
proparCy  of  the  defendant,  at 
shoriff 's  sale,  under  an  execa- 
lion,  for  his  benefit?  Qvere. 
Jlowellv.  Baker^        *-  118 

SPECinC  TERFORMANCE. 

^  Fide  Aw^an. 

STATE  JURISDICTION, 

1.  By  the  declaration  of  the  stat- 
ute, passed  April  6tb,  1808,  (1 
JV.  R.  L.  238.  sm.  31.  c.  135.) 
^s  well  as  by  immemorial 
usage,  the  whole  of  ibe  Hudson 
river,  southward  of  the  boun- 
dary of  the  city  of  J^ew-York^ 
««and  the  whole  of  the  Bay  be- 
tween SiaUn  hland  and  Long  or 
JSTassau  hland^  are  within  the 
jurisdiction  of  this  state.  LtV- 
ingtton  T.  Ogden  ondG<i6oftt, 
.  48 


2*  Therefore,  a  legiakitiTe  grant 
•     of  the  exclusiFO  privilege    of 
navigating  with    Sltam    Boats, 
''in  all  creeks,  rivers,    bays, 
and  whatsoever,  within  the  ter- 
ritory or  jurisdiction  of  the 
state,!'  comprehends  all  the  wa* 
-<     '  ters  lying  betweeif  SuOen  Isl- 
and and  Powles  Hook,  and  the 
Jtrssy  shore,  as  being  within  the 
jurisdiction  of  the  state,  either 
as  part  of  the  Hudson  Riven  or 
the  Bay.  %b, 

3.  The  waters  between  Staien  /«/- 
and  and  the  Whiiehall  Landing 
in  the  city  of  New-York  are 
part  of  the  bay  of  Kew^York. 
Matter  of  Fanderbilt,  57 

STATUTES  CONSTRUED,    EX- 
PLAINED, OR  CITED. 


1787,  Feb.  20.    Sess.   -10.  c.     44. 
^         (Frauds,)  450.  ^59 

1808,  April  6.     Sess.    31.  c.     144. 
(Jurisdiction  of  the  state,)     48 
1813,  April  6.     Sess.    36.    c.      71. 
(Bank  notes,  and  Banking  asso- 
ciations,) 329 

.  ,  — ,—  6.     Seas.    36.   c.      79. 

(Court  of  Probates  and  Sorro- 


gates,) 

409.  549 

, 12. 

Sess. 

36, 

c. 

100. 

(Partition,^ 

\ 

276 

-^, 1.3. 

Sess. 

36. 

c. 

102. 

(Divorces,' 

) 

187 

1814,  April  9. 

Sess. 

37. 

c. 

108. 

(Inftnts,) 

378 

1815,  March  24 

Sess. 

38. 

c. 

106. 

(Infants.) 

378 

,  April  11. 

Sess. 

38. 

c. 

167. 

(Surrogates,) 

549 

, 17. 

Sess. 

38. 

c. 

221. 

(Divorces,) 

197 

1817,  April  11. 

Sess. 

40. 

c. 

213. 

(Ulster  and 

Orange  Turnpike,) 

26 

1818,  April  21. 

Sess. 

41. 

c. 

277. 

(Habeas  Corpeas, 

) 

106 

740 


INDEX 


1820,  April  it.    Sess.  43.    c.    184. 

(fc^xecations,)  601, 649 

Various   acts    coDcerning    Steam 

.  Boats,  150.  572 

Et  vide  Steam  Boats. 

SrtAM  BOATS. 

1.  The  several  acts  of  the  legis- 
lature of  this  state,  granting  aod 
securing  to  R.  R.  Livingston^ 
and   Robert    Fulton^  and  their 

I  assigns,  the  sole  and  exclusive 
right  of  using  and  navigating 
boats  or  vessels,  by  steam  or 
fire,  in  the  waters  of  this  state, 
for  a  certain  number  of  years, 
areconstitutional  and  valid  acts. 
Ogdeny,  Gibbons y  150 

2.  And  this  Court  will  grant  an  tn* 
junction  to  restrain  the  citizens 
of  another  state  from  naviga- 
ting the  waters  of  this  state  by 
Vessels  propelled  by  steam,  with- 
out the  consent  of  the  said  R,  R, 
L.  and  R,  F.  or  their  assigns, 
although  such  vessels  may  have 
been  enrolled  and  licenstd  un- 
der the  laws  of  the  United 
States,  as  coasting  vessel)?.       t6. 

p.  The  runing  or  employing  Sfeatn 
Boats f  over  the  waters  of  this 
state,  for  the  transportation  of 
passengers  between  the  city  qf 
NeiC'York  and  Elizabetht-own 
point  in  NtTv-Jersey^  directly, 
or  circuitously,  by  one  or  more 
Steam  Boats,  and  sbifling  the 
paesengers  from  one  boat  to 
another,  at  any  intermediate 
point  between  those  two  places, 
without  the  consent  of  the  per- 
son to  ivhom  Livingston  and 
Fulton  had  assigned  the  exclu- 
sive right  of  navigating  Steam 
Boats  between  those  two  pla- 
ces, is  a  violation  of  the  right  of 
such  assignee  :  and  an  injunc- 
*tion  was  granted  to  restrain  the 


defendant  from  so  using  or  na- 
vigating Steam  BiMti$,  to  the  in- 
jory  of  the  plaintiff.     Ogdenv^- 
Gibbons^  174 

4.  Where  the  plaintiff,  faring  an 
exclusive  right  to  navigate  witk 
Steam  Boats,  the  Tvatets  o^  the 
Bay  of  KeW'Tork,  astd^saipart 
of  the  Hudson  river,  $&M  of- 
the  state  prison,  granted  to  the 
defendant  the  exclusive  right 
of  navigating  with  St^m  AwKt 
between  the  city  of  Acv-Fohk, 
and  the  Quarantine  Gromnd  on 
StaUn  Island,  4^.  and  it  was 
provided  in  the  grant  of  assign- 
ment, that  if  the  state  or  legis- 
lature of  Aew  Jersey  slioard,ai 
any  time  thereafter,  obstmct  or 
prevent  the  plaintiff  from  navi- 
gating with  Steam  Boats^  the 
waters  of  that  state,  that  tbettcei- 
forth  the  grant  thoald  ceas«  and 
be  Toid :  Held  that  thongb  the 
casus  fatderis  may  hav«  eecor- 
red,  yet  this  Coufi'wowtd*  not 
interfere  to  reslmiii  the  defen- 
dant irofti  continmng  to  exer- 
cise his  right  under  the  grant 
to  him,  until  the  j^irafiff  *iiad 
established  the  fact  eUlami  and 
his  right  to  resmtte  the  girant. 
Livingston  v.  Tompkins,        415 

5.  The  association  of  stookMders 
of  the  J^orth  River  Suasnr  Boat 
Company  is  not  a  coparlnertfaip, 
but  the  parties  are  tenaMs  in 
common  of  the  property  and 
franchises  of  the  coiapsa^, 
Livingston  v.  Lynch,  •  573 

6.  The  resolutions  passed  bj  the 
unanimous  votes  of  Hie  -  stock- 
holders, on  the  tSthatdtUtk 
April,  1817,  and  subscriUW  by 
all  of  them,  ate  the  ftmddmgSi* 
tal  articles  or  eonstitutios  ef  the 
companj',  by  which  the  feroner 
articles  of  agreement  ef  the 
26th  Jfdy,  1814,  were  aliroga- 
ted  ;    and  the  company  being 


INDEX. 


741 


,  oniy  a  priyate  aBSOciatioo  of  In- 

.dt?idaaJs,  these  articles  caaoot 

be  altered  or  revoked,  bat  by 

the  like  uoanimous  cooaeot  of 

all  the  stockholders.  t6. 

7.    Therefore,  certain*  resolutions 

passed  the  5i\i  May,  1819,  not 

having  been  consented  to  by  all 

the  stockholders,  and  being  re- 

^ugniMit  to  the  fundamental  ar- 

.  tic1e»  ,of   the  association,  aie 

nuU  apd  void.  »6. 

Vid^  Ihjukction. 

SUBSTITUTION,     ' 

Vii^  MoBTOAaft*  I.    Coktribution. 

SURETY. 

1,  A  surety  who  pays  the  debt,  is 
entitlied  to  be  put  in  the  place 
of  the  creditor^,  and  to  aU  the 
means »  and  to  every  remedy 
wlMch.  tha  creditor  possesses,  to 

.     enforce  payment  from  the  prin- 

•  jupal  debtor.    Hayu  v.  liard^ 

123 
%r  If>  therefore,  a  creditor  takes  a 
iQortgag^  from  the  principal 
debtor,  he  does  it  not  only  for 
his  own  security,  but  for  the  in- 
demnity of  his  surety ;  and  he 
must  do  no  act  by  which  it  may 
be  Invalidated,  in  the  first  in- 

.  stance,  or  be  subsequently  de- 
feated or  destroyed.  ib. 

5«  Whether  the  surety  can  compel 
the  creditor  to  resort  first  to  the 
principal,  debtor,  and  eihaust 
Us  remedies  against  him»  be- 
Ibre  resorting  to  the  surety? 
'<Jii«*^  ih. 

4*  Wheee  the  surety  apprehends 

:  danger  from  the  d^ay  of  the 

.  credkor,  he  may  compel  the 

creditor  to  sue  the  principal 

..   liebtor.;  at  least,  on  indemoify- 

'  *  in|  the  creditor  for  the  conse- 


quences of  risk,  delay,  or  ex- 

rsnse.  ih. 

creditor  in  New-Jersey^  where 
all  the  parties  resided,  took  from 
the  maker  of  a  promissory  note, 
indorsed  by  the  plaintiff,  a  hqj^d 
and  mortgage,  which  was  ample 
security  for  the  debt ;  and,  in- 
stead of  resorting  to  the  mort- 
gage or  the  principal  debtor, 
sued  the  plaintiff  (who  was 
transiently  in  this  state)  at  law  : 
This  court  granted  an  injunction 
to  stay  the  suit  at  law,  until  the 
creditor  had  pursued  his  reme- 
dy on  the  mortgage  in  New-Jer- 
tey.  ih. 

6.  A  creditor  having  a  particular 
fund,  may  be  compelled  to  re- 
sort to  that  fund,  before  he  pur- 
sues the  debtor  personally,    ib, 

7.  Where  an  indorser  of  a  note 
discounted  by  the  UUca  Intu* 
ranee  Company^  not  being  an  in- 
corporated baming  associaj^ion, 
took  from  the  makers  of  the 
note  a  bond  and  judgment  for 
his  indemnity  and  security,  and 
without  any  fraudulent  intent  to 
evade  the  act  restraining  uatii- 
corporated  banking  associations ; 
(2  A".  R.  L.,  235.  sess.  30.  ck, 
71.)  the  bond  and  judgment 
were  deemed  valid  ;  and  the 
Court  refused  to  interfere,  at 
the  instance  of  a  purchaser  un- 
der a  subsequent  judgment,  to 
prevent  the  indorser  from  ob- 
taining payment  of  the  judgment 
to  him,  he  having  been  sued  as 
indorser,  and  a  judgment  reco- 
vered against  him.  Parker  v. 
Rockestery  329 

8.  A  surety  canoot  sue  the  princi- 
pal debtor  for  his  indeoinity  or 
discharge,  before  the  debt  is 
due.     Campbell  v.  Macomb,  638 

9.  As  where  a  mortgagee,  holding 
a  mortgage,  as  .a  trustee  for 
others,  was^  also,  a  guarantee 


*%>:  r 


.^^ 


^   • 


74t 


INDEX. 


"  or  surety  for  tho  debt,  apd  ^%^ 
mortgaged  premises  were  in  a 
state  of  ruin*  and  decaj  from 
storms,  and  the  security  there- 
by rendered  precarious ;  yet, 
be  cannot  file  a  bill  for  the  sale 
of  the  property,  the  debt  not  be- 
ing due,  nor  the  mortgagor  in  * 
default.  ih* 

SURROGATES.       /    .    ' 
■    A 

f.  A  wTTogaXt  has  coDCurr^it  ju-  ^ 
risdiction  with  this  Court,  t% 
compel  adwxMMiraiMfM  to  ac- 
count, and  to  make  distribation 
of  the  estate.  Seymour  v.  Sey- 
motfr,  *  409 

t»  Where  administrators  have  been 
brought  before  the  surrogate 
who  granted  the  letters  of  ad- 
ministration, for  an  account  and 
distribution  of  the  intestate's 
personal  estate,  this  court  will 
not,  without  some  special  and 
satisfactory  reason,  interfere 
with  the  proceedings  of  the 
surrogate,  by  granting  an  in- 
junction, and  sustaining  a  bill 
for  general  relief.  t6. 

3.  A  bill  of  discovery,  in  aid  of  the 
cause  before  the  turrogate^  must 
charge  certain  facts  within  the 
knowledge  of  the  defendant,  the 
disclosure  of  which  is  material 
and  necessary  to  the  party^s  de- 
fence in  that  court,  and  that  he 
has  no  means  of  showing  the 
facts  Without  such  discorery. 

t6. 

4.  The  surrogate  of  the  city  and 
county  ofXew-Yorky  has  bo  au- 
thority to  grant  letters  of  admi- 
nistration with  the  wiU  annexed^ 
of  a  person  dying  out  of  the 
state,  not  being  an  inhabits^nt  of 
the  state.  Goodrich  v.  PendU' 
ton,  549 

6.  His  powers,  though  they  may 
exceed  those  of  the  county  sur- 
rogatesy  who  baye  no  power  to 


giant  letters  of  adminialB^liOtt 
of  the  goods  of  persons  ^wg 
intestate^' oAt  of  tfae^etate^  oot 
■    being  inhabitants  of  the  state. 
^arejimitea,  in  thisyreepe^'bjll 
the  acts,'  sess.  3a,  ^  79.  j^.  ¥7^- 
/  seas.  3a  fh   159.  uf|fke  case  ^ 
a  noo-iBMdenl  of  Ae  stiAe,  Ip^. 
^   .  ing  intesUiUy  and  kming  goA 
flf^  dtaUeU  fii  |&  «^t|^  ^^ 
",    York.  .    a^jU^    *». 

!       TENAKTS  IN  C«MMOiN^ 

Of  a  Ship.  *  Vide  S^ijp  Owjbaa.  *«  " 
•     t    *  '       '^- 

.    .    /   TREATiT.         !!4^^*:,\ 

Between  Grfiat  \Britaxn  Toai^ihtUA' 
ted  States,  vide  FuQcfms   9B0k 


JUSTICB. 


N*: 


TRU6T  AmTRfiSirEfitf. 

tmstf     ATS    « 


I.  How 


^mat^   €tnd 


tiieir  incidents,     CSHtp*  9^^^^^^  * 
and  trust  tiitate.  *     t  ^#^ 

II.  Authority  and  dvitf^n,  tm^mL 
111.  Trustee's  accowfi    >4/fai»filew 
to,  and  charges  againeL      #      - .  * 
•     *  ■* 

I.  How  trusts  are  created^  and  tiuit  * 
incidents.    Cestui  que  trmt  wed 
trust  estate, 

1.  Though  a  trust  be  creatad  ibr 
the  benefit  of  a  third  pefsoD, 
as  a  credi^.or,  without  his  know- 
ledge, at  the  time,  he  may,  af- 
terwardsi  affirm  the  Inisf,  and 
enforce  its  execution.  Shep- 
herd  v.  M'Evers,  136 

2.  Where  trustees  have  aceeiKed 
the  trust,  and  entered  on  its  ex- 
ecution, they  camot,  after* 
wards,  without  the  conseat  of 
the  cesiiu  que  trusty  or  the  -  di* 
rections  of  the  courts  saffvea- 
der  the  trust,  op  diidwiy 
tbemselres  from  it.  .  A. 


*>     *; 


ft  K  D  E  ,:^ 


743 


9.  The  rested  interest  ef  a  ee«<ii»  ^ 

^e  trusty  cannot  be  impaired  or 

*  ^  ^    Hestroyed  by  tne  Tolantary  i^t 

"  >*   *^of  the  trustee  ;'j^at  the  trast 

*J'  will  foHl^w  the  land  in  the  b&nds 

'  '^  i>f  the  |5er8on  to  whom  U  l|a8 

been  c^veyed  1^  The  trusfte,^ 
-  ^  "*  wfth  knowIedg(&  ^  the  trast^*  . 

'4.'  Where';S.y  af  ceitui  qve  trwi^  ''^  W 
.  fiid#d  ahVotid;and  before  he  ^s,     , 
*  *    *  Inarmed'  of^at  trusty  cseated?by  ^ 

*  '«a  deA  -^Chis'delitpr^^itbr  the \^ 
'.  ^  i^.beoejU  laf  4iiir  xrcditoM,.  the  ; 
.  ^     "^  trusteed,  without  tne  asaedt  of 
^      \'Jtbe^witir.9«J5^<rii«t»;  qr  the  di- 

*  '*'    jreQtion  ef  "this  epurtf  conveyed 
-  .    Jt;  the  tmst  estate. tp  others,  upon 

*t^"   /other    truslts    aod,^  ^cbniTitioDS, 

,*-  '/  *:i|hich^  in  their  openttion,  would 

>    bave'^^XQluded^^.  frop  all  share 

'      'er*  benefit  id  the  trust  estate  ; 

^  \  '"^tjtie  trusMf^^ipihc  second  deed 

:were  bel^  chjygeable  with  the 

. .  .  't^ists.in  U^mfdeed,  of  which 

th%  Ind  fuU  knowledge  at  the 

-•ne-  ,   -^  ib. 

I  trqitee  by  impHeation^  is  to 

' «.  •  tift '  aAn^?^   by;  an  equity,  that 

'  *^foity  must  be  pursued  with- 

*  .'-    in  a  r«a80ftable  time.    Shaver 
,        V.  Rhdleyy  310 

^*  6.  A  devise  of  all  the  estate,  real 
and  personal,  of  the  testator,  in 
truit^  to  pay  debts,  and  to  dis- 
tribute the  residue,  places  the 
assets  under  the  jurisdiction  of 
this  court.    Betu&n  t.  Le  Roy, 

661 

VU»  Licvas;  Lapse  or  Tim  and 
PossEBsioir* 

IL  JliiiA^iy  and  duhf  of  a  trusue, 

7;  Where  tiie  farm  of  a  defendant, 

'     worth  two  thousand  dollars,  was 

sold  under  a  judgment  and  exe- 

'  entioB  on  which  there  was  not 

■lore  than  eighty  dollars  due, 

to  the  attorney  of  the  plaintiff, 


•"I    tinie.  , 
'9l  Ifa  trull 


vrtio  attended  the  sheriff's  sale, 
for  ten  dollar^ :  Held,  that  under 
the  circumstances,  the  purchase 
by  the  attorney  was  not  to  be 
considered  as  absolute,  or  as 
originally  Intended  for  his  o#n 
benefit,  but  in  trust  for  the  re* 
spective  interests  of  the  parties 
%to  the  elocution  ;  and  the  debt- 
•  OP,  on  a  bill  filed  by  him  for 
that  purpose,  was  allowed  to 
redeem  the  estate,  on  paying 
the  balance  due  on  the  execu- 
tion, the  amount  paid  by  the  at- 
torney, with  interest  and  costs. 
Hovel  V.  Baker,  118 

8.  A  person  entrusted  with  busi- 
ness, A  an  attorney  or  agent 
for  another,  ought  not  to  be  al- 
lowed to  make  that  business 
an  object  of  interest  or  profit 
to  himself.  ih. 

9.  Whether  an  attorney  orsolli* 
citor  for  the  plaintiff  can  pur- 
chase the  property  of  the  de- 
fendant sold  under  execution, 
for  his  own  benefit  ?  Qtuere*  it. 

10.  If  a  guardian  or  other  trustee^ 
lends  the  money  of  the  cestui 
que  trust,  without  due  security^ 
he  will  be  responsible,  in  case 
the  borrower  becomes  insol- 
vent.    Smith  V.  Smith,  28 1 

11.  What  is  due  security  for  mo- 
neys loaned  by  a  trustee,  ap- 
pears to  be  a  point  not  fully 
settled.  t6. 

IS.  H seems,  that,  in  general,  mere 
personal  security  is  not  sufficient 
to  protect  the  trustee  from  re- 
sponsibility, in  case  of  loss,  ib, 

13.  Where  a  guardian  took  pro- 
missory notes  of  persons,  sol- 
vent at  the  time  of  taking  the 
account  before  the  master,  un- 
der a  decretal  order  of  the 
court,  on  a  bill  filed  for  an  ac- 
count, and  which  notes  were 
allotved  by  the  roaster  and  cre- 
dited to  the  guardian," who  was 
pady  to  deliver  them  up  ;  the 


744 


INDEX. 


court  confirmed  the  report  of 
the  master ;  the  notes  being 
for  small  8ums»  for  rents,  &c. 
and  the  credit  and  course  of 
bnsioess  according  to  the  prac- 
,  tice  of  the  testator,  in  his  life 
time.  ib. 

14.  A  guardian  or  traatee  is  not 
held  to  account  for  any  neglect 
or  breach  of  doty  not  charged  . 
in  the  bill*  ib. 

15.  An  executor  or  trustee  is  not  al-  * 
lowed  to  use  the  trust  money, 
and   retain  the  profits  arising 
from  it.     BroTtmy.  RickeU,  303 

16.  If  a  trustee  or  executor  mixes 
the  trust  money  with  his  own, 
and  uses  it  in  his  business  or 
trade,  the  profits  of  which  are 
not  known,  be  most  pay  inte- 
rest. t6. 

HI.  Trustee's  accounts.    Allowances 
lo,  and  charges  against. 

17.  Trustees  acting  with  good  faith, 
are  treated  with  liberality  and 
indulgence.  And  if  there  is  no 
wilful  misconduct  or  fraud  on 
the  part  of  a  trustee  or  execu- 
tor, he  will  not  be  held  respon- 
sible for  a  loss,  especially 
where  he  acts  with  the  advice 
of  counsel.  7%oin/wof|  v.  Brown, 

619 

18.  A  trustee  who  mixes  the  trust 
money  with  bis  own,  and  uses  it 
in  his  business  or  trade,  the 
profits^  of  which  are  not  known, 
must  pay  interest.  Brovn  v. 
Riekets,  303 

19.  But  where  there  was  no  direction 
io  the  order  of  reference  to  the 
master,  to  inquire  into  the  use 
and  profit  of  the  fund,  and  he 
had  charged  the  party  with  tit- 
terest,  the  report,  to  preTent  the 
efiect  of  surprise  on  the  party, 
was  re-committed  to  the  mas- 
ter to  take  further  proofs  or 


explanations,  and  to  correct  aoy 
mistakes.  ib. 

20.  Where  the  securities  held  by  a 
trusteie,  are  directed  by  a  'de« 
cree  confirming  a  master's  t9- 
port,  to  be  asaigoed  to  the  ce«- 
,  tut  que  trusty  the  responsibility 
of  the  trustee  ceases  ^  and  there 
*  having.been  do  culpable  negli- 
gence or  default  on  "liis  part 
in  taking  the  securities,  he 
is  not  to  be  charged  with 
them,  on  making  the^  Stud  de* 
cree,  on  the  «qqity  reserved, 
though' they  may  have  b^oQ, 
perhaps,  inipaired  by  the  dday  . 
of  the  litigation  between  the 
parties.  Smitk  v.  Smithy  415 
21.  If  a  decretal  order  of  refer-^' 
ence  is  silent  as  to  the  jn^de  of 
calculating  interest,  a^d  the  mas- 
ter does  not  allow  annual-rfslSj 
the  plaintiff  shduld  apply,  on  the 
coming  in  O/^tbe  miater's  report, 
for  an  order  on  tfie  Maaler,  .to 
report  his  reasons  for  rejecttng 
the  claim,  or  make  the  rejec* 
tion,  a  ground  of  exertion  t^Mw 
report  If  he  do^  neither^  jbe 
cannot,  on  the  final  heariilig  <'b 
the  equity  reserved,  make  the 
objection  to  the  report.  ib^ 

22.  In  a  suit  by  a  cestui  que  truU  a-* 
gainst  his  trustees,  for  an  aic* 
count,  &c.  no  costs  were  allow- 
ed to  the  plaintiff,  the  coodact 
of  the  defendants  being  fair  and 
honest,  and  the  allegations  of 
misconduct  unfounded.  id. 

Fide  V'ENDoa  and  PiTRCRisKa.     Ex- 
ecutor AND  Administrator. 

VENDOR  AND  PURCHASER. 

1.  Where  a  bill  was  filed  against  a 
trustee  for  an  account,  and  that 
he  should  convey  to  the  eestssi 
que  trusty  the  trust  estate  held 
by  him,  describing  the  same  as 
'^  divers  land  in  Coshy^s  Manor^ 


ii^Kt. 


t45 


in  tke  pkMtt  of  Spfi^fd,  and 
<MCaiii  MetB  or  pirfc«ii  of  laod 
in  the  Onihmy  Pttum,^^  &c. 
And  Itte  tonitee,  pfefioiis  fo  the 
filtog  of  the  hifl,  iTold  some  of 
the  Idbd  to  £F.y  and  took  a  mort- 
age for  the  ptnthase  money. 
In liis  i&dhridii^  nanle,  atod  as- 
^gnedthe  bond  and  mortgage, 
to  H. ;  and  S.,  who  purchased, 
without  aoj  knowledge  of  the 
trast,  after wardi,  and  after  the 
fthig  of  the  biV,  paid  the  bond' 
and  iboir^iage  to  /f. ,  without  any 
actual  notice  of  the  pending  of 
the  suit  against  the  trostee,  or 
of  the  tmst ;  ffe/d,  that  5.  was 
chargeable  ifith  nofiee  of  the 
pendency  of  the  suit  and  of  the 
facts  stated  in  the  bill ;  and  that 
the  description  of  the  lands, 
though  general,  Was  sufficient 
to  put  him  on  inquiry  ;  and, 
therefore,  good  notice  to  him 
that  the  lots  which  he  purchased 
^  #ere  part  of  the  trust  estate. 
Often  V.  Slayter  and  others^    38 

£•  But  as  the  tntstee^  no  receiver 
having  been  appointed,  had  a 
legal  authority  to  receive  pay- 
ment of  the  mortgage,  the  pay- 
ment by  S,  to  him,  and  to  H.  his 
assignee,  was  good ;  for  nothing 
but  notice  in  faei^  in  such  a 
case,  can  prerent  a  payment  by 
the  debtor,  to  the  legal  owner 
of  the  bond.  %b. 

0.  Where  one  person  bids  for  an- 
other, at  auction,  but  does  not, 
at  the  time  the  lot  is  knocked 
down  to  him,  nor  on  the  day  of 
Bale,  disclose  to  the  vendor,  nor 
to  the  auctioneer,  the  name  of 
his  principal,  he  is  responsible 
as  the  purchaser.  Jlf*Cbm5v. 
Wright,  669 

4.   If  there  is  any  doubt  or  ififfi- 

culty  as  to  the  title,  it  will  be 

referred  to  a  master,  to  examine 

and  report  thereon.  t(. 

Yoi.  IV.  94 


6.  An  auctioneer  Is  an  agent  Taw- 
fuliy  authorized  by  thief  pu^ha- 
ser  of  lands  or  goods  at  auction, 
to  sign,  the  contract  of  sale  for 
him,  as  the  highest  bidder,  ib, 

6.  And  writing  his  name,  as  the 
highest  bidder,  in  the  mevMtan^ 
dum  of  sale,  by  the  auctioneer, 
immediately  on  receiving  his 
-  bid,  and  knocking  down  the  ham- 
mer, is  a  sufficient  signing  with* 
in  the  statute  of  frauds,  to  bind 
the  purchaser.  -A. 

FUk  FRAtDirtBNT  CoHVEYAircc. 

ULSTER  AND  OR  4N6E  BRANCH 
TURNPIKE  COMPANY. 

According  to  the  true  oonstruction 
of  the  Act  to  etmend  ike  ati,  enii^ 
Ued  an  act  to  wCorp&nHe  the 
Ulster  and  Oicange  Branch  Turn" 
pike  Cempan/yy  {sen,  40.  ek,  2 IS. 
s,  2.)  the  owners  of  lands  assess- 
ed under  the  act,  are  entitled 
to  make  the  road  through  their 
own  lands,  under  the  inspection 
of  the  company,  byihe  fint  cf 
August,  next  after  the  aesesement 
is  mad^_  and  computed.  Omdi 
v.  Ul^er  and  Orof^e  Branch 
1\$mpike  Gmipaiiy,  86 

Fide  Injithction,  iV,  V. 

UTICA  INSURANCE  COMPANY. 

Admitting  that  the  Utica  Luuranee 
.Company  hare  no  banking  pow- 
ers, and  that  notes  and  seeuiities 
for  the  payment  of  money  to 
them,  as  a  banking  association, 
are  void  by  the  act ;  (mm.  36* 
eh,  71.)  yet  a  bond  and  judg- 
ment confessed  thereon,  by  the 
makers  of  a  note  discounted  by 
the  Company,  for  the  indemnilj 
and  security  of  the  endorser, 
without  ^ny  fraudulent  intent  to. 


m 


INDEX. 


evade  the  law,  are  Talid*    Par- 
"ker  T.  Roekuter^  329 


w. 

WASTE. 

Ptde  iNJUifCTioH,  111 

WILL. 

1.  Subsequent  marriage  and  birth 
of  a  child  are  an  implied  rero- 
cafttOD  of  a  will  either  of  real  or 
personal  estate.     Brush  v.  Wtl- 

2.  Bat  such  presumptive  revoca- 
tion may  be  rebutted  by  circum- 
stances. *'&• 

3.  It  Meifif ,  that  a  subsequent  mar«- 
riage  or  subsequent  birth  of  a 
child  alone,  will  not  amount  to 
an  implied  revocation.  ib. 

4.  Implied  revocations  of  wills  are 
not  within  the  statute  of  frauds. 

ib. 


5.  A  will  duly  executed^  bat  re- 
voked by  a  subsequent  marriage 
and  birth  of  a  child,  cannot  be 
connected  with  a  will  subse- 
quently made,  but  not  executed 
with  the  requisite  soleoMiities 
to  pass  real  estate.so  as  to  cod- 
stitute  a  valid  will ;  but  the 
estate  descends  to  the  heir  at 
law,  iB. 

6.  Where  the  will  of  the  testator 
is  so  ambiguously  expressed,  as 
to  render  it  proper  for  the  exe- 
cutor to  take  the  direction  of 
the  court,  the  costs  of  the  suit 
will  be  ordered  to  be  paid  out 
of  the  fond  in  controversy. 
Rogeri  V.  Ro$9f  608 

Fide  Devise. 

WITNESS. 

Fide  MORTQAGE.     PaACTICBy  IX.. 


END  OF  VOLUME  IV. 

IM. 


Cy^^ 


£RRATA. 

r$ge  4»liM7.|br*«BiofrrNMn6Mt 

13»  line  30,  deU  **  lepante*'  befora  •«  cmm."* 
»  41,  line  30,  for  *'  aneiaDieiit"  twi  Msigimieiit 

72»  in  tha  marginal  aote|jfor  **ciunbrBiK»** 

tt,  lina  10,  fiw  **  againtt*^  read  adjoining. 

88,  line  18,  after  **  lold**  hueri  after  her  danlh. 

99,  line  4,  for  *«jouit]y"f«atf  joetlj. 
100»  line  82,  befora  *«  ponif h**  mmi  to. 

34,  for  "  hiti^read  thii. 

110,  line  M,  for  •«  19"  fwitf  201 

HI,  line  31,  for  «<  coontjr'*  reail coontnr. 

113,  line  as,  for '« this*'  raiKi  the. 

1 15,  line  3,  for ««  one  not**  nod  not  one. 

121,  line  22,  for  •«  was"  nid  were. 

128,  line  28,  after  *•  and'*  vu€ri  the  foct  was. 

131,  line  30,  for '^  Mcnrit^**  rtad  surety. 

132,  line  13,  for «'  nasonable**  ftmd  anraasonaUs. 

133,  line  11,  aflnr  ''apphr  to**  tnawl  the  soret?,  befon  appljfac  tb. 
138,  17th  line  of  Ae  hwd  note,  for  ••  joint'*  rend  tmst 

197,  line  30,  for  *'  proportion**  rtmi  proportioiiai 
UO,  Une  8,  for  '•  I817^reiid  1787. 
170,  line  17,  for  •«  levied**  rmd  taied. 
178,  line  13,  before  **to  be**  hutri  were. 
183,4iiie  2.  lor  *«  prohibit**  rsad  protect 

187,  fint  line  of  bead  note,  for  *>l)bra**read  Uuhk 
189,  line  28,  for  ^  common**  reed  canon. 

188,  line  11,  for  **  fm^ut**  rmdmumamu. 
103,  line  28,  for  «  231**  rmid  331. 

19»,  line  6,  for  *'oomniai**  rtmd  canon. 

7,  for  ••  othe/'  read  the. 

200,  lines  24  and  25,  for  "*  did  not  hear**  rend  not  heariAg. 

.  line  28,  dej^  *'  iheplaintUi:** 

231,  line  28,  for  *«  conceinnc**  read  coQoeived. 
234,  line  3,  for  "  were**  rtod  was. 

281,  in  die  nxih  line  of  the  head  note,  for  *«  testator**  fiod  tnute?^ 

282,  line  30,  after  "  made**  tnserl  br  them. 

310,  in  the  •Uffenik  line  of  the  headnote,  after  «*held*  inurt  DQt 

line2,for*«iraUiit**i«adJht»iM. 

312,  line  9,  for  **  were**  read  was.  ' 

347, 1,  for  "  heedless**  read  nnheeded. 

999,  line  19,  for  '*  1818**  read  18ia 

SOU,  line  28,  for  ««profit'* raad profits. 

405,  line  3,  for  «*  G^MMv's**  lead  Zimmsr*!. 

422,  line  15,  for  **•  months**  read  taoaih. 

433,  line  22,  for  **  soTeral**  read  serere. 

438,  line  17,  for  <•  ASBrrtf*  CA.**  lead  SarrimCi  Ck.  Pr, 

464,  line  12,  for  «•  Ailu**  readilate. 

465,  line  21,  tNMrf  5  before  «*  Cfnndk.** 

486,  Une  4,  itiMrt  I  before  ••Aw*!.** 

487,  in  the  marginal  note,  line  27,  tuserf  it,  after  <*  to.*^ 
51 1,  line  2,  for  ^  noi^iMfiftir**  readnomnmlMr. 

Ml,  line  28,  mferl  hot,  after  ••  sale.** 

547,  in  the  7dk  and  8th  lines  of  the  head  note,  deU  the  woidi,  «»  add  the  ql^rk 

most  attend  with  the  record  of  the  bill,  to  be  read  at  the  hearing.** 
540,  in  the  tlurd  line  of  the  head  note,  for  **  residing**  reoddjing. 
6M.  Hoe  12,  for  *«  first'*  readyburf*. 
657,  last  line  bat  one,  for  •*  withal**  f«ad  with  ns. 
661,  line  12,  deff  •«  the*'  b^t  conoieL 


ca-t^-e 


^tL  ^}u^yt^c^^J^^ 


NEW  iORK  CHAi^CERY  COCRt. 

Tands  of  the  Court  of  C/ianc«ry.— On  the  fifth 
instant,  when  Mr.  Kip  transFerred  to  his  succes- 
M)r  in  oflSce  the  records  and  funds  of  this  Court, 
there  were  found  to  be  within  the  control  of  that 
officer, 

In  stocW  the  sum  of  1^130,472  44 

36.475.  04 
23,150  42 


1  SLOCK  me  sum  or 
Bonds  and  mortgages 
Cash 


190,097  So 
Of  which  may  hereafter  be  called  for 

only  the  sum  of  181,605  62 


Leaving  a  surplus  fiind  belonging  to . 
the  Court  of  8,492  28 

This  sum,  with  S1500  (heretofore  paid  out  pur- 
suant to  the  orders  of  the  Court)  m|kia5  together 
a  sum  of  810,000,  has  been  accumulated  by  the 
judicious  investments  made  by  Mr.  Kip  of  balan- 
ces remaining  from  time  to  time  in  his  hands. 
I  When  he  entered  upon  the  duties  of  the  office 
I  in  December,  1804,  there  was  in  court  tlie  sum  of 
about  81700  belonging  exclusively  to  suitors  not 
i  invested  ;  then  the  accounts  and  records  of  the 
;  office  were  all  irre^jularity  and  confusion.  In 
j  August,  1823,  when  he  resigned  his  place,  noth- 
'itii;  could  exceed  the  precision  and  clearness  of 
i  its  arrangement.  .  . 

I  In  retiring  from  office  it  may  be  said  of  Mr. 
•ULip-,  tlrdt  he  has  done  tliat  which  we  believe  was 
j  never  before  done  by  anj  officer  of  any  court  in 
I  the  world.  He  has  paid  to  a  successful  suittij:, 
|af*er  deducting  the  expenses  of  an  extended  liti- 
gation, more  money  dian  was  deposited  in 
Court. 

We  invite   the   attention  to  this  fact  of  Mr. 

Brougham,  if  peradventure  our  pu per  shall  ever 

reach  his  eves,  in  order  that  he  may  contrast  it, 

in  the  next  discussion  in  the   House  of  Commons 

j  on  the  subject,  with  the   proceedings   of  the  En- 

Iglish  Court  of  Chancery  ni   like   circumstances. 

j  He  may  further  state,  what  is  also  a  tact,  and 

» one  that  will  startle  yet  more  the  doubting  prac- 

}  titioners  in  Chancery  at  Westminster  Hall,  that, 

j  under  its  present  oriranlzaiion,  m^^it  maybe 

{ carried  through  our  Court  of  Chancery  in  less 

'  time  than  a  suit  at  common  law.  ^ 


"HARVARD  LAW