CORNELL UNIVERSITY LIBRARY 3 1924 072 360 211 fe/ Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924072360211 DIGEST OF THE NEW YORK CHANCERY REPORTS A3 follows: Johnson, Hopkins, Paige, Baeboue, 7 vols. - 1 vol. 11 vols. - 3 vols. Sandfoed, - Chawceey Sent'l (in one), 6 vols. Edwaeds, . - 4 vols. Hoffman, ■ . l vol. Clabke, - . 1 vol. - 4 vols. TOGETHKB WITH A COMPLETE I^DEX TO EDITORIAL NOTES PUBLISHER'S EDITION. >\r upon the basis of an insimvl eomputas- lent. So, if instead of an express admission of the correctness of the account, the party reoiivlng it keeps the same by him and makes no obqectioi. within a reasonable time, he will be considered, from his silence, as acquiescing, and be equally bound by it as a stated account. If either party attempts to impeach the settlement and to open the accounts for re-examination, either wholly or in part— and which can only be done upon the ground of fraud, mistake or error— the burden of proof reste upon the party impeaching, and he must prove the fraud or point out the error or mistake ■^n which he relies. PMKps V. Belden, 2 Edw. Ch. 1, 6: 885 5. The cases allowing inquiry into acooimts where there has been a confidential relationship between the parties,do not extend the doctrine to a settled account between principal and land agent where there has been an actual accounting, even although there may have been great confidence and trust. Ibid. 6. Accounts having been stated between the par- ties at different times, without fraud or coercion, and the statements being accompanied with writ- ten agreements showing how far they should be binding and for what cause they should be varied, the pity was held to the terms of such written agreements: and the accounts were opened so far only as the terms of those agreements extended. Troup V. Haight, Hopk. Ch. 239, 8: 407 7. And though one of those agreements made pro- vision for the allowance of other items not em- braced in the account, and the other for correcting the amounts of the items, to which allowances, therefore, the party is entitled, yet the former were not allowed by way of set-off in this suit for a foreclosure of the mortgages. Ibid. 8. But such other claims may be pursued by the parties respectively, in other forms of proceeding. Ibid. 9. The accounts beingsentback to the master for correction upon the terms of one of the special agreements, the court would not impose on either party exclusively the burden of proof. Ibid. Editorial Notes. Settled account; binding effect of 1: 730, 2: 407, 3: 534 Acquiescence in 6: 885 Plea of stated account a bar 6:405 Surcharging and falsifying; exchange of credits; commissions on 6:1148 Opening up 1: 343, 343, 726, 2: 324, 8:524 Stated account; bill to impeach; amendment: practice 4: 380 ACCUMULATIONS. See also Executors and Administrators, 183; WiLi£, 28, 290, 31C. 1. The object of the article of the Revised Statutes relative to uses and trusts (S 57) is to prevent an ac- cumulation of the surplus interest or income arising from the trust fund, not wanted for the support of the cestui g«e trust, where no valid direction for such accumulation has been given, by making it liable to the claims of creditors. Clute V. Bool, 8 Paige Ch. 83, 4: 353 2. A direction in a will for accumulation, by pro- vidiii(f that certain advances be made to children i)ut of the rents, profits, and Income of the estate, the amount of such advances to be charged to .-hem, with compound interest, for the purpose of iiicreasing the amount to be distributed to others, is void under the provisions of the statute. Hawley v. James, 5 Paige Ch. ijis, 3: 734 3. To render a trust for an accumulation of the rents and profits, or income, of an estate valid, the accumulation must be for the sole benefit of an in- fant, and must be payable to him, absolutely, If he survives his minority. Ibid. 4. While a testator may bequeath his estate lef c after payment of his debts as a future estate if he violates no rule of law against perpetuities, yet an accumulation of rents and profits, for the purpose of raising a legacy or portion at a future day, is il- legal, unless it be for the sole benefit of a minor in existence when the accumulation is directed, ibid. ACKNO WLEDGMEN T. 5. Intermediate estates, Interests, legacies, or por- tions cannot be carved out of income, rents, or profits accumulated for that purpose. IbiA. 6. It isasufflcient compliance with the nrovisioriB of the Revised Statutes as to accumulations, If the persons for whom the same are intended are designated or described as a class, e. g., as the chil- dren of a^person named. Jfason V. Jlfaaon, a Sandf. Ch. 433, 7: 668 7. Where such a class is designated, it is not es- fceutial that all should be living when the accumu- lation commences; provided at the commencement it goes for the benefit of such as are in esse exclu- sively, and that those who subsequently become entitled fall within the prescribed rules laid down by the statute. Ibid. 8. A provision for accumulation of rents and profits until the death of testator's widow and un- til his youngest child arrives at the age of twenty- five years, for the heneflt of the issue of his children is void under 1 Eev. Stat. 726, 773, which prohibit ac- cumulations except for the benefit of infants and during their minorities only. Tail V. VaM, i Paige Ch. 317, 3: 45a 9. Trusts for accumulation being prohibited by statute, except for the benefit of minors, a trust to accumulate the rents and profits of real estate, or the interest or income of personal estate, cannot be created for the benefit of a lunatic who is not a minor. But where an annuity is given absolutely to a lunatic, a court of equity may direct the sur- plus, beyond what is necessary for his support, to be paid over to his committee and invested for his use. Oraig v. Oraig, 3 Barb. Qi. 76, 5: 884 10. Where the income of a lunatic is more than can be properly expended for his use, it must, as a matter of necessity, be accumulated for him or for those who may eventually be entitled to his prop- erty as his next of kin. But that is not a trust for accumulation which is prohibited by the statute. Ibid. 11. Where there is a limitation over, not only of the capital of a fund directed to be invested for the purpose of paying an annuity for life, but of so much of the proceeds thereof as shall remain at the decease of the annuitant, there is an implied direc- tion to accumulate the surplus income of the cap- ital by the executors in trust for adults or for per- sons not in esse at the time the accumulation is directed to commence; which direction to accumu- late is void by the provisions of the Bevised Stat- utes, ibid. 12. An implied trust to accumulate a part of the income of a share of the testator's estate for chil- dren or descendants of B who are not in existence at the time when such accumulation is to com- mence, or whose right to the accumulated fund is entirely contingent, is void, under the provisions of the Eevised Statutes relative to accumulations. And the surplus income of the trust property, so far as it arises from real estate or the proceeds thereof, if it is not otherwise disposed of by the will of the testator, belongs to his heirs at law; and so far as it arises from the personal estate, it be- longs to his widow and next of kin, Hoictun V. Corae, 2 Barb. Ch. 506, 5: 738 Editorial Notes. Accumulation of rents and income for bene- fit of minors 5: 567 directions for ,5: 733, 824 must be exclusively for benefit of minors 5:733 ACKNOWIiEDGDIENT. See also Husband and Wife, 140; Limitation or Actions, VI.; Mortgage, 29. 1. A substantial compliance with the require- ments of the statutes relative to the proof or ac- knowledgment of deeds is sufficient; and it ,is not necessary that the certificate of acknowledgment should be in the precise words of the statute. Meriam v. Hmsen, 2 Barb. Ch. 232, 5: 686 2. A certificate which stated that a feme covert acknowledged that she executed a deed without any fear, threat, or compulsion of her husband was a suiBcient compliance with a statute requiring an acknowledgment by a feme covert that she exe- cuted the deed freely, without any fear or compul- sion of her husband. fud. 3. Where the witness sworn by a commissioner of deeds to identify the grantor in a conveyance, on the latter's appearing to acknowledge the execution of such conveyance, is the grantee therein, or other- wise interested in sustaining its execution, the cer- tificate of the officer of its due acknowledgment furnishes no proof of its execution. aoodhue V. Berrten, % Sandf. Ch. 630, 7: 734 4. Previous to the Act of February, 1TO7, relative to the acknowledgment of deeds, it was not neces- sary that the certificate should state the fact that the officer knew the person making the acknowledg- ment to be the grantor described in the deed, or that his identity had been proved. Orowder v. Hopkins, 10 Paige Ch. 183, 4: 937 6. The Act of January, 1794, relative to convey- ances of military bounty lands, which required an actual acknowledgment by the grantor, and which prohibited the judge or master from taking the acknowledgment unless he knew, or had satisfac- tory proof , that the person making the acknowledg- ment was the same person described in the con- veyance, did not require these facts to be stated Sn the certificate of acknowledgment. Ibid. 6. Where a deed is executed by an attorney law- fully authorized, he is the party executing the same, and may make the acknowledgment of the deed, within the intent and meaning of the statute on that subject, to entitle it to be recorded. Lovettv Steam SaimnillAsso.B Paige Ch. 54, 3; 896 7. The certificate of the acknowledgment of a mortgage was that "S S H, who is to me well known, personally appeared before me and ac- knowledged," etc. Held, a suiBcient compliance with the Act, though it did not set forth in terms that he was "well known to the officer to be the per- son described in and who executed the mortgage." TrOK*) V. Haioftt, Hopk. Ch. 239, 3:407 8. General usage, long-continued and unques- tioned, has great weight in the construction of this Act, though such construction be not given upon adverse litigation. Ibid. 9. More especially when that construction has been adopted by many law officers. Ibid. 10. Certificate of acknowledgment, signed by a mas- ter in chancery, upon a deed'dated 29th May, 1790, executed by a married woman ot her estate, showed, on a private examination, that she "acknowledged she executed the same without any fear, threat, or compulsion of her husband." The Statute of 1788 declared that no estate of a feme covert should pass without a previous acknowledgment by her on a private examination, etc., that she executed such deed freely, without any fear or compulsion of her husband. Held, in the absence of proof of fear, threat, or compulsion, that there was a substantial compliance with the statute and that the certificate was to be presumed sufficient. Meriam v. Ha/rsen, i Bdw. Ch. 70, 6: 801 11. The word "freely," in the statute relating to the acknowledgment of a deed by a feme covert, la not used in a sense importing that the wife, in the execution of the deed, should act without a motive, or do it as a mere act of generosity, without any hope of present or future benefit; but it means that she has executed the deed without constraint or co- ercion, or fear of injury from the husband. Meriam v. Hansen, 2 Barb. Ch. 232, 5: 686 12. An acknowledgment of a deed of lands in this State, taken before "the president of the Court of Common Pleas for the First Circuit of Warren County, Ohio," does not entitle it to be recorded, there being an appeal from that court to the su- preme court. Dias V. Olover, Hoff. Ch. 71, 6: 1068 13. Quwre, whether a certificate that the within named A B acknowledged, etc., is sufficient. Ibid. 14. A vice-chancellor, by virtue of that office, is not authorized to take the aclmowledgment of deeds and other legal instruments, so as to make such acknowledgment legal evidence of the execution of the deed or instrument without further proof. Bidabock v. Levy, 8 Paige Ch. 197, 4: 397 Editorial Notes. Certificate of acknowledgment; suflSciency 6:801,2:407,5:627 Grantee cannot take 7: 734 ACTION OR SUIT, I., II. a. ACTION OR SUIT. I. Generally; Nature and Right. II. Union or Choice or iSemedies. a. Choice; Election. b. Splitting, c. Joinder. Editorial Notes. See also Abatement. 1. Geneuallt; Nature and Right. 1. The word "action," when used in the Revised Statutes, refers to a proceeunia' in a court of law. But where the word "suit" is used by the revisers, in reference to a legal proceeding-, the statute may apply to a proceeding: either at law or in equity, unless there is something in the context to confine the operation of the statutory provision to suits in a particular court, Didler v. DoA^ison, 10 Paige Ch. 515, 4: 1073 Z. Filing a biU is not the commencement of a suit. It is commenced by issuing and serving a subpoena or making a bona fide attempt to serve it after the bill has been filed. mtcn V. Smith, 10 Paige Ch. 9, 4: 865 JS. C. 2 Ch. Sent. 66, 5: 1096 3. Where a creditors' bill in one suit was filed two ■hours before the aiiug of a bill in another suit, but ■a subpoena on the lasL bill was taken out and served before any attempt had been made to serve a sub- poena upon the bill first filed,— ifel(2, that the suit upon the bill last filed was first commenced,and that the complainant in that suit was entitled to a pri- ority in payment out of the property of the judg- ment debtor, who was the defendant in both suits. nm. 4. The service of the subpoena in the cause subse- quent to the filing of the complainant's Dill, or tne issuing of the subpoena and a bona fide attempt to serve the same, is the commencement of the suit .against the defendant, and not the filing of the bill merely. Ibid. 5. Upon every statute made for the redress of any injury, mischieJ: or grievance, an action lies by tJje party aggrieved, either by the express words of the statute or by implication. ra« Hook V. Whitloclt, 2 Edw. Ch. 304, 6: 409 6. The injured only can sue upon a remedial stat- ute. Ibi^. 7. If one person makes a promise to another for the benefit of a third, that third person may main- tain an action at law on the promise, JDufce of Curriberland v. Codriiigton, 3 Johns. Ch. 354, 1:610 8. Although upon a deed inter partes, a stranger cannot at law recover on a covenant contained therein for his benefit, yet a court of equity will ^ve effect to stipulations of this kind in marriage articles and other conveyances in trust, upon the application of the party for whose benefit the pro- vision was intended. ^ Sleeker v. Bingham, 3 Paige Ch. 246, 3: 138 9. H and M, being partners in trade, and owners in common of two lots, each subject to a recorded mortgage, and both incumbered by a subsequent unrecorded mortgage given by them to P to se- cure their bond for a partnership debt, dissolved their partnership. M took all the assets of the firm, and agreed to pay all the debts, including the bond and mortgage lo P; and M conveyed to H, for a full price paid, his moiety of the two lots, subject only to the recorded mortgage on each, with covenants of quiet enjoyment, warranty, and against all incumbrances save those two mortgages. Afterv.'ards, H borrowed money of K and secured him by bond and mortgage on the two lots, K hav- ing no notice of P's mortgage, which, in the mean time, had been recorded. K's mortgage was sub- sequently foreclosed against H, and K became vested with the title urider the decree, leaving a targe deficiency due to him on his mortgage. M then procured the holder of the first mortgage on one of the lots to foreclose the same. K and P were made parties, the lot was sold, and K's title devested. There was a surplus paid into court on the sale, exceeding the sum remaining due to K. Both K and P claimed it, and it was adjudged and paid to P as the holder of the oldest recorded mort- gage. K then filed a bill against M .o 1,1/11.^^. L..m to pay all or part of the sum due on H's mortgage to K. A demurrer to the bill for want of equity was overruled. Kimiev v. WCulloiigh, 1 Sandf. Ch. 370, 7: 363 10. If a person institutes a suit in the name of another without his consent, and without any le- gal or equitable right to do so, the person in whose name the suit is thus instituti'd is entitled to have the proceedings stayed, upon application to the ap« propriate tribunal. Be Merritt, 5 Paige Ch. 125, 3: 654 11. Where complainant has entered a conditional order to dismiss his bill upon payment of costs, he cannot bring a new suit for tne same matter until he has paid the coats of the former suit, or at least untU he has tendered them. Saxton V. Stowell, 11 Paige Ch. 526, 5: aaa 12. If the whole ground of the suit has been re- moved by the death of the complainant, the court will not near an argument merely to determine a question of costs. Johnson v. Thomas, 2 Paige Ch. 377, 3: 960 13. The court will not hear a cause merely to de- cide a claim for costs, although the parties com- promise the suit, reserving the question of costs for the decision of the court. Stewart v. Ellice, 2 Paige Ch. 604, 8: 1049 II. Union or Choice of Remedies. a. Choice; Election. 14. Where a wrong in relation to a literary work has been already committed, but there is no claim of copyright set up, and the bill does not ask for an injunction, the party must be left to pursue an action at law tor damages. And where stereotype plates connected with such work have been wrong- fully possessed, the remedy is exclusively at law by trover or replevin. Monk V. Harper, 3 Edw. Ch. 109, 6: 590 15. If a vendor, who has been defrauded in the sale of his goods, proceeds to judgment against the vendee upon the contract of sale, after he is ap- prised of the fraud, his election is determined; and he cannot afterwards follow the goods, or the pro- ceeds thereof, into the hands of a third person, on the ground of the fraud. Lloyd V. Brewster, 4 Paige Ch. 537, 3: 651 16. The devisee of an aimulty which had bren in- creased, under apower in the will, to equal the in- come of the share of the estate which he would have inherited'as heir if there had been no will, filed a bill to set aside the will as violating the provisions of law against perpetuities. The will was sustained by the assistant vice-chancellor, and the heir appealed. Pending the appeal he filed a bill against the trus- tees of the will, to compel the payment of the in- creased annuity. Ueld, that he was not obliged to elect between the latter suit and his appeal in the former. Mason v. Jones, 4 Sandf. Ch. 623, 7: 1833 17. A bunking association issued alarge amount of bonds, so called, secured by a transfer of securities in trust. The bonds went into the hands of various persons, and a few were deposited by the bank with D & Co., as collateral security for a loan of credit. The receiver of the bank, on its insolvency, filed a bill against the trustees, D & Co., and all the other holders of the bonds, to set aside the trust because of Its alleged illegality, and to have the bonds can- celed. Pending that suit, the receiver filed a bill against D & Co., to avoid the loan of credit on the ground of usury, and to have the bonds and other collaterals held by them returned to the receiver. Held,, that the former suit was not a bar to the lat- ter, nor did it put the receiver to an clpction as to his remedy in respect of the bonds held by D & Co. Leavltt V. Be Launay, 4 Sandf. Ch. 281, 7: 1105 18. Compelling complainant to elect in which court he will proceed, where he has begun an action both at law and in equity, is a matter of right— not of favor— as to defendant. Akroyd v. King, 1 Ch. Sent. 39, 6: 1063 19. Where a party is complainant in equity and defendant (upon the same matter) at law, he can- not be compelled to -make his election — ^it is not as if he were complainant in both courts. Softs V. Cozine, 2 Edw. Ch. 583, 6: 61 3 20. A creditor filed a bill to set aside or to obtain relief against a judgment confessed by his debtor in the supreme court, on the ground of fraud, and obtained an Injunction to stay all proceedings on ACTION OR SUIT. II. b, c. ittp Judgment; and while the suit was pending' In this court he proceeded at law, and recovered judg- ment against his debtor, and issued execution there- -on^nder which the property of the debtor was ad- yertlsed f or sale. The court refused to dismiss the billon the petition of the defendants, but ordered the plaintUt to make his election, either to stay his ■execution at law during the continuance of the in- junction, or consent to have the injunction dis- solved ; and, the plaintiff refusing to malcean elec- "tion, the injunction was forthwith dissolved. lAmingston v. Kane, 3 Johns. Ch. 224, 1: 600 21. Where the plaintiffs sued the defendant on his contract, at law, ana, a tew days before the trial of the cause, discovered facts amountiuff to a fraud- ulent concealment by the defendant, but prooeed- -ed to take a verdict for the amount claimed, on which judgment was entered up ; and they after- wards filed their bill in this court for relief against the contract,on the ground of fraud,— HeW, that by -going to trial and taking judgment the plaintiffs 'had made their election of their remedy at law, and, the remedies at law and 'in equity being incon- sistent, they were bound by that election. Scmfler V. Wood, 3 Johns. Ch. 416, 1:668 22. Any decisive act of the party, with Imowledge of his rights and of the fact, determines his elec- tion, in tue case of inconsistent remedies. Ihid. 23. Where the plaintiff brings a suit at law and ob- tains a judgment, and at the same time flies his bill against the defendant in this court for the same matter, he will be put to his election, either to pro- ■oeed at law or in this court; and, if he elect to pro- ceed at law, his bill will ^e dismissed ; but it he elects to proceed in this court, he will be enjoined "from proceeding under the judgment without the leave of this court Rogers v. Vosburgh, 4 Johns. Ch. 84, 1:77a 24. Where a landlord elects to proceed at law .against his tenant to enforce a forfeicure of the •lease for the nonperformance of its conditions, he cannot, during the pendency of the suit at law 4tgainst the tenant, have relief in equity against him 418 upon a subsisting tenancy. Stuvvescmt v. Davis, 9 Paige Ch. 427, 4: 760 25. Where a complainant is proceeding in a suit in equity and in an action at law for the same sub- ject-matter, the defendant is not entitled to an sion, by the laws of Louisiana, as well as by the laws of this State, must be collated, or brought into hotchpot, in the distribution of the estate. Sherwood v. Wooster, 11 Paige Ch. 441, 5: 192 6. By the civil law, a gift from a parent to his chUd, intended as a marriage portion, as contradis- tinguished from a mere marriage present, is subject to collation. ibid.. 7. M, by wUl, directed a division of his personal estate among his five children and theli' issue, de- ducting, however, all advancements, provided the personalestate should be suificient,by such deduc- tions, to maise an equal division of the same; and if 'lOt, that the Income and rents of the' realty be- queathed to such of the children having such ad- vancement should be retained and appropriated to the repayment of such advancement until the same was reduced to $6,000, and that such $6,000 or any advancement under that sum should be considered a permanent loan, bearing interest, payable from the respective share and income of the rents of the party having such advancement and the principal to be deducted from the respective share of the real estate upon a final division. The personal property, including the debts due from two of the sons, amounted to $27.820 -one of these debts was for $6,000, and the other $10.000— and, ow- ing to the deficiency of the personal estate, to give each of the children $6,000, a question arose as to the manner of dividing the personalty. Held, that the personalty must be equally divided among the five children, without reference to these advances; and that such advances must be turned over to the real estate. Morton v. Morton, 2 Edw. Ch. 457, 6: 465- ADVANCEMENTS. See also Fraudulent Conveyances, 46. 1. If a f athei: pays the consideration money upon the puruiiU8u oi real estate, una caLvesa coiiveyaLice of the estate in the name of bis child, the legal pre- sumption is that it was intended as a gift or ad- vancement for the child, and not as a trust for the benefit of the father. PartriOge v. Hamens, 10 Paige Ch. 618, 4: 1115 2. Whether, under the provisions of the Revised Statutes, an advancement made by the testator in his lifetime is to be brought into hotchpot in case of a partial intestacy only, — quaere. Hmvley v. James, 5 Paige Ch. 318, 3: 734 3. The provision in the statute regulating descents, for bringing advancements made by an intestate into hotchpot in the division of his real estate, does not apply where there is a will disposing of a part of the decedent's property, either real or personal. It relates to a total intcstaov onlv Thompson v. Carmichaa, 3 Sandf. Ch. 120, 7: 794 4. Where a will disposing of all the decedent's real and personal property was decreed to be invalid except as to some specific legacies and a charge for the support of his widow,— Held, on a partition o1 the real estate, that an heir who had received an advancement from the decedent was not bound ti brinir thp samn into hotchpot, or account for it i- the division of the estate. Ibid. 5. The donations or advances which the decedent Editorial Notbb. Advancements to child Doctrine of 4:1115 3:738 ADVERSE POSSESSION. See also Deed, 35; Basements, 18; Joint Tenants AND Tenants in Common, 3; Pleading, III. e, 4. 1. A mortgagee's possession within the period of limitation is not adverse to the tilieof the mort- fragor, so as to defeat a conveyance executed by the atter to a stranger. Bm-st V. Boyd, 3 Sandf. Ch. 501, 7: 935 2. Where a mortgagee having a right of dower in the lands mortgaged enters into the lands after the money Is due, the entry will be deemed to have been made an mortgagee. Hanley v. Carroll, 3 Sandf. Ch. 301, 7: 860 3. To found the defense of adverse enjoyment under a claim ot title, it is immaterial whether the claim be made under a deed valid in form, or under one wanting in all the essentials of a proper con- veyance. Bogordits v. Trinity Chwrch, 4 Sandf. Ch. 633, 7: 1235 4. An actual occupancy by one claiming the title is a good adverse possession, without any written evidence of title. Ibid. 5. Possession by the mortgagee, for a period short of twenty years, will not bar the equity of re- demption ; the possession must be an actual, quiet, and uninterrupted possession, for twenty years, or a period suflicient to toU the right of entry at law. Moore V. Cable, IJohns. Ch. 386, 1:180- 6. Where land has been held in possession for eighty years under a (fraiit of the wiiole, claiming the whole title, the title thus acquired cannot be shaken or impaired by an admission made by its then owner, that the grantor in such original grant was only a tenant in common , or by proof of the fact that he was such tenant in common. Eogardus v. Trinity Chwrch, 4 Sandf. Ch. 633, 7: 1235- 7. A title which has become perfect by an adverse possession extending beyond the period of limita- tion is not affected by an entry made by one who by descent is the owner of the true title, which is there- by barred. jj,^ 8. Where a corporation received a grant of land from the crown of Great Britain, In 17U5, and im- mediately entered by virtue thereof, claiming title to the whole premises, under the grant, adverse to AFFIDAVIT. the whole world, and continued such adverse pos session under claim of right for sixty years,— it ao quired a perfect title, as against the riffhtful owner. Bogardua v. Trinity Chv/rch, i FaiRe Ch. 178, 3:394 9. Where one of several tenants In common con- veys the entire premises held In common, ana tiic grantee enters into possession under the convey- ance, claiming title to the whole premises, such possession is adverse to the cotenants of the gran- tor, and, at the expiration of the period of limita- tion, th^ir right will be barred. Ibid. 10. Where one enters upon land, under a deed in terms conveying the whole m tee, executed by sev- eral persons described as heirs of the party last seised, the presumption of law is that he entered in severalty, claiming the whole land in fee adverse- ly to all the world, although it should be made to appear that there were other heirs, tenants in com- mon with his grantors, who did not execute such def'd. Bogardus v. Trinity Church, i Sandf . Ch. 633, 7: 1335 11. Such an entry differs in no respect from that of a stranger to tne title, ir made upon ateneinent temporariij- vacant, the party is an intruder ; if by the consent or yielding up of a tenant, the posses- sion of a landlord is not disturbed. Ibid, 13. An entry into land is not valid as a claim unless an action be oommenced thereon within one year afterit is made and within twenty years from the time when the right to make swih entry accrued or descended. Such has been the rule of law for two hundred years, and it is now a statutory provision. Ibid. Editorial Notes. Adverse possession; title by color of title 7:1336, 3:394 Defense of 3: 394 Notice of equitable rights by 3: 1030 No account of rents and profits during period of acquiescence 6:353 AFFIDAVIT. AflBdavits, Costs for, see Costs. See also Appeal, 210, 319: Attorney and Souci- TOR, 30; Contempt, 41, 12; Injunction, II. c, 3; MoRTGAOE, 271, 531; Pleading, I. i; Pbao- TICE, 45. 1. An affidavit, where nothing appears to show that it was taken out of the urisdiciaon of the offi- cer before whom it was sworn, will be presumed to have been taken within the limits of nis jurisdic- tion. Parker v. Softer, 8 Paige Ch. 428,' 4: 490 Z. An affidavit taken before a commissioner of deeds de factn for a city, who is exercising such of- flce under color of an appointment by the governor and Senate, may be read in a suit between other persons. 16i children of the marriage,— HisM, that the trus- ses were not authorized to increase the annuity bpvond the 8700. Spencer v. Spencer, 11 Paige Ch. 159, 6: 91 ANNULMENT OF MARRIAGE— APPEAL, I. 13 7. Where an annuity is given by a -will, and there is no direction as to the time when it shall com- anenoe, It commences at the testator's death. Craii) V. Croiff, 3 Barb. Ch. 76, 5: sa* 8. Where an annuity is given by ■will to a man and :hiB heirs in perpetuity, he acquires an absolute interest therein, and becomes entitled to the com- plete disposition of the fund set aside to produce the annuity. Bradhmrst v. Bradhurat, 1 Paige CSi. 331, H: 668 9. If the annuity be given to a man and the heirs •of his body, it is in the nature of an estate tall; and to prevent a perpetuity, the common law gives him an absolute interest in the annuity. Ibid. 10. The rule is the same as to annuities given by .a will, whether payable out of real or personal estate. ibid. 11. Where there is a limitation over of an annuity upon the failure of issue at the death of the an- nuitant, the limitation over is good, being in the nature of an executory devise. Ibid. 12. An annuity for life given directly to the lega- tee, and cbarged by the testator in bis will upon nis real and personal estate, is not property held in trust for me legatee, but is an absolute legacy, the payment of which, out of the estate upon which it is a charge, the legatee may enforce by a bill in eaui- 4y. Degraw v. CZason, 11 Paige Ch. 186, 5: 84 13. Where the testator gave to his widow an annuity of $3,000 in lieu of her dower in his real -estate, which annuity was stated in the will to be Siven to her for her own support and for the educa- tion and support of her children; and the widow jifter his death elected to take the dower in the real estate, instead of the annuity given to her by the win,— Held, that by such election of the widow the whole legacy failed, and that the annuity could not be apportioned, so as to provide a support for -the minor chUdreu out of the same. Hcmley v. James, 5 Paige Ch. 318, 3:734 U. In general cases of periodical payments becom- ing due at intervals and not accruing de die in diem there can be no apportionment. Annuities, there- fore, and dividends from money in the funds, are «iot apportionable. An exception appears in the «ase of annuities for maintenance of infants and of married womea living separate from their hus- bands. And it does not apply to interest due on ■bond and mortgage, which may be apportioned, notwithstanding it is expressly made payable at stated periods. Ctopp V. Astor, 2 Bdw. Ch. 379, 6: 436 15. The bequest of an annuity may be valid al- though a Umltation over of the principal sum to be invested for payment of the annuity is void, where the annuity can be separated from such principal «uin by taking so much of the estate as will be .sufBcient to purchase the annuity upon the principle of valuing life annuities. Irving v. De Kay, 9 Paige Ch. 521, 4: 800 16. An annuity is a legacy of several annual sums dn gross; and when payable out of the rents and ■profits of real estate. It is a charge upon the land. And under §55, subd. 2, of the article of the Revised -■Statutes relative to uses and trusts, an express trust may be created to lease lands, and to receive the -rents and proflts,f or the payment of such annui- "ties. Hwwley v. James, 5 Paige Ch. 318, 3:734 17. Although a will that gives an annuity out of .« piece of land does not, in terms, make it a charge upon the rents, yet it will be so, and fall, first, on -the Ufe estate, and any deficiency of it remain a ■charge on the fee and be raised thereout. Cteon V. Lavirence, 3 Edw. Ch. 18, 6: 566 18. Where executors are directed to receive and apply an annuity charged on real estate, the parties •entitled to it cannot, in filing a bill, pass by the -executors and seek payment out of the estate itself in the hands of devisees, unless they show affirma- tively that the money never came to the hands of the executors. Ibid. 19. Where an annuity is once raised out of an -estate, the latter is not again to be charged. Ibid. 20. What lands are primarily chargeable with the payment of an annuity to a widow in hen of her •flower, directed by a decree in partition to be paid by the owners of the several parcels of the land partitioned, which decree does not specify the order mi which the several parcels are to be charged, and ■where some of the parcels have been alienated to different purchasers and are subject toincumbran- ikiAngslon v. S^eeUmd, 3 Barb. Ch. 510, 5; 991 21. Where an annuity in favor of the widow of the testator was charged upon the real estate of the de^visees generally, and one of such devisees subse- quently conveyed a part of the lands devised to him, and the grantees executed the conveyance and covenanted therein to indemnify the grantor against the debts of the testator, and to perform all or the obligations Imposed upon him as such dev- isee,— HeW, that the grantor's proportionate share of the annuity to the widow was primarily charge- able upon the lands thus conveyed to such gran- tees, ibid. 22. And where the grantees subsequently recon- veyed to the grantor a part ot tne same premises, with covenants of warranty and seisin,- B«Ic!, that the residue of the premises which remained in their hands after such reconveyance was primarily chargeable with his share of the annuity. Ibid. Editorial Note. Payment of arrears 7:634 ANNULMENT OF IHARRIAGE. See Husband and Wipe, I. ANSWER. See Pleadino, III. ANTENUPTIAL CONTRACT. See Husband and Wipe, I'V. 1, 1. APPEAL. I. Jubisdiotion; When Lies. II. Parties. a. Who mam Avv^l- b. Parties Generally. m. Time fob Appealing. a. Generally. b. From Surrogate. 0. Extending Time. IV. Teanspbb op Cause. a. Notice; Petition. b. Papers Generally on Appeal, c. Stay of Proceedings. d. Security; Bond. 1. In General. 2. Amount. 3. Validity; Form; Amendment. i. Approval; Sureties;' Justification. v. Dismissal; Reinstatement. ■VI. Hearing and Determination. a. In General; Practice. b. What Reviewable. c. Decision; Belief. VII. Effect of Decision; Subsequent Pro- ceedings. Editorial' Notes. For Costs on Appeal, see Costs, I'V. See also Chancellor and 'Vice-Chanoellob, 9 22-25, 29; Husband and Wife, 366. I. Jurisdiction; When Lies. 1. Where a discretion is to be exercised according to fixed or legal principles, by a body acting as a court, if those principles have been mistaken, or violated, it is a proper case for review and correc- tion by the appropriate tribunal. But if the Legis- lature had entrusted the exercise of a discretionary power to the sole j udgraent and discretion of a par- ticular person or body of men, no court Is author- /,' a to interfere with or control that discretion provided it is exercised in good faith. WaVceir v. Devereaux, i Paige Ch. 229, 3:415 14 APPEA.L, II. a, b. 2. An appeal from the sentence or decree of a surrogate confirming the probate of a will of per- Bonal propeiDy, upon allegations iiRaiust the validi- ty of the will, filed in the office of the surrogate, under S 31 of the article of the Kevised Statutes rel- ative to wills of personal property and the probate of them, must be brought in the first instance to the circuit 1udge, and not directly to the chancellor. AMan v. Jmes, 10 Paige Ch. 98, 4: 903 S. C. 2 Cai. Sent. 68, 5: 1096 3. Section 55 of art. 3 of the same title, allowing appeals to the circuit judge, applies to all cases in which the validity of the will, or the competency ol the proof to establish the same, is the question in controversy before the surrogate, whether such question arises upon an original application of the executor or other person propounding the will for probate, or upon an allegation against the validity of a will whichhas been admitted to probate, as au- thorized by 9 31. I'M. i. Where the suit abates by the death of com- plainant after the decree is entered, defendant can- not appeal until the suit is revived. Anderson v. White, 10 Paige Ch. 575, 4: 1096 5. No appeal lies from a mere initiatory order, as for an attachment to bring a party into court to answer for an alleged contempt; but if the order for an attachment contains a final determination, or adjudication, that the defendant is in contempt, he may appeal therefrom. WOredie v. Senior, 4 Paige Ch. 378, 3: 477 6. An appeal does not lie to reverse an ex ■parte orderof a vice-chancellor which is merely irregular. Qibson V. Martin, 8 Paige Ch. 481, 4: 511 7. An appeal lies to the chancellor from an order of a vice-chancellor, made subsequent to a final de- cree in a cause. Tripp V. Vincent, 8 Paige Ch. 176, 4: 390 8. Whether an appeal will lie to the court for the correction of errors from a decision of the chan- cellor, resting in mere discretion, refusing to open a decree by default, and to let the defendant in to defend the suit,—quwre. Anderson v. White, 10 Paige Ch. 575, 4: 1096 9. The refusal of the chancellor to grant a feigned issue in a proper case, when directly applied for, and where, in the exercise of a sound discretion, an issue should have been directed, is good ground of appeal. Tovrmend v. Graves, 3 Paige Ch. 453, 3: 888 10 An order of a surrogate vacating a sale of real estate made by an administrator under a previous order of such surrogate is an order from which the purchaser at such sale, who has complied with the terms of the sale, or any other person aggrieved thereby, may appeal to the court of chancery, Delaptoine V. iowrence. Id Paige Ch. 602, 4:1109 S. C. 4 Ch. Sent. 16, S: 1140 11. The omission of the court below to award au issue to settle a disputed claim of right between the parties is not a ground of appeal, if neither party asked for such issue on the hearing of the cause. BeVmap v. Trimble, 3 Paige Ch. 677, 3: 281 Townsend v. Graves, 3 Paige Ch. 453, 3: J838 12. An appeal lies from an order of the court of chancery directing a suit to stand revived against the representatives of the deceased party, if the lights of the appellant are in any way affected by such revival of the suit. Rogers v. Paterson, 4 Paige Ch. 450, 3: 511 13. A decree or order entered by consent of both parties before a vice-chancellor cannot be appealed from, although both parties consent that either may appeal. Jarois v. Palmer, 1 Barb. Ch. 379, 5: 484 14. An appeal does not lie for costs merely. Eagtburn v. Kirk, 2 Johns. Ch. 317, 1: 393 But see cases following. 15. An appeal will not lie for the grantmg or re- fusing of interlocutory costs, which are in the dis- cretion of the court. UUea Cotton Mfg. Co. v. Oneida County, 1 Barb. Ch. 432, 5: 444 Winslow V. CoUins, 3 Paige Ch. 88, 3: 69 16. An appeal lies from an interlocutory order charging lue appellant with oosts.if such costs are given contrary to statute or to a standing rule of the court, and do not restin discretion merely. Buloid v. Miller, 4 Paige Ch. 473, 3: 530 17. Or are disposed of as a matter of relief. Winslow V. Collins, 3 Paige Ch. 88, 3: 69 18. The Kevised Statutes authorize an appeal froi»» a decree as to cue general - ^ lu acause, pruvided the appeal is entered within fifteen days after no- tice of the decree. IbUU Fulton Bank v. New York & S. Canal Co. i Paig& Ch. iZr, 3: afs. 19. The Eevised Statutes,by necessary Impllcatlom. allow an appeal from a decree of the court of chan- cery in relation to the general costs of a suit in that court. But no appeal lies from a decision as to mere interlocutory costs, when the giving or refus- ing of costs is in the discretion of the court. Lain v. Lain, 10 Paige Ch. 191, 4: 939- S. C. 3 Ch. Sent. 17, S: 110& 20. In analogy to the law in relation to appeals from decrees of the court of chancery in relation to costs, an appeal lies to the chancellor from a de* cision of a surrogate in relation to the general cosf9 of a suit or proceeding before him to call an ox' tor or administrator to account. Ibid II. PAKTua. a. Who ma J Appeal, S3.. A party who is aggrieved by an erroneous de- cree or order of a vice-chancellor may appeal there- from to the chancellor, although he Uiu not appear to argue the case in the court below, unless the or- der or decree of the vice-chiincellor is irregularly obtained, so that it can he pet aside on that ground, upon a proper application for that purpose. Hyslop V. Powers, 9 Paige Ch. 322, 4: TIT 22. No person is authorized to appeal from a decree or order of a vice-chancellor unless he is injured or aggrieved by it. And a party who is aggrieved b^ one part of a decree only cannot by appeal call in' question another part of tlie decree, in which he i& not infftrep'''^'1. Cuyler v. Moreland, 6 Paige Ch. 273, 3: 983 23. It seems that after a decree against the right of a party has been made, such pai-ty cannot dispose- of his claim to another so as to give the latter a right to anneal from rbo ficcT-f''. Mais v. Boag, 7 Paige Ch. 18, 4: 41 24. Where a party against whom a final decree ha» been made sells bis< right to the subject-matter of the suit, an appeal from such decree in the name of the party against whom the same was made cannot be sustained. But if the purclinser is entitled U> appeal, he must make himself u party to the suit, and bring the appeal in his own name. Ibid. 25. A party cannot appeal from a decree or order- after he has parted with all his interest in the sub- ject-matter thereof. Kelly V. Israel, 11 Paige Ch. 147, 5: 88 26. Where a party has released all his interest in a. suit, he has no right to appeal from an order made- therein, which cannot prejudice him, although iii may be wrong as against other parties. Steele v. White, 2 Paige Ch. 47S, 8: 995- 27. An appeal cannot be sustained by a person who cannot be injured by the alleged error of the judge a quo, unless he is the legal representative or a party who may be injured thereby. Ibid- 28. A complainant who has parted with all bis in- terest in the subject of the hiigation pendente Me cannot appeal from a decision which injuriously af- fected such interest. Card V. Bird, 10 Paige Ch. 426, 4: 103S 29. Nor can a party appeal from those parts of a decree which do not affect his interest. Itnd. 30. If the court errs by setting aside a master's sale improperly, the purchaser may appeal to a bigher tribunal. Delaplalne v. Lawrence, 10 Paige Ch. 602, 4: 110» S. C. 4 Ch. Sent. 16, 5: 1140- 31. An executor cannot appeal from the decision, of a surrogate in refusing to allow a claim of u creditor, against the estate, which the executor has neither paid nnr become itersonallv liable to pav. KelleU V. Rathbun, i Paige Ch. 102, 3:"3iBl 32. Defendant in a divorce case who permits the- bili against him to be taken as confessed has no- right to appeal from the decree on the ground that the evidence before the master was not sufficient to prove the facts charged. Boyce v. Boyce, 2 Ch. Sent. 24, 6: 108T b. Parties Generally. 33. Upon an appeal from an order or decree of a» iPPEAL. m. a, b. surrofrate, all the parties to the proceedinirs before the BurroKate who are Interested In sustaining the order or decree appealed from should he made par- ties to the petition of appeal. CfilcTirSst V. Bea, 9 Paige Ch. 66, 4: 610 3i. Where the wife, aa the next of Idn, appeals to the circuit judgre from the decision of a surrogate admitting the will to probate, which decision is af- firmed, the husband cannot appeal from the order of afflrmance, in his own name, without joining bis wife in the appeal. _ Foster v. Foster; 7 Paige Ch. 48, 4: 58 35. If the surrogate admits a will to probate, it teems it is suiUoieut for tuo heirs ao law, where they wish to appeal from the decision, to malse those who applied to the surrogate for probate of the will parties to the appeal ; leaving other persons who are interested in sustaining the decision of the surrogate to come in as interveners before the ap- pellate court, and make themselves parties to the appeal, if they wish to become such parties. fauncey v. iJut7ier/or(J,'9 Paige Ch. 2T3, 4: 698 36. An administrator, though not notified to at- tend and oppose an ex parte application before the surrogate tor the revocation of his letters testa- mentary, is a necessary party to an appeal from the order denying the application. Be Thmnpson, 11 Paige Ch. 453, 5: 195 37. The complainant in a suit is a necessary party to an appeal from an order of a vice-chancellor granting leaTe to file the bond of the receiver In such suit nune pro tune. WTiiteside v. Prendergast, 2 Barb. Ch. 471, 5: 718 38. Persons against whom no. proceedings have heen had in the appellate court upon an appeal from , I surrogate, and who have neither appeared nor an- swered the petition of appeal, are not to be eonsid ■ red as parties to the appeal. Folentine v. Valentine, 2 Barb. Ch. 430, 5: 703 39. No person is considered a party respondent in a petition of appeal who is not named therein, and ctuled upon by the prayer of the petition to answer the same. _ Gardner v. Oardner, 5 Paige Ch. 170, 3: 673 40. If a party to the proceedings before the surro- arate, ana wnose mterests are affected by the appeal to the chancellor, is not made a party to the petition of appeal, he may apply to the chancellor to dismiss the appeal as to him, with costs, so far as it stays the proceedings in the court below to his injury. IIHd. 41. Upon appefil from the decision of a surrogate refusing to appoint appellant general guardiau of an infant, he should make the infant, and not the relative of the infant who objected to his appoint- ment, a party to the appeal. KeWnger v. Boe, 7 Paige Ch. 362, 4: 189 42. An infant should be a party to an appeal from a decree of the surrogate appoiuting a guatdian, especially where the appeal is also from an order removing a guardian or refusing to appoint the person by whom the appeal is brought. TJnOerUll v. Dennis, 9 Paige Ch. 202, 4: 668 S. C. 1 Ch. Sent. 43, S: 1064 43. Where the appeal is from an order appointing a guardian, the appellant may make the infant a party to the petition of appeal jointly with the guardian; but the making of an infant a party is not absolutely necessary in that case, as the guar- dian appointed by the surrogate must be made a party, and the appellate court can protect the rights of the infant on the appeal, although he is not a nominal party thereto in such a case. Ibia. 14. It is not necessary, in an appeal from an order of the surrogate appointing a guardian, that the appeal should be in the name of the infant as the nominal appellant. UnderhiU v. Dennis, 9 Paige Ch. 203, 4: 669 45. It seems that a person interested in proving the will may make himself a party to an appeal from the decision of the surrogate, although he was not a party to the proceeriinss in the court below. Foster v. Foster, 7 Paige Ch. 48, 4: 55 46. But a party in interest, who claims to come in as an intervener, either in the court below or in the appellate court, must apply by petition to be made a party to the proceedings, before he can be per- mitted to take a part therein. Ibid. ni. TiMB roR Appealing. a. QeneraUy. 47. If the party who makes an application to the- court, and enters the interlocutory order foundedi thereon, wishes to appeal from the decision or any part of It, he must brmg his appeal within fifteen, days after the order is settled and delivered by him- to the register or clerk to be entered. Farley v. Farley, 7 Paige Ch. 40, 4: 58 Gay V. Gay, 10 Paige Ch. 369, 4: 1015- S. 0. 8 Ch. Sent. 71, 5: lias 48. But where the order or decree is drawn upand< entered by the respondent's solicitor, the appi'llaiit has fifteen days, to appeal from the same, after he is served with a copy of such order or decree, or with a written notice that the order or decree is en- tered. Jbid^ 49. An appeal must be brought within fifteen days after notioe'of the entering of a decree which direct* an account, but reserves the consequential direc- tions and the question of costs until the coming in of the master's report. „ „„„ ^ o«» Johnson v. EvereU, 9 Paige Ch. 636, 4: 846 50. An appeal may be taken from the decree set- tling finally a part of the subject-matter in Utiga- tion, after the fifteen days allowed by law for ap- pealing from an interlocutory decree, although another portion of the subject-matter is left un- settled. _ DicMnson v. Codwise, 11 Paige Ch. 189, 5: 10* 51. A mere constructive notice of the entry of the order or decree, or a notice thereof by parol, is not sufficient to limit the rights of appeal, where the or- der or decree is drawn up and entered by the re- spondent's solicitor. Oau V. Gay, 10 Paige Ch. 369, 4; 1015- S. C. 3 Ch. Sent. 71, 5: liaa 52. A mere verbal notice of an interlocutory order is not sufficient to limit the time allowed the ad- verse party from appealing therefrom. People V. Spalding, 9 Paige Ch. 607, 4: 835 53. To limit the time for appealing from an inter- locutory order, the party uutaiiiing the order must either serve a formal notice of the order, or a copy of the order itself, upon the solicitor of the adverse party IMd. B4. An appeal from a final decree of a vice-chan- cellor as to the general costs in the cause may be made to the chancellor at any time within six months from the time of entering the decree. Pulton Bank v. New York & S. CaruA Co. 4 Paige Ch. 127. 3: 372 55. An appeal from a final decree of a vice-chan- cellor must be pertected within six months from the time of entering the decree. But the time for appealing from an interlocutory order or decree is to be computed only from the time of the receipt of notice thereof. _ ™ „■ » e^. Eldridge v. BoweXl, 4 Paige Ch. 457, 3:514 56. If the party in whose favor an interlocutory decision o£ a vice-ohauoeUor is made wishes to lim- it the time for appealing, he should have the order entered, and give notice thereof to the adverse par- ty, without delay, as the latter has fifteen days af- ter the receipt of mr.ice of such order to appeal from the deciainr Studwell V. Palmer, 5 Paige Ch. 57, 3: 686 Tyler v Simmons, 6 Paige Ch. 127, 3: 935 57. The time allowed for appealing from an inter- locutfiry order or decree Ocing fifteen days after notice of the same, the time does not begin to run against the party entering the order until the actu- al entry thereof, although the caption of the order bears date as of a previous diiy. ^ ,„. North American Coal Co. v. Dyett, 4 Paige Ch. 273, 3: 43» 58. There can be no legal notice of an interlocu- tory order or decree, so as to limit the right of ap- pealing therefrom, until such order or decree i» drawn ap and settled, or passed by the registor or olprk with whom it is to be entered. Eldridge v. Howell, i Paige Ch. 457, 3:514 b. From Surrogate. 59. The thirty days within which an appeal from the decree or sentence of a surrogate to the court of chancery must be entered is to be computed from the time the same is pronounced, and notfron> the service of a copy thereof. „ ,„ „ _„, Bay V. Tan Bensselaer. 1 Paige Ch. 423, Z: 701 APPEAL, III. c— IV. a, b. 16 80. A decree of a surrogate upon an account taken apalnst an administrator, made on the appii- 'Cation of one or more creditors of the estate, but without citing the next of Itin of the intestate, if not a decree for the final settlement of the account of the administrator; and an appeal therefrom miist be made within thirty days after the entry of the Branson v. Ward, 3 Paige Ch. 189, 3: HI 61. Where an appeal from a sentence or decree of A surrogate is not entered within the time limited for that purpose by the statute, the court of chan- cery, acting as an appellate court, can afford no re- lief to the appellant. Itna. 62. An appeal must be entered within thirty days alter the euuy oi a surrogate's decree directing nayment of the balance found due the next of kin, 60 tar as the estate has been administered, and a further account, when required, rendered after a citation by the next of kin to the personal repre- sentatives to account; certain creditors not having ''Ito'nev. Morgan, 10 Paige Ch. 615, 4: 1113 63 A decree of a surrogate which, upon its face, purports to be a final settlement of the accounts of executors, and which discharges them from all fur- ther responsibility on account of the personal estate of their testator upon payment of the several sums specified therein, may be appealed from at any time within three months. Smith V. Van Kuren, 2 Barb. Oh. 473, 5: 719 64.' Where a decree by a surrogate for the final ■settlement of the account of an executor Is erro- neous because the surrogate had no authority to make it, that fact affords no ground for restricting the right of appeal to a shorter time than would .have been allowed if the decree had not been erro- neous, upon the ground that it was unauthorized. Ibid, 65. An appeal cannot be taken, after the expira- tion of thirty days from the entry thereof, from a decree by the surrogate for the payment of the .residue of testator's personal estate to two residu- ary legatees, rendered after an accounting by the executor upon the citation of such legatees' hus- •bands, other parties interested in the estate not having been cited to attend the accountmg. Guild V. Peek, 11 Paige Ch. 475, S: a03 S. C. 4 Ch. Sent. 81, 5: 1168 66. The time allowed for appealing from a decree or order of a surrogate commences to run from iiie •time of the actual entry of the decree or order. BobertsQ tile appeal cause. rhid- Oard««r T.Gardner, 5 Paige Ch. 170, 3:673 JiameS v. Sarmer a T>o ni, eeo ' ^- *"«»«»•. 3 Paige Ch. 556, 3:373 ceabr S*]?nS.^PP^ *™™ » "decree of a vaoe-ohan- transfer nflhl "'-'oeseaiy to oUialn au order I'oi- the offlcl P^S!,^?? P^P^™ '1*''® """se to the register's Smfnal pt?,U>''"^®^ T"""'® *"« inspection of some •original exliibit, or otner paper on file, will he necessary on the hearing of the appeal. ' ItM. i^,\^^f^^' "Il°° *° appeal, a transfer of the papers must fn t'hJiffil.P?."^ applying for the traust^r ^founded «?i?i?hL* "P*!? "^'""^ ^"<='' application ^«„ „ S? • stote the particular reasons which ren- ■der a removal of the papers necessary. am. 91. The party whose duty it is to furnish the pa- Jifl.»rt°^,M ^K*"*"'"'^ "' '>!.' "PI'™' sUouia oe pre- pared with the proper evidence to show what pa- pers wer^ read before the vice-ohancenor, and *f Teqii.red, to show that the papers furnXed by him 'arc correct coprf^s. StudwOl V. Palmer, 5 Paige Ch. 166, 3: 671 98. Upon the hearing of a cause before the vlce- ■chaucellor it is the duty of the clerk to enter In the minutes of the court all the papers read, or which are agreed to be considered as read, or which are offered in evidence and overruled by the court; and a eertifled copy of the clerk's minutes is the proper evidence of those facts upon the hearing of an appeal to the chancellor. ItM. 93. If the clerk, by mistake, neglects to enter in his minutes any paper which was read, or consid- ered as marked and read, before the vice-chancel- lor, the proper C9urse is tc> apply to the court below to correct the minutes. Ibid. H. Where a party opposmg a motion or petition 'has papers to read in opposition thereto, and the ■application is decided in his favor upon the open- '2*1°*^''"® •'ase on the papers of the adverse party. If he desires to have the benefit of his papers, in ■opposition to the application, upon an appeal from the decision, or wishes to be allowed therefor upon the taxation of his costs, he should have such pa- f lers en tered in the minutes of the court below, and marked as read. Bloodgood v. Clarli, 4 Paige Ch. 574, 3: 667 95. The papers which are to be furnished for the «hanoellor upon the oearing of an appeal from the sentence or decree of a surrogate are a copy of the surrogate's return, including the transcript of the appeal as entered in the court below, and copies of the petition of appeal and answer to the same filed in the appellate court, together with the points of the respective parties upon the appeal. flaZsej/ V. fan .,1017*1(76, 6 Paige Ch. 12, 3:878 96. If the surrogate's return does not contain all the proceedings before him which eitherof the par- ties deem requisite for a correct understanding of the questions arising upon the appeal, the proper course is to apply to the chancellor, before the hear- ing of the cause, for an order for a further return. IbM. 97. The return of the surrogate, on an appeal to the circuit judge in relation tu tiiu proLiutu ot a pa- per propounded as a will of personal estate, should £tato who were the next of kin of the decedent, and which, if any, were infants, who were cited to at- tend upon the proving of the will, aud who did in fact attend and litigate the will. Chaffee v. Baptist Missionary Conv. 10 Paige Ch. «5, 4: 896 S. C. 2 Ch. Sent. 67, 6: 1096 98. And the appellants, upon the appeal to the cir- cuit juuf^e, miuioU present a peliLiuu of appi-ul to him, and should state therein, among other < ings, the names of the persons interested in sustaining the decree of the surrogate; and they should make all those who appeared before the surrogate in op- position to the appellants parties to such appeal, iiuch petition of appeal should also pray that a day may be fixed by the circuit judge for the persons made respondents therein, and for the appellants to lie heard on the appeal, in order that due notice of the hearing may be given to the respondents. Ibid. 99. In the decree of the circuit judge on such ap- peal, or in the proceedings before him which are re- turned by him to the surrogate with his decision, it Ch. Dig. n should appear which of the respondents named in JJ^^P^u ""^ °* appeal appeared before him, and that those respondents who did not appear had been duly notified of the time and place of hearing, as directed by the statute. im. ty}?<. <^°Pi^ of the points made by each party, upon fllL^®i?^i°f ■f,?*°'i? *^^ Wce-chancellorT should be turnished to the chanceUor upon the appeal. Beatty v. McNaughton, 1 BaA. Ch. 319, 5: 401 101. Where two orders are made and entered Id a cause on the same day, one of which substantially embraces the other, and the defendant appeals from both orders, only one appeal bond is necessary. Gregory v. Dndge, 3 Pafee Ch. 90, 3: 70 103. Where two distinct orders are made In the same canse they may bo lioth included in one notice of appfiil and in the same appeal bond, provided the P''"iJ':r °^ *"® ''ond is sufficiently large, and the condition of the bond is broad enough to secure the payment of the whole amount required to be secured on both appeals. Tyler v. Simmons, 6 Paige Ch. 137, 3: 985 c. Stay of Proceedings. 103. An appeal is only a stay of proceedings. In the first instance; and the party in whose favor the ae- cree is, may, with leave of the court, proceed, not- withstanding the appeal ; and on motion for that purpose the court, after an appeal tiled, ordered a reference to a master, to ascertain the precise sum due by the defendant, with interest, and that the defendant bring the amount into court within thir- ty days after confirmation of the report, or that he give security, to be approved of by a master, to perform the decree, or such decree as might be awarded against him on the appeal, or that execu- tion issue notwithstanding the appeal. ilfessonnier V. Sfauman, 3 Johns. Ch. 66, 1:545 104. An appeal, in the first instance, stays all pro- ceedings in this court on the matter appealed from; and if the defendant wishes to proceed notwith- standing the appeal, he must apply to the chancel- lor for leave ; and unless the court of errors be at the time actually in session, and have the cause before them, this court must exercise its discretion as to the propriety of allowing the defendant to proceed. Green v. Winter, 1 Johns. Ch. 77, 1: 66 105. Where an account was ordered to be taken before a master, on the principles laid down in the decree, this court refused to allow the account to be taken pending the appeal from that decree ; nor would it direct the appellant to deliver over deeds, etc., relative to his trust. I6«d. 106. A party who has appealed from an order of reference made by a vice-chancellor cannot pro- ceed to carry the order into effect against the ad- verse party pending the appeal, but he may be com- pelled to elect in which court he will proceed. Vadl V. Ben ten, 7 Paige Ch. 206, 4: 135 107. An application to stay the proceedings in the court below, on the ground that the adverse party is irregular in proceeding in that court pending his appeal, must be made to the vice-chancellor before whom the irregular proceedings are carried on. Ityid. 108. If a decree is appealed from and security given to make the appeeal a stay of proceedings, and the party in whose favor the decision was made proceeds upon the decree notwithstanding such appeal, an application to set aside his pro- ceedings for irregularity must be made to the vice- chancellor who has jurisdiction of the case, and not to the chancellor. Bussell V. Kinney, 10 Paige Ch. 315, 4: 991 109. Where an appeal calls in question the prin- ciples upon which an account is directed to be taken by the decree appealed from, as well as the liability of the appellants to account at all, the court of chancery will not allow such account to be taken before the appeal is disposed of, without, at least, requiring the respondents to stipulate to pay all the expenses of taking such account, in case the decree snail be reversed or modified in any respect so as to require it to be taken anew. McGeoch v. Bullions, 2 Barb. Ch. 34, 5: 546 110. A decretal order of reference to a master, to state the account between the parties, was made in September, 1815, and the parties appeared from time to time before the master,until Oot.16,1817, when they were nearly ready for a final hearing before him ; and then the defendant presented an appeal from 18 APPEAL, IV. c. the decretal order, dated Oct. 18, 1817. On petition and motion of the plaintiff, the court ordered the master to proceed m taking the account, and to complete ai. J file his report, notwithstanding the appetbL Barrow v. Bhinelander, 3 Johns. Oh. 120, 1: 568 111. This court, notwithstanding an appeal filed in the cause, may, in its discretion. awJira execution for the sum decreed to be paid by the defendant, unless he brings the amount, with the costs, into court, within a certain time given forthat purpose, to abide the eyent of the am)eal, etc., or gives se- curity, to the satisfaction of a master, to pay the amount of the principal, interest, and costs, on the affirmance of the decree, or such part thereof as may be payable on the decree of the court above, on the appeal. Htacrs V. ilfiWTO!/, 3 Johns. Oh. 160, 1:578 113. Where a cause is brought to a hearing before a vice-chancellor, upon pleadings and proofs, and there is an appeal from the whole decree or decre- tal order made on such hearing, the cause is be- fore the chancellor until the decision upon the ap- peal, and an application to appoint a receiver in the cause may be made to the chancellor. It is otherwise where there is an appeal from the de- cision of a vice-chancellor as to a collateral matter not embracing the whole cause. Jenkins v. Hinmmu 5 Paige Ch. 309, 3: 730 113. Where the respondent draws up and enters an order which is appealed from by tbe adverse party, it does not lie with the respondent to object that such an order is not in conformity to the decision of the court as to the part thereof which is ap- pealed from. But the court to whom the order was made may direct the order to be corrected, so as to conform to the decision, notwithstanding tbe appeal. And if the order is thus entered, the ap- pellant is at liberty to elect either to abandon the appeal or to consider it as uppiicable to the order Hunt V. WalUs, 6 Paige Ch. 371, 3: 1026 114. Even though an appeal fromadeoree made by the vice-chancellor may aHect unjustly a tuirU party (defendant)— as where a first mortgagee is fuJly recognized, but the mortgagor appeals so as to cover the phraseology which applies to his secur- ity and payment and obtains a stay— the vice-chan- cellor cannot reUeve him ; he must apply to the ftVm.nfiftllni* Westerveit v. Haff, 4 Edw. Ch. 619, 6: 996 115. A suit brought to compel the defendant to ac- count for and pay over to the complainant a balance alleged to be due on certain joint deal- ings comes within § 87 of the title of the Bevisel Statutes relative to writs of error and appeals; and, upon an appeal from an interlocutory order in such suit, the court may require the doing of such other acts and things by the appellant as is specified in that section, to malie the appeal operate as a stay of proceedings. Gregory v. Dodoe, 3 Paige Ch. 90, 3: 70 116. In all cases coming within that section of the statute, the making the deposit, or giving the bond as reqmred by § 80, and the filing the certificate of the vice-chancellor, as required by the 116th £ule, will stay the proceedings under the order appealed from in the ^nrst instance; but the respondent may afterwards apply to the court for an order requiring the appellant to give the further security specified in § 87: Ibid. U7. The stay of proceedings on appeals from chan- cery, provided by the staLuto, is uonfluecl to pro oeediugs in the suit in which the decree appealed from is made. TfOTces V. Henry, i Sandf. Ch. 390, 7: 1145 118. It does not prevent the party who was success- ful below, from prosecuting m the same or another court, while the appeal is depending, a demand wliich was involved in the former suit, but was not decided by the decree. Ibid. VS. The court in which such new action is brought ■will on motion exercise its discretion as to suspend- ing the suit until the appeal be determined. Ibid 120. Where, to a bill for an account by H against W, the latter answered, setting- up a distinct de- mand agaiust H, and subsequently filed a cross- bill reiterating such demand: the cross-causes were beard on pleadings and proofs, and a decree made, dismissing H's bill absolutely, and W's bill with- out prejudice, from which decree H appealed; and W then filed a bill asserting his demand so set up in the cross-bill, to which H pleaded in bar tliL •(inner suits, the decree, and the appealpending,— it was held, (1) that the new suit of w was not rounded upon the decree appealed from, or upoii ifs subject-matter; and (2) if it were, that the Stat- itc of Appeals did not prohibit its prosecution. IomJ. 121. An appeal from the decision of the chancellor denying an application for an injunction, or for an^ order to stay proceedings in another suit, does not operate as an injunction, or a stay of such proceed- ings pending the appeal. Neither does an appeal from an order ditsolving an injunction suspend the operation of the order so as to entitle the appellant to stay the proceedings, pending the appeal, as a matter of right. „, „„, Hart V. Mayor, 6ft. of Albany, 3 Paige Ch. 381, 12£. After an order dissolving an injunction stay- ing an execution at law, the plaintiff may proceed with his execution, notwithstanding an appeal from the order; for an appeal cannot, of itself, affect the validity of an order dissolving an injunction, or dis- charging a party from a writ of ne exeat or service of process. It only stays all further proceedings io this court. TTood V. Dwight, 7 Johns. Ch. 295, 2: 299 123. Where an appeal from an order dissolving an injunction Involved an important question of ii^ut between the parties, and there was probable cause (or appealing, and no particular injury could arise to the respondents from the delay, the court, after hearing both parties upon the application for such relief, granted a temporary injunction, restraining the further proceedings of the respondents in rela- tion to the subject-matter of the first injunction until the appellants had a reasonable time to be heard before the appellate court, „,. „^ Halt V. Mayor, etc. of Albany, 3 Paige Ch. 381, 3: 197 124. An injunction ought not to be granted in opposition to the decision appealed from pending the appeal, unless the appellate court arrives at the conclusion that such decision is wrong. Webster v. Hawlsy, 4 Ch. Sent. 75, 5: 1159 125. The bringing of a writ of error, and giving se- curity lur tue itui uiout UJL LUv; UeUL auu uualia, ,.^-cr the filing of a creditors' bill in the court of chan- cery, founded upon the judgment, does not neces- sarily stay the proceedings upon the bill; but the court of chancery in such a case may, upon a prop- er application, stay the proceedings, and dwsolvs the injunction, so as to give the defendant the con- trol of , his property, upon his giving security to pay the debt with interest and costs, including the cosa. in the suit In chancery, upon the afflrmtrace of the juu^ment or the dismissal of the writ of error. Bradt v. KirlnpatriOi, 7 Paige Cb. 62., 4: 60 126. After an execution has been issued upon a de- cree for the payment of money,and has been levied upon the dfleudant's property, tne execution of the appeal bond required by S iS of the statute does not of itself stay the sheriff from proceeding upoa the execution. But the court will direct the pro- ceedings upon the execution to be stayed, upon the giving of the security andpaying the sherifl's fees. Bwrr V. Burr, 10 Paige Ch. 166, 4: 989 S. C. 3 Ch. Sent. 9, 5: 110» 127. An appeal from the sentence or decree of a surrogate, duly entered in the court below, sus- pends all proceedings by the surrogate upon such sentence or decree until the appellate eouit author- izes proceedings thereon, although the appellant neglects to file his petition of appeal in the court of chancery within the fifteen days allowed for that purpose bv the 118th K\ile. Halsey v. Van Amringe, 4 Paige Ch. 279, 3: 436 128. The petition of appeal may b^ filed in the court of chancery before the transcript of the pro- ceedings before the surrogate is returned and filed; but the respondents cannot be compelled to answer the petition until the transcript is returned by the surrogate. Ibid. 129. Upon appeal from a surrogate, the mode ot compeUmg a return of the transcript, or of correct- ing any omissions or Imperfections therein, is by order, and by attachment for disobedience to the same, in conformity with the practice of the court of chancery in similar cases. Ibid. 130. Where a surrogate makes an order, under the Act of May. 1837, requirins un administrator to give fui-ther security within a specified time: and the ad- ministrator immediately appeals from such order and perfects his appeal before the expiration of the- time limited by the order for the ^ving of sucli APPEAL, IV. d, 1, a. fui-ther Beourity,— the surrogate has no authority, pendipi; the appeal, to make the further order di- rected by the statute, revolting the letters of ad- mioistratipn, until the appellate court shall have authorized further proceedings before the surro- eate upon the order appealed tiom. Vredenhurgh v. Calf, 9 Paige Ch. 128, 4: 636 la. Where a will and codicil had been established by the decree of a surrogate, and some of the heirs and next of kin of the decedent who had been heard before the surrogate appealed from so much of his decree as declared the codicil duly executed and admitted the same to record,— HeM, that such ap- peal did not deprive the surrogate of the power to Bet aside the decree for irregularity, as to one of the heirs at law and next of kin who had not been duly cited to attend upon the hearing before the surrogate. Bibby V. Myeir, 10 Paige Ch. 220, 4: 95a 132. An appeal Interposed aiter a decree for a sale is esBentialiy executed does not supersede the com- pletion of the purchnae. Brasher V. Cortlandf, 2 Johns. Ch. 507, 1: 467 133. An appeal from an order refusing a resale of the premist* will not of itself prevent the purcuaser from completing his purchase. And the appellant is not entitled to an order staying the purchaser from completing his purchase and taking posses- sion of the property, without giving security for the payment of the rents and profits of the prem- ises in the mean time, and that no waste shall be committed. American Ins. Oo. v. Oakley, 9 Paige Ch. 496, 4: 789 relr»«ta,f'^ *?K ■>^oe-chanoellor has decreed that fnnLf (^'f.,"' *''® possession of the appellant be- nrrtl^^^**"? "^Pondent, the chancelfor will not order a portion of such estate to be sold, upon the appUcation of the appellant pending the appeal, to pay the taxes and assessments thereon, contrary to the wishes of the respondent, and while the ap- pellant IS receiving the rents and profits of the eptfltf. Wendell v. Lewis, 6 Paige Ch. 233, 3: 967 135. The certificfit* of probable cause. iiTiori an aT>- icai from an interlocutory order of a v1ce-chance1> or, will not stay proceedings which would not be stayed upon a similar appeal from an interlocutory order of the chancellor. Such certificate, there- fore, will not deprive the respondent of the right to apply for security for the debt, etcas a condition of the further stay of proceedings. Neither will it have the effect to restore an injunctftn which is dissolved by the order appealed from, or to suspend the operation of an injunction granted by such or- dPT. Graves v. Maguire, 6 Paige Ch. 379, 3: 1039 136. A certificate of probable cause for appealing, from an interlocutory order of a vice-chancellor, when given by him for the purpose of staying the proceedings in conformity to the provisions of the 116th Rule, is a mere chamber proceeding, like the approval of the sureties in an appeal bond, and cannot be vacated b.v the court below. IMd. 137. A certiflcate of probable cause for appealing given for the purpose of staying tiie proceedings upon an appeal, has no other elfect than to show that the judge who gives the same thinks it possi- ble that his decision and decree may be wrong,— not that it is probably wrong. Wimamson v. Field, 2 Barb. Ch. 281, 5: 644 d. Secwrtty; Bond. 1. In GeneraL 138. The 37th Rule of this court, made June 7, 1806, requiring the party appealing from a decree or order of this court to deposit $100 with the register or assistant register, to answer for costs, etc., is an equitable and salutary rule, Intended to prevent dolay and abu"». BrcKJioell V. TTeete, 1 Johns. Ch. 325, 1:158 139. Section 80 of the title of the Revised Statutes relative to writs of error and appeals, which de- clares that an apjieal shall not be eif ectual for any purpose until a bond to the adverse party in the penalty of {250, or a deposit of money, as security lor the costs upon the appeal, shall be given or made, is broad enough, it seems, to cover any appeal from an order or decree of the court of chancery, whether such order or decree was made by the chancellor or by a vice-chancellor, unless the case is otherwise provided for in the title of the statute ?' 10 19 relative to the court of chancery, which authorizes the chancellor to regulate such appeals by general Tlmmmn v. BIZ»u)Ortft, 1 Barb. Ch. 624, 5: 580 S. 0. 6 Ch. Sent. 33, 5: 1»04 140. That section of the statute is not inconsistent with the provisions of 6 tiO of the title relative to the court of chancery, but may be eonsidered as a ^•'lperadded requisite to reader the appeal valid and tiieotual. Ibid, 141. Where parties appealing to the ohancellor from a decree of a vloe-cnancellor have money in their bands which they have received for rents and prof- its of premises decreed to belong to the responcfents, the fact that the appellants claim to witnhold the money in a fiduciary character will not excuse them from giving security, upon the appeal, to pay such money, together with interest by way of damages, in case the decree shall be affirmed. WiUiamson v. Field, 2 Barb. Ch. asi, 5: 644 142. Where the respondent is in possession of real estate which is directed to be sold under a decree of the court of uUancery, and is lu Um receipt of th& rents and profits of such property, the appellant is not bound to give him a bond to pay the rents and profits of the property; and that waste shall not be committed, to render such appeal a stay of proceed- ings. Aliter, where the appellant or any person other than the respondent who is entitled to the proceeds of the sale is in possession of the property directed to be sold. Quackenbmh v. Leonard, 10 Paige Ch. 131, 4: 916 148. Where the decree upon a bill to redeem a mortgage directed that the amount reported due should be paid within a specified time or that the bill should be dismissed,— Heid, that upon an appeal by the complainant, he was not bound to give a bond to pay the amount due upon the mortgage, to make the appeal a stay of the proceedings upon the decree pending the appeal. Ibid. 144. Where the respondent considers the appeal bond as not sufficient to stay his proceedings upon the order or decree appeeiled from, he may proceed as though there was no appeal, leaving tne appel- lants to apply to the court below to stay his proceed- ings or to set them aside as irregular: or he may him- self apply to the court below tor leave to proceed notwithstanding the appeal, upon the ground that the appellants have not given the requisite security to mn.ke the appeal a stay of the proceedings. Coithe V. Crane, 1 Barb. Ch. 21, 5: 283 145. The condition of the appeal bond is broken it the appellant fails in his appeal. Skidmore v. Davies, 10 Paige Ch. 316, 4: 991 S. 0. 3 Ch. Sent. 61, 6: 1120 146. Prosecuting an appeal to effect, according to the condition of an appeal bond, means a prosecu- tion of the appeal to a successful result. Ibid. 147. Verbal agreement between solicitors to waive appeal bond and to consider the appeal duly made and noticed for hearing, not binding. Caldwell v. Albany, 2 Ch. Sent. 27, 5: 1087 148. Where an appeal by the defendents in a fore- closure suit has prevented the complainants from obtaining the master's report and a final decree, for a long time, during which time the respondents have been kept out of the possession of the rents and profits, the appellants may be directed to nay to the respondents so much of the rents and profits during the time for which the proceedings have been stayed as may be necessary to pay the deficiency, as the damages of the respondents. If, upon the foreclosure and sale of the premises under the de- cree which is finally entered in the suit, it shall turn out that the proceeds of the mortgaged premises ' are not suificient to pay the amount due to the com- plninants.with interest and costs. Utica Bank v. Finch, 3 Barb. Ch. 293, 6: 906 149. The sureties in the appeal bond, upon an ap- peal from the order or decree of a surrogate, are not only liable for the costs of the appeal, but also tor the damages which may be awarded to the respondent if the appellant does not prosecute his appeal to effect. Skidmore v. Davies, 10 Paige Ch. 316, 4: 991 2. Amount. 150. An appeal bond may be good for the purpose of sustaining the appeal, although it is wholly in- sufScient to stay the proceedings upon the decree or order appealed from. Coithe V. Oane, 1 Barb. Ch. 21, 5:383 20 APPEAL, IV. d, 3. 151. The bond required by Eule 118 to make an appeal iruiu uu lUMinuuubor^ uiaer or aecree of a vice-chancellor a stay of proceedings must be in such penalty as the vice-chancellor who made such order or decree shall direct Cram V. Mitchell, 11 Fa.igeCb.15S, 6:90 S. CA Ch. Sent. 35, 5: 1146 152. Where the interlocutory order or decree ap- pealed trom is muue uy tae assistaut vice-chancel- lor of the First Circuit, he must direct as to the amount of the penalty of the appeal bond which is to be given to stay the proceedings. Ibid. 153. The certificate of the vice-chancellor who nit^i^d tau uc-^;iut:, uc Ills approval oi. luc iurm and manner of the execution of the appeal bond and of the saificiency of the sureties therein, is not a com- pliance with the requirements of the rule. Ildd. 154. Where a decree directs the payment of costs, but does not hx ttie amount ot sucu costs, anu ljc costs have not been taxed at the time of the ap peal, the officer who approves the appeal bond siiould fix the penalty thereof in a sum at least double the Erobable amount of the debt and costs decreed to e paid, and should take security accordinelv. Ccrithe v. Orone, 1 Barb. Ch. A, 6: 283 155. To render an appeal valid, it is sufficient if the appeal bond is in a penalty ot not less than )i;oclc v. Levy, 8 Paige Ch. 197, 4: 397 4. Approval; Sureties; Justification. 184. The assistant register, or a clerk of the court is not authorized to approve of the appeal boiw upon an appeal entered with the register. The bond must bo approved by a vice-chancellor or in- junction master, or by the officer of the court in whose ollioe the appeal is entered. Rogers v. Paterson, 4 Paige Ch. 450, 3: 511 185. But the form of the security to be given up- on ati appeal from a vice-chancellor being regu- lated by a rule of the court, and not by statute, the approval or the appeal bond by the register, instead of the clerk of the vice-chancellor with whom the appeal is entered, is a mere irregularity, which will be considered as waived if the adverse party does not apply to the chancellor to dismiss the appeal within a reasonable time after notice of such irreg- ularity. Hawley v. Bennett, 5 Paige Ch. 104, 3: 646 186. The approval of an appeal bond is an act re- quiring the exercise of juu^iiieiit aud discretion on the part of the approving officer; and a master who has acted as solicitor or counsel in the cause or matter in which the appeal is taken, or whose law partner has thus acted, cannot regularly approve SUf'i '>ond. MelMren v. Charrier, 5 Paige Ch. 530, 3:817 187. The power of the vice-chancellor to dispense with justiflcation of sureties on appeal bond is limited to the cases prescribed in the rules. (116 and 172.) LeaHe & W. Orphan House v.Lau>rence,i Ch. Sent. 21. 5: 1143 188. On an appeal from a decree or order of a vice-chancellor to the chancellor, or from the court of chancery to the court for the correction of er- rors, if a bond is given instead of a deposit of mon- ey, two responsible sureties at least must unite with the appellant in the bond. Van Wezel v. Van Wezel, 3 Paige Ch. 38, 3: 48 189. If the officer who approves of the security does not know ttiat the sureties offered are respon- sible, it is his duty to examine them as to the nature of their property and the place of their residence, and to require them to justify in at least double the penalty of the bond; and he should also annex tbe affidavit of justification to the bond, and re* quire it to be filed therewith. Ibid. 190. It is no objection to the validity of an appeal bond that one of the sureties therein is the sokoitor of the appellant. StudweU V. Palmar, 5 Paige Ch. 57, 3: 636 191. The sureties in a bond for costs must respect- ively justify in double the amount of the penalty of such bond. Jtfoiint V. Mount, 11 Paige Ch. 383, 6:170 192. The sureties in an appeal bond must each be worth double the amount of the penalty of the bond. And the officer approving the bond should, in his certiflcate of approval, certify that he ap- proves of the sureties named in the bond, and that each of them is worth double the penalty of the bond, over and above all debts and responsibilities. Eldridge v. Howeu, 4 Paige (Jh. 457, 3: 614 193. Upon an appeal from an order or decree of a vice-clianceilor, the cnancellor may authorize an amendment of the appeal bond, either as to the amount or as to the approval thereof. Ibid. 194. Where the affidavits of justification by the sureties in an appeal bond are indorsed upon and filed with the bond and the certificate of approval by the proper officer, and show that each of the sureties is worth the requisite sum and has all the other qualifications to become such surety, it is not necessary that the certiflcate of approval should itself state all those facts. Coithe V. Crane, 1 Barb. Ch. 21, 5; 883 195. The officer who takes the justification of sure- ties should not only examine them on oath as to their pecuniary responsibility, but also as to their residence, and other qualifications to become such sureties, according to law and the practice of the court; or he should require an affidavit to such qualifications. Ten Eick, v. Simpson, 11 Paige Ch. 177, S: 98 S. C. 4 Ch. Sent. 47, S: 115J 196. The affidavit or certificate of justification of 22 APPEAL, v., VI. a. sureties should state that such sureties are freehold- ers or householders in this State, aa well as resi- dents th^wein. Ibid. 197. If sureties in an appeal bond who are except- ca to do not justify within the time reg uired by the rule, the respondent may proceed before the vice- chancellor upon the order or decree appealed from, notwithstandini; the appeaL Buck V. Bmc/c, 11 Paige Oh. 170, 6: 95 S. C. i Ch. Sent. 45, 6: 1149 198. The neglect of sureties in an appeal bond who are excepted to, to justifly, does not render the appeal void or prevent' the case from being brought to a hearing upon the appeal. Ibid. 199. Where the amount of the penalty of an ap- peal bond is very large, the ofl&per who approves the same is authorized to receive more than two persons as sureties; and it is not necessary that each of the sureties should justify in double the penalty of the bond, provided the amounts in which they can each severally justify are equal, in the aggre- gate, to two sureties who are worth double the penalty of the bond. Clark V. Ctofc, 7 Paige Ch. 607, 4: 897 200. But the approving ofScer is not authorized to split up the justiflcatiOQ of the sureties in an or- dinary appeal bond of S210, or in a bond the pen- alty of which is $1,000. Ibid. V. DiSMissAii; Reinstatement. 001. Where a party drew up and entered an order uot warranted by the decision of the oeuit, and ai) pealed therefrom, and the court afterwards set aside the order as improperly entered, the appellate court, upon the application of the respondent, or- dered the appeal to be dismissed. Hunt V. fvallis, 6 Paige Ch. 371, 3: 1026 202. Where one who has appealed from an order of reference made by a vice-chancellor proceeds to carry the order into effect, the respondent may ap- ply to the appellate court to dismiss the appeal. vail V. Bemaen, 1 Paige Ch. 206, 4: 185 203. If the appeal is waived by the neglect of the appellant to flle his petition of appeal, or it a party who is interested in the sentence or decree appealed from is not made a party to the petition of appeal, the proper remedy is by an application to the chan- cellor to dismiss the appeal, or for leave to proceed In the court below notwithstanding the appeal. Halsey v. Van Amringe, i Paige Ch. 279, 3: 436 204. Where the appeal is not entered within the time allowed by the statute, it will be dismissed unless the objection that the appeal was not brought in time has been waived by the adverse party. Stone V. Morgan, 10 Paige Ch. 615, 4: 1113 205. If the appellant from a surrogate's decision neglects to flle his petition of appeal, and to procure the transcript within the time prescribed by the 118th Rule, the appeal will be dismissed, unless the delay is satisfactorily accounted for. Bromon v. Ward, 3 Paige Ch. 189, 3; 111 206. An application to dismiss an appeal frOm the decision oi a surrogate on the accouut of the neg- lect of the appellant to procure a return of the transcript of the proceedings within the time pre- scribed by the 118th Rule of the court of chancery, must be upon notice to the appellant or his solici- tor ; and cannot be made ex parte, as in case of a nea-leot to flle the petition of appeal. Vreedenburgh v. Calf, 7 Paige Ch. 419, 4: 313 207. The court will not dismiss an appeal from the decision of a surrogate for the neglect of the ap- pellant to procure the return of the transcript within the twenty days limited for that purpose, where he shows a sufficient excuse for not procur- ing it within that time. Ibid. 208. It is too late to give notice of an application to dismiss an appeal from a surrogate on the ground that the transcript was not returned within 20 days, after the respondent or his solicitor has notice of the fact that the transcript is actually returned and filed, though not within the time prescribed by the rule. IMd. 209. An affidavit upon which an application is founded to aiamiss an appeal Irom a surrogate's decision for the neglect of the appellant to flle his petition of appeal may be entitled as in the pro- ceedings before the surrogate; but after the peti- tion of appeal has been regularly filed, showing who are the parties to the appeal, affidavits and other papers in the appeal cause should be entitled in the names of the appellants against the respond- ents in the appeal. Foster v. Foster, 1 Paige Ch. 48, 4: 55 210. If the appeal bond is not approved by the surrogate within the time allowed by law for appealing from his decision, the appeal is irregular and must be dismissed, and the apiiellate court has no power to remedy such a defect. Van Slyke v. Schmeck, 10 Paige Ch. 301, 4: 986 S. C. 3 Ch. Sent. 38, 5: lia 211. Technical defects in an appeal bond, upon an appeal to the chancellor from au order or decree of a surrogate, are amendable by the appellate court, under the provisions of the Revised Statutes on that subject. Ibid. 212. Where a sufficient excuse is shown for not filing the appeal bond and procuring the transcript of the proceedings before the surrogate within the time prescribed by the rule for that purpose, an applica- tion to dismiss the appeal will be denied, upon pay- ment of the costs which had accrued upon the application at the time the respondent's solicitor had notice of such excuse. Foster v. Foster, 7 Paige Ch. 48, 4: 55 213. Where an appeal has been dismissed by con- sent of the appellant, au order of the court rein- stating such appeal will not be made for the exclusive benefli of parties who did not join in the appeal. Baud V. Fanderftemp, 1 Barb. Ch. 273, 5: 383 214. An appellant whose appeal has been dismissed by the conaeuc of his counaei uas no riffht tu uave it reinstated after the costs of such dismissal have been. paid ; especially after his discharge under the bankrupt Act has left him without interest in the subject-matter of such appeal. Ibid. VI. Heabino and Determination. a. In General; Practice. 215. Appeal causes are to be placed on the calen- dar of liie chancellor as of the same date at which they were originally entitled to be placed on the calendar of the court below. Belknap v. Tremble, 2 Paige Ch. 277, 8: 905 216. The preference given to mortgage causes of the fourth class by tue court rule applies to such causes when they are brought before the chancellor upon appeal, it the decree of the vice-chancellor was in favor of the complainant. But where the decree was in favor of the defendant, the cause will not be entitled to a preference although no affida- vit of merits is made by the respondent. Knickerbocker v. Bi'mtnaU, 2 liarb. Ch. 71, 5: 560 217. Where the decision was in favor of the corn- plainant in the foreclosure suit, however, a new affidavit of merits must be filed in the appeal cause, as well as noted on the calendar; or the respondent will have the right to claim a preference over other causes of the same class, when that class of causes is reached. Ibid, 218. No affidavit of merits is necessary, under the 91st Rule, on an appeal from a decree of a vice- chancellor in a mortgage case, where such decree was in favor of the defendant. Ibid. 219. Appeal from order of surrogate upon appli- cation for sale of infant's real estate, to be heard as a special motion. Wood V. Byington, 2 Barb. Ch. 387, 6: 686 S. C. 6 Ch. Sent. 47, 5: 1808 220. Whether, on an appeal from a decision of a vice-chancellor deuj ing au ex parte appiicatiou, the appellant can bring on the argument of the appeal ex voHc—Quwre. White v. Buloid, 2 Paige Ch. 475, 2: 994 221. Where, on an appeal, the decree below appears 1.0 have been made on "the cause being brought to u hearing on the pleadings therein, upon a motion to dissolve the injunction issued in the cause," after 1 replication has been filed, and it also appears that iliere were no proofs, the appellate court will pre- -lume that the hearing below was regular, by con- lont or otherwise, and that the decree was made in !ue form. If it were irregular, the party complain- ny should move for redress in the court below. Taylor v. Carpenter, 2 Sandf . Ch. 603, 7: 780 222. According to the course of the dvll law in cases of appeal, the cause is reheard at large, and new testimony may be introduced. Vamderheyden v. Reid, Hopk. Ch. 408, 8: 467 APPEAL, VI. b. 23 ^ In an appeal from a surrogate's decree to the Hate court of probates, the judge of that court might either have decided the facts himself , or have ■called to his aid the verdict of a Jury. Ibid. 224. This court, on such appeals, must be governed oy the laws and principles of decision which gov- erned the court of probates; but as to the methods ■of proceeding, it may follow Its own practice. Ibid. ^. Appellate courts which proceed according ito the course of the civU law may allow the parties ■to mtroduoe new allegations or further proofs. Scrlbner v. Williams, 1 Paige Ch. 550, 8: 748 228. But it is not a matter of course to receive further proof upon an appeal. Ibid. 227. If the appellant wishes to offer new evidence he should, in his petition of appeal, ask leave to iproduce further proofs, and state his excuse for ■not producing them in the court below. Ibid. 228. Upon an appeal from the sentence of a ■surrogate disallowing a wiU, the court of chancery will not change the appeUaut, he being the executor Tvho propounded the will before the surrogate, by substituting the legatee, in order to give the lega- tee the benefit of the executor's testimony. Ibid. 229. It is not a matter of course to permit the ap- pelliuit, in an appeal from a surrogate's decision in relation to the capacity of a testator to make a will, to produce additional evidence, not offered, or at- tempted to be produced before the snnofrato ; especially where the evidence is not newly discov- ered, but is such as the appellant might have pro- -duced before the surrogate. Case V. Towle, 8 Paige Ch. 479, 4:610 280. If the decree of the \'loe-chancellor is re- versed, it seems the chancellor may, in his discre- tion, allow the respondent to introduce new tes- timony, as to facts discovered subsequently to the hearing before the vlce-chanceUor, before he proceeds to make a final decree upon such appeal. Wendell v. Lewis, 6 Paige Ch. 233, 3: 967 231. No paper which was not before the vice- eal, as to what papers were before the court below, if such papers are not referred to in the or- der or decree appealed from, resort must be had to the minutes of the clerk, and to the papers marked by him as read, to ascertain what papers were read •or used before the vice-chancellor. Bloodgmd v. Clark, 4 Paige Ch. 574, 3: 667 234. On appeal from an interlocutory order of a ■vice-chancellor, the question of afRrming or revers- ing his decision must depend upon the facts which were before him at the time the decision was made. White V. Buloid, 2 Paige Ch. 164, «: 867 235. Where the defendant, by mistake, obtained a I separate order for a set-off to which he was entitled, instead of having it made a part of the decree in the ' cause, and the adverse party by a similar slip had lost his opportunity to obtain a reversal of such erroneous order, upon appeal, the court refused to • open the default of the latter to enable him to ob- (Ain such reversal, Oay V. Gay, 10 Paige Ch. 369, 4: 1015 236. If one of the respondents. In an appeal to the • court for the correction of errors, dies after issue joined upon the petition of appeal, and that court, without noticing his death, reverses the decision of the chancellor, and makes a new decree against iOll the respondents, such decree is not void; and the court of chancery is bound to carry it into effect ■ against the surviving parties and the representa- tives of the decedent. Rogers t. Paterson, 4 Paige Ch. 409, 3: 492 b. What Reviewable. 237. A person having a common interest with the .appellant in an appeal from the sentence or decree ■of a surrogate, who comes in as an intervener and adheres to the appeal, will not be permitted to call In question the correctness of such sentence or de- crr'o in a part thereof which is not appealed frnni. Bibby v. Myer, 10 Paige Ch. 220, 4: 95» 238. It seems that, on an appeal from a final decree made in a suit before a vice-chancellor, the merits of an interlocutory decree made in such suit cannot be inquired into, especially where the time for ap- pealing from the interlocutory decree has expired. Banlc of Orange County v. Fimk, 7 Paige Ch. 87, - 4: 7* 239. Upon an appeal from an order of a vlce-ohan- cellor, carrying into effect a previous interlocutory order which has not been appealed from, the appel- lant is not entitled to have the order appealed from reversed, upon the ground that the previous order not appealed from by him was erroneous. Copous y. Kaufman, 8 Paige Oh. 583, 4: 553 240. An appeal from the final decree only does not uring before the appellate court, for review, a question which has been definitively adjudicated and disposed of, by an interlocutory decree or order, previous to such final decree. Mapes V. Coffin, 5 Paige Ch. 296, 3: 785 241. Where the appellant does not succeed In re- versing any part of the decree, and the respondent bas not brought a cross-appeal, the appellate court cannot reverse or modify the decree in a part there- of which is erroneous as to such respondents. Ibid. 242. Where a question which has been decided by an interlocutory decision or order, as upon a de- murrer, comes a^ain directly before the court up- on the final hearing, and is necessarily involved in the decision and decree which is then made, the ap- pellate court, upon an appeal from such final de- cree, must review the decision upon that question if it was raised by the appellant's counsel on the final hearing in the court below. Teal V. Woodimrtn, 3 Paige Ch. 470, 3: 835 243. Where the decree of a vice-chancellor settles the rights of the parties and disposes of the general costs of the cause, and also contains the consequen- tial directions for carrying the decree into effect up- on the coming in and confirmation of the report of a master, to whom a reference is directed to ascer- tain the amount to he paid, it is substantially a final decree, although the case is subsequently brought before the vice-chancellor upon excep- tions to the report; and an appeal from a decretal order allowing or disallowing such exceptions will not authorize the chancellor to reverse or alter the original decree of the vice-chancellor. Taylor v. Bead, 4 Paige Ch. 661, 3: 561 244. An appeal from a part only of the order of the assistant vice-chancellor does not remove the whole cause from before the vice-chancellor; and the proceedings upon the appeal must be remitted to him, and the application to extend the time to answer must be made to such vice-chancellor. Atlantic Ins. Co. v. Leimar, 10 Paige Ch. 505, 4: 1069 245. Where the objection for want of parties was not taken either by demurrer upon the record or ore tenia at the hearing, it could not be taken upon appeal from the order overruling the demurrer. Dtos V. Bouehaud, 10 Paige Ch. 445, 4: 1044 246. A party who is aggrieved by a part of a decree only cannot, by his appeal, call in question other parts of the decree in which he has no interest, al- though the appeal is broad enough to embrace them. Hone v. Van SchaMc, 7 Paige Ch. 221, 4: 138 247. If the decree of the court below is alfirmed tde respondent cannot have it corrected as to a point decided against him in the court below, and as to which no cross-appeal has been brought by him. Tovmsend v. Graves, 3 Paige Ch. 454, 3: iHS 248. Where the appeal from the decree of the sur- rogate is not in relation to the allowance or rejec- tion of particular items of the account, or if the re- spondent wishes the decree modified in any other respect than as to particular items of the account, he must bring a cross-appeal. ColUm V. Soxie, 9 Paige Ch. 81, 4:616 249. The respondents, in an appeal from the sen- tence or decree ot a surrogate, upon the settlement ol tlie account of an executor or administrator, di- recUijg' the distribution of the estate, are not en- titled to a modification of the decree as between themselves, nor to a modification as against the ap- 24 APPEAL, VI. c, VII. pellant, exccrtasto erroneous items in the account, as provided tor by the 118th Hule of the court ot chancery. Ibid. 250. Where a party is entitled to costs as a matter of strict right, if the court below refuses to give costs, the erroneous decision as to such costs may be corrected on an appeal. BuUm V. Miller, 4 Paige Ch. 473, 3: 580 c. Decision; Belief . 251. A court of review gives such decree as the court below ought to have given : and when the plaintiff below brings the appeal, the court above not only reverses what is wrong, but decrees what is right, and models the relief according to its own view of the ends of justice and the exigencies of the case. (Jeteton v. Codwise, 1 Johns. Ch. 194, 1:110 252. When a decree of a surrogate is reversed by this court for particular errors, and a just cause of action nevertheless appears, this court will retain the cause, and proceed as may be requisite to attain the justice of the case. Van Wyck v. Alley, Hopk. Ch. 552, 8: 630 253. Where, in consequence of the decision of this court upon an appeal from a circuit court, farther proceedings become necessary, the cause will be remanded, whether the appeal is from an interlocu- tory or a nnal decree. Westcot V. WooctworOi, Hopk. Ch. 508, 2: 505 254. Upon an appeal from the decision of a vice- chancellor, if the appellant makes default at the hearing, the decree or order appealed from will be affirmed, with costs. But if the respondent makes default, the cause must be heard ex parte; and the decree or order will not be, reversed, or modified, until it is shown to be erroneous. Stiles V. Burch, 5 Paige Ch. 132, 3: 657 255. The only effect of the respondent's default at the hearing of the appeal is to deprive him of costs if the decision of the vice-chancellor is affirmed; or to preclude him from the right of appealing to the court of dernier resaort, if such decision is re- versed, ibia, 256. Where the complainant died after the entry of an appeal from the decision of a vice-chancellor, and alter the cause was ready for a hearing on the appeal, but, the fact of his death being unknown to the counsel, the cause was afterwards heard and decided by the chancellor upon the appeal,— JfeW, that the decree upon the appeal might be entered nunc pro tunc as ot a day previous to the death of the complainant and after the entering of the ap- peal. Vromn v. Ditmas, 5 Paige Ch. 528, 3: 816 257. The appellate court ought not to proceed to the hearing of a cause upon appeal, after the fact of the death of one of the parties is known, until the suit is revived, unless it is heard with the con- sent of those who have succeeded to the rights of the deceased party. Ibid. 258. Upon the affirmance of a decree of a surro- gate, it is proper to award damages to the respond- ent for the delay and vexation caused by the appeal in all cases where he has been delayed by.the appeal, and where it lis evident that damages have been sustained in consequence thereof. Stagg v. Jackson, 2 Barb. Ch. 86, 5: 567 259. Where the appeal is from aflnal decree direct- ing the payment of money, interest on the amount decreed to be ^aid, during the time the collection of the money has been suspended by the appeal, is the proper measure of damages to be awarded to the respondent. Ibid. 260. Where the decree of a vice-chancellor for the payment of money is stayed by an appeal to the chancellor, the respondent, upon the affirmance of the decree, is entitled to interest thereon as damages for the delay caused by such appeal. Van ValMnJmrgh v. Fuller, 6 Paige Ch. 10, 3:877 261. Where the personal representative of a dece- dent appeals from a sentence or decree of the sur- rogate, directing the payment of money by the appellant upon the final settlement of his accounts, and such sentence or decree is affirmed, the respond- ents are entitled to interest on the sums awarded to them by the judge a quo, as damages for the delay occasioned by such appeal. Jumel V. Jumel, 7 Paige Ch. 591, 4: 889 262. Upon the affirmance of a decree of a surrogate directing the payment of a balance found due from the appellant, the respondent may have the decree of afflnnanco enrolled, and may take out execution thereon in the appellate court. Kellett V. Bathbun, 4 Paige Cl». 102, 3: 36 J 263. Where, upon an appeal by a defendant from an interlocutory uecisioii ota vice-ciianceUor,such decision is reversed by the chancellor, with costs, and no order is obtained to remit the proceedings to the vice-chancellor, the defendant may either cause the order to be enrolled, and obtain an exe- cution for his costs on the appeal, or he may pro- ceed as for a contempt, and apply for an attach- ment against the complainant for the nonpayment of the costs. BroOiway v. Capp, 2 Paige Ch. 578, 8: 103e 264. Where the court for the correction of errors modified a decree, after the remittitur had been de- Uvered to the solicitor of the appellant, but before it was actually received and acted upon by the court of chancery, the modification of the decree was deemed a recall of the remittitur, and the same was ordered to be taken from the files, and returned to the clerk of the court of errors, to be amended according to the decree as flnaUy settled by that court. Bosach V. Rogers, 7 Paige Ch. 108, 4: 85 265. A remittitur from the court for the correction of errors must in all cases be presented to the chan- cellor before it is filed, and the order to be entered upon it must be entered under the special direction of the court. Ibid. 266. The chancellor has no power to rehear or modify au oiutjr or decree whicu has been atlirmed upon an appeal to the court for the correction ol errors upon the same point as to which the rehear- ing or modification is sought, unless such right to alter or modify was reserved in the original ordei or decree or in the decree of affirmance. Lyon V. Merrai, 6 Paige Ch. 473, 3: 1066 267. A decree cannot be so far reversed or modified upon an appeal as to deprive a party to the suit ue- low, but who is not made a party to the appeal, ol any rights which he acquired by the decree. McCammon v. Worrall. 11 Paige Ch. 99, 5: 70 VII. Effect of Decision; StrBSEQUENT Proceed- ings. 268. On appeal from this court, the decree or or- der of the court of errors becomes, to this court, the law of the case; and the party can have no other or further relief than what is administered by the decree of the court above. „ „„ , , „„ Gelston v. Godimse, 1 Johns. Ch. 189, 1: 108 269. After an order of the chancellor confirming a maoiera report and airecimg me ijavuiouu ul mu money reported due has been affirmed by the court of errors on appeal, the chancellor is not author- ized to set aside or alter that order as erroneous. Utica Ins. Co. v. Lynch, 2 Barb. Ch. 573, 5: 758 270. After an order of a vice-chancellor denying au application upon the merits mis been amimeJ by the appellate court, it is erroneous f (5r him to permit the former motion to be renewed and to grant the application. Dodd V. Astor, 2 Barb. Ch. 395, 5: 68» 271. After affirmance by the chancellor upon ap- peal, the vice-chancellor cannot vacate the decree and order the bill to be dismissed, even with the consent of the parties to the suiu Watt V. Orawford, 11 Paige Ch. 470, 5: 801 272. A suit against one person being at issue, proofs were taken; and afterwards another person was made defendant by a supplemental biU. The cause was heard without any farther proof, and a decree was made against both defendants. This de- cree was reversed, and the cause was remitted to this court. Under this decision of the court of eiTOrs, the cause was reinstated in this court, and opened to proofs between the complainant and the second defendant. arciaren v. HbpftiTis, Hopk. Ch. 576, 8:52» Editorial Notes. In general 4: 1127 Petition for 3: 362 Right of; straoger to suitcanuot 2: 996 Party not aggrieved has no right to 3: 983 APPEARANCE— ARBITRA.TION, I. Waivei jf right 4: 135 Time for, cannot be extended 4: 819, 1016, o 1113 beparate, from two judgments 4: 992 Separate and distinct applications 3: 70 Conditions imposed by statute cannot be dispensed with 5: 424 Omission to except does not exclude right of 5: 303 Presumption on 5: 644 Adverse party defined 5:520 Final decree g : 103 Notice of 3: 433, 925. 4: 85 Substituted attorney may prosecute 3: 817 Papers entitled in appellate court 3: 673 From interlocutory decision 3: 236, 4: 77, 835 order merely irregular 4: 511 order of reference 4:125 order to vacate administrator's sale 4: 1J.09 In case of contempt 3: 478, 4: 787 From void judgment 2: 955 Order subsequent to decree 4: 125 Discretion of court 1 : 545 Bringing case up second time; effect of de- cision above 1:108 Effect of 8:1029,2:299,4:929 Stay of proceedings 7: 1145, 5: 283, 644, 4: 297, 3: 197, 1029, 1: 66. 158, 545, 562 Stay where fund deposited in court, security for costs 3; 439 Execution of decree pending 1 : 578 Does not per se supersede execution 4: 297 Not suspend injunction 3: 122 Not revive injunction dissolved 3: 198 Security on 2: 956 Appeal bond in general 3: 673, 4: 55, 915 not necessary for appellan t himself to exe- cute bond 3: 433 technical defects may be amended 3: 441 justification of sureties 8:48 motion to dismiss 8:1026 Dismissal 8:673 for delay in entering 2 : 968 Waiver of right to dismissal 4: 1114 Hearing on 3: 678 rehearing in superior tribunal 2:467 confined to record 3: 671 heard on papers used below 4: 563 questions not noticed 4: 883 points of argument defined 4: 289 The adverse party cannot be prejudiced by transfer of interest p«n(Zerat« &■<« 4:42 Practice; relief from mistake 4: 143 proceedings to revive 4: 698 authority of court to reverse or aflirm on appeal from circuit judge and surrogate 4:515 Remittitur; filing; notice; practice 4: 85 Prom final decree; question reviewable 3:236 Error aerainst party not appealing cannot be availed of 3:725 Practice generally 3: 511, 626, 628, 967 Exceptions; when disposed of 3: 725 Objection laken at hearing on 3:914 Supplemental order to be engrossed on en- rolled decree 3: 935 Order or decree of appellate court not re- versible in court below 3:1066 From decision of vice chancellor 3:567, 2:907 notice to be given 3: 441 25. practice; notice; time; security 3: 514 taxation of costs 3: 369> "When taken to chancellor 6: 907 From surrogate 3: 673, 4: 485, 510, 610, 617, 898, 903, 5: 195. effect of 3 : 436 practice 3: 878, 5: 195- in matter of costs 4: 939 APPEARANCE. See also Practice, VI. b; Writ and Process, 27. 1. A solicitor who has volunteered an appear- ance cauuut withdraw it on nis own applicatiou merely beuause tie says he had no authority— tlie de- fendant himseU not digavo wing the right to appear.. Mallet V. Qirard, 3 Bdw. Ch. 373, 6: 693 2. Where a solicitor appears for a party, proceed- ings will not be sec ua—c u„o.iLise ue gave him uo authority to appear. The remedy is against the solicitor. Hoffmire v. Hoffmire, 3 Edw. Ch. 173, 6: 614 3. If an appearance before the surrogate, upon the ai'iilioatioD to eontirm the sale, is necessary on the part of the purchaser, to give him the right to ap- peal from an order vacating the sale, the appearance of the administrator in behalf of himself and such, purchaser is a sufBcieut appearance to give the lat- KM' piioh right. Delaplaine v. Lawrenee,10 Paige Ch. 602, 4: 1109 i. The usual mode of appearing in this court is by encer.uy' an appearance with one of the clerks of the cftirrl. lAvingston v. Gibbons, 4 Johns. Ch. 94, 1; 776 5. But it seems that a notice by the defendant's solicitor, of an appearance, given to the pii. solicitor, without an entry of the appearance on the clerk's minutes, would be binding on thepait>'. Ibid, 6. An appearance filed with the register is an ap- pearance on the records of the court. Ibid. 7. Where a defendant puts in an answer which is read in court by the consent of me pin in, counsel, and ordered to be filed with the rogis.c, it is an appearance on the records of the courf. Ibid. Editokial Notbs. Mode; proof of 1: 776- Voluntary, by one not served with process 4: 678 equivalent to personal service 4: 495 APPLICATION or PAYMENTS, See Payments. APPORTIONMENT. See Annuities, 13, U. APPRAISEMENT. See Award. APPURTENANCES. See Deed, II. b, 2. ARBITRATION. I. Submission. n. Award. Editorial Notes. See also Injunction, I. i, 4. I. Submission. 1. Where a matter is submitted to arbitrators. It 26 ARBITRATION, II. ^ not necessary that there should be any express ■agreement to abide by the award when made. Valentine v. Valentine, 2 Barb. Ch. 430, 5: 703 2. An agreement to reter a pendingr. suit to an arbitrator, and that a judgment in the cause shall be entered according to his decision, will justify the entry of such judgment, and it will be binding upon the parties as a judgment entered by consent. Monroe Bamk v. Widner, 11 Paige Ch. 529, 6: aas 3. A cOTenant to appoint arbitrators to settle value will not be executed. I'he utmost length which the court has gone is, that where there is an agreement to sell at a valuation, and no mode of making it is fixed, the court will do it in its ordinary manner. Such a contract implies the intervention ■of others to ascertain the value. But when the price is to be adjusted by the parties themselves, the interference of this court would be adding a mate- rial ingredient to the contract in a manner not even impliedly consented to. Whitloch V. Duffleld, Hofl. Ch. 110, 6: 1081 i. The Bevised Statutes do not authorize the sub- mission of a claim in fee to real estate under a parol agreement to spU and convey. Oerman v. MacMn, 6 Paige Ch. 288, 3: 990 5. At common law it was not necessary that a submission to arbitrators should be in writing, ex- cept where the controversy related to land, or to -some matter in respect to which it was incompetent for parties to make a valid and binding agreement by parol; and where a submission is verbal, without any provision therein that the award shall be in writmg, a verbal award is valid. Valentine v. Valentine, 2 Barb. Ch. 430, 5: 703 6. After a cause has been argued and Anally sub- mitted to the arbitrator for his decision, neither party has the right to revoke the powers of the arbitrator. Monroe Bank v. Widner, U Paige Ch. 529, 5: 833 7. Where matter in difference is submitted by mutual bonds, specifying the time within wliich tht award is to be made, a subsequent written agree- ment enlarging the time is valid, though unsealed, and an award within such extended time is decisive of the right of the parties. But an action on the bond will not lie unless the award Is made within the time specified in its condition. Bloomer y. Shermam, 6 Paige Ch. 575, 3: 835 8. ODhesectionof the statute which deprives a par- ty of tue right to revoke the power or i,ne aroitra- tors after the case is finally submitted to them for decision applies to all cases of submission, whethci the parties nave or have not agieed that a judgment shall iDe entered on the award. Ihid 9. Where, by the terms of the submission, the award is to be attested by the witnesses, or is to be made in any particular form, such form must be complied with. IhM. 10. The time limited by deed for making an award may be enlarged by parol. Bloomer v. Sherman, 2 Edw. Ch. 452, 6: 464 11. The provision in the Ee vised Statutes declaring that a party shall not revoke the power of arbitra- tors after a final submission upon hearing, is not to be confined to cases where the award is to be made a rule of court. ■ Ibid. 12. B and S, as partners, signed arbitration bonds on the Uth of January; the award was to be made on the 10th of February, but on the day before the parties in writing — one signing and sealing and the other (B.) signing only— agreed that the time of "rendering" the award be extended to the 19th of February. On the 11th of February the arbitrators were ready to make their award,and on the 18th of February it was delivered to the parties. But on the Uth of the same month B. had served the arbi- trators with a revocation, and another two days afterwards; on a bill filed by B. and a plea of the award,— ifeld, that the revocation came too late, and the plea was allowed. ibid. n. Award. 13. An award need not be concurred in by all the arbitrators, but all the arbitrators must meet, in the absence of an agreement on the part of the parties that a part of the persons named may act. Snediker v. Pearson, 5 Ch. Sent. 41, 5: 1180 Campbell v. Western, 3 Paige Ch. 124, 3: 84 14. Where a lease contains a covenant that the mills and other buildings erected on the premises by the lessee should, at the end of the term, be ap- praised and valued by two persons mdiflerently chosen by the parties, and, in case of their disngree- ment, by a third person chosen by the two, 'a nomination by each party of one appraiser, with the assent of each to the nomination of the other, is bi nding on them, and a compliance with the oo ve- 'VnderhiU v. Van Cortlandt, 2 Johns. Ch. 339, 1: 400 15. Where an umpire is chosen by two arbitrators, and they join in tue umpirage, it is good ; for the umpire may take what advice or assessors tie Ibid. 16. The fact that arbitrators were not sworn mere- ly constitutes a technical defense, if it is any de- fense, to a bill filed to enforce the performance of their award; and the court of chancery will not open a regular order to close the proofs and a decree founded thereon, for the purpose of allow- ing the defendent to prove such a defense. Winship v. Jewett, 1 Barb. Ch. 173, 5: 343 17. It seems that an omission to have arbitrators sworn does not render their award invalid, where no objection is made previous to the making of such award. Ibid. 18. The award, if made in good faith, is conclusive upon the parties; and neither party will be permit- ted to prove that the arbitrators decided wrong, cither as to the law or the facte of the case. Ibid. 19. As a mere arbitration, an award made on Sun- day may be invalid, but if carried into eifect by the subsequent act of the parties, it will be bind- ing. Morris v. Orane, 4 Ch. Sent. 6, 5: 1136 20. An arbitrator cannot impeach by his testi- mony an award which he has signed. Camvbsllv. Western, S'PaigeCh.i2i, 3:84 Whmock V. Duffleld, Hofl. Ch. 110. 6: 1081 CTnderMl v. Van Cortlandt, 2 Johns. Ch. 360, 1; 409 21. Arbitrators, after a witness had been sworn ana examined, anu tuey were left alone to denber- ate on their award, called the witness again, and, without the knowledge or presence of the parties, examined him as " to matters material to toe con- troversy, on which he had before given testimony, but about which the arbitrators differed as to what the witness did testify on the former hearing." An injunction to stay a suit at law, on the arbitration bond, for the performance of the award, was re- Herrick v. Blair, 1 Johns. Ch. 101, 1: 74 22. Awards cannot be impeached or set aside un- less for corruption, pai'tiaiity, or gross luisueunVii-r in the arbitrators, or for some palpable mistak" nf the law or the fact. _ ^ ^ ^ „„„ , ^JiS; Shepard v. Merrill, 2 Johns. Ch. 276, 1: 377 Winship v. Jewett, 1 Barb. Ch.l73, 6: 343 23. If there is no corruption or partiality in arbi- trators, or any misconduct during the hearm^ or any fraud practiced by either party, the award | is binding and conclusive, and cannot be set aside by the court, however unreasonable or unjust the award may appear. Todd V. BarUm, 2 Johns. Ch. 551, 1: 486 24. Where there is no charge of corruption or misconduct in arbitrators, and the award on the face of it is final, nothing deftors the award can be plead- ed or given in evidence to invalidate it. Ibid. 25. An award will not be opened or set aside on the allegation of the discovery of a receipt which had been lost or mislaid, so that it could not be pro- duced before the arbitrators to show a payment, unless under very special circumstances, and satis- factory proof of all due efforts to discover the re- ceipt before the hearing, or to supply its loss, and of its discovery since the award. Ibid. 26. Where the matter submitted was, what dam- ages the one party or the utner was to pay ou tuc surrender of a lease, and the arbitrators awarded a sum to be paid by the lessor to the lessee, but did not take into consideration the rent payable at the next quarter day, considering that matter as not in controversy or submitted,— nor was it mentioneii or brought before them by the parties,— it was held that there was no mistake in the award. Shepard v. Merrill, 2 Johns. Ch. 276, 1:377 27. A mistake in judgment by arbitrators is not such evidence of improper conduct as to justify setting aside their award in chancery. Campbell v. Western, 3 Paige Ch. 134, 3: 84 28. Arbitrators, in appraising property, are not AKRES T- ASSESSMENT, 27 bound to assess the value o( each particular article VnderhUl v. Van CaHlandt, 8 Johns. Ch. 360, 1:409 29. An award -will not be set aside for an over or ■"S??! valuation of property appraised. IJyUx. 361, 1; 409 30. How far a gross and palpable mistake may be * fi'9"°? for setting it aside,-9iiCBre. Ibid. 384, 1:410 31. In an action at law on an award, the corrup- tion or misconduct of the arbitrators is no defense. Ibid. 366, 1: 410 32. It is very doubtful how far arbitrators,charged with corruption, can join with pai-ties in pleading the award. Summers v. Murray. 2 Edw. Ch. 205, 6: 370 38. This court will correct a mistake of an extra- judical nature in an award of arbitrators, and de- cree a performance of it vn specie. Bouak V. Wilber, i Johns. Ch. 405, 1: 883 84. As, where the subject of controversy was land which the arbitrators were to appraise, and the plaintifC was to convey the same to the defend- ant, who was to pay the amount of the appraise- ment, and the arbitrators, by a mere clerical mis- take, so erroneously described the land in the award as to include one acre only instead of fifty acres, 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. Ibid. 35. Where the parties, by mutual consent,' with- ■draw a cause from the court, betore hearing, tor the puroose of settlement by arbitrators and on certain terms, one of which was that " the question of coats In the chancery suits, being original and cross suits, should be submitted to the chancellor." the court wiU not decide the mere question of costs, but leave each party to pay his own costs. Eastbwm v. KirH, 3 Johns. Ch. 317, 1: 393 36. Awards of referees under a rule of court and verdicts are so far on the same footing that what wiU induce the court to grant a new trial wiU be ■suffloient to set aside an award. Whitlock V. Duffleld, Ho£E. Ch. 110, 6: 1081 37. Where a clear assent is given to an award of aroitrators, after the result has been reached by them in an irregular manner (as by putting their individual ideas of amounts together, and making a third part of the whole the amount of their ver- dict! the award will stand. Aid. 38. This court will not grant an injunction to stay .an action at law on an awaru, ou t,ue grouuu luuc the plaintiff was surprised by the principal witness for the defendants swearing falsely before the ar- bitrators, and that he could have proved the false- hood of the testimon.v if the arbitrators would have adjourned the hearing for that purpose, which they refused to do, though requested by the plaintiff, who offered to enlarge the time of making the awfird. Woodworth v. Tan Buekerk, 1 Johns. Ch. 432, 1: 199 39. Where two parties submit their differences to arbitrators, and agree to make the submission a rule of court, in a court of common law, pursuant to the Act for determining differences by arbitra- tors (1 B. L. 125), the court of chancery wiU not en- -tertain jurisdiction to set aside the award, unless linjustice would be done. Toppan V. Heath, 1 Paige Ch. 293, 8: 653 40. It is no defense to a bill to enforce the per- formance of an award, that, after the award had been concurred in by all the arbitrators and pub- lished, one of them dissented therefrom. Wimhip V. Jewett, 1 Barb. Ch. 173, 6: 343 Editorial Notes. Submission to arbitration a discontinuance of suit 5: 334 Arbitrators to be first sworn 5: 343 Award will not be opened for mere techni- cal errors 5: 343 Parol submission to arbitration 5: 703 -Judgment on the award 5:334 Porm of submission 3: 835 Submission of title 3: 990 Execution of commission; award 3:836 Action on the award 3: 836 Impeachment of award 2: 653 Correction of mistake in award 1: 377, 883 Belief in equity against award 1 : 199, 401 Award; not impeachable collaterally 1: 486 Arbitrator impeaching his award 1: 401, 8: 84 The submission and its effect; the award; its validity and setting aside 1: 74, 75 Authority of umpire 1:401 Revocation of authority 6: 464, 3: 836 Of commissioners under foreign treaty; not conclusive 4: 375 ARREST. See also Attachment; Batl. 1. A person who has been illegally arrested while re- turning from court, whors he has been examined, WiU be liable to arrest under the writ after a dis- charge from the unlawful taking. The process ia still good in the sheriff's hands. Van Wezel v. Van Wezel, 1 Edw. Ch. 113, 6: 79 2. Where the defendant was in contempt for not putting in an answer, and an attachment had been issued against him, upon which he could not be found; and afterwards, upon his application to the proper ofiftcer for his discharge under the Insolvent Act, the complainant, with the view of procuring his arrest upon the attachment, obtained an order for his personal examination before such officer, and after such examination of the defendant was closed, and as he was leaving the office, the com- plainant caused him to be arrested upon the attach- ment,— it was held that,as the defendant was arrest- ed by such an improper contrivance, he ought to be discharged. SnelUng v. Watrous, 2 Paige Ch. 314, 8: 923 3. An attachment for the nonpayment of costs only, although in form a criminal, yet in substance is a civil, proceeding, and a party wiU be entitled to the like protection from arrest thereon as on other civil process, during his attendance as a party or witness before some court or officer, and a reason- able time to go and return. Ibid. 4. Whether the like protection would be extend- ed to cases where the court can punish by fine and imprisonment upon an attachment to enforce a civil right or remedy,— gi«Bre. Ibid. Editokiaii Notes. Arrest procured by trick, connivance, or fraud, not give jurisdiction 3: 923 Illegal, eflect of; attachment an execution 6:79 Privilege of witness from 6: 973 ASSENT. See EvrDENOB, II. e. ASSESSMENT. See also Certiorari, 2; Courts, 36; Highways, 17-25; iNJUNOTiONjI. k; Interpleader, 5-7, 14,15; Lakdlord and Tenant, 14; Lite Tenants, 7. 1. An assessment upon a testator's realty must be borne by the heirs. Williama v. Gox, 3 Edw. Ch. 178, 6: 61 7 2. Where the proceedings upon the assessment of lands ill the city of New York are void upon their face, so that a purchaser at a sale under such assess- ment will not obtain a prima facie title to lands sold for the payment of the assessment, the court of chancery has no jurisdiction to interfere and set aside the assessment, or to stay the corporation from proceeding to sell the complainant's land un- der the same, as the complainant has a perfect riTiedy atlaw. Van ttoren v. New York, 9 Paige Ch. 388, 4: 743 3. And where such proceedings are not void, but 28 ASSETS; ASSIGNMENT. merely erroneous, the court ot chancery has no jurisdiction to correct the errors therein. Ibid, 4. Where the proceedings for the opening of a street lu the city of New >!orlt have been retfular, and the report of the commissioners of estimate and assessment has been duly confirmed by the su- preme court, chancery cannot interfere to correct an error of the commissioners, in estimating the amount of damages for lands taken or of benefit to lands not taken, or in neglecting to assess lands which will be benefited by the improvement, and which ought to have been assessed. Wiggin v. New Tark, 9 Paige Ch. 16, 4: 591 5. M held lots in Brooklyn; and C had several ad- joining. The corporation, through commissioners, made an assessment, and, without discriminating charged C. as if he were the owner, as well of his own lots as of those that belonged to M. The latter then mortgaged his property. Afterwards C, on explanation with the corporation, pays them such groportion ot the assessment as seemed to apply to is premises; and the corporation then claimed a lien, prior to the mortgage on M's lots, for the bal- ance. HeM, that the corporation (on the ground of not having proceeded regularly under statute to ascertain and assess the true respective owners) had no lien on M's lots. Lane v. Morrel, 3 Edw. Ch. 185, 6: 630 6. The court of chancery is not authorized to in- . terfere to correct an erroneous assessment which has been duly confirmed, where the commissioners have merely erred in judgment as to the value of the contemplated improvement to the owner of the lands assessed: although the amount so assessed for the supposed benefit is more than the lauds will be actually worth after the contemplated improve- ment has been made. MeseroU v. Brooklyn, 8 Paige Ch. 198, 4: 398 7. Where the premises have been sold for the non- payment of an ajssessmeut, the complainant, to entitle himself to an order of the court extending the time for redemption, to enable him to file a bifl for contribution, under the Act of May, 1841, must not only show that a valid assessment has been made and that the premises have been properly sold, but he must also verity his bUl by oath. His bill must contain a distinct offer that in case the suit fails he will redeem the premises and pay the in- terest upon the redemption money from the expi- ration of the original period of redemption; or, if the premises are not redeemed, that he will pay the interest on the redemption money for the term of such extension. Dikeman v. Dikeman, UPaigeCh. 484, 5: 207 8. Where the complainant who applies for an ex- tension of the tune loi: redemption trom a sale under an assessment is irresponsible, the court ought not to grant an order of extension without requiring security from him that he will comply with the terms of his offer to pay interest on the redemption money for the period of extension. ibid. 9. The object of the Act of May, 1841, to authorize the sale of real estate to pay assessments, etc., was to enable a person who is not the absolute owner in fee of the whole premises assessed to compel other per- sons having interests therein to contribute their rat- able proportions of the assessments,— not to throw upon the court of chancery the burthen of deciding all questions as to the validity of assessments and sales of property in cities and villages, where the property assessed is held by several persons as ten- ants in common, or by persons having diil'erent es- tates or interests therein. Ibid. 10. The provisions of the Act of May 36, 1841, au- thorizing an extension of the time for tbe redemp- tion ot certain lands in cities and villages which have been sold for taxes or assessments, are uncon- stitutional and void, so far as they relate to sales which had been made previous to the passage of that Act. Ibid, IL Act April, 1813, §186, relating to the city of New York, does not authorize the collector to levy the assessment upon property found on the premises, unless it belongs to the person who was the owner or occupant of the premises at the time the assess- ment was made ; and if it belongs to such owner or occupant, it is not necessary to distrain it on the premises. Qouverneur v. Mayor of New York, 2 Paige Ch. 434, 2: 977 12. The property of a subsequent occupant cannot be sold under the warrant of the corporation, al- though he is bound by a covenant with the o^er of the premises to pay the assessment. lb id. 13 Where the lessee and occupant had convenante* to pay all taxes and asaesomeuts on the premises, and the corporation were informed thereof by the landlord, ana requested to direct the assessment to be collected out of the personal estate of the lessee, which they refused to do, without any reasonable grounds for such refusal, they were enjoined from proceeding against the property of the landlord, or from selling the real estate for tbe assessment. Ibid. 435, "• »'* 14. This court has no power to interfere with or to set aside an assessment on the proprietors and occupants of lots, to defray the expense of a com- mon sewer, made by commissioners, under the di- rection of the major, aldermen, and commonalty of the city of New Vork, pursuant to an Act of tii& Legislature for that purpose, on the ground merely of a mistake in judgment of the commissioners of estimate and assessment. In not including all the- owners or occupants intended to be benefited by the sewer, there being no allegation of bad taith or partiality in the commissioners in making the as- sessment which,af ter being ratified by the common council, is declared by the" Act to be final and con- elusive Le Roy v. New York, 4 Johns. Ch. 352, 1: 865- Editorial Notes. Assessment illegally imposed, remedy at law 4: 593, 1: 865. Contribution under covenant compelled 6:40T ASSETS. See Debtor and Creditor; BxECtJTOES and Ad- ministrators, II.; BEAii Property. ASSIGNMENT. For Creditors, see Insolvency and AssiONMENr FOR Creditors. See also Evidence, 88; Fraudulent Conveyances,. 37; Mortgage, v.; Parties, IV.; Partner- ship, VI. b. 1. In order to constitute an equitable assignment 01 money by means of an order upon the i.urson in whose hands it may be, the order should direct the- payment out of a particular fund, and not gener- ally out of any money to be received. Phillips V. Stayy, 2 Edw. Ch. 108, 6: 33» 2. Where a superintendent of the poor, who had claims against tlie county iov liia survices and iui- vanccs, sold to vjii-ious persons to whom lie was in- debted for rent, and otherwise. spociHc portions of such claims in payment of snrli (tci,*s. jind narf.ei^ to give orders in their favor tlKivIuj' wIimi iliosn claims were allowed, such creditors obtained a. valid lien upon the fund. Richardson v. Rust, 9 Paige Ch. 243, 4: 88« 3. Whether a mere agreement by the owner of a iiiiid to |iay the debt of his creditor out of sucn fund, when received by liim, gi\'es to the creditor an equitable lien upon thr- 1 iiid. — QiicGre. Ibid. i. Whether an order of a debtor, directing the- p lyment of a debt out ot a designated fund belong- ing to such debtor and the acknowledgment ot tbe receipt of the order by the pereon having the cus- tody of the fund, is an equitable ap[>ropriatioii of the fund, so as to give the creditor a specific lieu thereon , — qufm'C. HawUy v. Boss, 7 Paige Ch. 103, 4: 83 5. The case of Darling v. Rogers (22 Wend. 483^ does not sustain an assignment m imrt, where thei-j is a corrupt intent apparent as to some other part of the instrument or of the property therein con- tained; but holds that if it contain a trust unauthor- ized by law. Inserted without any corrupt moti ve, such trust is not evidence of fraud, and therefoi-> doesnotavoid the other nortions of theinstrmnr-' • Goodhue v. Berrien, 2 Sandf . Ch. 630, 7: 734- 6. An assignment by a sheriff of fees due and t» ASSIGNMENT. 29 t)eootD« due, bavlni; tor one of its objects an in "demmty of his sureties against future misapprc< priation of moneys wliicii should he collected oi -executions, is void. Ciirrie v. Hart, 2 Sandf . Ch. 353, 7: e»3 7. The assignee of a chose in action, who only ob" tains an equitable interest therein, and who must sue in the name of the original owner, is not pro- tected ajrainst a prior equity. CauM V. Tradesman's Bank, 1 Paige Ch. 131, 2: 589 8. The assignee of a chose in action, the assign- ment of wlilch is available to him in eguitj uuiy, talces it subject to all the equities which existed against it in the hands of the assignor, including the equitable right of set-oft, if any such right existed against the assignor. Gay V. Gay, 10 Paige Ch. 369, 4: 1015 9. The assignee of a chose in action takes it sub" ject to all toe equity of the original obligor or ■debtor at the time, but not to a latent equity resid- ing in a third person, against the obligee or as- signor. Afurroy V. I/!/Ib«r7i, 2 Johns. Ch. 441, 1:440 iii?i«aston V. Dean, 2 Johns. Ch. 479, 1:457 10. To subject him to the equity of a third person, he must have express or couscr active notice of it at the time of the assignment. lAvingston v. Dean, 2 Johns. Ch. 479, 1: 457 11. Where a complainant or appellant in a suit in the court of chancery assigns his interest in the subject-matter of the suit pendente lite, either ab- solutely or conditionally, and obtains a reassign- nent thereof before any further proceedings ai- liad in the cause, it is not necessary to bring the temporary assignee before the court by a bill in the nature of a bill of revivor. ScOMten V. Bender, 1 Barb. Ch. 647, 5: 530 S. C. 6 Ch. Sent. 39, 5: 1805 12. Where an Act of the Legislature directed the proceeds of certain bank stock to be paid to the ■eldest son of B who should be living at the death of L, and at the passage of that Act.in ISSLB had two sons living, both of whom survived L, and the eldest of the two sons, after the passage of the Act and before the death of L, sold and assigned his interest in the proceeds of the stock to H, a iona fide purchaser,— Held, that the eldest son of B at the time of the sale had a vested interest in the proceeds of the stock in the nature of a vested remainder, subject to be devested by his death during the Uf e of L, and that his whole interest m the fund passed by the sale to H. iaiOT-emce v. Bayard, 7 Paige Ch. 70, 4: 64 18 Where an assignee of a patent-right sold the same and at the time of the sale exhibited a ma- ■chlne as the one which he then supposed to have been patented, but which afterwards was discov- ered to be different from the one actually patented, as described in the specification, the deed of assign- ment, and a note given for the purchase money, and an accompanying agreement in relation to the sale of the patent-right, were ordered to be deliv- ered up and canceled; the whole transaction having teen founded upon a mistake as to a matter of fact It was also held that the vendee was not en- titled to the damages which he had sustained m consequence of such purchase; hut that if any part of the purchase money had been paid, he would have been entitled to have the same re- "^BurraU v. Jewett, 2 Paige Ch. 134, «: 845 14 Where the holder of a mail contract assigned the same to the complainant, who agreed to carry the man during the contmuanoe of the contract, anc was to receive therefor all the moneys which should become payable under the contract, according to the terms thereof; and che assignor afterwards *ave R an order upon the postmaster general, for the moneys which might become payable upon the contract, to indemnify K and S against a responsi- bility which they had previously incurred as his in- dorsers.— HeW, that the complainant, by the assign- ment of the mail contract, had a specitlo equitable lien upon the moneys which were to be received for carrying the mail under the same; and that, having the prior as well as the superior equitable right to such moneys, K was bound to pay over to him the amount which had been received from the post- master general upon such order. S-adfey v. Boof,5PaigeCh.632, 3:860 15. A bona fide assignment of the interest of a Judgment debtor in a contract for the purchase of lands, although such assignment is made for the payment or security of a pre-existing debt, is valid as against the judgment creditor, where the assign- ment is made before the judgment creditor has oii- tained a lien upon the debtor's interest in the land, by the commencement of a suit in equity, after the return of an execution unsatisfied. GrosDenor v. ^ilen, 9 Paige Ch. 74, 4: 613 16. Although merchandise may be assigned upon a verbal coudltiun that no suiis shall be brought against the assignor, yet the commencing of ac- tions is not necessarily an avoidance of the contract. De Forest v. Bates, 1 Edw. Ch. 394, 6: 184 17. A creditor to whom his debtor has assigned property as security for advances and responsibili- ties, with an agreement that if the property is not redeemed within a certain time the assignee may sell it to pay and indemnify himself, may, after the expiration of the time limited, sell the property for his indemnity, and may, with the assent of the debtor, become the purchaser thereof, and of all the equitable or residuary interest of the debtor, at a fair and adequate valuation ; and such pur- chase, if made bona fide and without intent to injure and defraud creditors, will be valid, not only against the debtor or cestui que trust, but against all other persons. Bendricks v. JEtobinson, 2 Johns. Ch. 283, 1: 380 18. Where P, a debtor in embarrassed circum- stances, made an assignment (absolute on its face) of personal property to W, a creditor, as security for a new loan of money, and for existing claims, and also for his indemnit;^ against existing and future engagements, especisilly all such as should arise in the management of the projierty assigned ; and W, for the purposes of the assignment, effected a loan of money from P, on condition of guaran- teeing to him a debt due to him from F, to be paid out of the proceeds of the property so assigned,— it was held that P, by lending his money to W on this guaranty, acquired an equitable lien on, and was entitled to he paid his debt out of, the proceeds of the property in the hands of W, in preference to other creditors. Ibid. 19. The assignee, under such an assignment, is entitled to his commissions on the sale of the prop- erty, according to the stipulation contained in the assignment, unless the allowance is so dispropor- tionate and extravagant as to alford evidence of fraud. Ibid. 20. Where an absolute assignment of all fhe assign- or's property and choses in action contained a pro- vision that the assignor would, with all convement speed, make out an inventory of such property and choses in action, and which inventory, when made out, was to be considered a part of the assignment, — it was held that the assignment conveyed a present interest to the assignee, and that its taking effect did not depend upon the making out of the inven- tory. Keyes v. Brush, 2 Paige Ch. 311, 8: 928 21. If the assignor neglects to furnish the schedule required by the assignment, the assignee may file a bill for discovery against him, and also to ol3tain a delivery of the books and securities; and he will also be entitled to an injunction against the as- signor restraining him from wasting the property. Ibid. 22. Where an insolvent debtor assigns all his prop- erty to his surety for his idemnity, the surety is entitled to the possession of the property so as- signed, in order to discharge the responsibilities vmich he has assumed for the debtor. Ibid, 23. The creditors of the insolvent debtor to whom the surety is liable can also compel the appropria- tion of the property in the manner directed by the assignment. Ibid, 24. If the assignee becomes insolvent, the assignor may apply for the appointment of a receiver to exe- cute the trust declared in the assignment. Ibid. 25. Where A assigned and made over to S a deb* and demand against K, and also the proceeds of goods delivered by A to K to sell on account,— BeW, that aii the right and interest of A as creditor of B Sassed by the assignment, and that a release of all emands in law and equity by S to E as assignee, given on a compromise with him, was valid and effectual. AUen V. Randolph, i Johns. Ch. 693, 1: 983 30 ASSISTANCE, WRIT OF; ASSOCIATIONS. Editorial Notes. Assignment of choses in action 1 : 1002, 3:99, 866 Riglits of maker against assignee of chose in action; rights of assignee; notice of de- fenses; subsequent assignee; estoppel 1:441 Of choses in action protected 7:640, 6: 907 Subject to prior equities 2: 589, 5: 200 Right of tenant to renewal of lease transfer- able 3: 714 By officers of corporation 3; 896 Of mail contract 3: 860 Equitable assignments 3: 860 by order on fund 3: 861, 5: 253, 6: 338 order drawn on agent against fund con- stitutes 3: 193 Rule not apply to bank check 5: 253 Covenant to pay out of designated fund 4: 83 Priorities secured by 3: f 61 Validity of 3: 1109 Claim of beneficial interest under 3: 239 Effect on right of set off 6: 313 When voidable 6; 333 Assignee of demand takes subject to equities 6: 967 Of chattel without delivery, fraudulent 6:1203 Of partnership property by partner 6: 1226. 7:89 Of individual interest of partner 5: 812 "Void in part is void in toto 4: 153 Voluntary; rights not transferred by 4: 948 By debtor, fraudulent unless there is actual change of possession 4: 108 Of principal instrument carries collaterals as incidents 4: 301 During suit, litigating parties protected 4:796 Of mortgage, guaranty of owner 4: 707 Creditor cstooped to deny validity of 4: 194 Assignee of bond and mortgage must give notice of assignment 4; 1031 Equitable assignees; who are 4: 250, 882 Right of action for tort assignable 5: 99 Contingent interest in real estate assignable 5: 139 Of security 5: 198 Assignee of judgment takes it subject to equities 5; 191 Of mortgage, a conveyance 5: 46 Illegal, transfers no title 5: 875 By corporation; when illegal 5: 875 Right of assignee to sue in equity 5: 768 Assignor not necessary party; validity of 2:911 By debtor; when fraudulent 7: 268, 248. 1205, 4: 953 Assignee of debtor; power and authority 7: 268, 275 of vendee in oral contract for lands; rights of 7; 234 Record of; when not notice 7: 216 Voluntary; when fraudulent 7: 216 Conditions in 7:216 ASSISTANCE, WKIT OF. 1. A writ of assistance is, in ordinary cases, the first and only process lor giving possession of land, un- der an ad;iudication or this court, Valentine v. TeUer, Hopk. Ch. 423, 8: 47a 2. Where mortgaged premises are sold under a dfcree of foreclosure, tliu purcliaser is entitled to the assistance of the court in obtaining possession, as afrainst the parties to the suit, or those who have come into possession under them sulnequent to the filing of the notice of the commencement of the Fr'elinghuysen v. Colden, i Paige Ch. 204, 3: 40* 3. But the court has no jurisdiction, by a sum- mary proceednig, to deteriiiiiie tiie rights of third persons, claiming title to the premises, who have recovered the possession by legal and adverse pro- ceedmgs against a party to the suit, under a claim of right which accrued previous to the filing of the bill of foreclosure. Ibid. i. A purchaser at a master's sale Is entitled to a writ 01 assibuuice to put'bim in possession of the mortgaged premises as against the defendants in the suit, or those who have gone into possession under them pendenfA' Vie. But the court is not bound to grant a writ of assistance to a subsequent purchaser Irom the purchaser at the master's sale; and it will not therefore grant such writ, if injustice will b& done thereby. Van Hook v. Throckmorton, 8 Paige Ch. 33, 4: 33» 5. A purchaser under a decree of foreclosure ia not entitled to a writ of assistance to turn a persoa out of possession of the mortgaged premises, al- though such person went into possession pendente lite, unless he went Into possession under, or by the permission of, some one of the parties to the suit. ibid. 6. The power of the court of chancery to give possession to the purchaser of real estate at a mas- ter's sale, by a writ of assistance, only extends to those persons who are parties to the foreclosure suit, or wlio have come into possession of the prem- ises subsequent to the commencement of the suit^ under, or with the assent of, those who are such Dflrties. Boynton v. Jackway, 10 Paige Ch. 807, 4: 98» S. C. 3 Ch. Sent. 47, 6: 1115 7. Where a defendant in a foreclosure suit is in possession of the premises under an agreement for redemption made with the purchaser subsequent to the foreclosure sale, such purchaser is not entitled to a writ of assistance to put him into possession of the premises after breach of the agreement, but must resort to his remedy at law. ToU V. Hitler, 11 Paige Ch. ZiS, 5: 117 8. Papers used upon an application for a writ of as- sistance and for other reiiet, wbere a decree had directed a reconvej^ance of an estate and possession to be g'.ven and which were refused. Devauaene v. Devaucene, 1 Edw. Ch. 273. 6: 1 3© Editokial Notes. Writ of, in favor of purchaser on fore- closure 2:"404 When gi anted; papers to be used 6: 136, 4: 333 Against whom 2: 472. 4: 333 ASSOCIATIONS. See also Cobpobations; Joint-Stock Companies. 1. Subscribers to a fund for the purpose of experi- mentally testing a supposed improvement in giiue- rating steam and applying it to the propelling of steamboats are not liable for anything beyond the several amounts subscribed by them respectively, although more had been expended than the fund subscribed, in the prosecution of the work. Cobb V. UQOdliue, 11 Paige Ch. 110, 5: 74 3. A stockholder who, having caused the boat to be sold at auction, bid it in himself, and afterwards sold it at an advance, was bound to account to the other subscribers for their proportionate part of the proceeds of the last sale, reckoning the in- creased cost of the boat as an additional Eubscriptioa to the stock by the one whopurchased the builders' claim, and increasing his share of the proceeds wro laiitii. Ibid. 3. Where it was provided by one of the articles of association of a private company, that, within six ycai-8 from the date of such articles, the trustee* should proceed to take measures for closing the concerns of the association; and to that end should cause all etl'ects and securities held by them or by ASSUMPSIT; ATTACHMENT, I. 31 the association to be collected or converted Into money, and all the property to be converted Into money, by gale or otherwise, as fast as practicable': and should, from time to time, declare and pay to the shareholders dividends on the capital stock un- til bH. the property and effects of the association should be divided among the stockholders,— Held, that although it might not be for the interest of all the shareholders, or even of a majority of them, to have the property and effects of the association oon- vertpd into money and distributed at the time speci- fied Jn the articles of association, yet, if any of the shareholders desired to have it done for their benefit, they had a right to insist that the written contract should be carried into effect, according to its spirit and intent, without any unreasonable delay. Mann v. Butler, 3 Barb. Ch. 382, 5: 675 i. Held, also.that If the lands could not be disposed of for cash at private sale, the trustees should sell them at auction, alter giving reasonable notice to the shareholders, so that they might attend the sale and see that the property was not sold below its cash yalue; and that the same disposition should be made of the bonds and mortgages and other securities, if thev could not be collected or sold at private sale within a reasonable time. Ibid- 6. The association of stockholders of the North Eiver Steamboat Company is uot a copartnership; but the parties are tenants in common of the prop- er* v and franchises ot 1*e comi^nny. X/iDtnflSto»l V. Z/j/mcTi, 4 Johns. Ch. 573, 1:941 6. The resolutions passed by the unanimous votes of the stocitholdei-8, on Apri 1 13 and U, 1817, and sub- scribed by all of them, are the f unaamental articles or constitution of the company, by which the form- er articles of agreement of July 26, laW, were abro- gated; and, the company being only a private asso- ciation of individutils, these articles cannot be al- tfred or revoked, lint by the like unanimous consent of an the stockholders. Ibid. 7. Therefore certain resolutions passed May 5, 1S19, not having been consented to by all the stock- holders, and being repugnant to the fundamental articles of the association, are nuU and void. IIM. 8. He who so far joins to form an association as to be entitled to profit is not to leave it when fail- ure threatens and no consideration accrues. Ferris v. Strong. 3 Edw. Ch. 127, 6: 597 9. In private unincorporated associations of in- dividuals, the majority cannot bind the minority, unless by special agreement. ,_ .„ ,.0*1 lAvingsUm v. I/mch, 4 Johns. Ch. 573, 1 : 941 ASSUMPSIT. See also Partnership, 167; Paymbnt, 8; SaI/E, i Where a creditor takes from his debtor a bond or sealed notej and a waiiant ot attuiuey to uoi.Lesa judgment thereon, as security for the moneys lent and advanced to, and respoiisibilitif 1 incurred tor, his debtor, he ciinnot af teitvaids ru...tto an action of assumpsit on an implied or verbal promise of payment or indemnity, but must look to the secu- rities alone. „ „._ „ -,„- Booseoelf v. Mark, 6 Johns. Ch. 266, 8: 181 Editobial Notes. 2:66 Suit to recover back money paid Beneficiary may maintain suit on promise ti'. «2U ATTACHMENT. I. In General. II. Tor Contempt. Editorial Notes. See also Absent and Absoondino Debtors, 14, 17; Appeal, 264; Arrest, 2, 3; Contempt, 4, 20, 32, 38, 41; Injunction, I. i, 4; Judgment, 144, 145: SHERirr, 6. I. In General. 1. A creditor residing abroad may institute pro- ceedings here, under the Act for Giving Belief Against Absent and Absconding Debtors (Sess. 24,. chap. 49; 1 N. K. L. 157). Bobbins v. Cooper, 6 Johns. Ch. 186, 2: 95- 2. A Joint creditor may institute proceedings, un- .l?r the Act, against the separate property and el- teots of an absconding partner, though the other partner resides here and might be arrested. But the separate property only of the absconding part- ner can be taken under the attachment; for the- creditorhas a right only to the absconding' debtor's proportion of the surplus remaining after payment of all the partnership debts. Ibid. 3. The estate of an absent debtor, which was at- tached under the Act, having proved more than sufficient to pay all his debts, and a residue of real property remaining unsold, the trustees were de- creed to convey that property without selling it, to the debtor , and were discharged of the trust. On- V. Post, Hopk. Ch. 10, 8:38* 4. Under the Absconding and Absent Debtor Act, an equitable interest of the debtor in real property can be attached by the sheriff, and the same passes- to the assignee appointed under the Act. Lee V. Hunter, 1 Paige Ch. 519, 8: 738 5. The surplus of the debtor's property, after all. his just debts are paid, must be refunded to him. Ibid. 6. But before this can be done, the creditors must be notified to exhibit their claims pursuant to the directions of the Act, or they must have an oppor- tunity of being heard. IWd. • 7. The proper course for the debtor to obtain the surplus would be to file a bill and make the trus- tees parties: and if they had not given the requisite notices to the creditors, notice might be given un- der the decree of the court, in the manner adopted, of calling in creditors under a decree. Ibid. 8. A ci'editor who takes out a warrant of attach- ment under tBo Act relative to absent and concealed debtors thereby obtains a lien upon the property of the debtor proceeded against. Falconer v. Freeman, 4 Sandf . Ch. 565, 7: 1810 9. In an action upon an attachment bond, the plaintiff is bound to show that he has sustained- some damages by reason of the attachment. He is not entitled to recover upon the mere fact that the- plaintiS in the suit before the justice did not suc- ceed in that suit. ly^nsor V. Oreutt, 11 Paige Ch. 578, 5:839 10 An attachment against a foreign corporation by which choses in action belonging to such cor- poration were attached, creates a specific lien upon such choses in action. After a judgment upon such attachment, the sheriff could not sell, under- an execution thereon, such choses in action by the old law: but after the execution was returned un- satisfied, the plaintiff could file a bill in the nature of a creditors' bill to reach them. Fenton v. Xrttmberman's Bcmlt, Clarke Ch. 286, 7: 116 11. An attachment against a foreign corporation authorizes a sheriff to attach the choses in action of ' such foreign corporation, but not to sell the same under an execution issued upon a judgment ren- dered upon such attachment. Crosby v. Lumberman^a BanTt, Clarke Ch. 234, 7: 101 13. An attachment against a foreign corporation issued and served before the appointment, by the legislative power of the State creating it, of trustees for such corporation, creates a specific lien upon the choses attached, and the trustees must take such chos'"^ jiibject to such lien. Fenton v. iMmberman's Bank, Clarke Ch. 286, 7: 116- 13 Where an attachment in a suit in chancery is- sues for a contempt in not obeying the process of the court or an order or decree made in the cause, the proceedings upon the attachment may be entitled either in the original suit or in the name of the People on the relation of the party prosecut- ing the attachment. A.IVjl People V. Graft, 7 Paige Ch. 325, ■*: 174 14. After the property of a foreign corporation has been transferred to a receiver tor the benetit otthe creditors of the corporation, and the title thereto bae become vested in the receiver under an order of the court of chancery of the State where the corpo- ration is situated, such property cannot be reached by an attachment in this State, as the property of ^^Th^^^TmrchanU Banft,9 Paige Ch. 216, 4: 674- 52 ATTACHMENT, II. ; ATTORNEY AND SOLICITOR, L 15. Where the sheriff upon an attachment against a forelij^n corpui'uiiun, ruLuruea tuat lie liad givenno- tjce of the attachment to the cashier of a bank, without stating: that he had attached anything, or that the bank held any property of, or was in any way indebted to, such foreign corporation, — Held, that the return was not sufticjent to entitle the plaintiff to a Judement which would reach notes of the foreign corporation which had been deposited In such bank for coUection. Ibid. 16. An attachment must be returned on the areturn day thereof. PeopU V. Blmer, 3 Paige Ch. 85, 3: 68 17. If not received by the sheriff in time to serve It, and ui-ius UeLeiidaut to the place wiiere court is to be held, on that day, he should not make the ar- rest, but return it tarde. Stafford v. Brovm, 4 Paige Ch. 360, 3: 470 18. If he neglects to serve it in time for defendant to appear, the court will set aside the arrest. Ibid. 19. The ancient mode of attachment and sequestra- ■tion may still be resorted to in a proper case. White V. Qeraerdt, 1 Edw. Ch. 336, 6: 163 II. Fob Contempt. 20. Where an attachment is issued to enforce ap- ipearance or to answer, the body of the writ is gen- eral, but the suit, and the cause of the attachment are indorsed thereon, or appear in a label annexed, so that the party may at once comply, without ap- plication to the court. Be Fanderbiit, 4 Johns. Ch. 57, l: 768 21. But where the attachment is issued for a con- tempt in disobeying an injunction, an indorsemei or label specif ymg the cause of action is not nRco.'^ -sary. Ibid. 22. On an attachment for a contempt or for dis obeying an injuncti* n, the party is nut to be baile^l by the sheriff, but o vo be brought before the chan- cellor, to answer ^ neciflc charges ; and be will then be ordered to be iiailed to appear, from day to day, until tne party complaining has prepared his inter- rogatories, on which he is to be examined before ' 'master. Ibid. 23. The sheriff or other ofiBcer to whom an at- tachment for a contempt has been delivered to be served has the whole time of the actual sitting of the court upon the return day of the attachment to return the same, unless he is specially directed by the court to return it immediately. People v. Wheeler, 7 Paige Ch. 433, 4: 8ao 24. Where the party prosecuting the attachment wishes to expedite the proceedings, he may. upon an affidavit of the delivery of the attachment to the proper officer a sufficient time before the return day to have enabled him to serve and return it, and that it has not been returned, move the court, pre- vious to its adjournment on the return day, for an order that such officer return the attachment sedente curia on that day, or that an attachment issue against him, upon filing the register's or ulerk*scer- ti Scale of his default. But it is irregular to take out an attachment against the officer during the actual sitting of the court on that day. Ibid. 25. Where defendant's third answer was reported Insufficient, and his exceptions to the master's re- port were overruled, the court must first order an attachment against him for his contempt in not fully answering, before ordering him to be com- HigtAe v. Brown, 1 Barb. Ch. 321, 5 : 401 26. A party committed to Jail on a precept in the mature of an attachment for nonpajjment of costs is entitled to the jail liberties, but is not exempt from imprisonment under the Act to abolish im- prisonment for debt and to punish fraudulent •debtora. Potricfc V. TTarner, 4 Paige Ch. 397, 3:486 27. Attachments for contempts to enforce civil remedies will not be allowed where imprisonment -on execution cannot be had. Hosaek v. Rogers, 5 Ch. Sent. 14, 5: 1168 28. Where a party neglects to attend before a mas- ter and do some act pursuant to the directions of a decree or order of the court, the adverse party, upon the production of the decree or order and the mas- ter's certificate of the default, may apply ex parte for an order requiring the party in default to at- tend before the master and do the act required, within four days after service of a copy of the or- der upon bis solicitor, or within such other time a« shall be allowed by the court for that purpose, and to pay the costs of the application ; or In default thereof that he show cause, upon some regular mo- tion day, why an attachment should not issue against him. MerrU. v. Annan, 7 Paige Ch. 151, 4: 103 29. Where the aggrieved party would be injured by the delay, he may, upon due notice to tue ad- verse party or his solicitor, apply at once for an ab- solute order that such party attend before the master and do the act required, within the time allowed by the court, or that an attachment issue against him upon filing the master's certificate of a second default. But in such case the asgrieved partv will not be allowed the extra costs of that proceeding, unless sufficient reasons are shown for vhe same. ItM. Editorial Notes. Attachment; trust properly not liable to 2: 647 Lien of 7: 116 Creditor's lien acquired by 7: 1210 Foreign 7: 272 Gives no jurisdiction over the person 4: 495 For contempt of court 3: 48 For nonpayment of money 3: 48 For disobedience of order to pay money 3:437 ATTORNEY AND SOLICITOR. I. In GENERAIi. n. Relation to CiiIent. a. Generally; Authority, b. Dealings with Client. m. Compensation. Editoriaij Notes. See also Injunction, 115; Intebpi,eadbb, 15, 18; Pbacticb, 43, Trusts, 179-182. L In Generai,. L The station of a solicitor of this court is an of* flee, within the meaning of the present Constitution, and the solicitor is to take the oath by chat Consti- tution prescribed, and no other. This applies to all other offices. Be Wood, Hopk. Ch. 6, 3; 333 2. The functions and duties of a solicitor are, in in this State, analogous to those of an attorney in courts of law. Mumford v. Murray, Hopk. Ch. 369, 3: 454 3. The court of chancery is not authorized to strike a solicitor from the rolls, under the provi- sions of the Revised Statutes, upon motion, with- out the filing of regular charges against him, and obtaining a previous order of the court for him to show cause why he should not be stricken from the roll of solicitors. Saccton V. Sfowell, 11 Paige Ch. 526, 5:333 S. C. 5 Ch. Sent. 2, 5: 1164 4. Where a solicitor forged the name of a person as deputy register to a paper ptu-uurtiug cu be a copy of an order obtained on his application as so- licitor, declaring the marriage between a husband and his wife void, for the purpose of enabling the husband to impose upon hiswit;e, and induce her to believe that she was legallj' divorced, such solicitor was removed from his office as solicitor. Be Peterson, 3 Paige Ch. 510, 3: 353 5. If a deceit is practiced by a solicitor in his char- acter as such, although not in a suit pending in the court,he may be removed from his office as solicitor Ibid. 6. The effect of such removal by the court of chancery is to deprive the solicitor of the power of practicing as a solicitor, attorney, or counselor in any other court. Ihid. 7. Where a solicitor commenced a suit in chancery for the recovery of a demand due to the complain- ant, and the counsel employed by such solicitor af- terwards compromised the suit, and received from the defendant $287.45, tiesidcs costs, and paid the same over to the solicitor, except $50, which was left in the hands of the counsel, to le paid to the ATTORNEY AND SOLICITOR, II. a. 33 complainant, provided he would receive it in full «t hia demand, and the solicitor afterwards refused fh„*„"th^«-n° the ccmpliilnant, or to pay him more tnan the faO,— Held, that the counsel was not liable to the oompla.nant for the money, which had been paid over tp the solicitor before he had notice of the complainant's claim for the whole amount. But the counsel was held to be personally liable for the |50, which he paid over to the solicitor after he had been served with a notice of an application to the court to compel him and the solicitor to pay over the money received from the defendant upon the com- promise of the suit. . Be Bleakley, 5 Paige Ch. 311, 3; 731 8. Where a solicitor collects money for his client, which he refuses to pay over, the court will enforce the payment of the money 'by a commitment for a contempt; and if he persists in his disobedience to the order of the court, the chancellor may order oim to be stricken from the roll of solicitors. Ibid, . ]9. Where a solicitor files a bill in propria pertfona as plaintiflf, a notice served on his agent as solici- tor of the court is good service Chamiplim v. Fonaa, 4 Johns. Ch. 63, 1: 764 10. The solicitor is guilty of a misdemeanor, if he puts the name of a counselor to a pleading without bis knowledge and consent. Doe V. Green, 2 Paige Ch. 347, 3; 938 11. The provisions of the statute making it a crim- inal offense for an attorney, counsellor, or soU- ■citor to buy any bond, bill, or other chose in action for the purpose of bringing a suit thereon, applies to the purcnase of a chose in action for the pur- pose of instituting a suit thereon inequity, as well as to a purchase in order to bring a suit thereon Baldwin V. iafsoTi, 2 Barb. Ch. 306, 6:417 13. The object of the statute prohibiting the pur- chase of choses in actions, by attorneys, etc., for the purpose of bringing suits thereon, was to pre- vent attorneys and solicitors from purchasing debts or other thines in action lin order to obtain costs by prosecuting the same. It was not intend- ed to prevent such a purchase lor the honest pur- pose of protecting some other important right of the assignee. Ihid. 13. It seems there is nothing in the statute, to pro- hibit an attorney from buying a judgment for the fmrpose of issuing an execution thereon and col- eoting the debt. The policy of the statute does noi appear to embrace such a case. Warner v.Paime, 3 Barb. Ch.63D, 6:1037 See also infra, 70-73. 1007 1126 n. RBIJ.TI0N TO CLrENT. a. Generally; Authorrity. 14. It is the duty of the solicitor who procures the appointment of a guaniian, etc., to inlorm hira oi his duties under the rule, and ho w to perform them, afi of the corsoquenpes of his neglect. Be Seaman, 3 Paige Ch. 409, «: 966 15. The neglect of the soUcitor is the neglect of his client. Furgison v. Robinson, Hopk. Ch. 8, »: 384 16. When a solicitor has been duly appointed by a party, and has acted as such, he cannot be displaced by the appointment of another solicitor, without an ordnr ui the court, Mumford v. Murray, Hopk. Ch. 369, 2: 454 17. A party cannot change his solicitor without an order of the court. Stevenson v. Steuemson, 3 Edw. Ch. 340, 6: 683 18. The court will not make the payment of the solicitor's costs a condition of the substitution, but will leave him to his remedy at law against the ■client and preserve to him any lien he may have on papers or a fund in court. Ibid. 19. The solicitor for nonresident complainants died. The court allowed notice to be sent to luum, through the po8tofBce,ot an order that they appoint another solicitor within thirty days. Draper v. Holland, 3 Edw. Ch. 272, 6: 654 20. Where the client makes a summary appUca^ tlon to the court, against his attorney or solicitor, instead of instituting a suit against him to compel such attorney or solicitor to do him justice, the lat- ter is entitled to the benefit of using his own affi- davit in resisting such application. Merritt v. Lambert, 10 Paige Ch. 352, S. a 3 Ch. Sent. 79, 21. An attorney must pay over to his client money . Ch. Dig. 3 collected for him whenever he can'do it with safety. An indemnity is all he can require of his client on paying over the money to him, ev^.i though there 18 a doubt whether or not the securities upon which It was collected belonged to him. Marvin v. Ellwood, 11 Paige Ch. 365, 5: 164 23. Although he is not satisfied with his client's responsibility, he should ofller to pay over the money upon hia giving a sufficient indemnity. Ibid. 33. It seems that where the client assigns the de- mand in suit and afterwards repudiates the assign- ment, and both parties claim the fund recovered and remaining in the attorney's hands, the court in which the suit was pending has power to protect the attorney, if both parties are within its jurisdic- tion, ibia. 24. It seems that if a person not legally author- ized to practice law is employed to conduct judicial proceedings, he is not legally responsible to his em- ployer for any loss the latter may sustain in conse- quence of the ignorance of the person so employed, in respect to legal proceedings. Wakeman v. Hazleton, 3 Barb. Ch. 148, 5: 853 25. As a general rule, when a suit is commenced or defended by a solicitor of the courts, or any other proceedlngnad therein, the court does not inquire into his authority to appear for his supposed chent. .American Ins. Co. v. Oakley, 9 Paige Ch. 496, 4: 789 S. C. 2 Ch. Sent. 16, 5: 1084 36. But where the party for whom the solicitor ap- pears denies his authority, and applies to the courc for relief before the adverse party has acquired any rights or suffered any prejudice in consequence of the acts of such solicitor, the court may correct the proceeding, and compel the solicitor to pay the costs to which the parties have been subjected in consequence of his improper interference. Ibid. 37. If the attorney upon record goes beyond his general power in compromising or taking security in discharge of the debt entrusted to him for col- lection, and the client, upon being informed of the transaction, does not within a reasonable time sig- nify his dissent, the court will presume the attorney had a special authority thus to act for bis client; especially where the client receives the benefit of the security taken by the attorney on such com- promise. Benedict v. Smith, 10 Paige Ch. 126, 4: 913 38. Under the provisions of the Be vised Statutes the general authority of the attorney of the pluin- tiff in the suit in which a judgment is obtained, to receive payment and acknowledge satisfaction, is presumed to continue for at least two years; but it may be revoked within that time. Ibid. 29. Where an attorney has obtained A judgment the collection of which is doubtful, it seems tiiat he is authorized by virtue of his general retainer to discharge the j udgment upon receiving a part there- of and security for the payment of the residue. But where the debt is fully secured by the levy upon property of the defendant more than sufficient to satisfy tne judgment, the attorney is not authorized, without a special authority from his client, to dis- charge the lien of the judgment and execution without receiving payment of the debt in full. And if the client repudiates the transaction Imme- diately, and gives up the securities taken by the at- torney, the judgment will not be considered as dis- charged as against the defendant therein, who knew the facts, and had therefore legal notice that the at- torney exceeded the authority which he possessed under a general retainer in the suit. Ibid. 30. Where the president of a corporation author- izes an attorney or solicitor to prosecute or defend a suit,or to commence any legal proceeding in which the corporation is interested, the attorney or solici- tor will be authorized to appear for the corporation, and such corporation will be bound by his acts as their attorney or solicitor. And if the president exceed his authority in retaining such attorney or solicitor, the corporation must look to him for any damages sustained in consequence of such unau- thorized aet. American Ins. Co. v. Oakley, 9 Paige Ch. 496, 4: 789 31. Where the adverse party has acquired rights, or been subjected to costs, by proceedings In the name of a iiarty who denies the authority of the attorney or solicitor who commenced such pro- ceedings, and the attorney or solicitor is solvent and responsible, the court usually allows the pro- 34 ATTORNEY AND SOLICITOR, II. b. III. ceedingu to stand, and leaves the party injured to Ms remedy against such attorney or solicitor, by a summary application to the court, or otherwise. Ihid, S. C. a Ch. Sent. 16, 5: 1084 3i Whether the complainant can file a supplemen- tal bill, or an oriffinal uili in the nature of a supple- mental suit, by a new solicitor, without an order lu change the former solicitor on reoora, — quawe. JlTlarera V. C7i-8 3:121 Bill to set aside discharge 5:411 Discbarge as a defense 5:326 debtor must plead discharge 5: 411 After answer or bill confessed, defendant may plead subsequent discharge in; practice 4: 106O BANKS AND BANKING. I. Franchise ; Prohibited Business. U. Organization ; Stock. III. Powers ; Management ; Business. IV. Forfeiture op Charter; Dissolution; Is* solvency. Editorial Notes. See also Checks ; Corporations, 66. BANKS AND BANKING, I., II. 41) I. Franchse: Prohibited Business. 1. The exercise of banking privileges without au- thority is not a nuisance in the legal sense of that word. Attamev-aeneral v. Bank of Niagara, Hopk. Ch. 354, 8: 448 AUorney-Generaly. Utica Ins. Co. 2 Johns. Ch. 377, 1: 417 3. The right of banking was formerly a common- law right Delonging to Individuals; but since the restraining Act of the Legislature, it is a franchise derived from the Legislature. Attorney-General v. Utica Ins, Co. 3 Johns. Ch. 377, 1: 417 8. Carrjing on banking operations contrary to the statute is not such a miscQief or public nuisance that this court would grant an injunction to restrain the party, even if it had jurisdiction over pubUo nuisimcps, which, it seems, it has not. Hid. 379, 1:417 4. Notes and drafts not negotiable, and which therefore cauuut bu uuea and eucumted as money, although made payable after date and with interest, may be issued by banks and banking associations, in the course of their business, either as evidence of Indebtedness to particular individuals, or for other legitimate purposes ; such notes and drafts not be- ing within the mischiefs intended to be guarded against by the statutory provisions prohibiting the issuing of post-notes by banks and banking associa- tions. Ontario Bank v. Schermerhom, 10 Paige Ch. 110, 4: 907 5. 0. 3 Ch. Sent. 3, 5: noo 5. Where an Inootporated company, not having banking powers. Issued ahd put in fclreulatlon as money the negotiable bonds of the company, not under seal, payable to the order of one of its clerks and indorsed in blank. In the form of the ordinary post-notes of banking lnstltutlons,and printed upon an engraved plate, with a vignette and other de- vices which are usual upon bank notes that are issued as a circulating medium,— Heid, that such bonds, being issued and put in circulation in viola- tion of the restraining laws, were void in the hands of those who had actual or constructive notice of the purpose for which such bonds were issued; and that the form of the bonds was such as to be con- structive notice to those who received them that they were intended to be put in circulation as mon- ey, and were not given for any legitimate purpose for which the corporation was authorized to give a negotiable security. Attcrmey-GeneraX v. lAfe & Fire Ins. Go. 9 Paige Ch. 470, 4: 780 6. A corporation incorporated for building a merchanis exchange. In order to make loans tor the completion of the building, issued several hundred bonds, some for £22.5 sterling each, and the residue for $1,0011 each. The bonds were engraved or printed, and were In the form of a single bill, under the seal of the corporation, and payable to the obligee or his assigns, ten years after date, with in- terest half-yearly. Coupons for the interest, pay- able to bearer, were annexed to each bond. Two mortgages on the reiil estate were given to a trustee to secure the payment of the bonds, which were described in the mortgages respectively. Held, that these bonds were not within the prohibitions of the statute relative to " unauthorized banking," etc.. usually called the restraining law. Barry v. Mercfumts Exchange Co. 1 Sandf . Ch. 280, 7. Section 6 of the title of the Ee vised Statutes rela- tive to unauthorized banking applies to foreign, as well as to domestic, corporations; and foreign cor- porations are still prohibited from keeping any office in 1}his State for the purpose of receiving de- posits or for discounting notes or bills. Tayior v. Bruen, 2 Barb. Ch. 301, 5: 661 S. 0. 6 Ch. Sent. Ve, 5: 1830 8. Where such a corporation authorizes one of its officers or an agent to attend from time to time at certain known places In this State, for the purpose of receiving deposits, or for the purpose of dis- counting notes or bills with the funds of the cor- poration and for its benefit, such known places of attendance are to be considered as olfices of dis- count and deposit of the corporation, illegally kept for the purposes prohibited by the statute. Ibid. 9. The object of the restraining law was to prevent unauthorized banking ; and as to foreign corpora- tions it was intended to prevent their coming into this State and keeping an ofQce for doing the busl- DPs'i of banking wn^n not authorized by our laws. Western Reserve Bank v. Potter, Clarke Ch. 432, 7: 163- 10. A foreign banking corporation coming into this State, by their agents, to secure a doubtful debt, and while here doing a single act of drawing a bill of exchange and paying out their own cir- culating notes, in pursuance of their leading object (not having an ollice or doing general business within this State), do not, by such acts, violate the restraining law of this State. Thid 11. The officer or agent of a foreign corporation who thus carries on the business of discounting notes and bills in this State, with the funds of such corporation and for its benefit, renders himself per- sonally hable to the penalties prescribed by 8 ■ of the Act relative to unaTithorlzed banking. Taylor v. Bruen, 2 Barb. Ch. 301, 5: 651 S. C. 6 Ch. Sent. 76, 5; 1820 13. 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 Legislature of this State, passed April 21, 1818, relative to banks, etc. (Sess. 36, chap. 71), for restraining unincorpo- rated associations from carrying on banking busi- ness. SiluerioJceBanfcv.iVbrtft, 4 Johiis.Ch.370, 1: 871 n. Okgabization ; Stock. 13. Associations, under the Act to authorize the- business of banking, passed April 18, ItiUti, are con- fined to the provisions of the Act, and cannot be organized until all its substantial enactments on that subject are complied with. VaVi V. Crandall, 1 Sandf. Ch. 179. 7: 886- 14. Persons intending to institute an association under that Act, after subscribing articles of associa- tion, proceeded to elect a president and directors. The directors signed and recorded a certitlcate of Its organization, made in the form prescribed by the sixteenth section of the Act, and proceeded to the transaction of business. The certificate, not being signed by the stockholders, was not in compliance with the law; and it was held that the association had no legal existence or capacity. 2Wrt. 15. A certificate signed by stockholders owning the amount of capital origmaJly designated in the articles was subsequently filed in pursuance of the sixteenth section of the Act, and the bank became thereby legally constituted and organized. Ibid. 16. C subscribed the articles for twenty shares of stock intermediate the recording ot the first cer- tificate and the making of the second; and be and his wife gave their bond and mortgage for the par value of the shares, payable to the president of the- bank. C did not sign the second certificate, but he paid interest on his bond and mortgage half-yearly for two years ensuing. Held, that until the secondi certificate was filed, the bond and mortgage were in effect payable to a fictitious person; they were without consideration, and no person could make an available title to the same; that, after the bank became a legitimate association, the stock formed' consideration, and C recognized its existence, and so acted in regard to it that his redelivery of the bond and mortgage ought to be inferred; and as to his wife, no new acknowledgment by her be- ing shown, the mortgage continued to be invalid. Uiid. 17. The president of such a bank is the proper officer to assign its mortgages, and he may use his own seal in making such assignments. Ibid. 18. The Act incorporating the Commercial Bank of Albany appointed commissioners to receive sub- scriptions, but made no provision for an excess of subscriptions beyond the capital stock. The sub- scriptions greatly exceeded the prescribed amount of capital stock; and the commissioners made large subscriptions for themselves, after an amount equal to the capital stock had been subscribed by otners. The commissioners proceeded to apportion the stock; they wholely excluded the complainants and other subscribers; they allotted shares of stock to themselves and others, as they thought expedi- ent; and they thus made a distribution of the stock, without observing any rule founded on rights acquired by subscription. A power to re- move the excess of these subscriptions results by implication. This power belongs, in the first in- stance, to the commissioners; and if they exceed their authority or violate private rights, then to the courts. Meads v. WaVcer, Hopk. Ch. 587, 8: 633 42 BANKS AND BANKING, III. 19. These commissioners are trustees, and are sub' Jeot to the principles which prohibit a trustee from •exercising his trust for his own benefit. Ibid. 20. Every subscriber acquired by subscription and payment some right. Ibid. 21. No method for the reduction of these sub- scriptions being prescribed, no particular rule for ■that purpose is to be inferred; but the exercise of the power to reduce must be reasonable and equi- table, and not merely arbitrary. Ibid, 23. The rule for reducing subscriptions established ■by the Act of Congress in the case of the existing Bank of the United States is highly equitable. Ibid. 23. The commissioners having in this case allotted to themselves and their copartners about two fifths of the capital stock, and having wholly excluded the ■complainants, the distribution, though not fraudu- lent, must be rectified. Ibid. 24. But the court laid down no precise rule for the • distribution of this stock ; it being sufficient, upon this motion to dissolve an injunction, to adjudge that the complainants are entitled to some stock in virtue of their subscriptions. Ibid. 25. A person who becomes subscriber to an asso- •ciated banlc under tbe general banlcing law, anrl pays for his stock by his bond and morterage, stands in two capacities towards the bank,— one as debtor upon his bond and mortgage, and the other as shareholder by reason of his stock. Ely V. Sprague, Clarke Ch. 351, 7: 140 28. Where the articles of a banking association provided that dividends should be made of so much of the interest and profits as should be deemed ex- pedient by the directors, at stated times, the direc- tors are not, under such article, compelled to make any dividend, if they reasonably deem it inexpedi- ent. Ibid. 27. The Act to authorize the business of bankingi passed in 1838, enabled any number Oi. persons to associate and estabUsh banks of discount, deposit, and circulation, on the terms therein prescribed. The capital was not to he less than 8100,000. The associates were to seal and file a certificate specify- ing, among other things, the amount of the capital stock, and the number of shares into which it was divided, and the names, residence, and number of shares held by the associates respectively. The shareholders, unless by express stipulation in their articles, were not to be individually liable for the -debts of the association. A banking company was orgiinized under this law, by articles of association, which declared that the capital stock should be a million of dollars, divided into ten thousand shares of $100 each, but business might be commenced as soon as $100,000 were subscribed for and paid. If any shareholder should omit to pay any installment •on his shares, pursuant to any call of the directors, ■the articles provided that his shares should be for- feited to the use of the association, together witli -all previous payments made thereon. And the shareholders were not to be personally liable for the debts of the association. The original associates, ■of whom D was one, signed four thousand eight hundred and thirty-five shares, on which over $lOO,- ■000 was paid in, and the bank commenced business. All the associates signed a paper attached to the certificate or articles of association, by which they subscribed for and agreed to take the number of shares set opposite their respective names, as share- holders in the bank, and mutually bound themselves to fulfill all the engagements contained in the -articles. D subscribed for twenty-five shares. Held, (1) that he was liable to pay the whole amount of the stock which he subscribed; (2) that the authority to forfeit the stock, for the non- payment of called installments, was a cumulative remedy, and did not affept the direct liability by force of the suhscrintton. Sagory v. Dubois, 3 Sandf . Ch. 486, 7: 922 28. The statute and his subscription imposed upon him the duty of paying for ^:p 6Lock, which is recognized by the language of tho articles of asso- •ciatlon, and from which the law implies an under- taking to make such payment. Ibid. 29. The general banking law intended to provide tor the payment, or securing to be paid, of an actual, substantial capital, to the extent defined in ■the articles of association, as the foundation of the operations of the banks thereby authorized. IMd, 30. This was the declared policy of the Act, and it •was imperatively demanded for the public security in respect of the important privileges and fran- chises conferred on those associations. Ibid. 31. A banking association made several calls upon its stockholders for payment on their shares. It declared dividends on the stock paid in, and applied the same to meet some of such calls, the last of which dividends was unauthorized by the situation cif the company, and was contrary to the general banking law. After the calls on the shares amounted to half their nominal amount, the directors resolved that no further calls should ever be made, and I'orthwith discontinued the business of the com- pany, which soon after became insolvent, and on the application of a creditor, the court of chancery :ippointed a receiver of its property and effects. ( )n a bill filed by the receiver to compel a stock- liolder to pay the balance of the nominal amount of his shares,— field, (1) that the defendant, having t)ecome liable by his subscription to pay up his shares in full, as called for by the directors, might be compelled to pay the same by the receiver, who represents the creditors of the company, although there was no resolution of the directors reauiring SUCH paymeut: (2) the resolution that no further calls should be made was void as to the receiver; (31 the unauthorized dividend was not a valid pay- ment upon the defendant's shares, and the amount of the same still remained due and payable; (4) the receiver was authorized to proceed in equity to compel the payment of tbe balance due on the shares. Ibid. III. Powers; Management; Business. 32. An association organized under the Act to au- thorize banking contracted in the name of its presi- dent, describing him as such. Held, the identity being clear, that the contract Was valid, Borsgerard v. New York Banking Co. 2 Sandf. Ch. 23, 7: 498 33. A variance in the use of the name of one of these associations does not vitiate its contracrs. In this respect they are governed by the same rules as corporations at common law. Ibid. 34. The bank obtained a loan of money on a sealed agreement, which, as ic was contended, was Illegal liecause the cashier did not sign it according to the provision of that Act. The bank had no cashier at Che time. Held, that the lender might recover the money loaned, whether the agreement were de- fectively executed or not. Semble. that its execution vvits snthcient. ibid. 35. Whether a banking association, under the gen- eral banking law, can lawfully incur a debt for the purchase of State stocks,— gwere; but at any rate the president of such association, who signed the con- tract for the payment of such debts, cannot, in a collateral suit with tbe association, question tbe validity of such debt. Ely V. Sprague, Clarke Ch. 351, 7: 140 36. An association under the General Banking Law may borrow money to discount notes and also to purchase state stocks and other securities to be deposited with the comptroller; but it has no right to borrow money to be used in specu^tions or in mercantile or other business having no relation to the ordinary busine'ss of a bank. Lecmitt v. Yates, i Edw. Ch. 134, 6: 828 37. If an association under the General Banking Law has mude extensive operations of a specula- tive character in state stocks and thereby become greatljr embarrassed, it cannot raise funds by an is- sue of its notes or obligations, secured by a pledge or assignment in trust of its remaining assets, in or- der to satisfy creditors whose demands have not grown out of legitimate banking business. It may be different where the demands of existing credit- ors grow out of the legitimate banking business, and provided the money expected to l^ raised is necessary and Intended to be applied to discharge bona ^de debts of that character. Ibia, 38. On the 16th of December,1840,the North Amer- ican Trust & Banking Company issued eight hun- dred promissory notes, all of the same date, paya- ble thirteen months thereafter, in favor of their clerk, who indorsed them, not for the purpose of adding anything to their security, but to give them currency without further trouble. Four hundred of them being for 8500 each, and the remaining four hundred for $1,000 each (amounting in the ag- gregate to 8600,000). At the foot of each note waa this memorandum: "The payment of this obliga- tion, with others, amounting in the aggregate to SC^'0,000, is gaaranleed by the transfer of securities BANKS AND BANKING, III. 43 estimated at SSOO.OOO.under a deed of trust executed ifcetween the company and H. T., T. Q. T. and W. C. N., trustees, liearing even date herewith." These "Dotes were delivered out principally to directors and agents to raise money and bring it into the aa- «ociatlon. Held, that these notes had so far the •character of circulating notes as to be within the Eestrainlng Law of 1830 (1 Rev. Stat. 712), and the Act of May 14, 1840, and were consequently illegal. Also that they were void from the fact that they were not based on the pledge of securities with the ■comptroller nor intended to be countersigned and rcgist'Ted, aa required by the Banking Law. Lilce- wise that, the notes being void, the accompanying trust deed, made tor theu: security and payment, had no legal effect and was void. TMcl. 39. Nor can such an association, especially while it lis in pecuniary difficulties, buy up, w»ta its own ■bills of exchange, shares of its own capital for the ■purpose of being sold again, and, in the mean time, .of being used as a means of raising money. ibid. 40. The right of a banking association to purchase £tat;e stocks attaches only when the object is to ef- fect a deposit or pledge of the same for circulating notes; or, if for any other purpose, It diould be the (investment of capital or surplus funds for the sake of interest. It should not be done on credit and by a deposit of their securities and for speculation with a view to profit. ibid. 41. Nor can such an association purchase upon •credit (not for an investment) depreciated paper of the banks of other States at a discount, with an in- tention to resell the same at an expected profit or to be laid out in cotton at the south to be shipped to Europe. Ibid. 42. Where a bank, by its authorized agents or offi- cers, makes loans and discounts to its directors, or any of them, or upon paper upon which they are responsible, to an amount exceeding in the aggre- gate one third of the capital of the bank, it is such a, violation of the statute as ■Bill authorize the court of chancery to grant an injunction and appoint a receiver to -wina up the affairs of the corporation and to decree its dissolution, under the provisions ^f § 1 of the title of the Bevised Statutes relative to moneyed corporations. Bank Comra. v. Bank of Buffalo, 6 Paige Ch. 497, 3: 1076 43. Loans and discounts made by the ofllcers of a tank from its corporate funds will be presumed to liave been made by authority of the board nf direc- no,, unless it is shown that the funds oi the bank have been misapplied by such officers so as to ren- der them udol'^ for f rami and embezzlement. Ibid. 44. Where an officer of the bank has been guilty •of fraud, if the directors neglect to remove him, -and continue to entrust him with the funds of the corporation, they will be considered as sanctioning the fraudulent act. Ibid. 45. It is the duty of the officers of a bank to keep proper accounts of all loans and discounts to direc- tors or for their use, or upon notes or securities ^pon which directors of the bank are responsible. Ibid. 46. Neglect of the officers or directors of the bank to inform themselves as to the amount of such loans and discounts and responsibilities will not excuse a violation of the law on the subject. Ibid. 47. Where the board of directors authorize their president or cashier ,or any other officer of the bank, to make loans and discounts in his discretion, with- out having the same passed upon formally at a meeting of the board, the corporation is liable for a violation of its charter. Ibid. 48. If a loan or discount is knowingly made for the benefit of a director of a bank, or a firm with ■which he is connected in interest or as a copart- ner, it is a loan or discount to such director, within the intent and meaning of the statutory provision limiting the amount of loans and discounts of di- rectors. Ibid. 49. It is a violation of duty on the part of the di. routers Lo give lo any or its olJicers au uuliuiitea' discretion to discount, or to make loans of the I'unds of the institution, without the previous san':- lion of the board of directors. Ihid. GO. The refusal by a bank to pay one of its drafts which had been protested for nonpayment, and a •continuance of banking business for more than ten - be a waiver of want of due notice, and tantamount to a promise to pay. „^, m. /io ■,. aio- PhUUps V. Thompson, Z Johns. Ch. 418, 1: 43* 25. A subsequent mortgage or Judgment creditor- has no equity to allege against such a waiver or want of notice. In order to avoid the judgment so given tor the indemnity of the indorser. Ibid. 26. The indorser is entitled to due notice from th«» holder of a mote, although he may have other knowledge of its nonpayment. Jbi(J.421, 1:434- V. Eights op TBANSrEBEES ; Bona Fidk Holders.. 27. Where a promissory noteishanded toa persoa to get discounted and he applies it towards pay- ment of a pre-existing debt of his own, the party taking it cannot retain the note against the owner^ although he was ignorant of the way it was ob- tained and received it as consideration for forbear- Francia v. Joseph, 3 Edw. Ch. 182, 6: 61» 28. A person receiving negotiable paper, in the- usual course of trade, for a fair and valuable con- sideration, from an agent or factor having no- authority to transfer them, but without knowledge of that fact or notice of the fraud, may hold them against the true owner. . Bay v. Coddington, 5 Johns. Ch. 54, 1: 1006- 29. But where E, as agent of B, having received negotiable notes to be remlctea to B, delivered them to C as securitv against responsibilities as indorser of certain notes of E, who had then stopped pay- ment and become insolvent, but on which notes-, of E C had not then become chargeable,— it was held, that, though C had no knowledge that the- notes deposited with him belonged to B, but be- lieved B to be the true owner of them, yet he waa not entitled to hold them as against B, the lawful owner, but was accountable for the amount, with* interest, as he did not receive them in the regular course of trade, or in payment of an existing debt. Ibid. 30. A ionaftde holder without notice of a time draft- by a bank, who receives it in another State, and is- therefore not chai-ged with notice of our laws, may recover thereon against the acceptor, although it- was issued in -violation of statute. Georgia iMtnber Co. v. Strong, 3 Ch. Sent. 3, 5: 1101 31. A negotiable security of a corporation is vaU mediate indorser, whereby the last purchaser is en- abled to recover the whole face of the note, witlk interest, against such indorser,— the latter may re- cover back from the person to whom he sold the- note the excess which he has been compelled to pay beyond the amount of the purchase money and< interest. Judd V. Seaver, 8 Paige Ch. 648, 4: 537 44. And where the purchaser of such note procures- a renewal of the note, by the same makers and in- dorsers, after it has been duly protested fornonpay- ment, it the renewed note is void on the ground that a usurious premium was received for the exten- sion of credit upon such renewal, the rights of the purchaser remain the same against the makers and indorsers of the original note. And he may recover against them the amount for which they were liable before such renewal, after deducting therefrom the amount of the usurious premium received by him on the renewal. ibid. 45. Where the holder of a valid note sells it for less than the amount due thereon, and indorses it to the purchaser, the latter is entitled to recover the whole amount of the note from the maker and prior in- dorsers ; but can only recover from the scllei, on his indorsement, the amount of the purchase mon- ey, and interest thereon from the time of the pur- chase. IbiC. Editorial Notes. Bills of exchange aa articles of transfer 7:544 protection of holder of 7: 544, 550 must be holder for value 7: 551 Rights of indorsers to subrogation 7: 302 Presentment of check in time 7: 851 Notice to indorser 1: 433- Held as collateral security; rights of holder as bonafde purchaser 1:1006.2:589, 1009, 3:411 Rights of bona Ude holder 1:469,2:859,1009, 4: 99T Accommodation paper; discharge of surely 2: lOOa' Liability of accommodation indorser 2:589, 100» Negotiability of bonds and public securities 4:530' Negotiable notes of a corporation Issued as circulating medium, void 4: 780 Holder of, presumed bona fde holder 4:301 Accommodation draft 4 : 907 When void for usury 4: 9Q& Negotiable security of corporation, valid upon its face, is valid in hands of inno- cent holder without notice of its invalid- ity 5:263 Guarantor of collection should not be pur- sued till remedy at law exhausted 5:4& Transfer of non-negotiable securities 5: 1043: Chancery cannot make indorser liable as surety 4: 445- Note diverted from its purpose cannot be held for precedent debt 6:618 Equitable assignment by bill of exchange or order 6:455,3:861 Check against bank deposit not an appro- priation of the fund pro tanto 5 : 253 Presentation and acceptance of order or draft 3: 861 BOG mEADOWS. See Drainage Acts. 48 BONA FIUE PURCHASER— BORROWER. BONA FIDE PURCHASER. *ee also Bills and Notes, V.; Insolvenct and Assignment fob Ceeditobs, 63, 63 ; Judicial Sale, 31 ; Landlord and Tenant, 2, 8; Mort- gage, 124, 127, 133, 440 ; PLEADiNO,ni. e, 2; Sale; Vendor and Purchaser, IV. b. 1. It is not necessary that an actual payment should he made. In order to protect a purchaser, except where there is a prior equity which is in- jured or affected by the lepral title acquired by the purchaser. As against all subsequent equities, as Trell as liens, the (riving- of securities for the price is a payment which gives to him the character of a purchaser in good faith. Starr v. Strong, 2 Sandf . Ch. 139, 1: 640 2. The ^vlng of negotiable promissory notes for the price is not of itself such a payment as will con- stitute one a bonaflde purchaser in equity. Freeman v. Demmg, 3 Sandf. Ch. 327, 7: StO 3. To complete the character of a bona fide pur- chaser in equity without notice, it is not necessary that the whole or any part of the consideration be paid at the time of the delivery or recording of the conveyance as the case may be. It suffices that it be paid before the purchaser has notice of the •prior risht. Warner v. WimUm, 1 Sandf. Ch. 430, 7: 385 4. A party, to be protected as a bona fide pur- chaser without notice, must have acquired the legal title, as well as an equitable right, to the prop- erty. Peabody v. Fentom, 3 Barb. Ch. 451, 5: 968 5. To entitle a party to the character of a btma jue j)vu?chaaer without notice of a prior right or equity, he must not only have obtained the legal title to the property, but he must have paid the purchase money, or some part thereof at least, or have parted with something of value upon the faith of such purchase, before he had notice of such pri- or right or equity. De Mott V. Starkey, 3 Barb. Ch. 403, 5: 950 6. A purchase, in consideration of a precedent ■debt or a doubtful character, made from a trustee who purchased in violation of his duty, was set aside in favor of the beneficiary. Iddings v. Bmen, i Sandf. Ch. 223, 7: 1084 BONDS. Bond on' Appeal, see Appeal, IV. d. See also Appeal; Attachment, 91; Banks and Banking, 5, 6; Equity, 89, 90 ; Executors and Administrators; Guardian and Ward, IV.; Injunction, II. d; Interest, 8, 9; Ne Exeat, 3, 10, 11; Officers. 1. A bond or specialty is not considered as a mere voluntary agreement, but as importing a valu- ■able consideration: and the bond creditor may come into the court of chancery to enforce payment of it out of assets. Berg v. BadcUff. 6 Johns. Ch. 302, 8:138 2. As between the obligors and obligee in a joint and several bond, all the obligors are principal Klebtors, though, as between each other, they may have the rights and remedies resulting from the relation of principal and surety. Ibid. 3. The penalty in a bond is looked upon as the debt. Mower v. Kip, 2 Bdw. Ch. 165, 6:354 4. The penalty of a bond cannot be made to cover any other debt or demand than that mentioned in the condition. Troup V. Wood, 4 Johns. Ch. 228, 1: 833 5. Upon a money bond given by a principal debtor, the obligor is both legally and equitably liable for the whole amount of the principal and interest secured by the condition of the bond, although such amount exceeds thepenalty of the bond. Mower v. Kip, 6 Paige Ch. 88, 3: 910 6. As a general rule, the surety In a bond is not li- able beyond the amount of the penalty, although the principal and interest due by the condition of the bond exceeds that amount. But it seems that interest by way of damages for the detention of the debt during the time the defendant delays its collection by an improper or protracted litigation jnay be recovered even as against a surety. Ibid. 7. Mere secrecy in the manner of giving volim- tary bonds is not enough to impeach them. Isenhart v. Brawn, 2 Edw. Ch. 341, 6: 423 8. Konds and covenants which have been fairly miide aiia are fouuaeu upon sufficient considera- tion, but have become defective or unavailable at law, will be sustained in equity. Noah V. Webb, 1 Edw. Ch. 604, 6: 868 9. It seems that if a part of the consideration of a )ond for the payment of money is good, and anoth- er part of the consideration is illegal by the princi- ples of the common law, as being against public policy, but is not made illegal by statute, the bond is valid. Jarvis v. Peck, 10 Paige Ch. 118, 4: 910 10. The provisions of the 172d Eule of the court of chancery apply to all cases in which an ofiScer of the court is directed to approve of sureties, either under a special order of the court or by virtue of any of its general rules. Carroll v. Sand, 10 Paige Ch. 298, 4: 985 11. Chancery will relieve an obligor from a bond upon clear evidence of the acts and declarations of a deceased obligee and where they amount to a relinquishment of intention to exact payment. Clark V. Bogardm, 2 Edw. Ch. 387, 6: 439 12. A party who claims to have a bond or cove- nant given up should clearly show, not only that the instrument is void in law and can never be enforced, but also that in equity it never ought to be made use of or enforced. Noah V. Webb, 1 Edw. Ch. 604, 6: 268 13. Although custom-house bonds lay over, and .judgments are obtained upon them, yet the debtor is entitled in equity to a set-off upon debentures connected with such bonds from the time they are due, and the interest is only to run from that period upon the balance of the bonds. Jone« V. Moore, 1 Edw. Ch. 632, 6: 273 14. A bill by a bond creditor upon a joint and sev- eral bond will be sustained against the heirs and devisees of a deceased obligor, although filed before the legal remedy has been exhausted against the surviving obligor. It is only necessary to make the latter a party. Valentine v. FarringUm, 2 Edw. Ch. 53, 6: 305 15. The right to proceed at law upon a bond against both priticipal and surety is not taken away under the Revised Statutes by the creditor also holding a rnnrtjrage. Loud V. Sergeant, 1 Bdw. Ch. 184, 6: 98 16. The life and flre bonds issued by the Life & Fire Insurance Company are null and void. Attomey-Oeneral v. I/lfe & Fire Ins. Co. 2 Ch. Sent. 11. ' 5: 1088 Editobiai, Notes. Negotiabillly of bonds and public securities 4:530 Cancellation of Joint and several; obligors all debtors Diligence required of obligee 6: 26;i principal 2: 132 7:303 BOOKS AND PAPERS. See Evidence, IV.; Principal and Agent, 37; Production and Inspection op Books. Editorial Note. Recovery of possession of books of corre- spondence 7: 41 BORROWER. Editorial Note. Borrower; term in statute against usury de- fined 8: 262, 4: 1099 BOUNDARIES— CANCELING INSTRUMENTS. 49 BOUNDARIES. See also Wateks and Watercourses, II. a. 1. A conveyance of land, or contract for Its sale, IS to be coQSirued by its Uistinct ana visible boun- daries and monuments as marked or appearing on the land, In preference to quantity, map, or a refer- ence to a previous deerl. Allerton v. Johnson, 3 Sandf. Ch. 72, 7: 775 2. As a general rule, a grant of land bounded on tidewater extends only to high-water mark. Wixmall v. Ball, 3 Paige Ch. 313, 3: 168 3. Where commissioners appointed by a statute to survey and divide a tract uf laud run out and marked the boundary of one of the divisions on the land itself, at. a distance of ten chains from the place where they laid it down and described it aa being situated on their map and field notes, the di- vision is limited to the line actually marked by the 'Commissiouers, and cannot be extended to the line ip+ended as shown by the mnD._ Voorlms r. De Myer, 3 Sandf. Ch. 614, 7:976 4. Form of a decree for ascertaining and settling the boutidaries of two adjoining mill lots, and the erections thereon. WelU V. Chapman, 4 Sandf. Ch. 312, 7: 1116 5. Where one of the lines of a lot was described as running in a particular direction, a certain number of chains and links, to a stake and stones standing in the northwest comer of the east moiety of lot No. 8, and neither the stake and stones nor the place where they originally were could be ascer- tained,— HeM, that the next most certain call in the deed was for the northwest corner of the east moiety of lot No. 8, which call must prevail over the distance described in the deed, if they did not agree. Oudney v. Early, 4 Paige Ch. 209, 3: 406 Editorial Note. Boundary; description indeed; monuments control 3: 406 BRIDGES. ■See also Corpobations, 18, 29 ; Injunction, 188. 1. The building of a bridge across the Mohawk River at the city of Schenectady by the railroad company, and the transportation of passengers across the river on such bridge in the railroad oars, in the ordinary course of business, of conveying travelers upon the railroad, is not an infringement of the chartered rights of the Mohawk Bridge Com- pany. Mohawk Bridge Co. v. Utiea & S. B. B. Co. 6 Paige Ch. 554, 3: 10§9 2. Where an Act of the Legislature incorporat- ing a bridge company left it to the discretion of the oommissioners appointed by such Act, either to purchase and repair an existing bridge,or to erect a new one at some other point on the river, the court of chancery had no power to control the exercise of that discretion, in the absence of proof that it had been exercised corruptly or dishonestly by the commissioners. Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 547, 6: 489 EDiTORiAii Note. Bridge and ferry francliises 1:797, 2:837,7:980 BRIEFS. See Costs, III. 1. BROKERS. See also Principal and Agent, 48. Where a broker, requested to purchase stocks procures fetccks from a tiolder theri-ot to be paid for in cash, and delivers them on the same condi- tion to his employer, the owner of the stocks is the seller, and the person ordering them is the pur- chaser. The broker has no interest in the stocks in either capacity. Hays V. Currie, 3 Sandf. Ch. 585, 7: 966 BROOKLYN. See Municipal Corporations, 7. BUFFALO. See Commissioner of Deeds, 2. BUILDINGS. See Municipal Corporations. BURDEN OF PROOF. See Evidence, II. BURIAL. See Deceased Persons. BURIAL GROUND. See Cemetery, c. CALENDAR. I Appeal, 216-218 ; Practice, VI. a. CANALS. Editorial Note. Canal commissioners cannot delegate au- thority 2: 306 Ch. Dig. CANCELING INSTRUSIENTS. See also Bonds, 12 ; Contracts, V. A void instrument ought not to remain where the pleadings allow the court to annul it. But equity wiU first see that no person, not a party, can sustain a claim on it ; for in that case the course will be a perpetual injunction against those who are parlies. McEvers v. Lawrence, Hoff. Ch. 172, 6: 1106 50 CAPITAL STOCK— CHANCELLOR AND VICE CHANCELLOR. CAPITAL STOCK. See Banks and Bai. king, II. ; Cobpobations, IV. CARRIERS. See also Bailboads, L 1. The privilege of maMng a railroad and taking tolls thereon, when granted to an individual or a company, is a franchise. The public have an inter- est in the use of the road, and the owners of the franchise are liable to respond in damages, if they refuse to transport an individual or his property upon such road, without any reasonable excuse, upon being paid the usual rate of fare. Beekiman v. Saratoga & S. B. Co. 3 Paige Ch. 45, 3:50 2. The Legislature may regulate the use of the franchise and limit the amount of the tolls, unless they have deprived themselves of that power by a legislative contract with the owners of the road. ISid. CATTLE. See I/ANDI.OBD AND TENANT, 4, 5, CEMETERY. 1. The sepulture of friends and relatives in a cemetery belonging to a religious society confers no right or title upon the survivors, and they can- not prevent the sale of such cemetery by the cor- poration and the removal of the interred remains, where such removal is in other respects conducted according to law. WvnM V. German Bef. Church, i Sandf . Ch. 471, 7: 1176 2. The payment of fees and charges to the cor- poration or its officers, upon interments, gives no title to the land occupied by the body interred. The payment confers the pri^Tlege of sepulture for the body in the mode used and permitted by the corporation ; the right to have the same remain un- disturbed as long as shall be required for the entire decomposition of such remains, provided the ceme- tery shall so long continue to be used as such ; and the right, in case the cemetery shall be sold for secular purposes, to have such remains removed and properly deposited in a new place of sepiilture. Ibid. 3. The conveyance of vaults or burying lots in a cemetery by a religious incorporation confei's a Serf ect right of property on the grantee, indepen- ent of any use of the same for sepulture. Aid. 4. Where a religious corporation has received a fee of the prouna on which, the church stands and of the graveyard adjoining, subject only to the keeping the whole to pious uses, snob religious cor- poration can grant any length of lease or a fee of a portion of the ground for vaults. The grantees will thereby get a fee ; and the property cannot be sold while they object to it. Be Brtck Preatruterian Church, 3 Edw. Ch. 155, 6: 607 Editoriai, Note. Cemetery; rights of purchasers of lots 7:1175 CERTIFICATE. Of Probable Cause, See Appeal, 136-138. See also Ackhowi-edgment ; Evidekce, IV. b. CERTIORARI. 1. A certiorari is no supersedeas to an execution already executed. People V. Goodftue, 2 Johns. Ch. 200, 1:347 2. Illegality in the proceedings upon assessments for the purpose of regulating and improving' streets in the city of New York may be corrected by a certiorari to the supreme court. Whitney v. Mayor of New York, 1 Paige Ch. 548,. Si 74& CHAMPERTY. See also Attorney and Solicitob, 11-13, 70-76 r Deed, 35; Maintenahce. L An assignment for benefit of creditors by a mort- ^agui", (ji-uuiiji< a buib Lo redeem troui a ujortgagee in possession who claimed title absolutely of the sub- ject-matter of the suit, is not within the provisions of the Kevised Statutes against champerty. Barst V. Boyd, 3 Sandf .Ch. 501, 7:935 2. A fair and honaflde purchase of a chose in ac- tion. In the ordinary course of trade or business, or for the purpose of securing an antecedent debt, is notunlawfuL _ , „ Ward V. Van Bokkelen, 2 Paige Ch. 289, 8: 911 3. But the purchase of a mere foundation of an action by a party who has no interest in the con- troversy, with the express object of commencing a suit thereon, and for the purpose of harassing a de- fendant or of speculating out of the litigation, is illegal ; and a court of equity will not sustain a suit in favor of such purchaser. ibid. 4. Where D assigned all his claim and right of action for a certain quantity of wine againgt A to S, in trust for the creditors of D, and P, an attor- ney, who had acquired a knowledge of the grounds of the claim from I) and S, as attorney, purchased the right of action of S, who supposed it desperate, for a trifling consideration, and then prosecute* the suit for his own benefit, and recovered judg- ment for the whole amount, — the agreement and assignment were held unlawful ana void, on the ground of champerty, even though P might be a creditor of D : and, on S refunding to P the con- sideration paid by him for the assignment, a per- petual injunction was awarded, prohibiting P, or any nerson for his use, from enforcing the judg- ment at law against A. Ard«n v. Patterson, 5 Johns. Ch. 44, 1: 100* Editobial Notes. Champerty; contracts with attorney 1:1003, 6:1194 Assisting the poor, not maintenaiice 6:1194, 1:699 CHANCELLOR AND VICE-CHAN- CELLOR. See also Acknowledgment, 14 ; Judgment, 376. 1. The chancellor, being a stockholder in a cor- poration, cannot do any judicial act in a cause io which that corporation is a party, although he is notpersonally a party to the record. Washington j-ii^. Co. v. Price, Hopk. Ch. 1, 8: 321 2. In such case the cause is to be heard before the chief justice sitting in equity. Ibid. 3. The chancellor is bound to hear an appeal, even where a near relative is personally interested therein. Be iee/e's Petition, 2 Barb. Ch.39, 5: 548. S. C. 5 Ch. Sent. 41, 5: 1180 4. The provision of the statute prohibiting any judge from sitting, where he is related to eicuer of the parties, is controlled by the Constitution as the paramount law. Itnd^ 5. A vice-chancellor may appoint his son a com- mittee of a lunatic, and hear and decide his appli- cation in behEilt of the lunatic or his estate; the committee is only an officer of the court, and has- no personal interest in the questions to be decided- He Hoppers, 5 Paige Ch. 489, 3: 79» 6. The provisions of the Revised Statutes do not extend to a case where the relative of the judge i» only a formal party to the suit or proceeding and has no pereonal interest in the subject-matter or io the decision. Ibid. 7. When a summary proceeding has been com- CHANCELLOR AND VICE CHANCELLOR. 51 menced and is pending before a vioc-ohanccllor, who has thus obtained jurisdiction of the case, the chancellor will not proceed upon an original peti- tion in relation to the same matter. Be Beceioers of Globe Int. Co. 6 Falgre Ch. 108. 3:916 8. If the vloe-chanoeUor, before whom a cause is pending, has been solicitor or counsel for one of the parties, application may be made directly to ' 1 chancellor upon an interlocutory matter. Jenkins v. Hinman, 5 Paige Ch. 309, 3: 730 9. Where a suit comes up by an appeal from a vice-chancellor, if the present vice-ciiancellor of the circuit from which the suit came was originally of counsel in the cause, the suit will be retained by the chancellor. Souzer v. De Meyer, 2 Paige Ch. 575, 8: 1035 10. In a suit against a corporation, where the bill was addressed tu tue chancellor, returnable before a vice-chancellor, in which corporation, after filing of the bill, the chancellor becomes a stockholder, no appeal lies from an order or decree of the vice- chancellor to the chancellor. In such case, the chancellor, by reason of his interest as a stock- holder, is legally incapacitated from acting as judge; and an appeal lies only from the vice-chan- cellor to the court for the correction of errors. If, in such case, an appeal is taken from the vioe- chanceUor to the chancellor, and the chancellor makes an order upon such appeal, it is the duty of the vice-chancellor to disregard such order. Con- sequently when an order in such cause was made by a vice-chancellor, denying a motion to open f)roofs therein, which, upon appeal to the chancel- or, was reversed and new proofs admitted, the vice-chancellor should suppress such new proofs upon the hearing before him. And in this the vicC'Chancellor does not " discharge, reverse, or alter" any order of the chancellor, because the or- der made by the chancellor is a nullity, on the ground of his interest in the corporation. Jewett V. Albany (My Bank, Qarke Ch. 179, 7:85 11. Practice, under the Revised Statutes, as to romoTing causes from a vice-chancellor to the chan- cellor before hearing, and as to referring causes and motions to a vice-chancellor for his decisions. Ajmes V. Blunt, 2 Paige Ch. 94, 3:837 13. If a cause commenced before a vice-chan- cellor is directed to be heard by the chancellor, the whole cause is before the chancellor; and all orders and decrees thereafter made by him are to be en- tered with the register or assistant register. Ibid. 13. Where the chancellor holds a term of the vice-chancellor's court, the orders and decrees made by him are to be entered with the clerk of the vice- cliancellor. Ibid. 14. Where the vice-chancellor has been counsel in a cause pending before him. or is otherwise le- gally incompetent to decide the same, or any mo- tion or petition in the cause, the chancellor may direct the same to be heard before himself, or he may refer the same to the vice-chancellor of any other circuit. Ibio. 15. When a cause pending before the chancellor is in readiness for a hearing, either party may apply for leave to have it heard before a vice-chancellor. IbleU 16. The petition for such reference should state the situanon of the cause ; and notice of the appli- cation must be given to the adverse party. Ibid. 17. If a greater number of causes are placed on the calendar of the chancellor, or submitted to him, than he can hear and decide, he will, without any application from either party, refer such causes as he thinks proper to the ylce-chancellois. ibid. 18. Principles on which selections of causes for the decision of ^ice-chancellors will be made. Ibid. 19. Where the order referring a cause to a vice- chancellor to hear and decide the same is general, the whole cause is before him, and all subsequent orders and proceedings therein are to be made and had before the vice-chancellor. Ibid. 20. Where some particular motion or branch of a cause only is referred to a vice-chancellor, the general proceedings in the cause must continue to be had before the chancellor. Ibid, 21. If a special motion or other special applica- tion is referred to a vice-chancellor tor his decision, the chancellor may at the same time direct that aU other proceedings and questions in the cause be had and heard before such vice-chancellor. JbM.95, 3:887 22. A vloe-ohauoeUor ought not to approve an ap- peal bond upon the appeal of a party'for whom he was solicitor or counsel in reference to the subject- matter of the appeal, previous to his appointment to office. Ten Eiah v. Simpson, 11 Paige Ch. 177, 5: 98 23. After a decree has been made by the chancellor' It is not competent for any vice-chancellor to make any order or decree which would directly or indi- rectly discharge, alter, or modify the same. QreeniirUihBank v. ioomte, 2 Sandf. Ch. 70, 7: 513 24. Held, accordingly, where, after a decree of f ore- uiueiuru auu sale uuutiued by ueiault la a mortgage suit before the chancellor, a purchaser pendente lite of the lands mortgaged filed a bill before a vice-chancellor, praying for an adjudication that the mortgage never was a lien, or it it were that it belonged to such purchaser, and that the defendant in such suit, from whom he bought, had a claim to the lands prior to tlie mortgage. Ibid. 25. Where an appeal is taken from the order of a vice-chancellor dissolving a preliminary injunction, an application to revive the injunction, after ap- peal and after proofs are taken, is properly made to the vice-chancellor, and not to the chancellor. Jewett V. Albany Otty Bank, Clarke Ch. 59, 7:51 26. A vice-chancellor has jurisdiction to determine any question relating to fees or commissions claimed by the clerk of the court. Be Post, 3 Edw. Ch. 365, 6: 691 27. A vice-chancellor has no power to make orders in suits pending before the chancellor except for al- lowance of an injunction or ne exeaL Edwards v. Bodine, 8 Ch. Sent. 25, 5: 1108 28. The vice-chancellor will not, by-order, inter- fere with the effect of any decree pronounced by the assistant vice-chancellor, ^stor V. Ward, 3 Edw. Ch. 371, 6: 693 29. Vice-chancellors have no jurisdiction to hear appeals from surrogates in any case. And an order of the chancellor referring an appeal of that nature to a vice-chancellor will not confer any jurisdiction upon the latter. Spear v. Tinkham, 2 Barb. Ch. 105, 5: 575 30. To give a vice-chancellor concurrent jurisdic- tion with the chanceliur, the cause or matter for which the suit wits brought must have arisen within the circuit of such vice-chancellor; or the subject> matter in controversy must be situated within that circuit at the time of the commencement of the suit; or the defendants or parties proceeded against, or some of them, must be residents of such circuit at that time. Brown v. Brown, 1 Barb. Ch. 189, 6: 349 S. C. 5 Ch. Sent. 44, 5: 1181 31. To give a vice-chancellor jurisdiction on the ground that the subject-tiiatter in controversy is within his circuit, so much of the subject-matter must be situate within the circuit as to enable the vice-chancellor to make a decree which will do sub- stantial justice between the parties, with respect to that part of the subject in controversy to which his jurisdiction extends. And where that cannot be done, the bill must be filed before the chancellor, who has general jurisdiction, or before some vice- chancellor who, by reason of the residence of the defendants in bis circuit, or otherwise, has jurisdic- tion to make a decree relative to the whole matter. Ibid. 32. It seems that the legislature, in apportioning the equity jurisdiction among the vice-oiiancellors, did not intend that in cases where the whole matter .n controversy could not properly be litigated in different suits before the chancellor, separate sulta in relation to different parts thereof might be brought before the several vice-chancellors within whose respective circuits such different parts of the ■ibject-matter of the suit were situated. Ibid. 33. In a suit commenced before a vice-ohancelloi who has no jurisdiction of the parties or of the sub- ject-matter, he has no authority to make an order permitting the plaintiff to amend his bill by adding proper parties residing within the jurisdiction. The court can make no order whatever, in a suit so situated. Cromwen v. Ownninglmm, 4 Sandf. Ch. 884, 34. It is not a good plea to the jurisdiction of a vice-chancellor, in a suit upon a creditors' bill, that CHANCERY— CHARITABLE USES. Barih of Orleans v. Skinner, 9 Paige Ch. 305, 4: 7 53 the defendant was not a resident of the circuit at the time of the filing of the complainant's bill, where it appears that the judgment was recovered and the record filed in that circuit, and that the ex- ecution was issued and returned and filed there, and that the defendant resided there at the tune such execution was issued. VaricH v. Dodge, 9 Paige Ch. U9, 4: 644 35. Where a judgment creditor filed a bill before a vice-chanoeUor, against the assignees of their debtors, charging such assignees with a violation of their trust ; and it did not appear by the bill that either of the defendants lived within the circuit of such vice-chancellor, or that the assignment was made within that circuit, or that any of the prop- erty assigned was situated within the circuit, — Held,- that the vice-chancellor had not jurisdiction of the case, although the judgment in favor of the complainant was entered and docketed in the cir- cuit of such vice-chancellor, and the note upon which the judgment was obtained was made payable at^ bsiok which was also situated In that circuit. 11 36. Where an action is commenced in this State upon a foreign judgment, and a bill is filed in the court of chancery to restrain the proceedings in such action upon the ground that the judgment was recovered by fraud, the commencement of the action at law in this State, 1£ any cause of equitable jurisdiction exists, constitutes the cause of a suit in the court of chancery, so as to give to the vice- chancellor of the circuit within which such action was commenced jurisdiction of the suit in equity. BUHtnell v. Field, 8 Paige Ch. «0, 4: 495 37. Where a decree is made by the assistant vice- chancellor, and is entered with the clerk of the cir- cuit in which the court is held by him, the subse- quent proceedings upon such decree are under the direction and control of the vice-chancellor of that circuit. Russell V. Kinney, 10 Paige Ch. 315, 4: 991 38. Where a cause pending before a vice-chancellor is in readiness for hearing, but cannot be heard be- cause such vice-chancellor before his appointment had been counsel in the cause, the chancellor, upon application to him, may direct the cause to be heard before any other vice-chancellor, at a stated term of his court ; and in such case the decree must be entered with the clerk of the circuit where the suit was pending ; the name of the vice-chancellor be- fore whom the cause was heard being inserted in the caption of the decree, instead of the name of the vice-chancellor of that circuit. Whitney v. Post, 8 Paige Ch. 36, 4: 334 39. The functions of the circuit judge of the Li^iiiU uircuit as vice-chancellor expired on May 1, ]839, and no decision could properly be expected from him of any question pending before him, after th-T- time. Hastings v. Palmer, Clarke Ch. 52, 7: 49 40. it would seem that where a party resides in the Seventh Circuit, and buys goods in New Jfork, and gives an indorser, who also resides in the Sev- enth Circuit, and the goods are sent to the party (at his aforesaid residence), a suit in equity relating to the note given for the goods should be brought be- fore the vice-chancellor of the Seventh Circuit or the chancellor, and not before the vice-chancellor of the First Circuit. Phelps V. Garrcrw, 3 Ekiw. Ch. 139, 6: 601 CHANCERY. See Equitt. CHARACTER. See Evidence, X. v. CHARITABLE USES. See also Pebpetuities, 1, 2. 1. The English Statute of Uses, Z! Henry vm., did not apply to public uses or charities. Shotwea V. Mott, 2 S. 46, 7: 501 i. The Revised Statutes relative to uses and trusts do not apply to charitable uses. Ibid, 3. The Statute of Elizabeth relative to charitable uses was never m force iti the State of New lurk. But independent of that statute the court of chan- cery had an original jTirisdiction to enforce and compel the performance of trusts for pious and charitable uses, when the devise or conveyance in trust was made to a trustee capable of taking the legal ostHte. Dutch Church in Garden Street v. Mott, 7 PaigJ Ch. 77, *= "' i. Whether the court of chancery of this State in its administration of charities under its common- law powers (for there are no statutes of charitable uses or mortmain in this State), will give effect to a bequest or gift indefinite, where neither a trustee nor the objects of the charity are designated, is still an open question. The court was Inclined to con- sider the weight of authority in favor of recogniz- ing the Bnglisb law of charitable uses which allows them; and consequently, allowed agift to a charity where the bequest was not to a trustee, but imme- diate to an unincorporated voluntary association, the Home Missionary Society, to be paid upon the receipt of its treasurer for the time being, though the object of the bequest was not specified; nor were any purposes specified to which the money was to be applied. However, it appeared that the testatrix knew the objects of the society and the charitable purposes for which it was formed, she being a member of it for lite. „ --- King v. WoodhuU, 3 Bdw. Ch. 79, 6: 578 5. Oiaritable uses were bestowed in England, and were recognized by law, before the Norman Con- quest ; and they were always fostered and protected By the common law. They were subject to the ju- risdiction of the court of chancery long before the Statute of Charitable Uses, 43 Elizabeth ; and this, whether the trustees were « cnrnnration or indi- viduals, and whether the gift was to trustees by tirme or a definite and specific object without naming trustees. „ ShotwOl v. Jlfott , 2 Sandf. Ch. 46, 7: 501 6. A bequest for the benefit of poor ministers of a specinea religious denomination is valid, though it does not appoint the trustees of the fund. And it is competent for the testator to empower the executors and trustees of his will to designate the first trustees of such fund. If it were otherwise, the trust would remain and the court of chancery would appoint the trustees. ibid. 7 A bequest for the ministers of the New York irearly Meeting of Friends called Orthodox, wno are in limited and straitened circumstances, is not too vague or uncertain, or too indetluite m its ob- jects. So of a bequest for the relief of such indi- gent residents of the town of riushing as the trustee or trustees of the town for the time be iig should select. Both gifts were held to be v^d. 8. Where a bequest is given to a seminary or charitable iustituiiuii li.» iiiiiiie. which is only a de- scriptive name of a particular institution or charity established and conducted by an incorporated col- lege or society, it is a valid legacy to such corpora- tion, to be applied in respect of the institution designated. _ HarribecK v. American Bible Soe. 2 S. 133, 7: 537 9. An abbreviation of the name of the society in- tended does not vitiate the legacy ; and resort may be had to a prefix applied to another society, and occurring in the same sentence, to complete the designation. ibid. 10. A bequest to the free school of a church, the Interest of which was to be appropriated by the trustees of the church for the use of the school for- ever, and, if the school should not continue, then tor the use of the church,— Held, to be a valid leg- acy. Newcomb v. S(. Peter's Church, 2 S. 636, 7: 737 11. Where the inhabitants of a village, previous to the Act for the organization of school districts, con- tributed by voluntary donations to a fund for the erection of a schoolhouse for the use of the neigh- borhood, and the schoolhouse was subsequently destroyed by the British troops, and Congress after- wards passed an Act to remunerate those whose property was thus destroyed ; and previous to the passage of such Act the vulage where such school- house had been erected was incorporated into a school district; the fund afterwards received under that Act belonged to such school distiict, and not to the original contributors to the fund. Potter V. Chapin, 6 Paige Ch. 639, 3: 1135 12. The school district having been divided into CHARITABLE USES. 53 two districts before the receipt of the money from the United States, the fund belonged to both dis- tnots In proportion to the taxable property in each at the time of the division. n>id. 13. The court of chancery will sustain a gift or be- quest or dedication of personal property'to puhlio or charitable uses, it the same is not inconsistent with local law or public policy, and where the ob- ject of such gift or dedication is specific and calla- ble of being carried into effect according to the In- tention of the donor. Ibid. 14. Whether a devise or gift of real estate for pub- lic or charitable uses is vand, where the legal title is not vested in someone capable of taking and hold- ing real estate for the purposes of the charity ac- cording to the provisions of the Revised Statutes, —gucere. Ibid. 15. Bequests for charitable purposes to unincorpo- rated societies are susiauied where the obKcc is corkipetent and is desiguaied or may be clearly as- certainpd. Hornbeck v. American Bible Soc. 2 Sandf. Ch. 133, 7: 537 16. Where the owner of a lot granted the same to certain persons and to their heirs and assigns forev- er, to have and to hold upon trust for the benefit of certam persons named, members of the St. George's liOdge of Free Masons, and all others who then were or thereafter might become members of such lodge, their survivors and successors forever, and for no other use, intent, or purpose whatsoever,— the members of the lodge could not, as a lodge or society of free masons, take the legal title in the premises as an executed trust, under the Statute of Uses, but they could take a beneficial interest in the property as a charitable use. TanOerbolgen v. Tales, 3 Barb. Ch. 242, 6: 888 17. A legacy of a sum of money to a town, for the purpose of erecting a towu mmse lor the trans- acting of public business, is valid as a charitable benuesti Cosaesftan V. Pclfon, 7 Johns. Ch. 293, 3:897 18. Under the former Statute of WiUs, a devise to trustees for a corporation was valid, and iuso a de- vise to sell lands and pay over the proceeds. Held, that notwittistanding the probable views of the re- visers, the present statute has not varied the rule and exposition of the old Act; that the exception in the old Act wa' as operative a prohibition as the provision of the new; and that the Statute of Wills alone does not avoid a devise to a competent person for a corporation, nor preclude it from taking the avails of land devised to such person to be sold. WrigM v. TrvMees of M. E. Church, Hoft. Ch. 202, 6: 1115 19. Under the Statute of Uses and Trusts, If a de- vise is made to a person to receive the rents and pay them to the corporation, or for its use (which would not be one of the permitted trusts), the in- terest or estate would vest directly in the corpora- tion, and thus be void. (Jitore, if there is any exception of charitable corporations. The 56th sec- tion of the Statute of Uses applies to a naked power given to executors to sell, as well as to a devise di- rectly to them to sell, which is converted by the section into a power in trust, they not being enti- tled to the rents. Ibid, 20. One of the legatees of the residue under a will was " The Yearly Meeting of Friends in New York." This was a voluntary unincorporated society, and was proven to be composed of members of tne So- ciety of Friends living in Vermont, New York, part of Massachusetts, and Upper Canada. Held, that the bequest was vaUd, and psmnent could be made to the treasurer or clerk in oiflee at the time. Ibid. 21. B, having purchased a church edifice at a pub- lic sale, in Ins own behait, conveyed it to an mcoi- porated Lutheran church which had another placr of worship, for a consideration equal to three fourths of its value, on certain express conditions, uf which one was that divine service therein should be in the English language. After a trial by the grantees in the maintenance of such service, which did not prosper, B released them from all the con- ditions except the one requiring it to be used as a Lutheran church. Held, tnat on the execution of the deed, there were no cesluis qxie trust in existence or expectancy; but that it created a charitable use, the fund for which flowed from B and the corpo- ration as donors, and the latter were the almoners of the charity. Cammeyer v. TTnited Oerman Lutheran Chwrches, 2 Sandf. Ch. 186, 7: 558 22. Joint contributtors to a charity, vesing the fund in one of their number, may revoke the charily ur alter its terms and conditions. tbiil. 23. The conveyance to certain individuals, of the site of the Dutch Church in Garden Street, in tiie city of Now York, in 1691, in trust for the use of the ministers, elders, and deacons of such church .and their successors, and to have a house of public worship erected thereon, and for no other use what- ever, was a valid conveyance at the common law to a charitable and pious use; and the court of chan- cery has original jurisdiction to enforce the per- formance of the trust. No violation of the trust upon which the property was conveyed, therefore, can have the effect to revest either the legal or equitable title to the property in the heirs of the original grantor. Dutch Church im. Garden Street v. Mott, 1 Paige Ch. 77, 4: 67 M. The court has power to remove trustees of religious cliaiities wuo are guilty of a breach of trust, and direct the election of others, excluding as incompetent the guilty trustees and their adher- ents in the preverted use of the trust funds. Kniskem v. T.vfheirnn (ThiircJim. 1 S. 43)0. 7: 388 25. The jurisdiction of courts of equity, in cases of charities directed to religious purposes, proceeas upon the ground of a trust. In such charities, as well as in those for purposes purel.v civil, it is the duty of the courts to give effect to the intent of the founder, if that be legal. To that end, their aim is to ascertain the scope and objects of the charity, and then to enforce its proper and faithful admin- istration, ibid. 26. The difficulties which environ the subject of religious charities, arising from the lapse of time since the foundation, and from the subtleties in- volved in the alleged perversion of the trust, are not permitted to prevent the proper exercise of this jurisdiction. Ihid. 27. The jurisdiction which chancery has over trusts majr be exercised over the property or temporalities of religious societies (whether in- corporated or not) as being trust property ; and equity will see the trusts faithfully performed. Bawden v. McLeod, 1 Bdw. Ch. 588, 6: 257 28. The court of chancery in this State has not, un- der the statute relative to corporations, any visito- rial power over religious corporations. But it re- tains the common-law jurisdiction of clianoery over the subject of charitable uses, which existed prior to the Statute (43 Eliz. chap. 4) of Charitable Uses, and continued independently of that statute. Kniskem v. LutTuiran Churches, 1 S. 439, 7: 388 Editorial Notes. Charitable uses and trusts; iurisdiction in courts of equity 6 : 578, 3 : 1 1 3.=> In general 4: 68, 69 Origin and antiquity of chancery jurisdic- tion 4: 67 Sustaining charitable gifts; general principles 4: 72 Object of charity cannot be changed 4; 73 Change of object from necessity 4: 73 from lapse of time 4: 73 Uncertainty in objects of charity 4: 73 as to beneficiaries 4: 73, 7: 537 Where the object is not in esse 4: 73 Where the particular mode fails 4: 72 Statute of Elizabeth 4: 67 Bequests to unincorporated societies 6: 1115, 1093 Gift to corporation 3: 497 Bequests to charitable associations, valid 7: 537, 3: 1135 Grant to trustees for religious uses and pur- poses 7: 388 Gifts and dedication to charities 7; 501 Public charities; what constitute 7.501 Gift for school purposes 3: 1135 Bequests for pious uses favored in law 7: 50 54 CHARTERED INSTITUTIONS -CLOUD ON TITLE. Original intention of grantor to govern 7: 388. 4: 72 Direction in will for distribution 7: 501 Doctrine of ey pres 2: 398, 3: 676, 1082, 4: 70 Prerogative branch 4: 70 Doctrine not in force in this State 4: 71 at variance with the institutions of this country 4: 71 CHARTERED INSTITUTIONS. See Banks and Banking ; Corpoeations, IL CHATTEL KORTGAGE. See MoRTGAOE. CHECK. 1. The presentment of a check the nezt day after It IS drawn is in time, where the parties reside in the same town where it is payable. KdbU V. DnderTiiU, 3 Sandl. Ch. 377, 7: 851 a. Priority in the drawinp of a bank check doe* not give the holder a rigrht to preference in pay- ment out of funds of the drawer on deposit. Dykers v. Leather Mfrs. Batik, 11 Paige Ch. 612, S. 0. 5 Ch. Sent. 10. 5?1167 c^ck^does^ot-X'ct'^&ri^^^^^^ CHILD. See also Bastardt ; Descent and Distrtbittton ■ m^^t"?^ K°™ °^^' ^*^'' conception, tt it is subse- quently born ahveand so far advanced towa^ maturity as to be capable of Uvine iToonSdfiJS? ^4?,^* from the tiSie of its concfptfoS whe?^t Hone V. Fan Scftaicfc, 3 Barb. Ch. 488, 5:983 Editobial Notb. Child; when in esse 8:336 CHOSE IN ACTION. See Assignment. CHURCH ASSOCIATIONS. See Keligious Societies. CIRCUIT COURT. See CouBTS ; Kemovai, of Causes. CITATION. See Writ and Process, 22. CITIES. See MuNioiPAi, Corporations. CITIZEN. See also AijIens ; CONSTirnrioNAij Law, L A citizen of one State becomes a citizen of any other State when he makes such other State the place of his actual residence. Rogers v. Rogers, 1 Paige Ch. 183, 2: 609 Editobial Note. Citizenship; acquired by birth 7:443 CIVILITER MORTUUS. 1. A person convicted of felony, and sentenced to imprisonment in the State prison for life, is etmOiUr mortuus. Troup V. Wooi, 4 Johns. Ch. 228, 1: 883 2. Writs of scire facias directed to a person con- victed of felony and seiitenued to imprisonment in the State prison for Ufe, to revive a Judgment against him, and niM returned thereon, can have no legal operation or effect whatever; for such con- vict being regarded as civiUter mortuus, the sdrc facias must be directed to his legal representatives or terre-tenants. IbSd. 3. A person convicted and attainted of felony, and sentenced to imprisonment for life, prior to the Act of March 29, 1799 (which created a new rule), was not eivUiter mortuus, and his estate, therefore, was not devested by the sentence. Plainer v. Sherwood, 6 Johns. Ch. 118, 8: 73 Editobial Note. Party civilly dead, when 1:824, 2:73 CLAIMS. See also Executors and Administrators, 275, 276. 1. A claim is a challenge by a man of the property or ownership of a tuiug wuicli is wrongfully de- tained from him. Jcuikson V. Losee, i Sandf. Ch. 381, 7: 1143 2. The object of the law of Congress organizing the Board of Florida Commissioners was to ascertain who were entitled to indemnity against the Spanish government; not to investigate all the various equities which might arise as to the distribution of the fund awarded for any particular injury. DelaMeld v. Colden, 1 Paige Ch. 139, 3: 593 3. The decisions of commissioners appointed in ac- cordance with the terms of a treaty to award money as indemnity for injuries received under authority of foreign nations is not conclusive between the claimants as to which is entitled thereto. Varet\. New Tork Ins. Co. 7 Paige Ch. 560, 4: 375 i. Bepresentatives of the insnrp'l may flle a bill in equity to recover money paid by the govern- ment to the insurers under the award of commis- sioners appointed under the French treaty, as com- pensation for damages resulting from seizures under the Berlin and Milan decrees, although they have a concurrent remedy by action at law against the insurers for money had and received to their use. rbid CLERKS. See also Judgment, 49. L Where a guardian was directed to sell and bring infants' shares into court in bonds and mortgages made out to the clerk of the court, and he did so, the court decided that the clei-k was not entitled lo a percentajre commission on the amount of the se- curities; nor for receiving the Interest moneys; and only for paying them over. Be Post, 3 Edw. Ch. 365, 6: 691 2. County clerk's fees for searches in foreclosure cases cannot be more, under the Act of 1840, § 13, than ten cents for each conveyance or incumbrance, where the total charge amounts to fifty cents or more. Eights V. Woodvxrrth, 1 Ch. Sent. 81, 5: 1075 CLOUD ON TITLE. See also Injunction, 85. 1. The peculiar state of property, and the oppreg. COASTING TRADE-COMMERCE. 55 fllve nature of the litlgration at law as to the title, afford a proper ground for the equitable jurisdio- tinn of tniB court. NicoU V. Trustees of HuntingUm, 1 Johns. Cbi 166, 1: 101 2. And the party may either come into equity rflrtit cu uave liis aJevriod at luw liu^ox xui huumi- intendeuoe, or he may have the title estahlished at jlaw before he comes into this court ; and where the title is once established to the satisfaction of the ■court, either upon its own view of the testimony, ■or by verdict on one or more issues awarded at its discietion, it will declare in whom the rigrut exists, ^by a decree, and protect that right by a perpetual vinjunction. Ibid. 3. But if the plaintitt, from his own case, does not show enough, or fails to make out a title by ev- idr-nce. his bill will be dismissed without awardi'^r an issue. IMd. L The court of chancery has Jurisdiction to set aside a conveyance which is a cloud upon the com- plainant's title, and may also Interpose to prevent •the giving of a conveyance, under pretense of right, ■which would operate as a cloud upon the title to Pettif V. Shepherd, 5 Paige Ch. 493, 3: 801 5. Where one holding a judgment which is a hen lupon mortgaged real estate prior to the mortgage ■withdraws his execution from the sheriff's hands, in order to give other Judgment creditors whose judgments are subsequent to the mortgage a ■chance to reach the personal property, and then takes a sherlfE's deed for the mortgaged property at a sale under his judgment, the mortgagee may file a bill to remove the cloud upon his title. De Peyster v. Hildreth, 2 Barb. Ch. 109, 5: 576 6. A person claiming to be the owner of real -estate which lias been sold under an execution up- on a judgment Improperly obtained may come into ^ court of equity for the purpose of obtaining a decree to quiet his title to the premises, and to re- move the cloud therefrom. Badcliff V. Rowley, 2 Barb. Ch. 23, 6: 548 7. A proceeding which upon its face is not only lillegal. but absolutely void, does not constitute a cloud upon the title to real estate against which a ■crtnrt of eqnitv will relif'vp. Wiggxn v. New Tork, 9 Paige Ch. 16, 4: 591 8. Where a valid legal objection appears upon the -face of the proceedings through which the adverse {)arty can alone claim title to the complainant's and. there is not in law such a cloud upon the com- plainant's title as to authorize him to apply to a •court of chancery to set aside such proceedings. Van Daren v. New ForTi, 9 Paige Ch. 388, 4: 743 9. But where the claim of the adverse party to the land is valid upon the face of the proceedings - or of the instrument which the complainant seeks to set aside, as in the case of a fraudulent or usuri^ -ous deed, where the establishment of extrinsic facts is necessary to show its invalidity, the court of -chancery may interfere to remove such a cloud upon the complainant's title. Ibid, 10. Where money was loaned at a usurious rate of interest, and a bond and mortgage given to secure the loan and the usurious interest, if the mortgagor .afterwards conveys the mortgaged premises with warranty, and the assignee subsequently gives a -covenant to the lender to pay the usurious bond and mortgage, such covenant is a cloud on the as- signee's title, and he is entitled to a decree that it be • delivered up and canceled, under the Act ot Mav. 1837, for the prevention of iism-v. Cole V. Savage, 10 Paige Ch. 583, 4: 1099 11. Badcliff, in 1812, bought and had land conveyed to him by van Benthuysen, and gave a mortgage back; but did not know of two judgments against the latter. On January 21, 1821, the attorney of Van Benthuysen sold the land under the power in the mortgage without any notice, request or de- mand, and on the usual advertisement; and bought in his own name. Soon after the sale the attorney obtained control of the two judgments and sold the land, and again bought in his own name, without notice or knowledge of Hadcliff. In 1B34 a bill was filed by Van Benthuysen against the attorney, which resulted in a decree and order against the . attorney requiring him to convey to Van Benthuy- sen, but giving him a lien for any balance due to him. He conveyed on the 17th day of January, 1839. The attorney proceeded under the aforesaid - decree and order to sell for balance alleged to be . due from Van Benthuysen. Held, on a bill filed by Tthe heirs of Kadclilt to be quieted in possession, that an equity had arisen on the original purchase and covenants whereby Radclifl was entitled to be protected against the legal title conveyed by the attorney (under the decree) to Van Beutnuysen. Badcliff V. Rowley, i Edw. Ch. 646, 6: 1005 Editorial Notes. Cloud on title ; iuiisdiction to remove 1:230,380,688, 2:997, 4:744 Equity will set aside proceeding and remove 5:542 Removal of 8: 801, 979 Suit to prevent 3: 801, 979 Remedy by injunction 3: 801 When equity will not interfere 4: 745 Void proceedings, not 4: 592, 745 COASTING TRADE. See CoMUERCE. CODICIL. See Wills. COLLATERAL SECURITY. See Fi^EDGE AND Collateral SEOtmiiT. COLONIAL LAWS. See also Statutes. On the settlement of a new territory by a colony from another country, the colonists carry with them the general laws of the mother country which are applicable to the situation of the colonists, and such general laws become the laws of the colony until they are altered by common consent or by legislative enactment. Bogardus v. Trinity Church, i Paige Ch. 178, 3:394 COLOR OF TITLE. See Adverse Possession, 3, 4. COMMERCE. 1. Navigation is subject to the control of the laws of the UniT/Cd States, not directly as such, but only as an instrument of commerce, or as an object of taxation. North Biver Steamboat Co. v. lAvimgston, Hopk. Ch. 149, Z: 3^4 2. Laws of the United States, having a complex operation upon revenucj commeroe,and navigation, are to be construed with reference to the main ob- ject of those laws, under some one of the powers granted to Congress, and to the question whether they are intended as direct regulations, either of revenue or of commerce, or whether they affect either of those objects in a consequential and indi- rect manner only. Ibid. 3. Act of 1793, regulating the coasting trade, is a body of provisions resting, in some measure, upon each of tne different powers of Congress to collect duties and imposts, to regulate commerce with for- eign nations, and to regulate commerce among the ■States. Ibid. i. One great object of that law was to confine the coasting trade to vessels owned by citizens of the United States, and to exclude foreign navigation. Ibid. B. The coasting trade may be and is carried on both by registered vessels which have no license, and by vessels enrolled and licensed ; but the duties are so regulated as to confer an advantage on the latter ; and this advantage, together with the ex- clusion of foreign vessels, is the privilege intended by law in favor of hcensed vessels. Ibid. 56 COMMERCIAL PAPER— COMMON LAW. 6. The enjoyment of this privilege, the security 01 thiB touuage duty to government, and the guarding of the revenue laws against evasion, are the objects of the Irtws for the regulation of licensed vessels. But these regulations are limitations of a pre-existing right, and not a grant of any right or authority to CEtrry on the coastine trade. Ibid. 7. Eegistered vessels which have no license par- ticipate in this trade. Ibid- 8. What is the coasting trade is not in terms de- fined by tliese laws, or in the license, and tne defl- nition is only to be g^athered from the restrictions in the laws. But it is a trade, the right to which was not given by those laws : the right was perfect before, and is only regulated by them. Ibid. 9. Laws for the collection of revenue do not prive Tights except to the government. On the citizen they operate only as restrictions. Ibid, 10. The law regulating the coasting trade, consid- ered as uijcraui^j; lu cuunue tUt; ua\ jyauuu to citi- zens, and to protect the revenue, is not in conflict with the exclusive grant made by this State to Liv- ingston and Fulton, for navigating steam vessels. Those steam vessels are equally subject to the reg- ulations of the coasting trade. Ibid. 11. So far as the law regulating the coasting trade rottis upou ihe power to regulate uummerce among the States, it is inoperative as regards the internal commerce of each State ; and the exclusive grant to Livingston and Fulton, being now reduced by the decision of the Supreme Court of the United States to the limits of the purely internal com- merce, there is no longer any collision. Ibid. 12. State laws operating directly upon legitimate subject of btaieregulaiiou, but \vUiCb, at Lue same time, indirectly and consequentially affect other States, do not therefore so affect the commerce among the States as to encroach upon the powers of Congress to regulate that commerce. Ibid. 13. But if the law regulating the coasting trade Is considered as a reveuue law , it may men operate, for that purpose, upon the purely internal trade, and if it affects commerce among the States, it is only indirectly and consequentially. Ibid. iL And, thus understood, it is not incompatible with any State law ; both laws may operate upon the trade at the same time, and neither excludes the other. Steam vessels may navigate under the ex- clusive grant; but they must also conform to the laws of the United States. Ibid. 15. The right to navigate from State to State, un- der the laws of the U uited States, and the exclusive right to navigate from port to port within this State, under the State grant, must both have effect, BO far as they are compatible; and, when notso, the State right must yield. Ibid. 16. A steam vessel having a license, and entering this State from another State, njay proceed to any , port in this State, and may depart from any port in this State, to another State ; and in either case, may touch at any intermediate port in this State. Ibid. 17. The navigation which thus remains subject to the State grant is not affected by the limits of rev- enue districts, or by the regulations regarding ports of entry and delivery. Ibid. 18. The termini of the voyage fix its character as respects its being subject, or not, to the State grant; and thus a steam vessel, by touching at a port in an- other State, may be enabled to continue her voy- age within the State ; and the intention with which such vessel may have touched at the port of the other State cannot destroy her absolute right thus to navigate within this State. Ibid. 19. In this case, the defendant's steam vessel, the Olive Branch, having touched at the city of Jereey, and landed goods and passengers, had a right to proceed from thence to any port in this State ; and though the waters of the Hudson to the shore of New Jersey are within this State, yet touching there and nn trading are an intercourse in the only man- ner there practicable, and the case is substantially a case of navigation from State to State. Ibid. Editorial Note. Commerce includes navigation 2:374 COMMISSIONER OF DEEDS* See also Afpidavit, 2; Oiticers, 3. L The Bevlsed Statutes in relation to the appoint- liieuL ux uuuiiiiuttiiuuei'ti ui uetjOs xur cities are not applicable to commissioners of deeds for the city of Buffalo, which was incorporated after the passage of the Revip"d Statutes Parker v. Baker, Clarke Ch. 223, 7: 98 2. The charter of the city of Buffalo not providing for the appointment of commissioners of deeds for such city, any appointment of commissioners for such city is irregular; and an affidavit sworn to be- fore such commissioner cannot be read in any court of lustice. Ibid. COMMISSIONERS. See Bridges; ExGCnroBS ahd Adminisxbatobs; Marshal; Trusts. COMMISSIONERS OF LOANS. See Loan Opticebs. COMMISSIONS. See also Bxecutoks and Administrators, IV. c, 5; Guardian and Ward, II. b; Incompetent Persons, n.; Partnership; trusts, II. c, 7; Wills, I. f , 2. 1. Commission is not limited to a compensation or perceiiLuMi^ uii tlie receipt, payment, or transmis- sion of money, or its equivalent. It is an allow- ance to a factor, broker, agent, or other person who manages the affairs of others, for his services therein, and is usually ascertained by a percent- age on the value of the property sold or amount of the business done. Stevenson v. Maxwell, 2 Sandf . Ch. 273, 7: 591 2. Under a decree for an account of joint opera- tjuiis lu real esuue, ttiu liinstur was directed to al- low no commissions. Held, that this excluded an allowance for superintendence and management of the joint property. Ibid. 3. Where certain persons were to subscribe for a large amount of stock and hold it upon trust after- wards declared, and they became trustees for the creditors of the person beneficially interested,— Held, they could not charge commissions upon the stock either as trustees or special agents. Pierson v. Thompson, 1 Edw. Ch. 212, 6: 114 4. Rule as to the rate of allowance to guardians, executora, and administrators. Be Roberts, 3 Johns. Ch. 43, 1: 537 Editorial Notes Commissions chargeable in one capacity only 6: 880 Statutory rule ; half commissions 7:1190' COMMISSION. WRIT OF. See Wills, L f , 2. COMMITTEE. See Habitual Drunkards. COMMON. See Basements, 18; Estovers; Life Tenants, 4, 5 COMMERCIAL PAPER. See Bills and Notes; Checks. COMMON LAW. The Constitution of the United States, as well as COMMUNITY PROPERTY-CONCEALED PROPERTY. 5\ those of all the thirteen old States, presupposed the existence of the common law, and was founded upon its principles so tar ns they were applicable to our situation and form of government. And to a limited extent, the principles of the common law prevail in the United States, as a system of national jurisprudence. l/uneh V. Clarke, 1 Sandf . Ch. 583, 1: 443 Editorial Note. Common law, what constitutes 3:395 COMMUNITY PROPERTY. See Husband and Wife, TV. h. COMPOSITION WITH CREDITORS. See also Bankruptcy; Evidence, 148; iNsoiiVBNOT AND Assignment for Creditors. 1. Upon a composition between debtor and credi. tors, it the debtor luruishes a stateuienc ox liis af- fairs as the basis of the agreement, he is answer- able for the truth of that statement. Irving v. Humphrey, Hopk. Ch. 284, 8: 483 2. Any one material misrepresention will avoid the contract. Ibid. 3. But in such case the composition Is not to be wholly vacated. The defenuaut win be decreed to make his representations good, and to account lor any property which he held beyond the amount stated by him. Ibid. i. Where B, who had failed in business, employed n to compiuiuise with Uia creditors, and authurized kim to offer fifty cents on the dollar upon sucli com- promise, and W, while acting as such agent, pur- chased several notes of R at that rate, upon his own account, and afterwards sold such notes to J and H for the whole nominal amount, after they became due, — Held, that J and H could not be permitted to recover more than 50 per cent upon the amount of such notes. Held, oLio, that W was a proper party to a bill in chancery filed by K against J and H to stay the proceedings at law on such notes upon the payment of what was equitably due thereon as be- Bee4 v. Wa/mer, 5 Paige Ch. 650, 3: 869 COMPOUND INTEREST. See Interest. COMPROMISE. See also Accord and Satisfaction; Composition WITH Creditors; Husband and Wife, 616. 1. A compromise of a suit made by the parties to the recoru will be suliicient to terminate tbe suit according to the terms of the compromise, even though it appears therefrom that another person, not a party f» the record, has an interest in the sub- ject-matter of the suit; especially if it also appear that such third person acquired such interest in the subject-matter of the suit by an agreement which would be void in this State under our Statute of Chnmnerty and Maintenance. Oiddings v. Eastman, Clarke Ch. 19, 7: 40 2. A long and intricate litigation had been pend- ing in two dilferent suits in this court, for several years, In one of which N sought to enforce a large mortgage upon lands which M claimed by a prior right, and G and S, two other mortgagees, also as- serted rights, in part adverse to both. N'ssuit had abated, and in the other suit M had a favorable report from a master of the court. Thereupon M and N agreed that N should buy in the claims of G and S at a discount; and M was to receive a fund in court in the other suit. N was to proceed and foreclose his large mortgage aswellasthosethus purchased, and sell all the lands mortgaged. Out of the proceeds of sale and prior rents, N was to retain his advances to G and S, with interest, and all but $3,000 of the sum taken out of court by M with 5 per cent interest. The residue was to be equally divided between M and N. N immedi- ' ately bought the mortgages of G and S, hut ne- glected to proceed to foreclose and sell for four years, by which a loss ensued to the extent of the whole intermediate interest on the value of the- property. In his answer to the suit for that object (which was a revivor of the old suits with supple- mental matter), M set up and proved such neglect. Held, (1) that the agreement, in substance thought not in form, was a stipulation in those suits, dis- posing of the rights of the parties who executed it;. (2) that M could insist^upon his rights under the agreement, in adjusting the distribution of the fund in the revived and supplemental suit; (3) that N was bound to foreclose the securities and effect the sale with reasonable diligence. Nnrth American F. Ins. Co. v. Mowatt, 2 Sandf. Ch. 108, 8: 538 3. Where A held several notes indorsed, or pur- porting to De indorsed, by B, and some of tnem were discovered to be forgeries, and some claimed to be paid, a compromise made between A and B in relation to such notes, when there was no frauds or concealment on the part of A, will not be set aside by a court of chancery. Day V. Sizer, Clarke Ch. 199, 7; 91 4. Though courts of Justice ought never to straiD< a point of law to relieve a case of hardship, or to support a claim however meritorious, equity should strive to validate an instrument evidently designed to be made efleotual by the party, which proceed- ed, not merely on a good consideration, but on that of settling and avoiding family broils, if the prin- ciples of law or the force of judicial decisions will sanction a decree in its support. BrinckerhojB' v. Lawrence, 2 Sandf. Ch. 400, 7: 640 5. Where a person interested in a suit voluntarily com;^romises the same, without any fraud or im- position practiced upon him, he cannot be relieved from the compromise, although he shows it was not beueHcial for him, or shows that he had the right to recover in the suit, in point of law. SteeU V. White, 2 Paige Ch. 478, 8: 995 6. A doubtful claim prosecuted in good faith is a good consideration for a promise made on com- promising and settling it; and the promise cannot be impaired by showing- that Tho claim was invitliVl. Brooklyn Barik v. Warimg, 2 Sandf. Ch. 1, 7: 483 7. Where a merchant, in embarrassed circum- stances, borrowed money at different times of his confidential clerk, who took various bonds and se- curities for such loans, and for which, by agree- ment, he was to be allowed a usurious ini}erest ; and, during the period of ten years, the parties, from time to time, came to a settlement of their accounts, and the merchant gave his bonds and further securities for the balance of principal and interest due on such settlements, the court or- dered all the bonds, obligations, and settlements to be set aside, and the accounts at large to be opened between the parties, from the first commencement of their transactions, there being not only evidenc& of mistake and omissions in the accounts, but of oppression, imposition, and undue advantage taken of the necessities of the principal. Barrmi) V. Bhinelander, 1 Johns. Ch. 550, 1: 848 8. The master, in stating the account between the parties, was directed to allow rests therein at such times as the parties liquidated their accounts and agreed that tte interest then due should be consid- ered as principal, and that the clerk should be charged with the amount of all the securities as- signed to him, which had been paid, or which he had refused to deliver to his principal for collec- tion, or which had been lost by his negligence, de- fault, or want of due diligence in collecting them, with Interest, etc. Ibid. Editorial Notb, Compromise of suit, how far conclusive 2: 995, 6: 519 COMPUTATION OF TIME. See Time. CONCEALED PROPERTY. See Creditors' Suit. ■OO CONCLUSIONS— CONFLICT OF LAWS, II. CONCLUSIONS. ■See PiiEADiNQ, I. d. CONDITIONAL SALE. See Saim, 6, 7. CONDITIONS. See also Insurance, I. b: Real Property, I. e; Wills, ii. j. 1. Distinction between conditions precedent and subsequent. Wells V. Smtth, 2 Bdw. Ch. 78, 6:315 2. Equity cannot relieve from the consequences ■of a condition precedent unperformed. But upon the breach of a condition subsequent which would work a forfeiture or devest an estate, a court of •equity, acting upon the principle of compensation, will interpose and prevent the forfeiture or devest- ment, provided it can be given with certainty in ■damages. Ibid. 3. S. sold to W. a lot of land. By an agreement ■under the hands and seals of the parties, W. cove- nanted to build within a certain time and give a tjond and mortgage for a part and pay the balance, ■or give a bond and mortgage for the whole by a specified day, and S, covenanted to give a deed on this day. There was also a clause expressly showing that the agreement was, in au respects, to be void, provided W. failed to perform any one of the cove- nants. W. entered, but, from untoward circum- stances, and not from any act on the part of 8., was not ready with his money or the bond and mort- gage on the day specified in the agreement, but made a tender on the next day. Held, to be a ■condition precedent, and that the court could not relieve. Ibid. 4. Where a complainant has to perform condi- tions precedent, and tne doing them would give u remedy at law, he should be Ipft to such remedy. Gimvemeur v. Tillofson, 3 Edw. Ch. 348, 6: 685 5. This court wlU not interfere, when the condi- tion precedent has nut ueen pcr^ uimed. for tiie purpose of compelling the other party to give sc- •ourity in anticipation. Ihicl. 6. An offer to perform conditions precedent is not sufficient. Performance must be shown. Ibid. 7. A party who is to perform a condition prece- dent IS uoc to come into court beforehaua, in order to ask for instructions as to how or whether such condition precedent has been performed. Ibid. CONDONATION. See Husband and Wife, VI. o. CONFESSIONS. See BviDENOB, VIII. CONFLICT OF LAWS. I. As TO Property. II. Contracts; Interest; Usury. III. Eemedies; Insolvency. IV. Marriage and its Effects. Editorial Notes. See also Bankruptcy, 52 ; Insolvency and As- SIONMENT for CREDITORS, I. b ; WiLLS, 13, 19- 21, 27, 100. I. As TO Property. " L The succession to the personal property of a decedent is g;overned by the law of his domicile at the time of bis death. Sherwood v. Wooster, 11 Paige Ch. 441, 6: 198 Decouche v. Savetier, 3 Johns. Ch. 190, 1: 587 Bolmes v. Bemsen,i Johns. Ch. 460, 1: 902 Shultz V. Pulver, 3 Paige Ch. 1B2, 3: 107 Vroom V. Fan Borne, 4 Ch. Sent. 11, 6: 1137 Suarez v. New York, 2 Sandf . Ch. 173, 7: 564 2. The rule of distribution of property among creditors under a deed of trust, made by a nonresi- dent, of lands in this State, where the trustee re- sides, must be that of the trust deed, when that is not repugnant to the laws of this State. SlatUr V. Carroll, 2 Sandf. Ch. 573, 7: 708 3. Title to real eitate can be acquired or lost only according to the law of the place where It is sit- uated. Hosford V. Nic?u>ls, 1 Paige Ch. 220, 2: 624 4. This rule applies to mortgages as well as to deeds absolute. Ibid, 5. The transfer of lands or other heritable property, or the creation of any interest in or lien thereon, must be made in conformity to the local laws of the place where the property is situated. And such local laws must also be resorted to for the purpose of determining what is to be considered real or heritable property, so as to give it locality at such place. Chapman v. Robertson, 6Paige Ch. 627, 3; 1128 6. The place of a testator's residence and death is the place for determining all questions that may arise respecting his personal property and its dispo- sition and distribution, wheresoever it may be situ- ated; but where a will has reference to real estate, all questions as to the will and the estate and its disposition are governed bytheZ^c rei^iice; and if a party dies intestate, leaving real estate, the de- scent and beii'ship are exclusively governed by the law ^here it is situated. MiOs V. Fogal, 4 Edw. tion. Ibid. b. FomuU RequMtes; Statute of Fraucls. 1. In General. 17. A promise in consideration of marriage must tie in writing ; and it not reduced to writing before the marriage, the defect cannot afterwards be sup- plied, so as to impair the intervening rights of third persons. Beade v. lAvingston, 3 Johns. Ch. 488, 1: 693 18. So, a settlement after marriage, in pursuance of a parol agreement entered into before marriage, is not valid as against prior creditors. Ibid. 19. But a settlement after marriage, in pursuance of a valid written agreement before mai'riage, is good. Ibid. 20. Though a settlement after marriage recites a parol agreement entered into before marriage, it teems that it would not therefore be valid against creditors. Ibio, 31. A parol executory agreement between an indi- vidual ana a rauruad cuuipauy, luat the latter sball continue to slop with their oars at a particular place adjacent to his property, as a permanent arrange- ment, is void by the Statute of Frauds, because, from the nature and terms of the agreement, it is not to be performed within one year from the mak- ing thereof. Pitkin V. Long Island B. Co. 2 Barb. Ch.221, 5:6S» 22. Although an agreement which may be per- formed within a year is not within the clause of the Statute of Frauds respecting contracts not to be performed within that period, yet an agreement which cannot be performed within a year, except ■upon a contingency which the parties could not hasten or retard,— as, the death of some person,— may be within the statute. The possibility of per- formance which withdraws a case from the force of the statute must rest upon human effort or volition, and not upon providential interference. Semble. Tolley V. Greene, 2 Sandf . Ch. 91, 7: 53 1 23. H and M were partners in trade, and owners of two lots in common, subject to a mortgage on *ach: and in their trade they had given another un- recorded mortgage to P. On dissolving, M agreed to pay all the partnership debts, and sold to H his half of the lots with warranty, subject only to the first mortgage on each. Meld, that on the dissolution between H and M, the agreement of M as to the debts, and his deed to H, M became the prmcipal iiebtor to P, and the lots, as well as H, were Ins •sureties; and that the agreement as to the debts was valid, even if made by narnl. Kinney v. JiTCuUough, 1 Sandf. Ch. 370, 7: 363 2. Agreements as to Real Property. 24 A parol agreement to leave lands to a person -by will, though founded on a precedent valuable ■consideration, cannot be enforced in equity. Harder v. Harder, 2 Sandf. Ch. 17, 7: 490 25 An agreement between the owners of two ad- loining city lots, that if the one will build a dwelling upon his lot, 3 feet back from the line of the street, the other will, whenever he builds on his lot, set his buildings back the same distance from the street, is an interest in lands, and, if not in writing, is void bv the Statute of Frauds. _ „ - ,„«» Wolfe V. Frost, 4 Sandf. Ch. 72, 7= 1087 26. Where the interest of one of two persons con- tacting a business was mortgaged and rent was in Xears, and the owner of the incumbered interest, in the absence of the other partner, agreed with the mortgagees to surrendcrto them the p9Sses8ion of t"e presses upon their paying the rent in arrear ^nd protecting tlie other partner's mterest, and tt'ey received possession, but did not pay the rent (hie, but suffered a distress and became purchasers -of the property seized under the sale, and suffered the lease to expire, and procured their debtor to take out a new one for their own beneflt,--the btot- ute of Frauds has no application, either to the agree- ment to pay the arrears of rent, or tot^e interest which the other partner claimed in the renewed ^"BSk-ell V. Bull, 3 Sandf. Ch. 15, 7: 75a 27 The provision of the Eevised Statutes declar- •Ing that no estate or Interest in lands, or any trust •Ch. Dig. or power over them, shall be created or granted except by operation of law or by a deed or con- veyance in writing, etc., is sufBclently broad to pre- vent the acquiring of an easement inland by a ver- bal agreement merely. Pitkin V. Long Island B. Co. 2 Barb. Ch. 221, 5: 68 a 28. Where real estate was sold upon execution, ■uid the purchaser at. the siieritl's sale sold his bid to persons who advanced the money therefor, upon an agreement between them and the wife of the judgment debtor, that her children should have six years to refund the purchase money and interest and to have a conveyance of the property, such agreement could not be enforced if not in writing. Getman v. Getrrum, 1 Barb. Ch. 499, 5: 47a 29. A contract made by an owner of land with the commissioners under the Act relative to draiiuug the drowned lands in Orange County (Sess. 30, chap. 25), by which they were allowed to use each bank of the river Walkill, etc., which they might find neces- sary in removing all obstructions, and in deepen- ing and widening the river, etc., and to use, occupy, and enjoy the same, and for which they were to pay a compensation to the owner for the damages, and who agi-eed to allow them to cut a canal through his lands,— is a contract concerning an interest in lands, within the purview of tli -statute of Frn"''':. Phillips V. Thompson, 1 Johns. Ch. 131, 1:87 3. Sufficiency of Writing. 30. Under theKevised Statutes a contract for the sale of land needs to be signed only by the party by whom the sale is to be made. National F. Ins. Co. v. Loomis, 11 Paige Ch. 431, 5! 187 31. Since the Eevised Statutes,contracts for the sale of lands resting upon mutual promises muec be subscribed by both the buyer and the seller, to be obligatory upon the latter. Cammeyer v. United German Lutheran Chwrches.2 Sandf. Ch. m 7: 558 Miller v. Pellebler, 4 Edw. Ch. 102, 6: 8ia 32. Such contract is not biudingupon either party unless the agreement is in writing and is subscribed by the party by whom the sale is to be made or by his agent duly authorized. Champlin v. Pa/rish, 11 Paige Ch. 405, 6: 178 S. 0. i Ch. Sent. 73, 5: 1159 33. A memorandum of the agreement, in the hand- writing of the vendor or of his agent, containing the names of the parties and the terms and condi- tions of the sale, etc., but not subscribed with the name of the vendor or of his agent, is not sulB- cient. Ibid. 34. It is not sufftcient to charge the vendee.that the agreement is duly subscribed by him or his agent. Ibid. 35. The provision of the Revised Statutes declar- ing that an auctioneer's memorandum entered in his sale book, in a particular form, at the time of the sale, shall be deemed a note of the contract of sale, applies only to sales of goods, and not to sales of real estate. Ibid. 36. An auctioneer, upon a sale of lands at auction, must reuuce tue contract to writing at the time of the sale, and must subscribe it as the lawfully au- thorized agent of tlio parties, or at least as the agent of the vendor, in order to render it a valid contract of sale. Ibid. 37. It seems that there is no difference in the con- struction of 89 11 and 15 of the Statute of Frauds (Sess. 10, chap. 44, 1 N. B. L. 75), or of 29 Car. II. chap. 3, S§ 4, 17, as to what is a sufBcient signing of a con- tr^-ct bv a part,v to be chovp-prl XrCcmb V. Wright, i Johns. Ch. 659, 1: 671 38. An auctioneer is an agent lawfully authorized by the purchaser of lands or goods at auction to sTsrn the contract of a sale for him as the hig';f"=t bidder. It>^- 39. Writing the purchaser's name as the highest bidder on the memorandum of sale, by the auction- eer, immediately on receiving the bid and knocking down the hammer, is a sufficient signing of the con- tract -within the Statute of Frauds so as to bind the purchaser. ^''^• 40 Under the provisions of the Eevised Statutes an auctioneer's memorandum of the terms and con- ditions of the sale of lands by him, entered m his books, specifying the property sold, the pric-e anl terms of sale, and the names of the vendor and if I the purchaser, is not sufficient to make a valid and 5 66 CONTRACTS, I. b, 4. liiniling contract of sale, although such a memo- randum is sufficient as to a sale of goods. Coi&s V. Bowne, 10 Paige Ch. 526, 4: 1076 41. To make a valid contract for the sale of lands, the agreement must be in writing, and must be sub- scribed by the vendor or his agent; and the name of such vendor or of his agent must be subscribed be- low or at the end of the agreement. Ibid. iZ. A contract for the sale of lands, void for not being in writing and subscribed by the party by whom the sale is to be made, or by ms agent law- fully authorized, is not binding upon the vendee, although he has subscribed the same. McWhorter v. MeMahan, 10 Paige Ch. 386, 4: 102% S. C. 3 Ch. Sent. 86, 5: 1188 43. To constitute a valid signing of an executory contract for the sale of lauds, by an agent of the vendor, it is only necessary that such agent be law- fully authorized to execute the contract; an au- thority in writing for that purpose is not required by the Statute of Frauds. Ibid. 44. Aliter, as to conveyances and leases by which an interest in lands m prcenenti is intended to be conveyed. In such cases the authority of the agent of the vendor who subscribes the conveyance or lease must be in writing. Ibid. 45. A memorandum in writing of the sale of lands> to be valid within the Statute of Frauds, must not only be signed by the party to be charged, but must contain the essential terms of the contract, ex- pressed with such clearness and certainty that they may be understood from the writing itself, or some other paper to which it refers, without the neces- sity of resorting to parol proof. __ farmiura, v. van Ooitlandt, 1 Johns. Ch. 373, 1: 138 46. An execution of a contract for the sale of real estate owned by a partnership firm, by one partner in the partnership name, and so executed in the presence and with the approbation and consent of the other partner, is a sufficient memorandum in writing to take it out of the Statute of Frauds. McWtuyrter y. McMahan, Clax^e CIl. 4O0, 7:154 4. Effect of Part Performance. 47. Acts of part performance of a parol agreo- ment for anew leaae win not take such agreement out of the Statute of Frauds, unless they are solely applicable to the parol agreement. Therefore, re- pairs by a tenant under his old lease to a consider- able extent, upon the idea, in his own mind, of get- ting a new lease, formed no consideration for a promise to give a new lease. Bj/r«e V. iJoTnaine, a Bdw. Ch. 445, 0:461 48. Where a vendee of real estate under a parol contract relies upon his entry into possession to take it out of the Statute of Frauds, his entry must be connected with and referable to the contract; and it must clearly appear that he took the posses- sion by the known permission of the vendor. Lcn-d V. UnderdunOt, 1 Sandf. Ch. 46, 7: 834 49. It is a sufficient part performance to take a parol agreement out of the Statute of Frauds, for the vendee to take possession of the lands sold, by virtue of the agreement, where the assent of the vendor is shown or is inferable. Smtth V. Underdunck, 1 Sandf. Ch. 579, 7: 441 50. And where there are several parcels sold by one parol contract, it suffices if the vendee pays the price and goes into possession of one parcel only. Ibid. 51. Where a parol contract is made for the sale of two parcels of land for a gross price, and the vendor, at the time for completion, conveys one parcel only, and agrees to convey the other presently, and the vendee pays the whole price and enters into posses- sion of both parcels, on receiving the deed for the one, the contract is not merged in such deed, nor ia it varied by the vendee's assent to the delay as to the other parcel. And the vendor's agreement to give the deed for the latter is not a new parol con- tract, or a substitute for the first agreement. The conveyance of the one parcel is a part performance of the original contract. Ihid. 52. In general the payment of the consideration i' not such a part pertormance of a parol agreement for the purchase of lands as will relieve it from the operation of the Statute of Frauds. Bhndes t. Rhodes, 3 Sandf. Ch. 279, 7: 853 63. To enable the court to enforce specifically a ')arol agreement for an interest in lands, on the* {round of part performance, such porformanc& luust be founded upon and referable solely to the iigreement. If the acts relied upon would have- been done whether there wer,e any agreement or not, they will not relieve the case from the opera- tion of the Statute of Frauds. Wolfe V. Frost, 4 S. 72, 7: lOUT 54. Possession, when set up as an act of part per- formance, must be referable to the agreement. It must be either delivered by, or taken with the con- sent of, the vendor. If otherwise obtained, it can- not avail. Jerms v. Smtth, HofE. Ch. 470, 6: 1818 55. Taking possession of land under a parol agree- ment and in compiiauoe wiiu the provisions of sucb agreement, accompanied by other acts which can- not be recalled so as to place the party taking pos- session in the same situation that he was in before,, has always been held to take such agreemenf out of the operation of the Statute of Frauds. £own/ V. TeiB, 3 Barb. Ch. 407. 5: 95js- 56. The principle upon which, courts of equity hold that a part performance of a parol agreementr respecting land is sufficient to take a case out of the Statute of Frauds is that a party who has permitted another to perform acts on the faith of such an. agreement snail not be allowed to insist that the agreement was invalid because it was not in writing, and that he is entitled to treat those acts as if the agreement in compliance with which they were per- formed had not been made. Ibid. 57. The rule of the court of chancery, that paro* contracts for the sale of real estate are taken out of the Statute of Frauds by a part performance of the parol agreement, ought not to oe extended to new cases which do not come clearly within the equitable principles of the previous decisions, oa that subject. Oerman v. Machin, 6 Paige Ch. 288, 3: 990 58. Whether a parol agreement made by the trus- tees of an iucoi'pui'iiLua religious society with an in- dividual, for the right to use the real estate of the corporation, and an advancement of money for the erection of buildings on such real estate, and the taking possession of the premises pursuant to such agreement, will give to such person an equitable in- terest in the permanent use and possession of the orpmises. without rent.— oiOTre. , „ ^ ,_ .^ ,,., De Ruyter v. St. Peter's Church, 2 Barb. Ch. 655,. 5: 751 59. The youngest son, K, being the owner of tea acres of land, the intestate agreed with him by parol, that if he would convey the same to his three brothers he should have a small farm which the intestate owned in another town. R conveyed the 10 acres accordingly, went into possession of the small farm, and made permanent improvements upon it. Held, that the agreement was so far per- formed as to bind the intestate and his heirs. „ . „„ Hcurdeir v. Harder, 2 Sandf. Ch. 17, 7: 490 60 A proffer of the defendants to the complain- ants, in open court, tuaL u the latter would remove arear addition to their building, they might have light and air over a vacant space in the rear of an adjoining lot belonging to the former, accepted by the complainants, and performed on their part, is a valid contract which will be enforced in equity. Banks v. American Tract Soc. 4 S. 438, 7: IK-i 6L Where Q and W, two brothers, were jointly interested in the real estate of their father, as ten- iints in common, and G agreed to relinquish his in- terest in the property in exchange for a quantity of medicines and the good will of his brother's- business as a physician, in consequence of which r.gieeraent W took possession of such real estate and made improvements thereon, and afterwards sold the same to T, who also made valuable im- I) movements upon the property,— Iielti, that this was sufficient in equity to take the case out of the Stat-ite of Fraud.s, and that T was entitled to a con- veyance oE G's interest in the property, and to a prrpetual injunction against a suit which had been iD«tituteri hv G tor the recnverv of the premises. Ibicn V. iVeed?uim, 3 Paige Ch. 545. 3:368 R^. TVhpr*! n T>Brol agreement was made for the purchase of a lot of land, for the sum of $21.50 per acre, to be paid in seven equal annual payments? and by the agreement the grantor was to have the lot surveyed, and to give a conveyance with war- ranty, on the payment of $300 by the grantee, and upon his executing to the grantor a bond and mort- gage for the residue of the purchase money ; and CONTRACTS, II., III. 67 tne grantee went Into posseesion under tue agree- ment, and continued in poBsession eight or nine years, making payments from time to time towards the land, for wnioh the grantor gave receipts, spe- cifying therein that the moneys received were in payment for the land, and that he, the grantor, was to give the grantee a deed therefor ; the grantee made a payment of {333 soon after he went into possession ; at the expiration of eight years from the time the agreement was made, the grantor ten- dered a deed to the grantee, and demanded pay- ment or security for the balance of the purchase money ; the defendant refused to accept the deed, alleging that it contained too much land, and that the grantor had included too much interest in the halauce he claimed to be due,— it was held that neither party«ould take advantage of the agree- ment's not being In writing ; that it was too late for the defendant to object that the grantor had not caused a survey to be made of the lot, and deliv- ered a deed therefor immediately after the first payment ; that the defendant could only have put an end to the contract by tendering the balance due, and demanding a performance of the contract on the part of the grantor ; that a tender and de- mand made, after a bill had been filed by the grantor for a snecifle performnTice, was n niiDitv. KnickerbcuHter v. Harris, 1 Paige Ch. 209, 8:619 II. CONSTBnCTION. 63. Separate instruments executed at the same time, and relating to the same subject-matter, may be construed together and taken as one instrument. Van Home V. Grain, 1 Paige Ch. 455, 2: 713 Hills V. MMler, 3 Paige cai. 254, 3: 141 64. W, being indebted to E and desiring forbear- ance, procured N to advance his securities to B for the amount, and W gave to N his bond for the same sum and transferred divers effects to N. The bond recited the transfer of the latter, and stated it as being to secure the bond. With the bond, the transler, and the effects, W delivered to t^ a letter, giving a history of the transaction, and stating that the effects were transferred to be held in trust for the payment of N's securities to B. The letter was accepted without objection, and it conformed to the verbal arrangement. Held (1) that the trans- fer by W to N the bond, and W's letter, were to be construed together, as if their terms had been brought into one instrument executed by the par- ties; (2) that the letter does not conflict with or detract from the bond, or diminish its force, al- though both derogate from the absolute terms of the transfer executed to N. Shaw V. Leavttt, 3 Sandf . Ch. 163, 7: 810 65. Parties entering into a contract may make time the essence of it. Wais V. Smith, 2 Edw. Ch. 78, 6: 315 AfSrmed, 7 Paige Ch. 22, 4: 43 Orippen v. Heermance, 9 Paige Ch. 211, 4: 672 Benedict v. I/yneh, 1 Johns. Ch. 370, 1:175 MitcTiell V. WiUon, 4 Edw. Ch. 697, 6: 1023 66. Where B agreed with S to exchange farms with him, and S agreed to pay D at the rate or $37.50 per acre for the difference in quantity be- tween the farms; and D and S also at the same time entered into an agreement by which they bound themselves to correct any error which should subse- quently be discovered as 'to the number of acres contained in either of the farms upon a survey thereof, provided the correction was made by April 1 then next ensuing ; and D afterwards, but after the said April 1, caused the two farms to be sur- veyed, and ascertained that there had been an error as to the quantity in the farm sold to S by D, S hav- ing paid for a less number of acres than that farm contained; and S refused to correct the mistake,— it was held that the time mentioned in the agree- ment was not of the essence of the contract; and S was decreed to pay the difference between the es- timate and the actual number of acres, according to the agreement, together with the costs of the "^mond V. Sharts, 2 Paige Ch. 182, a : 865 67. Where a contract for prison labor for the term of five years, providing for a renewal, was assigned with the assent of the prison agent on condition that the assignee would put in proposals under the notice about to lie published under the provisions of the Act of 1837, and would offer for the labor a sum not less than former contract prices, and would pay the balance due the State from previous owners of the contract, the assignee was not en- titled to a renewal if he did not offer as much as other parties, in addition to the balance due under the former contract, although his proposal con- tained an offer to give aslmuch for the labor, all things considered,as should be offered by any other responsible person. Jones V. I/i/nds, 7 Paige Ch. 301, 4: 16& III. Validity. 68. Xo person can make a valid contract while he is deprived of his reason by Intoxication. PreTitice v. Acham, 2 Paige Ch. 30, 2: 800 69. Where an agreement is made upon several ex- pressed consiaerations, one ui wuiuu, if ic stood alone, would have supported it, the union with an illegal consideration shall not destroy it. But if one of the considerations is in violation of a posi- tive statute, or malum in se, the whole con&act fails. .7(tn)is V. Pecfc. Hoff. Ch. 479, 6:1215 79. Where two parties have been concerned in the commission of an indictable offense, the court wiU not lend its aid to either party. In case the defend- ant can establish a defense in the usual way, by showing his own turpitude as well as that of th» complainant, he is at liberty to do so. Han^'mgion v. Bigelmo, 11 Paige Ch. 349, 5: 158. 71. But if by a legal slip he has lost his opportunity to uiaue out such a defense, the court will not, as a matter of mere favor, allow him to come in and make a defense of that character. Ibid Ti. The general doctrine of the court, that it will not aid eituer party in executing an illegal con- tract, or enforce any claim which depends upon or results from it, is applicable as well to a contract in violation of a positive statute, as to one immoral in Itself. The court actively interposes where the transaction is as it were in transitu, as where money is deposited with a stakeholder upon gam- bhn^r transactions. CoTCTiMinv. Sedotuicfc, Hoff. Ch. 80, 6:1063 73. If a servant or agent commits a trespass ig- norantly, upon an express promise of indemnity, the promise may be enforced; but if the wrong- doer knows the act to be imlawf ul, he can never enforce the promise. Plerson v. Thompson, 1 Edw. Ch. 312, 6: 114 74. The court will not aid either party to a corrupt agreement. Keneda v. Gardner, 1 Cb. Sent. 61, 5: 1069 75. No party to a fraudulent agreement can sus- tain a suit founded upon the neglect of his adver- sary to carry such agreement into effect. Prosier v. Acer, 7 Paige Ch. 137, 4: 97 76. Where two or more persons engage in a fraud- ulent transaction to injure another, neither law nor equity will relieve them, as against each other, from the consequence of such transaction. Bolt V Bogers, 3 Paige Ch. 154, 3: 95 77. An agreement by a party to whom a release is given tor tlie pux-puse of renaeriag him competent as a witness, that after he has been sworn and ex- amined on the trial the release shall be delivered up and canceled, is a fraud upon the party to the suit against whom the witness is to be examined, and IS therefore void. Orosier v. Acer, 7 Paige Ch. 137, 4: 97 78. W, a lieutenant in the army, enters into an agreement with the owners of the merchant ship America, representing that Commodore S, captain of the Franklin, ship of war, being about to pro- ceed to the Pacific, and, being a friend of W, would afford narticular protection to a ship and cargo, In which w might be interested ; and in consideration of the protection to be given by Commodore S and of the services of W, the owners of the ship America agree to put on board a cargo and send her to the Pacific, to rendezvous with the Franklin, and to give W certain commissions and profits, w was to put on board a quantity of stores belonging to the Franklin, and to go in the America, and rep- resent her as a navy-store ship, and himself as an American officer in charge of the stores; and it was stipulated that W and Commodore S were to render protection and facility to the master of the America. This agreement; is oorrupt,'.and cannot Via ^Tl'fCiTCj&A Weaver v. Whitney, Hopk. Ch. 11, 2: 325 79. A person engaged in a particular trade or busi- ness may agree to relinquish the same to another, and may lawfully covenant not to carry on the same trade or business in such a manner as materi- 68 CONTRACTS, IV.— V. b, 8. ally to interfere with the profits of the one to whom he has sold and transferred his business. Jarvis v. Peck, 10 Paige Ch. 118, 4: 910 S. C. 3 Ch. Sent. 1, 5: 1100 80. The principle upon which a contract in general restraint of trade is held to be void, as ayrainst pub- lic policy, is that such a contract deprives the pub- lic of the enterprise and skill of one of the parties to the contract, and injures him, without any cor- responding benefit to the party contracting for such restriction. Ibid. 81. Although the policy of the law does not permit general a^ruemeniei iu lustraiut of trade, a persun who is engaged in a particular business, which be is carrying on by means of a secret process which be has discovered, may sell the secret to another, ■and may lawfully contract with the purchaser that he will not thereafter use that secret in such busi- ness without the consent of the purchaser, and will not disclose the secret to others. Ibid. IV. Perfokmance. 82. The court of chancery requires the exercise of good faith in the performance of contracts. Ensign v. Colbvm, ll Paige Ch. 503, 5: ai3 83. The conveyance of eight whole lots and the undivided half of four others is not a compliance with an agreement for the conveyance of ten lots of land. Boy V. WaUnk, i Sandf. Ch. 525, 7: 1196 84. Where, by the terms of a contract for the sale of land, the purchase money was to be paid in seven yearly payments, with interest annually; and a con- veyance was to be given to the vendee or liis assign- ■ees when the purchase money had been paid; and the vendors reserved to themselves the right to for- feit the contract if the vendee shovild make default in the jjayments; and after default had tieen made in making the payments at the times specified in the contract, the vendors continued to receive parts of the purchase money from time to time,— Held, that the vendors, by receiving the payments after default in payment had been made,ha!asofar waived the forfeiture that they could not insist up- on it without giving the purchaser notice to pay the arrears, or that they would exercise the right of forfeiture reserved to them by the contract. Harris v. Troup, 8 Paige Ch.4^, 4: 488 85. Where the holder of a land contract assigned bis interest in a portion thereof to complainant and In the residue to defendant, and the original vendor notified such assignees that they must either fulfli) the contracts or take out new ones, or that the land would be resold; and defendant was compelled to take out a new contract for the whole amount, be- cause of complainant's refusal to either pay his portion of the purchase price or Join with defendant m taking out a new contract,— complainant was not entitled to any benefit of such new contract. Chapin v. Powers, 1 Paige Ch. 145, 4: 100 86. In such case, if complainant had any remedy. It was by bill for specific performance of the origi- nal contract as to his share, against defendant and the original vendor. IMd. 87. Where copartners in trade engaged a clerk aS bookkeeper and cashier, at a fixed salary, for two J rears, with an understandingthat he should have a arger compensation as the business extended and his duties increased ; and during the third year it was discovered that the clerk had overdrawn moneys belonging to the firm, and applied the same to his own use, of which he afterwards rendered a statement, but a majority of the partners after- wards continued him in their employ,— Heid, that he was entitled to an increased compensation for his services after the second year ; the fact of contin- uing him in service after a discovery of his im- jproper conduct being an admission that he had not lorfeited his right to an increased allowance. Kirk V. Bodyson, 3 Johns. Ch. 4(10, 1: 662 V. Change ok Extinguishment. a. Waiver ; Abandonment. 88. A written agreement may be waived by parol. Botsford V. Burr, 2 Johns. Ch. 405, I: 426 89. By an agreement made in April, 1815, A cov- enanted with B and C, directors and agents of a manufacturing company, to make certain machin- ery in one year, at a certain price, to be paid in in- stallments. On the 1st of August following, IE! and C gave notice that the company could not go on, and that the oontraot was abandoned ; and A (the covenants being independent) brought an ac- tion at law against B and C to recover the install- ments due before the 1st of August. The court re- fused to stay the suit at law by injunction, until the amount of compensation justly due to A for the work he had done could be ascertained by a master or by an issue of g^lantum damnlflcatta, the plaintiff's right of action at law being clear and certain, and the amount of the installments sued for appearing, from the answer of A, not to exceed an adequate compensation for the materials found and work done by him towards the fulflihneutor hiB contract on the 1st of August, Skinner v. Dayton, 2 Johns. Ch. 526, 1: 475 90. It seems that one party alone cannot rescind a contract ; and if A had gone on, notwithstanalng the notice from B and C, and completed the ma- chinery according to his contract, and tendered it to them, whether he would not be entitled to de- mand the full sum stipulated to be paid,— oucwe. - Ibid, b. Besoission. 1. Conditimis; Promptness. 91. Where a contract was to have been performed in May, and was expressly extended to November, and the vendor was never in a state to perform until the 5th of December, and negotiations and various arrangements connected with it took place on the 9th of December,— Held, that the agreement was thus preserved in force, and that the vendor was bound, in order to rescind the contract, to fix a day by which it must be performed, and to give notice of it. This should be a reasonable time. Wiswall V. McBawan, HofF. Ch. 125, 6: 1087 93. Where one party intends to abandon or rescind a contract on the ground of a violation of it by the other, he must do so promptly and decidedly on the first information of such breach. If he negotiates with the party after knowledge of the breach, and permits him to proceed in the worl£, it is a waiver of his riglit to rescind the contract. iMwrence v. Dale, 3 Johns. Ch. 23, 1: 529 93. The defendants contracted with the plaintiffs to be responsible for the perfect construction and performance of certain steamboats, to be built on the river Ohio, so that they should carry 100 tons burden, and run four miles an hour in still water. Held, that the plaintiffs could not, after the boats were built, rescind the contract on their part, and recover back the money advanced by them to the defendants, on the alleged ground that the boats drew too much water to navigate the river, with- out having first put the fitness of the boats to nav- igate the river in the manner agreed oa by the par- ties to the test of experiment. Ibid. 2. RigM to, Oenerally. 94. Where a written instrument of a former closed indebtedness remains in adverse hands, but no right of action or claim in equity exists upon it, this court will not require it to be given up. Equity exercises its power to cause writ- ten instruments to be delivered up only under special circumstances. A fear of suit is not enough, as testimony could be perpetuated; nor a charge of its affecting credit if shown about, where such credit is not mercantile. Wilkes V. Wilkes, 4 Edw. Ch. 630, 6: 1000 95. Where one person conveyed land to another, for the purpose of opening a street m the city ot New York, and there was no other consideration for the conveyance but the benefit which the grantor was to derive from the opening of the street, and, by subsequent events beyond the con- trol of both parties, the street could not be opened, a reconveyance of the Innd was decreed. Quick V. Stuyvesant, 2 Paige Ch. 84, S : 823 96. If a deed or obligation is sought to be en- forced in an event not foreseen or provided for by the parties, and contrary to their original intention, a court of equity will interfere to prevent such in- justice. Ibid. 97. In such a case the court of chancery will di- rect that to be done which the parties would them- selves have directed had they foreseen the event. md. 98. Where, from any defect of the common law, want of foresight of the parties, or other mistake or accident, there would be a failure of justice, it is the duty of a court of equity to supply the de- fect or furnish the remedy. Ibid. CONTRACTS. V. b, 3— c. 99. But these principles, when acted on by the court of chancery, are subject to such limitations and restrictions as are necessary to protect the rights of bono fflfje purchasers and others who have superior equities. Ibid. 100. The court of chancery wIU not relieve from an improvident contract for the purchase of stock which has a speculative value in the market, where the sale is without fraud or warranty, although the stock is sold at a price far beyond its real value. Mofat V. Winslow, 1 Paige Ch. 124, 4: 98 101. When an agreement is made between two par- tiBB in relation to commercial paper, with equal knowledg-e in relation thereto by both parties, thie court will not relieve atrainst such an agreement. Day V. Sizer, aarke Ch. 199, 7: 91 103. A entered Into an agreement with B, dated June 8, ISSB, to erect a block of stores, to be com- pleted on or before May 1, 1837, except certain thmgs which were to be completed in the year 1837 and certain other things which were to be com- pleted by June 8, 1838. B, on his part, agreed to take a lease for ten years of the buildings, on or before May 1, 1837, if the same were so far cum- pleted by that time as the agreement required. B did take and execute a lease on February 3, 1837 with a clause holding the contract obligatory. A failed to comply with the agreement so far as to neglect doing what was required to be done on June 8, 1838. B gave A notice that he should consider the lease and agreement rescinded in con- sequence of such failure, and abaudoned the prem- ises, and flled a bill to cancel the lease and agree- ment. HehU that the covenants in the agreement were independent: and that B, having accepted the lease, could not abandon it or the agreement, but must be left to his remedy against A upon his covenant in the agreement. The reference of the lease to the agreement does not operate to make the covenants in the agreement dependent. Merchant v. Rawson, Clarke Ch. 123, 1: 69 3. For Mistake. 103. A contract entered into under a mutual mis- conception of legal rljilns, amounting to a mistake of law in the contracting parties, by which the object of it cannot be accomplished, is as liable to be set aside or rescinded as a contract founded in mista.ke of matters of fact. ChampUn v. Liaytin, 1 Edw. Ch. 467, 6: ai3 104. Where a sale of land is consummated by the giving of a deed and the payment of a part of the purchase money, it will not be rescinded on account of a deficiency in the quantity of the land conveyed; especially where the dpflcitncv is very small. MamAn v. Bermebt, 8 Paige Ch. 312, 4: 441 105. Whether a party to a contract can In any case be relieved from the same on account of a mistake in matter of law merely, — (mcenre. Cnamplin v. Laytin, 6 Paige Ch. 189, 3: 950 4. For Fraud. 106. Fraudulent deeds may be relieved against in equity. Aptharve v. Comstock, Hopk. Ch. 143, 8: 3.78 107. This court has jurisdiction to set aside and cancel deeds and other Instruments fraudulently obtained, and which are attempted to be set up in- equitably. Thompson v. Graham, 1 Paige Ch. 384, 8: 686 108. Belief will not be afforded against a contract on the ground of fraud, unless it be made a distinct grouni of allegation and be put at issue in the pleadings. Govemeur v. Elmendorf, 5 Johns. Ch. 79, 1: 1016 109. Where a party has been defrauded by another In the purchase or sale of property, lie may rescind the contract, so as to restore the parties to the same situation they were in when the contract was made; or he may affirm the contract so far as it has been executed, and claim a compensation for the fraud. Bradley v. Bosley, 1 Barb. Ch. 125, 5: 384 110. It must be a very special case which will au- thorize the injured party to come Into a court of equity to have a contract partially rescinded, and it must be one in which the court can see that no pos- sible injustice will be done by such a course. Ibid. 111. Mere inadequacy of price is not a sufficient ground for setting asi"« a sale, unless the inade- quacy be so gross and pa i pable as, of itself, to afford evidence of actual fraud. Osaood V. Wrariklin, 2 Johns. Ch. 1, 1: 875 112. But inadequacy of price, though not so grpsa as to amount to fraud, may be a sufficient ground for refusing to enforce a specific performance of a contract of sale. IIM. 23, 1: 883 113. And there is a further distinction between those cases where the agreement has been consum- mated by a conveyance, and where not. 'Ift«.24, 1:888 114. Where the attorney of the plaintiff attended the sale of a farm of the defendant, under an exe- cution ; and the farm, which was worth S2,000, was sold to the attorney for 810, the gross inadequacy 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 suiScient to warrant the inference of fraud. Howell V. Baker, 4 Johns. Ch. 118, 1: 784 115. An agreement obtained from a man in a state of intoxication, which intoxication was produced by the prucurement or couinvauce of tne party obtaining the agreement, will be set aside as fraud- ul-^ntlv obtained. Hutchinson v. Brovm, Clarke Ch. 408, 7: 156 5. For Incompetency; Undue Influence, 116. Weakness and folly in the disposition of prop- erty are not sufficient to warrant a court to set aside a conveyance. Siemon v. Wilson, 3 Bdw. Ch. 36, 6: 5C2 117. A conveyance made by a person of weak and impaired intoucuc \,'iii not be sec aaide as improper- ly obtained, where the consideration of such con- veyance was a contingent liability assumed by the grantee, the probable extent of which liability, at the time it was assumed, was equal to the value of the property conveyed; although by subsequent events it turns out that the amount of the liability assumed was much less than the value of such prop- erty. Spragne v. Duel, 11 Paige Ch. 480, 6: 805 118. When a deed is sought to be set aside from the mental incapacity of the grantor, suuu luuai^,..., y must be fully proved. !:iprague v. Dad, Clarke Ch. 90, 7: 60 119. If there is mental imbecility in a grantor not aiiiuunting to incapacity to contract, and the grantee practices upon such mental weakness Co procure a favorable conveyance, such conveyance so procured will be set aside. Ibid. 120. But the court will take into consideration all :he circumstances existing at the time the convey- ance was made, and judge whether at that time the consideration was adequate or the contract un- eonal. Ibid. 121. A court will not set aside a deed by one whose intellect is very much impaired, if his mental capacity is such that a jury would not be justified in finding him to be of unsound mind, unless an un- conscientious advantage has been taken of him. Sprague v. Duel, 11 Paige Ch. 480, 5: 805 122. A deed by a client to his attorney and scrive- ner, for the consideration of affection and friend- ship, and also for a sum of money, though not one third the value of the land conveyed, will not be set aside on the ground of ignorance and blind con- fidence on the one side, and undue influence on the other, there being no evidence of imbecility or in- capacity of the grantor, or of fraud or imposition by the grantee, or of that relationship between the parties which might imply the existence of an un- due influence. Wendell v. Fan Rensselaer, 1 Johns. Ch.344, 1: 165 c. Reformation. 123. Where husband and wife entered into contract to sell the wife's land, which contract was not prop- erly acknowledged by the wife ; and in attempting to carry it into effect they conveyed a lot in which the wife had no interest,— after the death of the wife the purchasers were entitled to have the deed re- formed so as to convey the husband's right as ten- ant by the curtesy in the lot which he had contract- Kn^les%'McCamly, 10 Paige Ch. 342, 4: 1003 124. Where complainant contracted to pay a certain price per ton for the supuiation of iron ore, chan- cery could not decree a reformation of the contract upon his alleged ignorance of the existence of a statute fixing the number of pounds necessary to constitute a ton, and belief that a larger number of pounds were in fact contracted for, if defendant 70 CONTKACTS, VI. denied nil knowledge of the alleged ignorance, and claimed that he contracted with reference to the elatufovy Quantity. Hall V. Beed, 2 Barb. Ch. 500, 5: 730 125. Where a party has made a contract with an- otlier to separate ore lor hiin, at a specified price per ton, and has carried such contract partially into effect by separating ore under it for several months, without any knowledge of the alleged ig- norance of the other party that 2,000 pounds was a ton, instead of 2,240 pounds, as he supposed, the court of chancery cannot reform the contract, so as to require such party to separate ore at the stip- ulated rate for each gross ton, without making an entirely new contract for him. itiid. 136. Where the parties to a contract for the sale and purchase of iron intended to contract for a certain number of tons gross weight, at a specified price by the ton, but in reducing the contract to writing the term " tons " ouiy was used, without anything appearing upon the face of the contract to show that any other than statute tons of 2,000 pounds avoirdupois were intended,— HeJd, that in a suit at law upon the contract the parties would be pre- cluded from showing that tons gross weight were Intended ; and that the party injured by the mistake might therefore file a bill in chancery to reform the written contract so as to make it conform to the actual understanding and intent of the parties to the same. Many v. Beekman Iron Co. 9 Paige Ch. 188, 4: 661 127. A bill will lie to correct a misdescription in a deed, which occurred through mistake, Ignorance, or fraud. Fishell V. Bell, Clarke Ch. 37, 7: 46 VI. Impairing Obligation. 128. A subsequent decision of the court of errors in a different case, giving a different exposition of a point of law from the one declared by the su- preme court, when the parties to a suit entered into an agreement relative to such suit, can have no retrospective effect, so as to destroy the operation «€ sucn agreement. Jjyon V. Richmond, 2 Johns. Ch. 51, 1: 392 128. A law altering the remedy of one of the par- ties to a contract may be constitutional and valid. McLaren v. Pennington, 1 Paige Ch. 102, 2: 577 Editorial Notes. Assignment of contracts 2: 773 Act of performance 2:630 Claim under, as a confirmation of 2: 443 What essential to 2: 705 Separate instruments to be construed together 2: 365, 718, 3: 143 Incompetency of party intoxicated 2: 800, 7: 156 Mutuality 1: 138 Acceptance of proposition by letter creates 2:705, 3: 322 Inviolability of, creating vested rights 3: 53 Parties must guard against the result of in- evitable accidents in 3: 382 Breach of.to deliver goods 3: 562 Part performed; compensation for 3: 561 Contingent interests in real estate, subjects of 3: 714, 4: 1095 Secrets oi art or processes are property and subjects of 4: 910 Of two constructions, that which conforms to law adopted 4: 662 By agent of corporation 4: 663 On negotiations for loans 4: 415 Valuable and good consideration; defined and distinguished 4: 385 Agreement extending time for payment of debt 4: 672 what consideration sufficient to extend 4:227 To build, when a personal covenant 7: 1027 Consideration may be shown 7: 625 Liability may be inferred 1: 588 Conditions subsequent; equity may relieve; time, how made of essence;, validity and effect of condition precedent; duty to tender deed 6: 315 Stipulation for payment in case of default; when penaltv, when damages 6: 470 Effect of agreement to sell 6: 499, 4: 182 Time as essence of 6: 8.54, 1087, 1 : 936 Relief against illegal contract 6: 1148 Not avoided by one of several considerations being invalid 6: 1215 In part valid and in part illegal 1 : 163, 4: 910 Party to fraudulent contract cannot sue for breach 4: 97 Relief from fraudulent contract 1: 1016, 5: 200 against deed fraudulently altered 1: 848 against unconscionable bargain 4: 541 inadequacy of price not sufficient to avoid sale 1:275 Power of equity to set aside 1: 871 Executed, not set aside 2: 852 Founded on misrepresentations, relief against 1: 1047, 2: 423 disaffirmance for fraud 8: 551 Cancellation; when granted; when instru- ment directed to be delivered up; remedy applicable to case of bonds 6:262 Suit to reform and enforce 1: 939 Correction of mistake 1:376 Materially variant from agreement 4: 1076 Reformation or cancellation of instrument 1: 197, 229, 848. 938, 2: 622, 3: 802 of deed 8: 68 doctrine applied to executory contracts 3:169 delivery up of Instrument 3: 802 Relief from defective execution of instru- ment 1:1064, 6:615 Annulment of void instruments 6: 1105 Rescission of 1: 529, 936 parties must act promptly; time for per- formance; cannot rescind while retain- ing fruits; concurrent remedies 1: 529 In violation of public policy 1:1002 For stock jobbing illegal 3: 924 Statute of Frauds cannot be disregarded 4: 1076 Contract must be in writing and signed by vendor or his agent 4: 1022, 5: 179 Signature to contract 4: 1076 Promise to answer for debt or default of an- other 4: 445 Memorandum, when sufficient 1:138 Contracts not to be performed within year 7:521 Oral promise in land transaction, not en- forceable 5: 179, 7: 490, 6: 812, 1212 Pleading in suit on contract 7: 342, 5: 179 Easement, an estate in lands within Statute of Frauds 7: 1027 Defense of Statute of Frauds 3: 169 Right to insist on statute as a defense 6: 87, 487 As a defense to fraudulent party 2:595 Part performance will take case out of statute 5: 9.52, 6: 812, 1212, 7: 1027 "What constitutes part performance 7 ; 852 CONTRIBUTION. 71 CONTRIBUTION. :8ee also Assessment, 9 ; Corporations, 129 ; De- scent AND Distribution, 36; Dowbb, 33; Equity, U ; Executors and Administrators, 423 ; Principal and Agent, 60 ; Subrogation, S9. 1. Wrongdoers are not entitled to claim oontri- 'tiution against eacli other, although the party in- jured obtains full satisfaction for his damages from a part of them only. Miller V. Fenton, 11 Paige Ch. 18, 6: 40 2. Equity will not interpose to enforce a con- -tribution between wrongdoers, especially where they do not stand in equal right, or there is not taual equity between them. Pec/tv. Bll'is, 2Johns.Ch. 131, 1:320 3. Contribution is allowed only between def end- >ant8 standing in cequalijure. IMd. 136, 1: 322 4. There is no contribution between joint tres- fpassers at law. Ibid. 5. Nor, it seams, in equity. Ibid. 6. The doctrine of contribution is not so much : ounded on contract as on the principle of equity -and justice that, where the interest is common, the Imrden also should be common ; nnd the principle ■that equality of right requires equality of burden tias a more extensive and effectual operation in a <-ourt of equity than in a court of law. CampbeU v. Mesler, 1 Johns. Ch. 334, 1: 858 7. Thus, when there was an old party wail be- ■tween two owners of houses in the city of New York, and one of them, being desirous to build a oew house on his lot, pulled down his old house, 4uid with it the party wall, which was ruinous, and rebuilt it with his new house, the owner of the con- tiguous house and lot is bound to contribute rat- ably to the cost of the new party wall. Ibid. 8. He is not, however, bound to contribute to *uildlng 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. iMd. 9. Where a judgment is a Uen on different parcels of land, one of the several owners is not entitled, on a bill against tlie judgment creditors only, to a ■decree for contribution ; but all the persons inter- ested in the lands bound by the judgment must be made parties for that purpose ; nor is the plaintiff •entitled to have the judgment, upon payment of it, assigned to him by way of substitution, to enable him to enforce contribution from other persons .liable to contribute, but who were not parties to the suit. Avery v. POten, 7 Johns. Ch. 211, 2: 271 10. On a decree against both in a suit against two jD'.Qt guarantors of a mortgage, either paity, on raying tlie demand, may proceed upon the foot of "the decree, Jo compel contribution from the other iparty. Nm-th American F. Ins. Co. v. Handy, 2 S. 492. 7: 675 11. Where six separate lots or parcels of land were mortgaged, and tne mortgagee aiterwurds released four of the lots from the mortgage, leaving the original debt to stand charged on the remaming two, it was held that the two lots were chargeable ■with their ratable proportion only of the original debt and interest, according to the relative value of the six lots at the date of the mortgage. Steven* v. Cooper, 1 Johns. Ch. 435, 1: 196 12. Where land is charged with a burden, each part ought to bear no more than its uue prupuruoo of the charge ; and equity will compel each part to a Just contribution. Ibid. 13. And a creditor cannot, by any assignment or act of his, deprive the coaebtors, or owners of the Iflnd. of their right of contribution against p'^ch oother. Ibid. Cheesebrimoh v. Millard, 1 Johns. Ch. 409, 1 : 190 14. The court wlU comp&l the creditor to aid the <;ontribution by assigning his bonds and securities to the debtor, or surety, or owner of the land, whom lie charges with his whole demand ; and they will ■lint nermit bim voiuntsrilv to defeat this rig^-t, Stevens v. Cooper, 1 Johns. Ch. 430, 1; 198 IlH .Where, in abill filed by a mortgagor to redeem against the administrators of a mortgagee in pos- session, and others claiming under him, the defend- ants were decreed to pay a certain sum for the rents and profits of the land, after deducting the mortgage 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 ,—ireliJ, that he could use the decree only for his protection and indemnity so far as hia codefeprtnnts were bound to contribute. Sortbner v. Hiekok, 4 Johns. Ch. 530, 1:926 16. And the court, on petition and motion of a oodefendant, directed the contribution to be en- forced under the decree, so far only as the rielit was clearly ascertained. IbiA. 17. A purchaser of part of lands mortgaged, from t je mortgagor, is not bound to contribute ratably, with a purchaser of the equity of redemption under B judgment subsequently obtained, towards the £ iseharge of the mortgage, unless the residue of the riortgaged premises proves insufficient to extin- guish the debt, &ai V. Lyon, 1 Johns. Ch. 447, l : 204 18. A widow may be compelled to contribute rata- bly toward a mortgage upon the premises in which she has dower. This may be done by charging her with the value of an annuity payable yearly for her Ufe, Of the interest upon the one third of the mort- gage debt and interest. tSwain v. Ferine, 5 Johns. Ch. 483, 1: 1148 Evertson v: Ta/ppen, 5 Johns. Ch. 497, 1:1154 19. IC A, against whom there is a judgment, being seised of lands, sells part of them and dies seised of the residue, his heirs are bound to satisfy the judg- ment as far as the assets descended to them are sufficient for that purpose, and they are not en- titled to any contribution from the purchaser of a part of the lands of their ancestor, for they stand in his place ; and. there is no equality of right be- tween them and the purchaser in respect to the judgment. OZmoes v. IHekenson, 6 Johns. Ch. 335, 1 : 1068 30. If there are several heirs, and the judgment creditor collects the aebt trom a part ot tue in- heritance allotted to one of them, such heir is en- titled to contribution from his coheirs. Ibid. 31. It seems that between purchasers in succes- sion, at different times, of different parts of the es- tate of the judgment debtor, there is no contribu- tion, for there is no equality of right between them. Ibid. 32. A defendant who has made payments for his codefendant towards satisfying a prior mortgage, and beyond his proportion of the burden, is to be deemed substituted for the plaintiff to that extent, and as far as the fact appears from the proceedings in the cause. Lawrence V. Cornell, i Johns. Cb. 545, 1:931 23. The representatives of a deceased partner who lias paid the whole of a partnership debt will be substituted in the place of the creditor, in order to recover his portion from the survivor. Sells V. Administrators of Hvbbell, 2 Johns. Ch. 397i 1:423 23. But if the surviving partner allege that a bal- auce was due to him from the deceased, as much or more than he had been obliged to pay, an account must be taken before the court can interfere to en- loroo the claim for contribution. md,ms, 1:423 25. Where a bond payable in two installments was secured by a mortgage on a mill, etc., and the debtor afterwards gave a second mortgage on six other lots of land speciflcally, to secure the pay- ment ot the first installment, but without reference to the first mortgage ; and all the parties after- wards, by an arrangement between them, declared the second installment paid, and canceled the first mortgage, leaving the second mortgage to remain as security for the first installment ; and at a sale of the six lota under a subsequent judgment, which was a lien on the equity of redemption in these lots only, A purchased two lots, and B four lots, know- ing, at the time, the situation of the mortgage; and n afterwards purchased the second mortgage and tiled a bUl to foreclose,— it was held that A was Dound to contribute towards the satisfaction of the principal and interest due on the first installment, according to the actual relative value of the lots, and not according to the prices for which they wore sold at the sheriff's sale. Cheesebrou,gh v. Millard, 1 Johns. Ch. 409, 1: 190 26. W leased lots of laud in New York to C. The latter covenanted to pay taxes, etc., which might be imposed or ordered to be done, etc. W. (the landlord) was owner of a larger adjacent range o£ 73 CONVERSION— CORPORATIONS, I. lots. An estimate and assessment took place dur- ing the term lor opening a public square. A part of Ws land (not leased) was required for the pur- pose, wliile a larger part, including the leased lots, was not wanted. The commissioners, in estimating benefit and adyantage, had calculated the lots of W. separately and ascertained the benefit to him, by reason of nis interest in the lots not taken above the loss for those taken at $3,944. The tenant's (C's) name did not appear upon the commissioners' pro- ceedings or documents. Their report was made up, by the corporation counsel, in the aggregate of benefltover excess, and not in detail agreeably to the commissioners' calculations, while the benefit to the premises under lease was assessed by the commissioners in their calculations, with the rest, against W. at 81,265. W. filed a bill against C.for contribution. A general demurrer was interposed: which was overruled and an intimation given that the tenant might be held liable to contribute towards the S3,944, but that the complainant would not be allowed to go out of the commissioners' re- port, and consequently might not, to go into parol proof, but must rest on the report. WiUiam^ v. Craig, 2 Edw. Ch. 297, 6:407 27. To entitle a person to file a bill for cont r: bution> under the Act of May, 1841, to authorize the sale of real estate to pay assessments, etc., he must show that a valid assessment has been made upon the premises in which defendants are interested with him, and under which the premises have been sold or are liable to be sold. DIkeman v. DOieman, 11 Paige Gh. 484, 5: 307 Editorial Notes. Contribution; doctrine of, in equity 1:190, 858 Among debtors on execution 1:765 Among wrongdoers, not compelled 1 : 320 By ship owners 3:174 Right to, between co-owners of parly wall 7: 1037 Doctrine of, on what founded 7: 1027 In cases of quasi torts, enforced 7: 225 Wrongdoers not entitled to claim against each other 5:40 Among sureties 6: 798 Between lessor and lessee 6:407 Purchasers from mortgagor not bound to contribute ratably 4: 656 See also Vendor and Purchasbb. CONVERSION. See Equitable Conversion. CONVEYANCE. See Deed. CONVICT LABOR. If a contract in relation to convict labor was in fact illegal, or if it was originally valid and the contractors had violated it so as to authorize the State to rescind it, the inspectors of the prison were, under the Act of 1842, bound to act upon the opinion of the attorney-general as to its illegality, and to rescind the contract. Touna V. BeardsUy, 11 Faige Ch. 93, B: 68 COPYRIGHT. See also Action ob Suit, 14; Injunction, L m. , 1. At common law, the author of a book or other liu;i'tti'y piuuuuuou, ivtit;Liiui- in the sbaue of iettej-s or otherwise, has a right of property therein until it has been published with his assent; and he may maintain an action for his damages arising from a surreptitious publication thereof. Ruyt V. Mackenzie, 3 Barb. Ch. 320, 6: 917 2. A letter cannot be considered of value to the author, for the purpose of publication, which he would not \Clllingly consent to have published, ibid. Editokiai, Notes. Author protected in his literary productions' 5:917 I etters must be of literary value 5: 917 CORPORATIONS. I. Nature; Creation; Franchises. n. Charters; Construction. m. PowiB-i: Liabilities; OpriCBRS. a. Fijhts and Powers Generally. b. Mode nf Action: Acts of Agents. 1. Election; Votes; Meeting. 2. Powers; Duties; Liabilities. IV. Stock and Stockholderb. a. In General. b. SuhscriptMms ; Payment of. c. Transfers. d. Bigms of Shareholders. e. lAability of Shareholders. 1. In General. 2. Efectof Transfers. V. Dissolution ; Extinguishment ; EoBFErruBB. a. In General; Effect; What iMl warrant Dis- solution. b. What Constitutes; Proceedings. c. hights of Creditors; Beferenees. VI. Foreign Corporations. Editorial Notes. See also Banks and Banking ; Discovert, I. e ; Evidence, 88, 89; Injunction, I. h, 109, 110; Insolvency and Assignment fob Credi- tors, 129, 164: Limitation of Actions, IV. g; Parties, VIII. ; Partnership, 28 ; Kecetvebs,. I. b, 2; Sale, 27; Taxes, L I. Nature ; Creation ; Franchises. 1. Corporations, in this country, owe their exist- ence Lu lu« iugioxaLivu ijuv, u^; Luuy alt; ui'uateii i,jr specific and defined objects and purposes; and they derive all their powers from their charters. To as- cei*tain their c-apacity, reference must be had to their Acts of incorporation. It cannot be inferred from the mere fact that they are created bodies politic and corporate. ,^ „, ^ .r^a Bard v. Chamberlain, 3 Sandf. Ch. 31, 7: 75» 2. The date of the incorporation of a company, under the provision of the Revised Statutes declaim tng that if any corporation created by the Legisla- ture shall not organize and commence the transac- tion of its business within one year from the date of its incorpoi-ation.its corporate powers shall cease, is the time when the Act creatmg the corpoi-ation takes, effect as a law. ^ _^ „^ r. a'm. Johnson v. Bush, 3 Barb. Ch. 207, 5: 87& 3. There is no particular form of words requisite to create a corporation. , „ .,„ - . «„_ Denton v. Jackson, 2 Johns. Ch. 322, 1 : 395- 4. Persons may have corporate powers for cer- tain specified purposes only. IWd. 325, 1:396. 5. The loan officers and supervisors of a county are corporate bodies. ioid. 6. The several towns in this State are legal com- munities, or bodies politic, for certain purposes. loid.. 7. The Act to incorporate the TJtica & Schenec- tady Bailroad Company did not create a corpora- tion eoiiistantiitbecamea law; it only constitut- ed such persons as should become stockholders, itt the manner prescribed in the Act, a body corpo- rate ; and, in the event of an excess of subscrip- tions to the stock, there could be neither stock- holders nor a corporation until the commissioners had apportioned the stock among the subscriber^ TTalfter V. Deuereatia;, 4 Paige Ch. 229, 3: 41& 8. The commissioners did not hold the stock pre- vious to its distribution in the character of agents or trustees of the corporation ; but in receiving subscriptions, and in apportioning the stock, they CORPORATIONS, II., III. a. 7? acted as the ofBoers or agents of the State ; and if they had neglected to open books for subscriptions or had not proceeded to apportion the atock as di- rected by the Act, the supreme court, by a manda- mus, might have compelled them to discharge those duties. Ibid. 9. Whether the first election of directors can be held on any other day than that originally appoint- ed by the commissioners,— gwere. Ibid. 10. The proprietors of a toUbridge authorized by law several years after the bridge was built, were incorporated by the Legislature. There was no distinct evidence that they accepted the charter, there was proof of some of there own proceedings declining it; and in a c[M} warranto against them by the attorney general, for assuming to act as a body politic, they had traversed the allegatioq, and that oflBcer had thereupon entered a judgment of pre- clusion. HeM, that these facts proved that they had not accepted the charter, and were conclusive on the point that they did not thereby become a body politic or corporate. Thompson v. New York & H. B. Co. 3 Sandf . Ch. 625, 7: 980 11. A " lyceum " incorporated for the promotion of intellectual and moral Improvement," with power to have a cabinet of natural history, "li- brary," etc., and the whole to be devoted to litera- ture, science and the arts, is not a corporation sub- ject to sequestration under the statute relating to proceedings against corporations in equity. Be Brooklyn Jjyceum, 3 Bdw. Ch. 392, 6: 701 12. A corporation which has discontinued its business pursuant to its charter cannot resume it without the sanction of the Legislature. Oreen v. Seymour, 3 Sandf. Ch. 285, 7: 855 13. A statute relating to a corporation, which re- quired au acceptance of the Act to be nied, or else- to be void, was never accepted. Heldj that the cor- poration could not derive any advantage from the passage of the Act. At most, the Act, during the time for accepting it, could only be deemed a recognition of the lawful existence of the corpora- tion as it was previously. ibid. 14. Whether this court has Jurisdiction or control over corporations m respeuo m ureaches ot trust, unless in the case of a charitable institution,— oiicere. Attomey-Oeneral v. Ufica Ins. Co. 2 Johns. Ch- 381, 1: 419 15. Whether this court has a visitorial power or superintending jurisdiction over corporations,civil, eleemosynary, or charitable,— i^Kere. Itrid. 386, 1: 419 16. But the persons who exercise the corporate powei-s may, in tiieir character of trustees, be ac- countable iu this court for a fraudulent breach of trust. lUd. 389, 1: 480 across the Cayuga Lake, between the villages of Bast and West Cayuga, located the site of the- bndge authorized to be erected by the aforesaid Act. Cayuga Bridge Co. v. Magee, 2 Paige Ch. 116, 8: 837 20. The second section of the Act incorporating the Farmers' Fire & Loan Company, authorizing the company to purchase, on sales made under decrees or Judgments in their favor, is to be construed as re- quirmg the purchase to be made, and the deeds taken directly in the name of the company, or if by an OflBcer, that the use for the company should be expressed. Merritt v. Lambert, HofE. Ch. 166, 6: llOS 21. The privileges and franchises granted to a pri. \'uto corporation, are vestea ngnts, auu caanot be devested or altered, except with the consent of the corporation, or by a forfeiture declared by the' proper tribunal- McLaren V. Pennington, 1 Paige Ch. 102, a: 577 22. A State cannot pass any law which alters or amends the charter of a private corporation, with- out the consent of such corporation. Jbid- 23. But a law altering the remedy of one of the parties to a contract is constitutional and valid. Ibid. 24. Where, however, a State Legislature reserves- to itself, in the very charter it grants to a private corporation, the right of altering, amending, or re- pealing the Act of incorporation, a subsequent re- peal of such Act of incorporation will be valid and constitutional. Ihvd. 25. Such a reservation in the charter of a corpora-^ tion,upon common-law principles, would not be a condition repugnant to the grant, but a limitation of the grant. Ibid. 26. And if such a reservation at common law would be repugoant to the grant, and therefore void, it 'S competent for a State Legislature to alter this rule of the common law; and the reservation of such a power in a legislative grant would of it- self change the law in relation to that particular grant- Ibid, 27. Where a State Legislature repealed an Act of. incorporation contaiiiing a reservation of the right of repeal, it will not be presumed this right was improperly or unconsclentlously exercised. ItM. II. Charters; Construction. 17. Grants of exclusive privileges, being in dero- gation of public rights belonging to the State, or to its citizens generally, must be construed strictly, and with reference to the intent and particular ob- jects of the grant. Mohawk Bridge Co. v. Utlca & S. B. B. Co. 6 Paige Ch. 554, 3: 1099 Cayuga Bridge Co. v. Magee, 2 Paige Ch. 116, S: 837 18. The grant to a corporation of the right to erect a toUbridge across a river, without aii> ruBLrieiiLHi as to the right of the Legislature to grant a similar Erivilege to others, does not deprive a future Lcgis- iture of the power to authorize the erection of n I ree bridge across the same river, so near to the llrst as to divert a part of the travel which would have crossed the river on the first bridge if the last tiad not been erected. Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 547, 5: 489 S.C. 6 Ch. Sent. 25, 6: 1300 Mohawk Bridge Co. v. Utica Jc S. B. B. Co. 6 Paige Ch. 554, 3: 1099 19. The provisions contained in Act March, 1799 § 2, incorporating the Cayuga Bridge Company, prohibiting aU other persons from erecting a bridge or establishing a ferry within three miles of the place where the company should erect their bridge, do not extend to the bridge erected by the com- pany across the outlet of Cayuga Lake m 1809 ; the company having previously, by erecting a bridge ni. Powers; Liabilities; Oeficers. a. Bights and Powers Generally. 28. Every corporation as such has, at common law,, the capacity to take and grant, property, and to con- tract obligations, in the same manner as an indi- vidual. But oorporatious are usually created for some limited and specific purpose, and theretore the general powers incident to bodies corporate are restricted by the nature and object of the insti- tution of each. And every such corporation has- power to make all contracts which are necessary and usual in the course of the business it transacts as means to enable it to effect such object, unless expressly prohibited by law or the provisions of its charter. And with this limitation, it may deal firecisoly as if it were an individual, to attain its ofitimate objects. Barry v. Merchants Exchange Co. 1 Sandf. Ch. 280, 7: 329 29. A corporation authorized by law to build a bridge at a given point may buy one already built at the same poiilt, if suitable for the purpose. Ttirmpmn v. A>w Ynrk AB H. fin 3 S. 625. 7: 980 30. A corporation was created by a statute, with power to ujaKc ute and nre msurauees, grant an- nuities, and to make loans and invest its capital on bonds and mortgages; and the last section declared that the Act should expire at the end of fifteen years, except as to insurances on lives and the granting of annuities. By a subsequent statute, passed at the same session, the corporation wai- .luiiiorized to receive property of all kmus in trust, and to execute trusts in the same manner, and to the same extent, as any trustee could lawfully do; and the corporation was directed to convert trust property and invest the same in stocks or in bonds and mortgages. It also provided for a large in- crease of the capital stock of the company. A statute passed fourteen years afterwards classified the directors and limited the amount of its trusts to five millions of dollars. Neither of the Acts sub- sequent to the first contained any Umitation as to- time. Held, that the charter was perpetual; that CORPORATIONS, III. b. the limltaOon to fifteen years did not apply to the life insurance, annuity, or trust powers conferred ■on the company; and that It had the power to loan money on bond and mortgage after the fifteen ^rears expired. Farmers Loan & T. Co. v. Perry, 3 Sandf . Ch. 339, 7: 875 31. In respect of either of the three principal pur- poses for which the corporation existed. It was .authorized to loan money on bond and mortgage. Ibid. 32. It is not Incumbent on a corporation enforc- ing a bond and mortgage, to show that it arose from some of its lawful pursviits. IJM. 33. The charter of a corporation prohibited Ufi taking mortgages payable in a shorter time than one year, and the interest to be payable annually. On making a loan in July, the mortgage bore date ■eighteen days before the money was advanced, and by its terms was payable in one year from date, with interest to be paid yearly, on the 1st day of November in each year. Held, that the mortgage was valid. The money could not be collected In less than a year from the date of the loan, that be- ing the delivery and so the date of the mortrage. 34. By the English common law, corporations ag- gregate, including religious corporations and some -corporations sole, had the same right as natural persons to alien real estate, which they had the capacity to take and hold, and for the same pur- •poses and objects. „^ „ De Buyter v. tit. Peter's Church, 3 Barb. Ch. 119, 5: 840 35. A corporation which is not prohibited by law from doing so, and without any express power in its charter for that purpose, may make a negotiable promissory note, payable either at a future day or upon demand, where such note is in fact made or .given for any of the legitimate purposes for which 'the company was incorporated. Attorney-General v. JUfe dt F. Im. Co. 9 Paige Ch. 470, *: '80 S. C. 3 Ch. Sent. 11, 5: 1088 36. Corporations cannot act as trustees in relation 'to any matters in which they have no interest. Be Howe, 1 Paige Ch. 314, 8:631 37. But where property is devised or granted to a corporation, pai-tiy for its owu ui-o aua partly li-r the use of others, the right of the corporation to take and hold the property for ite own use carries with it,as a necessary incident, the power to execute that part of the trust wllich relates to others. 38. Where an actis done by a company pursuant to a resolution of a board of its directors at a meet- ing not objected to by its officers at any time, the mere regularity or irregularity in the convening of that board wiU not be an objection to the act done. The power to do the act is another question. Leavitt v. rates, 4 Edw. Ch. 134, 6: 888 39. Where a statute authorized the board of trust- -ees or a majority of them to mortgage; and a mort- gage was made by nine persons described as tnis- •tees,— the court hdd, that it would intend it as executed by authority of the board until the con- trary was shown. MiOer r. Chance, 3 Edw. Ch. 399, 6: 703 40. There were nine trustees, with two ex officio; and the statute under which tney acted authorized the board of trustees or a majority of them to mort- gage. Pive, not Including the ofScers ex officio, -executed a mortgage. Held, that the statute in- tended a majority exclusive of the trustees ex officio, and that the authority of the board would (as 4ibove) be presumed. Ibid. 41. Where a company is restricted from dealing "in the purchase or sale of any stock or funded - debt whatsoever, created or to be created by or un- der an Act of the United States or any particular State," with power to sell, transfer, and again In- vest their capital; such company may deal by invest- ment in the stock of the tJnited States Bank or in 1 the stock of the banks or moneyed corporations of anv particular State. VerpTanck v. Mercamtile Ins. Co. of N. T. 1 Edw. •Ch. 84, 6: 68 42. The statute incorporating the Farmers Loan ■4 Trust Company (which allowed loans on bond .-and mortgage) declared that the Act should expire at the end of fifteen years, except as to insurance sin lives and the granting of annuities. By an Act passed shortly before such expiration, a new name was given to the company and its existence (with- out fresh powers) was thereby continued. After this last Act went into effect, and after the expira- tion of the fifteen years, the company advanced on bond and mortgage. And the court held that, as the power to make insurances on lives and the granting of annuities was saved, the com- pany must have funds to apply to them and might invest in order to carry on such business; and, therefore, they were justified in such advance and the same would be presumed to have been done in the ordinary course^of its business. Farmers Loan & T. 'Co. v. Clt/wes, 4 Edw. Ch. 575, 6: 980 43. A corporation cannot enforce a mortgage which it has obtained by a transfer taken contrary to the express provision of its charter. Green v. Sevmour, 3 Sandf. Ch. 285, 7: 855 44. Where a corporation whose income is limited oy its charter receives a grant ot land ot an annual value below such limit, its title to the same is not affected by the subsequent increase of the income therefrom to a point beyond the charter limita- tion. Bogardus v. Trinity Church, 4 Sandf. Ch. 633, 7: 1835 45. If the Income exceed the prescribed limit at the time of the grant, ID is a question between the corporation and the soverign power, in which in- dividuals have no concern, and of which they can- not avail themselves in any mode against the cor- poration. Itrid. 46. All corporations have the absolute jus dis- puneiidi, auu are uuiiuuced in its exorcise as to form, objects, and quantity, except when restiained by law. This rule applies to lands as well as to goods and chattels. Barry v. Merchants Exchange Co. 1 Sandf. (3h. 280, 7: 389 47. A corporation was created with power to pur- chase, hola, and convey such and so much real es- tate, and to erect and build such edifice or build- ings, as it might deem necessary or proper for the purposes ot a public exchange in the city of New York. Held, that the corporation had authority to barrow money In order to erect such buildings, and to secure the repayment of the same by its bonds and by mortgages on its real estate. Ibid. 48. The capital stock of the corporation was one million of dollars. Held, that this did not restrict the company from laying out two millions In the site and the erection of the exchange, nor from in- curring debts on its bonds and mortgages for the excess of the cost beyond the capital stock, ibid. 49. The capital stock of a corporation Is not perse a limitation ot tue amount ot property which it may own, either real or personal, or of tlie amount of its liabilities or outstanding obligations. Ibid. 50. The charter authorized the corporation to divide the profits ot the exchange among the stock- holders, at such times as it might deem expedient or proper. This does not compel a division of profits, or prevent the corporation from accumulatiug the same. And it is not illegal if such accumulHr- tion be invested in the exchange itself, so as to be incapable of distribution as u dividend. Ihi'i- 51. Previous to the Bevised Statutes, a pecuniary legacy to acorporation, payable out of the proceeds of real estate which the executors were directed to sell, was valid, although the corporation was not au- thorized by its charter to take r«il estate by devise. Theological Semimary of Avlnim v. Childs, 4 Paige Ch. 419, 3: 497 52. Whether such a legacy is valid, under the pro- visions of the Revised Statutes,— qwwe. ibid. 53. Smce the Ke vised Statutes, a devise of real prop- erty in trust for a corporation is void unless such corporation is expressly authorized by its charter, or by statute, to take by devise. ibid. b. JMbde of Action ; Acts of Agents. 54. A corporation may be bound by the acts of its iigeots, altnough such acts have not been authorized t)y a deed or power in writing under its corporate seal, or even by a written instrument not under seal, except in cases where by the Statute of Frauds or otherwise the contract, if made by a natural per- son, must be reduced to writing to be valid. American Ins. Co. v. Oo7i7ei;,9 Paige Ch. 496, 4: 789 S. C. 2 Ch. Sent. 16, 6: 1084 CORPORATIONS, UI. c, 1, 2. 73 55. The acts and assent of corporations, lite those -or individuals, may be inferred from other facts and circumstances, although such acts or assent are not evidenced by writing. ibid. ,56. In a contract made by the agents of a corpora- tion, not under seal, it is sufBcient to bind the cor- poration, if it appears upon the contract that the agents who signed it intended to contract for the ■corporation as such agents, and not for themselves ■tiS individuals. Many v. Beelmuinlron Co. 9 Paige Ch. 188, 4: 661 67. Where the president of an incorporated com- Puuy ttiuAcu Lii« uurpui'at^ seal to a mortgage, and signed his name to the same as such president, and acknowledged the execution thereof before the proper officer, testifying that the seal thus affixed was the common seal of the corporation, and was amxed thereto by him by authority of the corpoi-a- •tion,— HeW, that the mortgage was duly acknow- ledged and proved to entitle it to be recorded, or to be read in evidence without further proof of its ox^cntinn. Z/Ouett V. Steam Savmiill Ajsso. 6 Paige Ch. 54, 3:896 58. The seal of a corporation aggregate, afQxed to a uiTcu, la oi iLot^ii urutta jacut cviuuuce tbat it was so affixed by authonty of the corporation; especiall v it it is proved to have been affixed to the deed by jm officer who was entrusted by the corporation with the custody of such seal. And it lies with the .party objecting to the due execution ot the deed to show that the corporate seal was affixed to it surreptitiously or improperly. iiM. «. Officers. 1. Election ; Votes ; Meeting. 59. The remedy of corporators to contest the •validity of the election of trustees is by an applica- ■tion to the supreme court. MUMes V. Rochester City Bank, U Paige Ch. 118, 5: 77 S. C. 4 Ch. Sent. ST, 5: 1147 60. Where, in the election of corporate officers, no particular mode of procceJing is prescribed by law, if the wishes of the corporators have been fairly expressed, and the election was conducted in good faith. It will not be set aside on account of any informality in the manner of conducting the «ame. Phaiips V. Wickam, 1 Paige Ch. 590, 8: 763 61. Whether, at common law, civU and corporate ■officers are authorized to hold over after the ex- piration of the time for which they were elected, until successors are appointed, — quaere. Ibid. 62. The right of voting by proxy is not a genera rigbt. and the party who claims such right muoi show a special authority for that purpose. fbid. 63. A stockholder who has given another a proxy to vote upon his stock, even for a valuable con- sideration, is justifiable in revoking the proxy where it is about to be used for a fraudulent pur- pose. Beedv. Bank of Newbwrgh, 6 Paige Ch. 337, 3: 1011 2. Powers; Duties; Liabilities. 64. When a corporation aggregate is formed and the management and control o£ its officers are in the hands of directors, the latter become the agents and trustees of the corporators and a relation is created between the stockboldeis and those direct- ors, who, as trustees, become accountable for der- «liction of duty and violation of trust. Verplamck v. Mercantile Ins. Co. of N. T. 1 E. 84, 6:68 65. An equitable jurisdiction over directors is ex- pressly given by statute (2 Kev. Stat. 462). But It should not be exercised unless the directors are parties and called upon to answer individually. The court will then deal with them personally. JWd. 66. The president of a corporation is not by vir- tue of his office authorized to draw checks for the moneys of the corporation deposited in a bank, unless, by the established usage of the place where the operations of the company are carried on, the presidents of such corporations are in the practice of drawing such checks without any special author- ity for that purpose. Fultnn Bank v. iVew York <* S. Carnal Co. 4 Paige Ch. 127, 3: 372 87. Where, by the negligence of the directors or agents of a corporation, the corporate funds were deposited in a bank in such a manner as to give the officers of the bank reason to suppose the deposit was made by the president ot a corporation, who at the same time left his signature in the bank as ihat upon which the money was to be drawn out: and the officers of the bank afterwards paid out the money on his cheek, under a supposition that he had authority to draw for the same,— Heid, tbat tne bank was not liable for the loss sustained by the corporation from the misapplication of such funds by their president. ibid. 68. Directors of a company are but agents for the benefit of others. Leavttt V. Totes, 4 Edw. Ch. 134, 6: 828 69. Independent of the provisions of the Hevised Statutes, the court of chancery had Jurisdiction, so far as the rights of the individual stockholders of a corporation were concerned, to call the directors to account and to make satisfaction for losses arising from a fraudulent breach of trust. Robinson v. Smith, 3 Paige Ch. 222, 3: 126 70. Thedirectorsof a joint-stock corporation, who wiilluliy abuse their trust or misapply the funds of the company, by which a loss is sustained, are per- soually liable as trustees to make good that loss; and they are also liable if they suffer the corporate funds to be lost or wasted by gross negligence and inattention to the duties ot their trust. [bid. 71. Even though a loss accrues to the funds of an Incorporated company, arising from error on the part of the directors, still, as between them and a stockholder, they will not, without other fault, be held liable. Scott V. Depeyster, 1 Edw. Ch. 513, 6: 229 72. Directors of a corporate company, in appoint- ing a secretary, do not become sureties for nls fidelity and good behavior. If they select persons to fill subordinate situations who are known to them to be unworthy of trust or notoriously of bad character, and a, loss by fraud or embezzlement en- sues, in such a case a personal liability rests upon them: but not otherwise. Ibtd. 73. Directors have a right to repose confidence in their secretary in everything within the scope of his duties. Ibid. 74. Directors are not to be held personally liable, as between themselves and a stockholder, unless there has been negligence or fraud. Ibid. 75. Persons who become directors or managers of a corporation place tnemseives in the situations ot trustees; and the relation of trustees and cestuU que trust is thereby created between them and the stockholders. The former are obliged to take the same care and use the same diligence as factors and agents. They are answerable not only for their own fraud and gross negligence, but also for all faults which are contrary to the care required of them. Ibid, 76. Directors are to be looked upon as bailees of the property. And as they are persons generally having an interest in the stock, they are not bail- ees who are to derive no benefit from their undertaking, and therefore to be held responsible for slight neglect, but they act in relation to a bailment beneficial to both parties. And the rule then is, they must answer for ordinary neglect; and "ordinary neglect" is understood to be the omission of that care which every man of common prudence takes of his own concerns. Ibid, 77. If a corporate company engage in unauthor- ized anu iiiUii'ai transauuuus, a stockholder, who had a knowledge of the same and acquiesced there- in by participating in the results, should not be allowed to charge the directors personally if there be a loss through such transactions. j/,i"'■ 108. Where, by the charter of an incorporated com- pany, the corporation has a lien upon the stock of a debtor for the payment of his debt, stock which actually belongs to 'such debtor, though it stands upon the books of the company in the name of a fictitious person, is subject to the lien.. Stubbing V. Phcenix Fire Ins. Co. 3 Paige Ch. 350, 3: 184 109. If the charter or an authorized by-law of the corporation provides that no transfer or assign- ment of stock shall be valid unless made on the book of the company, an individual obtaining an assignment of stock from the apparent owner, but which assignment is not intimated on the book of the company, takes it subject to all the equitable rights of the company against the real owner there- of Ibid. 110. If the officers of the company knowingly per- luit stock to be transferred to a mure nominal holder, and issue the scrip in his name, so as to make him the apparent owner, it seems that a bona fide purchaser of the stock from such apparent • owner, even without a transfer on the book of the company, will be entitled to relief against the lien of the company for a debt due from the real owner. HI. Where a legal transfer of stock can be made only upon tse books of the company, a person who obtains an assignment of stock without such a transfer obtains only an equitable title to the stock, which cannot prevail against a prior eguity. Ibid. d. Bights of Shareholders.- 112. Stockholders are neither tenants in common nor copartners in reference to corporate property. Before dissolution the whole title is in the corpora- tion; after dissolution it is in the directors or trus- tees, where no other disposition of it is made by law. Mlckles V. Boehester City Bank, 11 Paige Ch. 118, 5:77 113. Where it is agreed that a party shall receive all dividends and pruBt on stock bo long as lie remains in a certain employment, and he quits before any dividend is made, he cannot have any apportion- ment of any general dividend afterwards made. Profit does not become dividend until so declared by the directors. Clapp v. Astor, 2 Bdw. Ch. 379, 6: 436 114. The directors of the G. Insurance Company passed a resolution on the 10th of November, 1836, declaratory of a dividend; and on the 30th day of the same month such dividend was carried, on the books of the company, to profit and loss, leaving the'.'iapital entire and a further surplus to the credit of the company for profits then earned and not di- vided. Public notice was given (in the newspapers of the nth of November) that this dividend would be paid on and after the 1st of December. Checks on on*? of the banks were prepared and filled up with each party's dividend. These checks were all dated the 1st of December, signed by the president and made payable to the order of the secretary of the company, and were placed in the hands of the latter to be indorsed by him and delivered over to the stockholders as they should call. About four fifths of these checks had been called for. The great tire rendered the insurance company insolvent and its affairs fell into the hands of receivers under the Act. A stockholder who was entitled to participate 2n this dividend came, after :jhe fire, for his check, and it was refused him. Held, that the dividend had been severed and the stockholders were enti- tled to it. LeBoy v. Globe Insurance Co. 2 Bdw. Ch. 657, 6: 540 115. If any balance remains in the hands of the receiver of an insolvent corporation after satisfying the debts of the corporation and the necessary ex- penses of exeoutingthe trust, it must be distributed among the several stockholders who have paid in full for their stock. Pentz V. Hawley, 1 Barb. Ch. 1 ^, 5:323 116. Upon the dissolution of a joint-stock corpora nontne interests or the several stockholders are re- duced to mere equitable rights to their several dis- tributive shares of the funds of the corporation, upon principles of justice and equity among all the stockholders. And in making distribution each stockholder is to be charged with the debts due from him to the corporation, so as to equalize the dis- tributive shares of all the stockholders in the fund after payment of all debts due by them respectively to the corporation. James v. Woodruff, 10 Paige Ch. 541, 4: 1083 117. Where the debtor of a coi-poration purchases from a stockholder bis interest in the distributive share of the assets, alter the corporation has been dissolved, such debtor is in the same situation as if he had owned that portion of the stock of the cor- poration at the time of its dissolution. And if he afterwards assigns his interest in the fund, his as- signee takes it subject to the payment of the debt of the apRignor. Ibid. 118. Individual stockholders of an incorporated porapany cannot file a bill against the agent and treasurer of the company for misconduct and ac- count. Such a bill should emanate froni and be filed in the name of the corporate body. Ther" are oases where individual stockholders can file biUs, but it is only where the officers have the control and are guilty of breach of duty as trnstees. Forbes v. Whitlnck, 3 Edw. Ch. 446, 6: 720 119 Where a corporation took from one of its stockholders a surrender of twenty shares of its 78 CORPORATIONS, IV. e, 1— V. a. capital stock, held by him, and indorsed the amount of the par value thereof upon abend and mortgage which it held against him, and then assigned the residue of the debt secured by that bond and mort- gage to certain other stockholders, upon the sur- render of the stock held by them,— both transac- tions were in direct violation of the provisions of the statute prohibiting the directors of any money- ed corporation from dividing, withdrawing, or m any manner paying to the stockholders any part of the capital stock of the corporation, without the consent of the Legislature. Johnson v. Bush, 3 Barb. Ch. 207, 6: 875 e. Liability of SharehoMers. 1. In Oeneral. 120. The charter made the stockholders jointly and severally liable lor the debts ot lUu coiporaiiMii. i... the return of an execution at law unsatisticcl against the latter. Held, that creditors might en- force the liability without awaiting the issue of a decrep Masters v. Bessie Lead Mln. Go. 8 Sandf. Ch. 301, 7:603 121. The stockholders of an Insolvent corporation who have not paid Lhe tun amount of tticii- aruuK are liable to the creditors ot the corporation to the extent of what remains unpaid upon their several shares of such stock, or of so much thereof as may be necessary to supply the deficiency in the assets of the corporation to pay its debts. Morgan v. New Fork & A. B. Go. in Paige Ch. 290. 4:981 122. Under the forty-second section of the article of the Revised Statutes relative to proceedings against corporations in equity, a receiver of the corporation may recover sums remaining due upon any shares subscribed in the corporation. Mann v. Pentz, 2 Sandf. Ch. 257, 7: 584 123. This remedy is given by the statute; it may be exercised although no call has ever been made for tne sums remainiug uupuul un the shares; it is con- current, and may be enforced at law or in equity; and a suit in equity for that purpose may be main- tained against each stockholder severally. Jbid. 124.Sem6!e, that in respect of contribution a suit in equity may be maintained against all the detintiueut shareholders ,1ointiy. ibid. 125. A shareholder holding one hundred shares of stock on which more than half of the nominal amount had been paid, by an arrangement with the directors received full scrip for sixty shares, and soon after relinquished the remainder to the cor- poration. On the corporation subsequently pass- ing into the bands of a receiver, it was held that the creditors and the other stockholders who did not assent were not affected by that arrangement, and that such shareholder must make the whole hundred shares full stock, if it were necessary in order to discbarere the cornorate liabilities. ibid. 128. A judgment recovered against a corporation .itter It has been dissolved is not even vrima facie evidence of a debt due from the corporation at the time of its dissolution, for the purpose of charging those who were then stockholders of the company with the amount of the judgment in a. subsequent snit. flgninst them. Bonaffe v. Fowler, 7 Paige Ch. 576, 4:881 127. Where the vice-president of a manufacturing corporation, after it had become insolvent, gave a note to his clerk, under the seal of the corporation, for an alleged debt due to himself, for the purpose of charging the stockholders of the company per- sonally with the payment of the note,— Held, that the note, was not evidence of a debt due to the officer of the company who affixed the seal of the corpora- tion thereto, and that the persons to whom he had transferred the note by assignment could not re- cover the amount thereof from the stockholders, after the dissolution of the corporation, without proving that it was given for a debt actually due. lUd. 128. Each stockholder of the Bossie Galena Com- pany being individually liable for the whole amount of each debt contracted by the company while they were stockholders respectively, they are not enti- tled to an injunction to restrain the prosecution of suits against them, and to compel the creditors to come in and prove their debts under the decree in the first suit. •fudson V. Bossie Oalena Co. 9 Paige Ch. 598, 4: 831 129. The fact of the death of some shareholder in. an association noes not create u uunouity sufiicient to justify a suit in equity in order to make all con- tribute to pay a debt. Patterson v. Brewster, i Edw. Ch. 352, 6: 90*' 130. Where an association is formed for the pur- chase, sale and improvement on real estate, and it» trustees (pursuant to its articles) effect sales and buy in their own names individually, and so give their own bonds and mortgages, a seller cannot follow the associates where the trustees become insolvent. It might be otherwise, however, where- sale was made on the credit of the capital of the association and on that of the parties where their shares have not been paid in. Uyid- 131. Where the charter of a corporation permits its- creditors to sue the stockholders "in any court ha\ ing cognizance thereof," a suit may be commenco'l in equity. Masters v. BossJe Lead Mln, Go. 2 Sandf. Ch. 301, 7:60* 132. A proceeding by bill instead of petition is- the most proper course for commencing the suit against the corporation, where the complainant also intends to proceed against the directors or stock- holders, to charge them personally. In case of a de- floiency of the corporate property to pay the debts- of the corporation. Morgan v. New Yarn & A. B. Co. 10 Paige Ch. 290„ " 4: 981 133. Aftfr a creditor of an insolvent corporatioO' has obtained a discovery of the names of stockhold- ers whose shares of the capital stock have not been paid in full, he may amend his bill and make them parties, tor the purpose of charging them personally tor the deficiency, to the extent of their liability. Or he may wait until a final decree against the cor- poration has been made and its effects have been distributed among the creditors, and may then file a supplemental bill, for the purpose of charging the stockholders personally for the deficiency, to the extent of their statutory liability. ibi gave up (from the company's effects) to W. his noiu for the $20,840, and substituted his own and had the 1042 shares of stock placed in his, B's, name. B. was, at this time, insolvent. Held, to be a fraud on the creditors ot the company, and that W. should make good the amount nt his note for $20,840. Nathan v. Whitlock, 3 Edw. Ch. 215, 6: 63!S^ V. DissOLtraiOH ; Extinguishment ; Forfeitobil a. In Oeneral; E#cct; What will Warrant Dissolution. L37. The directors of a corporation, even with the- consent of the stockholders, are not authorized to discontinue the corporate business and to distribute the capital stock among the stockholders, uuless^ they are specially authorized to do so by a legis- lative Act, or by a decree of the court of chancery dissolving the corporation in the manner prescribed. In- ■ -e Revised Statutes. Ward V. Sea Itm. Go. 7 Paige Ch. 294, 4:1 6a- CORPORATIONS, V. a. 78> 138. Under the Act to provide for the dissolution ot incorporated insurance companies In >.ne city of New York, passed AprU B, 1817, the court of cnan- cery should exeicise the same discretionary power In deoreeinsr a dissolution aa the Legislature would, in case the latter were applied to by the directors of the company for a repeal of the charter. Re Niagara ma. Co. of New Tork, 1 Paige Ch. 258, S:63S 139. The court is not bound to decree a dissolution of the corporation simply because a majority of the directors and stockholders request it to be done. lua. 110. But where the owners of a large proportion of the stock find it for their interest to withdraw their capital, it will be deemed presumptive evi- dence that the Interest of the stockholders gener- ally will be promoted by a dissolution of the cor- poration. Ibid. 141. The charters of corporations created by law imply and require that thej; shall perform tue busi- ness for which they are instituted: and a substantial suspension of the same after its commencement ia a violation of their respective Acts of incorpora- tion. Be JOidkson Marine Ins. Co. i Sandf . Ch. 559, 7: 1208 142. Chancery cannot interfere to restrain the op- eration of a chartered company or to wind up its concerns, unless under the special authority of the Bevised Statutes, and where the case is fairly brought within their scope and object. The causes are: (1) that the company is insolvent, {. e., unable to pay its debts; (2) where there is a Wolation of any of the provisions of the charter; (3) where there is a violation of any Act of the Legislature which is binding upon the company. Verplanck v. Mercantile Ins. Co. ofN. T.l E. 84, 6:68 143. Where a voluntary association obtains an Act of incorporation, one of the associates, wno is interested and nMsino'"'tm""itiarit.cnnnot affect, en- Join or otherwise act to dissolve the company in chancery, except under some of the provisions and tor some one of the causes embraced by the Revised Statutes against corporations, their directors or officers. Ferris v. Strang, 3 Edw. Ch. 127, 6: 597 144. A corporation aggregate may be dissolved, withiu the period prescribed by its charter, by the death of all its members, or the destruction of an integral part of it, or by a surrender of its fran- chises into the hands of the government, or by a forfeiture for nonuser or misuser of its franchises; but in the latter case the forfeiture must be judi- cially ascertained and declared. Slee V. Bloom, 5 Johns. Ch. 366, 1:1111 145. A corporation may be dissolved for a breach of trust, but not until it has been called upon to answer. Ibid. 146. A corporation is not dissolved by an omission to elect trustees, under its charter, for more than two years, while the members, constituting the in- tegral part of the corporation, remain m esse ; but the old trustees continue in ofSce until others are elected in their stead. Ibid. 147. Though a corporation may forfeit its charter by an abuse or neglect ot its franchises, yet such forfeiture must be ascertained and declared by regular process and judgment of law, before its powers can be taken away or the corporation be considered as dissolved. Ibid. 148. The remedy against a corporation for a mis- user or nonuser of its privDeges, so as to work a forfeiture, is not in this court, but at law, by a sc ire /ocias prosecuted at the instance and in be- half of the jrovemment. not on the application of an Individual. Ibid. 149. The Dutchess Cotton Manufacturing Company were incorporated tor twenty years, under the Act of March 22, 1811 (Sess. 34, chap. 67, 1 N. E. L. 245), by the seventh section of which it is declared that " for all debts of the company, at the time of its dissolution, the persons then composing the company shall be individually responsible to the ex- tent of their respective shares of stock rn the com- pany. At a meeting of the trustees of the com- pany, Aug. 18, 1817, at which the plaintiff (a judg- ment creditor of the company, and one of the trustees) was present, it was resolved that any of the stockholders who had paid the sums called for on their shares, then amounKng to 50 per cent, should not be proceeded against for any further calls, except by way of forfeiture of their stock. By another ;resolution of the trustees, of Nov. 3, 1817, the stockholders were to have the privilege or' forfeiting their stock on paying 30 per cent on the- amount subscribed by them. Held, that even if the corporation were dissolved by lapse of time, the- plaintiff, as a creditor, could not enforce his claim against the individuals, beyoi.'d the extent of the resolution of the trustees, and to which, as one or the trustees, he had assented ; and that the stock- holders who complied with the terms of the reso- lution of Nov. 3, 1817, ceased- to be members of the- comnany or owners of shares, and were therefore not individually responsible. Ibid. 150. Where the directors of a corporation do any act which works a forfeiture of the charter of the- company, it is such a violation of the law incorpo- rating the company as to authorize a creditor or a. stockholder of the corporation to institute proceed- ings against it, for the purpose of having a receiver appointed to close up the concerns of the company, under the provisions of the Revised Statutes rela- tive to proceedings against corporations in equity. Ward V. Sea Ins. Co. 7 Paige Ch. 294, 4: 162- 151. An intentional neglect on the part of the offi- cers of a corporation to notify and hold the annua' election for directors, as required by the Act of in- corporation, is such a violation of the provisions of the charter of the company as will authorize the court of chancery to appoint a receiver and to de- cree a dissolution of the corporation. Ibid.. 152. Where a corporation, the ordinary business of which was to make fli-e and marine msurauees, and to lend money on bottomry and respondentia, re- solved to cease making insuranvjes, to cancel out- standing policies, and to liquidate, as soon as pos- sible, all liabilities; and for more than a year, it had issued no new policy, made no loan on bottomry or respondentia, taken no new risk except to fulfill stipulations to tiiat effect in open policies outstand- ing when the resolution was adopted, and during the year only six risks were outstanding,~it waa held that the corporation had suspended its or- dinary and lawful business for one year, and must be adjudged to be dissolved, although its corporate organization had beeu regularly kept up until the time of the application. Be Jaekson Marine Ins. Co. 4 Sandf. Ch. 559, 7: 1208 153. Where the officers of a corporation are not authorized to hold over if the corporators, with- out the presence of any officers, or any act to be done on their part, possess the power to assemble- and choose officers to carry into effect the object* of the incorporation, a neglect to choose oflitiers at the proper time will not work a dissolution of the corporation, but will merely suspend the exerotee of the powers of the corporation until proper offi- cers are chosen, Phillips V. Wickltam, 1 Paige Ch. 590, 2: 76S 154. But if the corporators have not the power to hU vacancies without the presence ot their officers, or something to be done by them preparatory thereto; and such oflScers do not attend, or neglect to do the act requisite to the validity of the ap- pointment; or there are no such officers,— then, as the powers of the corporation cannot be revived, it is virtually .-dissolved. Ihid. 155. Where an Act of incorporation is repealed, al the property and rights of the corporation become vested in the directors then in office, or in such persons as by law have the management of the business of the corporation, in trust for the stock- holders and creditors, unless the repealing law pro- vides for the appointment of other persons than tlie officers of the corporation as trustees. McLaren v. Pennington, 1 Paige Ch. 102, 2: 57T 156. Under the Act of 1833 relative to the abate- ment of suits by or against corporations, a suit which has been brought by a corporation may be continued by the receiver of such corporation, either in his own name as such receiver, or in the name of the corporation, under an order of -the court made upon a summary application. Talmage v. Pell, 9 Paige Ch. 410, 4: 75* 167. Associations under the general Banking Ac1i are corporations, and suits brougHt by tbem ui the name of their president may be continued in the name of the receiver, under a special <;r statute foreclosure to sell the mortgaged premises for a much larger sum than was actually due on the mortgage, and the mortgagor fil d a bill in chan- cery to restrain such sale without having tendercl or offered to pay what was legally and equitably due, the court refused to allow costs to either party as agninqt the other. Vechte v. Broumell, 8 Paige Ch. 212, 4: 404. 140. A defendant who, in good faith and without notice, pui-ciiased a murtga^ic wuicn i..*a uceii uis- charged in the hands of a former owner, and was foreclosing the same at law, was exempted from costs, after an unsuccessful defense to a bill for the delivery up of the mortgage. mtch V. Cotheal, 2 Sandf. Ch. 29, 7: 495. 141. In a suit to foreclose a mortgage upon two- parcels of property, where complainant claims title to the whole fee of one of them, when in fact he has only a lien upon a certain interest therein, he cannot charge the costs of a cross-bill tiled to limit him to such interest, upon the other parcel of prop- ertv, as against junior incumbrancers thereof. Williams v. Thorn, 11 Paige Ch. 459, 5: 19» 142. Where a junior mortgagee files a bill of fore- closure, and makes thp holder of a prior moitgage a party defendant, and calls for an answer as to the amount due on such prior mortgage, the latter is entitled to his costs, including the expense of his answer to the bill, to be first paid out of the pro- ceeds of the mortgaged premises, or to be charged upon the complainant personally, in the discretion of the court. Boyd V. Dod^e, 10 Paige Ch. 42; 4: 87» Mayer v. Salisbury, 1 Barb. Ch. 546, 5: 487 143. Where, on a bill to foreclose a mortgage, a subsequent mortgagee or judgment creditor, who is made a party defendant, answers and disclaims, he is entitled to costs against the plaintiff, to be- paid out of the fund, if that is sufBcient, and if not, to be paid by the plaintiff ; he not having applied to such defendant, before suit brought, to release or otherwise disclaim. Caflin V. Hamed, 3 Johns. Ch. 61, 1: 543 144. Where defendant in a suit to foreclose a mortgage has not delayed the proceedings anu in- creased the costs by an improper defense, the neces- sary expenses of the suit, as well as of the master's sale, are to be deducted out of the proceeds of the mortgaged premises, thereby rendering the mort- gagor in effect liable for those costs and expenses, it the proceeds of the sale are not sufficient to pay the whole debt, for which he is personally liable. And where the mortgagor sets up an unfounded defense, and thus delays the proceedings, it is prop- er to charge him personally with the costs, instead of taking them out of the proceeds of the mort- gaged premises, which in eqiuty belong to the com- plainant or to other persons holding incumbrances upon the nremises. Jones V. Phelp?, 2 Barlx Ch. 440i 5: 707 145. Where a biU for a foreclosure was filed by a sec- ond mortgagee, and the first and third mortgagees were made parties, but the latter did not disclaim or offer to release,— JHelcJ, that the third mortgagee was not entitled to have his costs paid, until after the plaintiff was first paid his debt and costs. Titus V. Velie, 6 Johns. Ch. 435, 8: 176 146. Where a junior incumbrancer puts in a claim to the surplus moneys arising upon a foi'eclosure and sale of mortgaged premises, when he knows or has reason to believe that the previous incum- brances upon the equity of redemption are sufficient to exhaust the whole of such surplus moneys, he may be compelled to pay the costs to which the prior incumbrancers shall be subjected by reason of his claim. Farmers L. & T. Co. v. Millard, 9 Paige Ch. 620, 4: 840 147. But where the junior incumbrancer puts in a claim to surplus moneys in good faith, and upon grounds from which he has reason to suppose that claims of the prior Incumbrancers to the surplus moneys cannot be sustained, the court in its discre- tion may refuse to charge him with the costs to which such prior incumbrancers have been sub- jected in consequence of his claim. Ibid. 148. As a general rule, a party coming into a court of equity to redeem pays costs to the defendant. COSTS, I. 1. 89 1 1 hough he obtains the relief prnyed f or ; yet if the defendant improperly resists the claim of the com- plainant to redeem, he will be refused his costs, aud may be compelled to pay costs to the adverse party, in the discretion of the court. Vroom V. Ditmas, 4 Paige Ch. 527, 3: 645 Slee V. Manhattan Co. 1 Paige Ch. 48, 8: 557 Broehway v. Wells, 1 Paige Ch. 617, 8: 773 Benedict v. Oilman, 4 Paige Ch. 58, 3: 340 149. Where a defendant in a bill of foreclosure knowingly sets up an unjust defense, and thereby subjects the complainant to extra costs and expense, he may be charged personally with the costs. Park V. Peck, 1 Paige Ch. 477, 8: 731 150. If a mortgagor who is entitled to redeem ap- plies before filing his bill to the mortgagee for that purpose, and the latter refuses to allow him to re- deem, the mortgagee will not only be deprived of costs, but may be compelled to pay costs to the complainant. Broekway v. Wells, 1 Paige Ch. 617, 2: 773 151. Where the party entitled to redeem offers to pay to the defendant the whole amount equitably due, before he files his bill to redeem, he will not be cbarsred with defendant's costs. Vail Bureu v. Olmstead, 5 Paige Ch. 9, 3: 605 153. The Act of 1840 to reduce the expense of fore- closing moi-tgages in the court of chancery applies only to cases m which the complainant can bring his cause to a hearing and obtain his decree, with- out the necessity of filing a replication to the de- fendant's answer. Frost V. Frost, 1 Barb. Ch. 492, 5: 469 S. C. 6 Ch. Sent. 15, 5: 1197 153. A defendant in a foreclosure suit who does not put In an actual disolMuiici' m iit.t uiintlpu tu i.-oi^i.-- as a matter of coursp. under the 18od Rule of tiT court of chancery, although the complainant dl': not serve a notice with the subpoena that he madt no personal claim afrainst such defendant. Jay V. Ensign, 9 Paige Ch. 230, 4; 679 S. a 1 Ch. Sent. 48, 5: 1066 154. To entitle a subsequent purchaser or mort- gagee of the premises, wiio has a present and sub- Bisttng Interest therein which makes him a necessary party to a bill to foreclose a prior mortgage, to costs under the provisions of the 133d Rnle, he must show that he has been misled by the neglect to serve notice of the object and intent of the suit; and that his sole object in employing a solicitor was to pro- tect himself, or to isc 'rtain whether a personal claim was made against him or his property whicli was not covered by the prior mortgage. 17)id. 155. 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 entitled i^ costs against the plaintiff. Brimckerhoff v. Lansing, 4 Johns. Ch. 65, 79, 1: 756, 770 156. And the plaintiff, though he succeeded in dis- proving the claim of the detendant, but tailed in supporting hia charge that the mortgage was also satisfied, and fraudulently kept on toot, was held not entitled to costs. Ibid. 157. A defendant who had no interest in the con- troversy, and was not a necessary party, but united with the other defendants in setting up a defense which was not true, was held not entitled to costs, though they would have been otherwise allowed to him. Hid. 158. Where a junior mortgagee appeared in three suits brought to foreclost; taree dcMarate pnoi mortgages on distinct parts of the lands mortgaged to him, and after a sale there was a surplus in each suit, and in one of them the surplus was suflicieni to pay the junior mortgagee's debt aud his costs in that Bnit,— Held, that he could not be compelled t(; take up with the costs in that suit alone, but wa'- entitled to his costs of appearing in each of tin suits, to bo T.iid out of Tbo «nrnln= therein. Smacfc V. DMTican, 4 Sandf. Ch. 621, 7:1331 159. Where a defendant is improperly made a party in a foreclosure suit, the costs of his defense should be paid by the complainant, and should not be charged upon the surplus proceeds of the sale o f the mortgaged premises, which belong to other pBrttes. Millandon v. Brugiere, 11 Paige Ch. 163, 6: 93 160. The extra expense occasioned by the discon- tinuance of the notice of a foreclosure sale of mort- gaged premises ought not to be paid out of the l)i-oceeas of a subsequent sale, where It was discon- tinued by direction of complainant without the consent of other parties to the suit, interested in the proceeds of sale. Kelly V. Israel, 11 Paige Ch. 147, 6: 88- 161. The assignor of a bond and mortgage cannot be paid ilia uu&ia out of lucbui'ijIus arising uuun sole of the mortgaged premises, where he was made defendant to the foreclosure suit for the purpose of charging him with the deflciency, but, after his defense was in, complainant abandoned his claim for deflciency, and the usual decree was entered without any provision tor the costs of the defense. Millandon v. Brugiere, 11 Paige Ch. 163, 5: 93 i. Specif Performance: Setting aMde Agreement; Iraud. 162. On a bill by the heirs of D against the heirs, I'tc, of P, tor a specific performance of an agree raent, it appearing that there was no improper be havior or unjustifiable defense, the defendant* were not decreed to pay costs. Dyer's Heirs v. Potter's Heirs, 2 Johns. Ch. 152, 1: 328 163. Where a seller had not deU veied an abstract of his title, and had not cleared oil a judgment, he was not allowed his costs on a bill for specific per- formance, although he succeeded in the suit. Scott V. TMrp. 4 Edw. Ch. 1, 6: 777 164. Both parties being considered in the wrong, on a bill for specific periormance, each one had to boar liis own costs, except the costs of exception to the master's report of a good title, which the vendee bad to bear. Ibid. 165. Costs awarded on a decree correcting a mis- take in a contract, in a bill for that purpose andi for specific performance. Kemselbrack v. Livingston, 4 Johns. Ch. 144, 1: 795. 166. Where the assignee or grantee in a convey- ance which is impeacued on the ground of fraud, instead of disclaiming, puts in an answer which re- quires the complainant to reply and go into proofs, and it turns out that the conveyance is fraudulent,, and such assignee bad direct or constructive notice of the fraud, he will be subjected to the costs of tlie suit. Mead v. Phillips, 1 Sandf. Ch. 83, 7; 848- 167. Where the defendants obtained from the an- cestor of the complainants a conveyance of his property, when he was in a state of intoxication, they were charged with the costs of the suit to set aside the deed. Prentice v. Achorn, 2 Paige Ch. 30, 3: 80O 168. Where a party talces a conveyance of trust property, to enable the trustee to raise money there- on for his own private purpose?, he is chargeable with the costs of a suit brought by the cestui a bill of discovery must pay the costs of the de- fendant. Deas V. Harvie, 2 Barb. Ch. 448, 6: 710 Burnett V. Sanders, 4 Johns. Ch. 503, 1:917 175. The exception to this rule is where the com- piiiluant shows that he has applied to the defendant to admit some fact material to the defense of the complainant in the suit at law, which the defendant In the bill of discovery refuses to admit, but which he afterwards admits by his answer to the bill. Ibia. 176. Where no application for a discovery is made to tJae aeiendant uimself, previous to filing a bill of discoverer against him, and the only application made is to his attorney, who has no information on the subject except what he has communicated to complainant's attorney, it is not sufficient to excuse the complainant in the bill of discovery from the payment of costs. Ibid. 177. Where the complainant In a simple bill of dis- covery asks for a disoovfry from the defendant previous to the filing of his bill, which discovery is material to the prosecuoion or defense of his rights -at law, and it is refused by the defendant, if the dis- covery thus asked for is afterwards drawn from the •defendant by his answer to the bill, such defendant 4b not entitled to costs against the complainant. Harris v. WiUiams, 10 Paige Ch. 108, 4: 906 178. Where a bill, in addition to the recovery sought, contains a prayer for general relief, and a leplication is filed to the answer, the defendant can- not obtain an order for costs on motion, as upon a mere bill of discovery. McDougall v. MOn, 2 Paige Ch. 325, 8:938 179. If there is no ground for relief in such a case, 'the defendant must obtain the usual orders to pro- duce witnesses and to close the proofs, and then bring the cause to a hearing in the usual manner, -In order to obtain his costs. Ibid. 180. As a general rule, a party who has f uUy an. swered a biD of discovery is entitled to costs ; and costs are given against the complainant of course if the charges in the biU are denied. King v. Clark, 3 Paige Ch. 76, 3: 64 181. Where the material allegations in a bill of discovery are admitted by the answer, and the -defendant also admits that he was applied to by the complainant, and refused to make the discovery, previous to the filing of the bill, he will not be en- titled to costs. Ibid. 182. Officers of a corporation who are made parties ■to a bill for the purposes of discovery are in re- spect of their costs deemed a part of the corpora- tion. Semble. Masters v. Eossie Lead Min. Co. 2 Sandf . Ch. 301 7: 603 183. But when the discovery thereby obtained is used to charge such officers personally in a supple- mentary proceeding, they will be allowed the costs of their answer. Ibid. 184. Where an officer of a corporation is necessa- rily made a defendant, for the purposes of discov- ery merely, if the complainant is compelled to pay the costs of such discovery, be may have a decree over against the other parties for such costs. Pulton Batik v. New York & S. Canal Co. 4 Paige -Ch. 127, 3: 373 k. Partition. 185. Costs in partition, in this court, are charged -upon the parties respectively, in proportion to the value of their respective rights. Phelps V. Green, 3 Johns. Ch. 308, 1: 638 186. In partition, where the complainant causes ilitigation by setting up an unfounded claim, he -will be charged with the additional costs occasioned 'by such claim. Crandall v. Hoysradt, 1 Sandf. Ch. 40, 7: 330 187. In partition suits where an actual partion o* -the premises is decreed, the costs of the complainant, and of all the defendants who have appeared in the cause, are to be taxed as between party and party, and the aggregate amount of the several bills ap- portioned and charged upon the parties to the suit, according to their respective righta and Interests in til** nrfimisen. Tibbits V. Ttbbits, 7 Paige Ch. 204, 4:135 188. In partition suits the parties whose taxed bills exceed their ratable proportions of the whole costs are entitled to execution against those whose taxed bUls are less. Ibid. 189. Where one of three nonresident defendants, against whom a bill in partition had been taken as confessed and the master's report upon the title had beei. obtained, was permitted to come in and contest the complainant's right, upon payment of the costs of the proceedings to take the bill as con- fessed against him, and of the subsequent costs of the complainant consequent upon the order to take the bill as confessed, the absentees were not in de- fault until the expiration of the time limited in the order for publication, and the costs of proceedings to take the bill as confessed against such defend- ant, to which the complainant was entitled, com- menced with the affidavit of the defendant's de- fault to appear and answer within the time thus limited. The defendant, who was permitted to come in and defend, was only chargeable with one third of the costs of proceedings, which remained good against the two other absentees; but he was charge- able with the whole costs of the reference as to ti- tle, as the complainant must proceed de novo be- fore the master if this defendant did not succeed in his defense, ChrlMy V. Clirigty, 6 Paige Ch. 170, 3: 943 1. Diseontinuance; Dismissal. 190. In general, where the bill is dismissed upon a general demurrer thereto for want of equity, the defendant is entitled to costs. Gorr V. BrlflM, 1 Barb. Ch. 157, 5:337 S. C. 5 Ch. Sent. 39, 6:1179 191. A plaintiff will not be allowed to dismiss his bill without costs, unless it appears that he had reasonable grounds for filing it. Ferine v. Swaim, 2 Johns. Ch. 475, 1: 455 192. Under the usual order that complainant's bill be dismissed upon payment of costs, he must pay the costs If he wishes to put an end to the suit. Simpson v. Brewster, 9 Paige Ch. 245, 4: 687 193. Where a plaintiff had color of claim, though barred, in the opinion of the court, by lapse of time, his bill was dismissed without costs, UeTnarest v. Wynkoop, 3 Johns. Ch. 129, 1 : 566 194. If, by the complainant's own act or procure- ment, the object of the suit is defeated, he cannot be permitted to discontinue without costs. Hammersley v. Barker, 2 Paige Ch. 372, 3 : 948 195. The provision in the Revised Statutes which exempts the party dismissing his own bill from costs in certain cases only extends to those cases where prima faele he would not be chargeable with costs on a decree dismissing the bUl at the hearing ; as in the case of suits by executors in right of their testators. Ihid. 196. If the complainant prima faele would be chargeable with costs if the suit was decided against him at the hearing, the court will not examine the whole merits of the cause merely to ascertain whether there are any equitable circumstances which might excuse him from the payment of costs. Iba. 197. In no case can a complainant, unless he pros- ecutes as executor or auuiiuistrator, dismiss uis bill without the payment of costs, not even if it should appear he would be entitled to a decree U he proceeded in the suit. Ziewis V. Oermond, 1 Paige Ch. 300, 3: 655 198. Where an executor or administrator has com- menced a wrong suit by mistake, or lias asoertamed that it would be useless to proceed, in consequence of facts subsequently discovered, he will be per- mitted to discontinue without the payment of costs. Amoux V. Steinbrenner, 1 Paige Ch. 82, 3: 569 199. Solicitor for a client residing in France filed a bill; but such client was then dead. As soon aa he knew the fact he notified the defendant's solicitor; but the latter continued proceedings on his part. The court stayed them on motion and gave him costs only to the day he had notice of the death. BaJbi V. Duvet, 3 Bdw. Ch. OS, 6: 710 200. If persons are made parties defendants un- necessarily, the bill win be dismissed as to them, with costs. Covenhoven v. Shttler, 2 Paige Ch. 123, 3: 841 COSTS, I. m. 91 iJUl. In a case of great hardship, where the oom- jplalnants had reason to suppose that the conduct ■of the defendants was fraudulent until they put In their answer, which fully explained the circum- stances of the case, the court dismissed the bill without costs. Lupin V. Marie, Z Paige Oh. 170, 8: 860 303. Where upon receipt of notice of motion to dis- .miss a bill for want of prosecution, the solicitor for 'thb complainant f urnisnes to the adverse party sat- isfactory evidence tliK"; the negrlect to proceed to put the cause in readiness to take testimony arose ■from accident or misiuke, and offers to pay the costs which had accrued upon the notice previous to such offer, and shows that the cause is then in readiness to take testimony, and the defendant's ■olicitor refuses to withdraw his application, the court will deny the motion, and not allow the ap- ■i>lioantany costs. Germain v. Beach, 9 Paige Ch. 333, 4: 680 203. Where it appeared upon the face of a bill of in- terpleader that It was not a proper case for sutili :i bill, and the defendants, instead of demurring, put .in answers and went to a hearing upon pleadingE and proofs, insisting in their answers, however, iihat the bill was improperly filed, the chancellor, upon a dismissal of the bill, only allowed the de- fendants the costs to which they would have been entitled if they had demurred and the bill had been dismissed upon the allowance of the demurrer.e. Shaw V. Oosfer, 8 Paige Ch. 339, 4: 453 204. Where the mortgagor paid the complainants' ■^ebt and costs before any decree in the cause, the complainants were permitted to discontinue with- out paying the costs of junior incumbrancers who had unnecessarily appeared and answered. Merchants Ins. Co. v. Marvin, 1 Paige Ch. ,557, a: 751 305. It appearing, upon holding the complainant's two lots liable for tbe sum primarily ciiarged on them, that there was not SlOO actually due and in arrear when the bill was filed, and there being no obstacle to a sale of the premises in parcels, the bill was dismissed on that pround, with costs. KnickerbaOier v. BoutweU, Z Sandf . Ch. 319, 7: 609 206. To a bill to correct a mistake in a deed, the de- -f endants put in their answer, and also filed a cross- bill for discovery. The plaintiff in the original bill, ^as of course, ■without notice, dismissed his bill. Held, that the delendants were entitled to costs on the dismissal of the plaintiff's bill, and also to the -costs of their cross-bill as part of their defense in the original suit. Ferris v. NeUon, 5 Johns. Ch. 263, 1: 1077 307. A defendant who answered an original bill, ■after a decree against him, petitioned for a rehear- ing, which was granted, and the plaintiffs filed a Tjill of revivor and supplement, to which the de- fendant answered and disclaimed ; he was held not to be entitled to obsts on the dismissal of the bill. Shaver v. Badlev, i Johns. Ch. 310, 1: 851 308. On the dismissal of the bill, costs were denied . to the defendants, on the ground of laches on their part and hardship on the part of the plaintilfs. IMd. 209. Where the parties by mutual consent with- were referred, and the master disallowed the first exception, and allowed the second and third. The- usual order was entered to expunge the imperti- nent matter embraced in the second and third ex- ceptions, and for the payment, by the def endant^ of the costs of those exceptions. Held, that the^ complainant was entitled to costs of the two ex- ceptions allowed, which had accrued previous to the entry of the order to refer the exceptions, and to the costs of the order to expunge the imperti- nent matter, and the costs of other proceedings upon the master's report subsequent to the filing of such report. Everson v. Hinds, 2 Barb. Ch. 117, 5: 579- S. 0. 6 Ch. Sent. 59, 5: 1313- 241. The costs to which neither party is entitled, as against the other, upon a reference of excep- tions unless he finally succeeds as to all the excep- tions referred, are the master's fees upon the ref- erence, and the soUcitor's and counsel fees, and. other expenses between the perfection of the ex- ceptions and the filing of the master's report on- the reference, including postages and other dis- bursements. Ibifi.. 242. When impertinent matter in an answer, which should all have been embraced in one exception, is- made the foundation of several exceptions, to de- tached parts thereof, the court may refuse to give the costs of the reference to the complainant, al- though the major part of his exceptions to the an- swer are finally allowed. Franklin v.Keeler,iPsdgeCh.3SZ, 3:479' 243. Where exceptions to an answer, for imperti- nence, were unnecessarily prolix in setting out the matter excepted to at length in the exceptions,the chancellor refused to allow the complainant her costs of the reference, although she succeeded as- to all the exceptions referred. Oerman v. Machin, 6 Paige Ch. 288, 3:990- 244. Where a judgment creditor, having a claim upon the sui-plus moneys raisea by the sale of mort- gaged premises, litigates in good faith before the master on a reference to setue the priority of liens^ he wlU not be charged with the costs of such litiga- tion. Norton v. Whiting, 1 Paige Ch. 578, 3: 759- 245. But if he excepts to the master's report, and those exceptions are disallowed, he maybe chargedi with the costs of the hearing on the exceptions. IWd. 246. Where a defendant neglected to attend before- a master on a reference, in oDedieuceto asujumoua served upon his solicitor, and showed, for cause against the usual order to attend before the master in four days and to pay the costs of the application, that he was absent from home when the summons was served, and had no information of it until after the order to show cause was served,— Held, that as the solicitor neglected to appear before the master to excuse the default of his client and to obtain an adjournment of the hearing.the defendant must pay the costs of the proceedings to compel his' personal attendance before the master on the reference. Stow V. Pearce, 9 Paige Ch. 367, 4: 734- 247. Complainant succeeds upon only one of eleven exceptions. He is entitled to costs of drawing thi* one exception, but neither he nor the defendant has costs of the reference; but the latter ha8> costs upon the exceptions to the master's report and of the hearing, subject to the complainant's costs on the hearing. Jolly V. Carter. 2 Edw. Ch. 209, 6: 378 248. Where the defendant's third answer was re- ported insufttcient, and his exception to the mas- ter's report was overruled, with costs, the defend- ant was directed to pay those costs within twenty davs, or, in default thereof, that the biU should bo- taken as confessed. Hinbie v. Brown. 1 Barb. Ch. 321, S: 401 S. C. 5 Ch. Sent. 65, 5: 1188- Zi9. Upon the dismissal of a bill filed by a hus- band against his wife for a separation, which ha»- been taken as confessed, the defendant will not be entitled to the costs of a reference directed by the court for the purpose of ascertaining that there was no collusion between the parties. Perry v. Perry, 2 Barb. Ch. 285, 5: 645- o. Miscellaneous Cases. 250. Costs will be refused in a suit In equity to. set off judgments, except in special cases, as there- COSTS, I. p. 93 j8 ordinanly a more cheap and expeditious remedy *y .lyplicafion to the court of law. GnaUy v. Garrison, 4 Paige Ch. 647, 3: 595 251. The defendant in an attachment cannot be charged for proceedings against the sheriff to pro- -cure a return of the attachment. People V. Elmer, 3 Paige Ch. 85, 3: 68 252. The amount of sheriff's fees stated in the re- •turn to an attachment will be presumed correct •until the contrary is shown. Ibid. 253. A complainant filing a judgment creditor's bill, and failing to disoorer property, must pay -costs on its dismissal. BaymonA v. BedfleUi. 2 Edw. Ch. 196, 6: 366 254. Where from the conflicting claims of the de- fendants tlie compiaiuaut is oompeiled to resort to a bill of interpleader, he will be allowed his costs. BedOX V. Rnffman, 2 Paige Ch. 199. a: 878 255. On a bill in the nature of a bill of interpleaderi costs are noi, a matter of rlgnt, but rest in the dis- cretion of the court. j{,i(j. 256. Although a complainant filing a bill of inter- pleader ordinarily gets his costs, yet where he leaves unprotected (by not mailing him a party) ■one who should have been primarily protected, e. g. his accommodation Indorser, and compels the filing of another bill, he will not be allowed his costs. Palmer v. Elliott, 4 Edw. Ch. 643, 6: 1004 257. Where a resale was obliged to be had owing to the solicitor and master not having attended sufB- cientiy in selling, to a description of the premises as contained In the decree, the court refused to the solicitor his costs on the motion discharging former purchasers, and to the master his costs and adver- tising of the first sale. Walworth v. Anderson, 4 Edw. Ch. 281, 6: 879 258. Where a bill was filed to close up the concerns ■of a manufacturing company, which was alleged to have been dissolved in fact upon a particular day; ■and a decree was made for the benefit of creditors ■as to all debts which were due on the day of the al- leged dissolution,— Held, that a creditor who had commenced suits to recover debts due from the corporation, and who bad obtained judgments therein before the decree, but after the time of dis- golution mentioned in the bill and in the decree, was equitably entitled to his costs in those suits up to the time when he could have come in under the de- cree; but that, by the terms of the decree, the mas- ter was not authorized to allow costs which had accrued si'bseq i;ent to the day upon which the cor- poration « as alleged to have been dissolved in fact. Fisfc V. Keesexiille, W. & C. Mfg. Go. 10 Paige Ch. 592, 4: 1103 259. A creditor who came in after the master had filed his report, and obtmned leave to prove his debt, without stipulating to contribute to the costs of suit brought by the other creditors against the ex- ecutors, the assets not being sufBcient to pay all the debts proved, was not allowed his costs out of the fund. Mason V. CodwUe, 6 Johns. Ch. 183, »: 94 260. Costs will not, in general, be given to a de- fendant upon the dissolution of an injunction on bill and answer, where the bill was suiHcient upon itp f noe to entitle the complainant to the injunction. Otis V. Forman, 1 Barb. Ch. 30, 5:887 S. C. 5 Ch. Sent. 19, 5: 1171 261. Costs not allowed to either party on a bUlfor a pprnotual injunction to quiet the possession. DeBiemer v. CantUlon, 4 Johns. Ch. 86, 93, 1; 773, 775 262. One who intentionally uses, or closely imitates, ■another's trademarlcs on inerclmiiUisu or manu- factures, v^ill be subjected to the costs of a suit brought by the proprietor of such trademarks Id;- ibis protection. Taylor v. Carpenter, 2 Sandf. Ch. 603, 7: 780 Coats V. Holbrook, 2 Sandf. Ch. 586, 7:713 283. Where securities belonging to a very aged and innrm man were placed oy him m the nanas o^ i-no ■defendant for safe keeping, and to receive the mon- eys thereon as they were voluntarily paid for the complainant's use; and the defendant had been jruilty of no negligence or default except a neglect to answer a letter of the complainant's solicitor re- questing a statement of the fund,— Held, that there was no reason for charging the defendant with the costs of the suit for the recovery of the securities in his hands. Robertson v. Wendell, 6 Paige Ch. 320, 3: 1004 264. All actual expenses of a litigation allowed as a condition of relief on the special facts. Leggett v. Edwards, Hopk. Ch. 530, 8: 518 265. Costs refused on decree for the complainant ; the matter having been before submitted to arbi- tration, and the decree varying but little from the award. ^eetand v. Mannahan, Hopk. Ch. 276, 8: 480 266. Where the relatives of an habitual drunkard prosecute a commission against him in good faith, they wUl not be charged with costs, although the prosecution should be unsuccessful. Be Amhout, 1 Paige Ch. 497, 8: 789 267. Although a petitioner upon whose application a commission of lunacy is granted fails to obtain an inquisition finding the existence of the alleged lunacy, he will not be charged with costs if he has ] .■ ,.f,nied in good faith and upon probable cause. Be Giles, 11 Paige Ch. 638, 5: 863 p. Personal Uability of Solicitor. 288. It is the duty of counsel to peruse and exam- ine the pleadings oeiore they sign them ; and mey are personally liable if such pleadings contain scandalous or impertinent matter. Doe V. Qreen, 2 Paige Ch. 347, 8: 938 289. The solicitor of a party had put impertinent and scauualous matter lu uis own aUidavic used on a motion. He was ordered to pay the costs of re- ferring to it and of a hearing upon exceptions taken by him to the master's report. Powell V. Kane, 2 Edw. Ch. 450, 6: 463 270. The solicitor who draws, and the counsel who signs, a scandalous or impertinent pleading or pro- ceeding, are personally liable for tne costs of ex- punging the scandalous or impertinent matter, and ought to be charged therewith in the first instance, although their client is also liable to the adverse party for such costs. And if the solicitor or coun- sel is compelled to pay such costs, he has no legal or equitable claim upon his client to refund the amount thup paid. P(mell V. Kane, 5 Paige Ch. 265, 3: 718 271. A counsel who signs a scandalous or imperti- nent pleading is personally answerable for the costs of the proceedings to expunge the scandalous or impertinent mattei'; and an unsuccessful attempt to collect such costs from the party for whom such pleading was put in will not discharge the counsel from liability. Cushman v. Brown, 6 Paige Ch. 539, 3: 1093 272. The counsel who signs a pleading containing scandalous or impertinent matter is guucy ut a con- tempt of the court, and is personally liable to the adverse party for the costs of the proceedings to have the scandalous or impertinent matter ex- punged. Sommers v. Torrey, 6 Paige Ch. 54, 3: 685 273. The extent of the liability of the complainant's solicitor to all the defendants in the suit, under the provisions of the 16th Hule of the court of chancery, cannot exceed $100. And it seems that where a nonresident complainant appeals, his so- licitor is not liable, under that rule, for the defend- ant's costs on the appeal. Sigov/rney v. Waddle, 9 Paige Ch. 381, 4: 740 S. 0. 1 Ch. Sent. 83, 5: 1076 274. It seems that the statute rendering the attor- ney ot a nonresident piaintilf liaoie for the defend- ant's costs to the extent of $100 does not apply to solicitors of the court of chancery in suits com- menced there. But a similar liability is incurred by a solicitor in suits in the court of chancery, under the provisions of the 16th Eule of that court. Ibid. 275. Where the solicitor of a party makes a useless application to the court to correct a mere technical irregularity, which cannot injure or materially de- lay nis client, he will not be allowed the costs of such application, as against the adverse party. Neither will he be allowed the costs of opposing a motion by the adverse party to correct an irregu- larity, which motion is rendered necessary by rea- son of his refusal, upon a proper application, to waive the irregularitv. Kerne V. Van Vramlten, 5 Paige Ch. 62, 3: 688 276. The solicitor himself is personally liable for the costs of correcting an irregular proceeding, oc- casioned by bis negligence or gross ignorance, which is prejudicial to the rights of the adverse party: and if the costs are charged upoYi the client in the first instance, he may recover them in an ac- tion against his solicitor. Told. 94 COSTS, II. 277. The complainant is personally liable to the de- fendants for their costs, in cases in which the soli- citor is also liable under the provisions of the 16th Rule of the court of chancery. And it is not prop- er to make it a part of the decree in the suit that the solicitor shall pay a part of the defendants' Sia'amney v. WaMle, 9 Paige Ch. 381, 4: 740 S.0.1Ch. Sent.83, 6:1076 278. The solicitor for the party in whose behalf a witness ia examined or cross-examined is person- ally liable to the examiner for his fees, in takinir the testimony of the witness for the benefit of his client. Trustees of Watertovm v. Cowen, 5 Paige Ch. 510, 3: 808 279. The fees of the examiner, upon the cross-ex- amination of a witness, are chtirgeable to the solic- itor of the party for whose benefit, or at whose request, such cross-examinationis taken: and not to the solicitor of the party calling such witness. Ibid. n. Security ; ENffOROiNO Payment. 280. Where the person who prosecutes a suit in the name of an Infant, as his next friend, is in- solvent, he will be compelled, on the application of the defendant, to give security for costs. Fulton V. Bosevett, 1 Paige Ch. 178, 8: 607 281. Where the complainants became Insolvent pending the suit, ana asaiKined all tnelr interest therein to a third person, the assignee was not per- mitted to proceed with the suit in their names without giving security for costs. Massey v. GUlekm, 1 Paige Ch. 644, 8: 784 282. On motion to strike out a next friend that he might become a witness, the court required the new next friend to give security for costs already incurred. Golden v. HasMms, 3 Edw. Ch. 311, 6; 670 283. Complainant, nonresident, must give security for costs, notwithstanuing the solicitor's liability. But without special cause the security need be only for SIOO. Baldviinv. Williamson, Hopk. Ch. 117, H: 363 284. A defendant may require security for costs at any stage of a suit from a nonresident compiainaut who resided out of the jurisdiction at the com- mencement of the suit and continues so. Burgeas v. Oregory, 1 Edw. Ch. 449, 6: 805 285. Where the complainant has actually removed from the State with his family, and changed his residence, the defendant is entitled to security for costs, although there is a probability that the corp- p'"inant may return at some future day. Oilhert v. Gilbert, 2 Paige Ch. 603, a: 1048 286. An application to the surrogate, by a credi- tor, legatee, or distributee, to compel the executor or administrator to pay the debt, legacy, or distrib- utive share out of the fund in his hands, is not such a suit as wiU entitle the party proceeded against to security for costs, where the applicant is a nonresi- dent. PTesteruett V. Greffff, 1 Barb. Ch. 469, 6:459 287. The provisions of the Revised Statutes rela- tive to security for costs apply only to suits in courts of record, and are not applicable to proceed- mgs before a surrogate. Ibid. ■ 288. Where a nonresident complainant gives no- tice of a special application to the court, and, before the time for making such application arrives, the adverse party obtains an order that all proceedings on the part of the complainant be staid until se- curity for costs is filed, the application cannot be made until such security'is given. And if the com- plainant wises to be excused from paying the costs of opposing the appUoation, he should appear at the day appointed and ask to have the application stand over until he has time to file security for costs ; or he may give the security, and then make the application at the time specified in his original notice. Price V. Beits, 6 Paige Ch. 44, 3: 898 289. The 12th section of the Act concerning di- vorces (Sess. 36, chap. 102, 2 N. R. L. 197), relative to security for costs to be given by the plaintiff, does not apply where the bill is filed on the ground of adultery, though the bill contains also a distinct charge of cruel and inhuman treatment. Pomeroi/ V. PomerOM, IJohns. Ch. 606, 1:863 290. The defendant is not entitled to security for costs from a nonresident plaintiff suing aa admin- istrator, especially after a plea. GootJricftv. PeTidleton, 3 Johns. Ch. 520, 1:703 291. If the nonresidence of the plaintiff appears om the face of the bill, and the defendant demurs,, pleads, ortakes any other step in the cause, or even> prays for time to answer, it is a waiver of his right to security for costs. Ibid' 292. One surety is sufScient In a bond for security for costs in beuaU of a nonresident complainant, although the bond be not executed by the complain- ant or his agent. Wckhthwalte v. Wiodee, i Sandf. Ch. 434, 7: 1168 293. It is not a valid ground of exception to a surety in such a bond, that he is the solicitor for the complainant. Ibid. 291. The defendant is entitled to move for security^ after demurring to the blU. Ibid. 295. Where a defendant, af terserving a petition for security tor costs, auu ueioi-e the aay on wbicli be proposes to move, receives notice that security haa been filed, with a copy of the surety's aifidavit of justification, he should countermand his petition^ if he persist in moving, he will be charged with costs. Ibid, 296. Where nonresident complainants give security for costs, and one of the sureties becomes insolvent,, a new one must be added and proceedings stayed until it is done. Bridges v. Canfteld, 2 Edw. Ch. 208, 6: 371 297. A bill was to be dismissed, if security for costs by nonresident complainants was not given with- in thirty days,— the parties not having combed with a former order for security. ibid. 298. Where an answer was put in after the grant- ing of a motion to open an order taking the bill a» confessed, and to allow an answer,without the pay- ment of co8ts,aBd complainant replied to the same, his only remedy to obtain satisfaetion for his costs was to proceed against defendant as for a contempt for the nonpayment thereof. I/orton V. Seaman, 9 Paige Ch. 609, 4: 83» 299. Where a defendant in a foreclosure suit, wha IS proceeded uguuist us an absentee, applies lo oe let in to defend after decree and before a sale of the mortgaged premises, and does not swear to a de. f ense on the merits, he must pay the costs already accrued, subsequent to the time for his appearance, and must also give security to pay the future costs of the suit if he does not succeed in his defense. Hartivell v. White, 9 Paige Ch. 368, i: 736- 800. If the absentee swears to a good defense upon the merits, and states what it is, the court will not require him to pay costs, where he applies the first opportunity after he has notice of the proceedings against him, although the complainant denies upon oath that any such defense exists. But the court in such a case may require the absentee to give security to pay the costs already accrued, and the costs of the future litigation, if he shall not succeed in his defense. Ibid. 301. Ten days were given to pay costs accruing od exceptions Do answei-s on attueuineut for nonpay- ment of the same, and twenty days allowed for put- ting in further answers. In the mean time the bonds given upon the attachment were to be oper- ative. Felberg v. Kellogg, 1 Edw. Ch. 27, 6: 47 302. As the mortgaged premises cannot be sold on an execution, upon a juuKUient recovered for the mortgage debt, the costs of the suit upon the bond are not a lien upon the mortgaared premises. Palmer v. Foote, 7 Paige Ch. 437, 4: 881 303. Though the 54th Rule of the court (June, 1806), where a nonresident files a bill, requires that security for costs should be filed, and if the solicitor for the plaintiff proceeds without filing security, he is liable for costs to the amount of $100, yet the court, if application for that purpose is inade in due season,— that is, before the answer is put in, or the first opportunity after the defendant knows of the fact of the nonresidence of the plaintitT,- will or- der proceedings to be stayed until adequate securi- ty for costs— that is, to a greater sum than $100— i» filed by the plaintiff. In this case the court ordered a bond, with surety, to be executed to the defend- ant, for $7S0, and filed with the register. Long v. Majestre, 1 Johns. Ch. 202, 1:113. 304. Proceedings in a suit in this court wlU not be stayed, on motion, until the costs in certain suifa at law between the same parties, relating to the same COSTS, III. a. 95- subject, in which the plaintiffs had been nonsuited, or verdicts found against them, he paid. Demarest v. Wynkoop, 2 Johns. Ch. 461. 1: 451 305. The rule applies only when both suits are in the same court, or, at least, in courts of the same nature, and proceeding in the same manner, and on the same principles, either at law or in equity. Ibid. 306. If costs are not paid within the time limited by the order, the party entitled to the costs may tnalce an ex parte application lor an order to com- mit the delinquent to prison; and uU the costs sub- sequent to the demand can then be allowed, and Inserted in the r^itrimu*!. ^ Chainnan v. Munson, 3 Paige Oh. 347, 3: 188 307. Where the complainant, after having obtained an order to dismiss upon payment of costs, neglects or refuses to pay such costs, the defendant may apply to the court to compel payment. Cummins v. Bennett, 8 Paige Ch. 79, 4: 35!S 308. Or proceed against him as for a contempt. Stmpsom T. Brewster, 9 Paige Ch. 245, 4:687 309. Where a party to a suit maizes an absolute aa- ■jgnment of all his mtorest in tbe eosis, to his so- licitor, he cannot make an application to enforce payment; but the assignee must apply in his ovrn name. Ibid, 310. To entitle a party to a precept to commit the adverse party to prison for not paymg interlocu- tory costs directed to be paid by an order of the court, a personal demand of the costs must be made. And a demand of the costs from the solicitor of the party is not sufficient. Xiorton V. Seaman, 9 Paige Ch. 609, 4: 836 311. Upon a biU filed by the wife against her hus- band for a separation or limited divorce, if the next friend of the wife who prosecutes the suit is irre- sponsible or insolvent, all proceedings may be stayed until security for costs is given, or a respon- sible person is substituted in his place ; and if such security is not given or substitution made within a reasonable time, the bill will be dismissed. Lamrenee v. Lawrence, 3 Paige Ch. 267, 3:148 312. If security for costs be taken at all in a suit for divorce, under the 13th section of the Act concern- ing divorces (Sess. 36, chap. 102, 7 N. R. L. 197), rela- tive to security for costs to be given by the plaintiff, it must be taken for the costs of the suit at large, and it cannot be taken for a distinct ingredient in the bill. Pomeroi/ v. Pomeroy, 1 Johns. Ch. 606, 1: 863 ni. Taxation; Amouht; Items. a. In General; PractUx. 313, The taxing oflcer is only entitled to a 'ee of $1 for taxing the costs upon a commission of luna- cy, or other special proceeding. The larger sum of $1.50 is only allowed upon the taxation of costs after a final decree in a cause. Be Boot. 8 Paige Ch. 625, 4:568 314. A vice-chancellor is authorized to tax the costs in a suit or proceeding before any other vice-chan- cellor. Chapman v. Munson, 3 Paige Ch. 347, 3: 182 315. Questions as to the regularity of the taxation should be brought before the vice-chancellor in whose circuit the suit is pending, and not before the chancellor. Ibid. 316. In a foreclosure suit the register or clerk is required to charge and receive from the solicitor of the complainant, for the benefit of the State, the fees for services which are performed before it is ascertained whether a defense is to be made in such suit, at the rates which are prescribed by the fee- bill in other cases. But for services performed af- ter the bill has been taken as confessed, or after the defendant has put in an answer which sets up no defense, no other fees are to be received or charged than such as are prescribed in the Act of May, 1840. to reduce the expense of foreclosing mortgages m the court of chancery .„ _ -r^ ^ -,« t^.,.„„ m. New TarkL. 'Ins. & T. Co. v. Davis, 10 Prnge (J. 507, *' ^""^ 317. If the taxing officer, on the taxation of a bill of costs, has doubts as to the correctness of acharge, he should reject it. Boflers v. Bogers, Z Paige Ch. 460, »: 989 318. BiUs of costs which are to be annexed to the decree on enrollment must |be fairly engrossed, without unnecessary erasures ov interlineations, be- fore they are certified by the taxing officer; and if they are not in that situation, he should direct themu to berc-ongrnssed. Stafford v. Bryan, 2 Paige Ch. 46, 8: 80» 319. Where postage or other disbursements are charged, each item of such disbursements, and the- occasion and circumstances of the expenditure, should be particularly specified in the bill of costs,, and sworn to. Bogers v. Bogers, 2 Paige Ch. 459, 8: 988 320. It is the duty of the taxing oflicer to see that the several provisions of the Revised Statutes rela^ tive to the taxation of costs are complied with, whether the taxation is opposed or not. Ibid. . 321. The usual application for costs by the defend- ant, on a bill of uiscovery, after he has fuuy an- swered the bill, is not n hearing of the cause upon the merits, within the meaning of the fee-bill, but is a mere motion. The defendant, theref ore.upon tax- ation, is only entitled to costs as upon a special mo- tion, and not to costs as upon a hearing of the cause upon the merits. Boughton v. Phillips, 6 Paige Ch. 433, 3: 1051' 322. But where application is made to the court un necessarily, within the twenty days allowed by the rule for applying to the register or clerk, the party making such application will not be allowed on taxation for the extra costs of applying to tiic court. Clark V. Bundy, 6 Paige Ch, 432, 3: 105O' 323. Where a solicitor is not entitled by law to a. credit, by the register or clerk, for services to be performed for such solicitor, the solicitor must pay the fees allowed by law for such services, before the register or clerk is authorized to perf orm'such serv- ices. And the solicitor has no right to presume- that the register will violate the law by performing the service when the fees are not paid, although re- quested to do so. Bomk of Bochester v. Emerson, 10 Paige Ch. 359, 4; lOll' S. C. 3 Ch. Sent. 74, 5: 1184 324. Upon the taxation of costs, where the soUcitoi B' makes the usual affidavit as required by the 180th Rule,if the adverse party wishes to have some of the items charged in the bill disallowed upon the ground that the services have not actually been performed,. he must produce his affidavits or other evidence in opposition to such items, before the taxing officer on the taxation ; and where he neglects to do so he will not be allowed to use such affidavits or evi- dence before the court, upon a motion for retax- ation, without showing a sufficient excuse for not producing the same before the taxing officer. Wendell v. Lewis, 8 Paige Ch. 613, 4: 563 325. The usual affidavit annexed to the bill of costs- is sufficient evidence of the performance of the ser- vices to make it the duty of the taxing officer to- allow the charges, if in other respects properly tax- able against the adverse party, unless there is evi- dence produced before him sufficient to show that the affidavit annexed to the bill is not correct, and^ that the services were not performed. ibid. 326. It is not a matter of course to allow costs to a. party wno has attended to oppose the taxation ot a bill of costs against him, upon notice, and where the party giving such notice neglects to bring on the luxation at the time specified. But the court has the power to allow costs for such attendance to appose a taxation in a proper case. Greene v. Wheeler, 9 Paige Ch. 608, 4: 835. S, C, 2 Ch. Sent. 43, 6: 109» 327. Where a motion to discharge a ne exeaX was grunted,with costs, but before sucn costs were made out the complainants stipulated to dismiss their- bill, with costs to be paid to the adverse parties, — Held, that the costs upon the motion should be taxed< with the general costs in the cause, and that the de>- fendant's solicitor was not entitled to the extra ex- pense of making out and taxing two separate bills of costs. Sanders v. Mareelicfux, 6 Paige Ch. 162, 3: 939- 328. Where a suit is discontinued before the putting; In and service of an answer, if the defendant's so- licitor on taxation claims an allowance for drawing and preparing copies of the answer, he must, in ad- dition to his aihdavit that the draft of the answer was perpared, and copies thereof made, before he had notice of the discontinuance of the suit, pro- duce such answer before the taxing officer for the Inspection of the adverse party. IbiA. 329. '. he 1 verse party is entitled to notice of taxa- COSTS, III. b, 1, 2. tlon of costs, for the same length of time before the day appointed for taxation, as is required for the service of a master's summons by the 16th Bule of the court ; and a taxation of the costs without such notice is irregular, and may be set aside. Hoffmcm v. Skinner, 5 Paige Ch. 526, 3: 815 330. Where the solicitors reside in the same city or town, two days' notice of the taxation must be given. Ibid. 331. Decree need not contain an award of an ex- ■«oution for costs. Otis V. Forman, 5 Ch. Sent. 19, 6: lin 333. Costs of the suit may be taxed after the court has refused to grant a new trial and made a decree, though before a master has reported as to an amount for alimony. MuloeH V. Mulock, 1 Bdw. Ch. U, 6: 48 333. Where the parties compromised a suit by an .agreemeut that one of the ueteudants should pay the costs of the complainant, the taxing officer was not bound to decide whether the costs should bo taxed as between solicitor and client, or only as be- tween party and party. But if either party wished it, he should have taxed the costs in both ways, to enable the proper tribunal, before which the agree- ment was afterwards sought to be enforced, to de- cide whether the one amount or the other was pay- able under such agreement. Orippen v. Crippen, 11 Paige Ch. 316, 5: 113 334. Where costs are payable under an order or •decree of the court, the taxing officer must decide upon what principle the costs are to be taxed, ac- cording to the legal construction of such order or decree, as well as ascertain the amount of the tax- able items, according to such construction. ibid. 335. A cause is never brought to a hearing upon a mere bill of discovery: but as soon as the answer is perfected the defendant is entitled to move for Kirio V. Clark, 3 Paige Ch. 76, 3: 64 b. Of Counsel. 1. In General : Retaining Fee. 336. A retaining fee for counsel Is a proper charge >ln a suit where counsel other than the solicitor is actually retained. Orippen v. Brawn, 11 Paige Ch. 628, 5: 859 S. 0. 5 Ch. Sent. 13, 5: 1167 337. If counsel other than the solicitor is actually cLu ployed in the cause, retaiumg fees both for so- licitor and counsel are taxable, although the name of the solicitor only is subscribed to the pleadiners Bogen v. Rogers, 2 Paige Ch. 460, 8: 989 338. Upon a petition for the sale of mortgaged premises lur an instaiimeut failing due suuse- quentiy to the decree, no retainer is allowed for .solicitor and counsel, or either of them, even though there is a solicitor and counsel different from those in the oris-inal suit. Adams v. Stevens, Clarke Ch. 536, 7: 193 339. Only one counsel or solicitor's fee is to be al- lowed for the whole decree or order ; and it is im- proper to tax separate fees for each distinct point or cpecial direction contained therein. Fultmi Bank v. Beaeh. 2 Paige Ch. 186, 2: 866 340. Only one solicitor and counsel fee can bo •charged on a reference : and only one fee can be .allowed to the master, except by the special order -of the court. Richards v. Barlow, 1 Paige Ch. 323, 8: 664 341. A counsel fee is not taxable on the execution of a commission of lunacy or a commission to in- quire as to habitual drunkenness. Nor is a retain- ing fee for counsel allowed in such proceedings. Be Boot, 8 Paige Ch. 625, 4: 668 342. Upon a proceeding by attachment to compel an answer, retaining fees for solicitor and counsel cannot be taxed. Peid. 349. But a retaining fee to counsel is only allowed whe re counsel is actually employed in a cause or suit strictly so called. Ibid. 350. A charge for instructions as to the manner of serving the subpoena on aaefendant is not taxauic, and no allowance for serving the subpcena can be made, by way of disbursement,beyond the sum fixed by the fee-bilL Rogers v. Rogers, 2 Paige Ch. 460, 8: 989 351. No fee for counsel beyond the amount al- lowed by the statute can be decreed to be allowed. Sebring v. Mersereau, Hopk. Ch. 501, 8: 508 353. Upon a mere supplemental bill filed by the complainant against the same defendants, the com- plainant is not entitled to be allowed for new re- taining fees for sohcitor and counsel. Grippen v. Crippen, 11 Paige Ch. 216, 5: 113 353. Otherwise, where a suit abates and a new bill i necessary, not only to revive the suit against the .■epresentatives of the decedent, but also to bring new interests and new matters of litigation before the court, in consequence of such abatement. Ibid. 354. Where a cause is submitted upon written ar- ifuments, couusei tees for counsel, not exceeding two, who were actually engaged to arguethe cause, and who prepared the written argumeuta, are taxa- ble. Webb V. Crosby, 11 Paige Ch. 193, 6: 104 355. Where the same solicitor appears for different defendants in the same suit, be cannot charge a separate or distinct bill of costs for each defendant, nor charge more than once for services which were performed for all the defendants Jointly, or were performed only once, although such defendants sever in their defenses. Wendell v. Lewis, 8 Paige Ch. 613, 4: 563 S. C. 1 Ch. Sent. 15, 5:1056 356. If the complainant, after the original defend- ants have appeared and put in their answers, amends his bill and brings new defendants before the court, who appear by the same solicitor as the or- iginal defendants, and put in their answers, the so- licitor is entitled to charge a separate retaining fee for new def endants,and to tax the same in a separate bill, together with the costs of the appearance, and charges for such other services as were performed for the new defendants only, in which the original defendants had no common interest with them. ibid. 357. 'S^Tiere the wife obtains a divorce upon the ground of adultery, a reasonable counsel fee may be allowed and taxed against the husband. Oraves v. Orames, 2 Paige Ch. 62, 8:813 2. For Attendance. 358. A fee for the attendance of the solicitor upon the argument of the cause is only allowed for his attendance when tbe cause is actually heard, but not for an attendance prepared for a hearing mnrely. Putnam v. Ritchie, 7 Paige Ch. 42, 4: 63 359. If the solicitor actually attends the hearing of the cause, while the same is under argument, he is entitled to the solicitor's fee for attendance, al- though he takes no part in the argument, and is only present a part of the time. Wendell v. Lewis, 8 Paige Ch. 613, 4: 663 COSTS, III. c. 97 360. An allowance to the solicitor of a fee for at- tending the argument of the cause cannot be made where the cause is submitted on written arguments. Webb V. Cfrosby, 11 Paige Ch. 193, S: 104 361. A charge for solicitor's attendance on the register, on entering an appearance of a defendant, is not allowable. Crippen v. Brovm, 11 Paige Ch. 628, 5: 859 Mann v. Bice, 8 Barb. Ch. 43, 6: 807 362. On an ex parte hearing upon a bill taken as confessed, the solicitor is not entitled to an attend- ance fee. But where there is an actual attendance and argument with the counsel of the adverse t)arty, to settle important questions arising on the >i]l, an attendance fee for the solicitor and a full -counsel fee are taxable. Doe V. Green, 2 Paige Ch. 347, 8: 938 363. A counsel fee is not taxable for arguing or at- tending to arpue before the master upon an ej: parte reference, on a bill taken as confessed, where the adverse party has not appeared in the cause and is not summoned to attend on the reference. To authorize such an allowance to counsel there must either be an actual argument with the adverse party, on the reference, or the counsel must have attend- ed, pursuant to notice, under the expectation that such an argument was to take place before the mas- Christy v. Christy, 6 Paige Ch. 170, S: 943 364. Where the solicitor in the cause actually at- tends the court upon the hearing of a cause, he is entitled to the allowance specified in the fee-bill, although he is not actually present in the court room at the moment the decree is obtained or the cause is argued. „ „ , .„„ Frost V. Frost, 1 Barb. Ch. 492, 5: 469 365. A charge for attending the vice-chancellor out of term, upon a petition for a temporaryj in- junction, is taxable. . „ ™„ , ..,„ Orippen v. Orippen, 11 Paige Ch. 216, 6: 113 366. But such charge is not allowable where the injunction is allowed by a vice-chancellor out of court in his character of injunction master merely. IMd. 367. Where a cause is brought to hearing upon pleadings and proofs, the counsel who actually at- tend are entitled to their fees, although the ad- verse party does not appear to argue the cause on his part, but suffers the decree to be taken against him by default. Otisv. Forman, 1 Barb. Ch. 30, 5: 387 368. The solicitor is entitled to his fee if he actually attends when the cause is reached and heard, ima. 369. Where a motion is made or opposed by coun- sel other than the solicitor on record, the attend- ance fee of the solicitor is taxable, although he did not attend in person; but where the solicitor makes or opposes the motion himself, and is al- lowed therefor as counsel, he cannot charge an at- tendance fee as solicitor also. Rogers v. Rogers, 2 Paige Ch. 460, 2: 989 370. No allowance can be made to the solicitor for attending the hearing of a calendar cause, unless he attends in person. Ibia- 371. Where a cause is referred for hearing and de- cision, upon the calling over of the calendar, and not upon notice by the party for an order to re- fer, the solicitor is not entitled to charge an at- tendance fee for attending to obtain the order. Orippen v. Orippen, 11 Paige Ch. 216, 6: 113 372. A charge for attending court to argue a de- murrer whi(m was not reached on the calendar is not taxable. UM. 373.The charges for attending the master to obtain his signature to a summons, and for attending to obtain his report after it has been completed, are not provided for by the fee-bill, and are not tax- able. Rogers v. Rogers, 2 Paige Ch. 480, 8: 989 374. No charge for counsel attending prepared for argument, where the cause is not reached on the calendar, can be allowed. Ibid. 375. On exceptions to a master's report on excep- tions, the solicitor is only entitled to the usual fee for attendance on special motions. Bicha/rds v. Barlow, 1 Paige Ch. 323, 8: 664 376. A solicitor is only entitled to an allowance for attendance upon the examination of witnesses, for Ch. Dia. the number of days he actually attends before the Frost y.' Frost, 1 Barb. Ch. 492, 5: 469 377. A party is entitled to charge for solicitor and counserattehding upon the settlement of interrog- atories and arguing the same: that being, in Bub- stauce, a reference, according to the practice of the court, to a master to settle the interrogatories. Mann v. Rice, 3 Barb. Ch. 42, 6: 807 378. But the settlement of the interrogatories and cross-Interrogatories should take place at the same time and form but one proceeding. And after the interrogatories have been settled, the party is not entitled to charge for fees to solicitor and counsel upon the settlement of cross-interrogatories at a subsequent time. Ibid. 379. The solicitor for a defendant, or for the guar- dian ad litem of an infant, who neglects to attend to the rights of his client upon the hearing of the cause, is not entitled to costs on such hearing, al- though he has a decree for his general costs in the cause. MitcJiell V. Blain, 5 Paige Ch. 588, 3: 841 c. Of Pleadings. 380. Where the benefit of a plea is saved to the de- fendant until the hearing, neither party recovers costs on the argument of the plea. fleartt V. Coriiinff, 3 Paige Ch. 566, 3:876 381. Where it is perfectly apparent from the com- plainant's bill that he is neither entitled to relief nor discovery as against one of the defendants, such defendant should demur to the bill in the first instance. And if he puts in an answer unne- cessarily, where it is clear that a demurrer to the whole bill may be sustained upon the merits, the I lurt may refuse to allow him the extra costs of such answer. Mitrraj/ V. GraTwim, 6 Paige Ch. 622, 3:1186 382. The solicitor cannot be allowed on taxation charges for drawing, engrossing, and copying the jurat to a petition. Be Root, « Paige Ch. 625, 4: 568 383. It is no objection to the allowance of an ab- breviation ot pleadings, for the use of counsel, that the solicitor made full copies of the pleadings for the counsel instead of abbreviating them. It is only in abbreviations made for the use of the court that the rule restricts the solicitor to one sixth of the number of folios contained in the pleadings ab- Wendell'v. Lewis, 8 Paige Ch. 613, 4: 563 384. In the taxation of costs,if the pleading or pro- ceeding contains an excess of fifty words or more beyond a certain number of folios, the solicitor is entitled to charge an additional folio f orsuoh excess; but not where the excess is less than half a folio. Gilchrist v. Rea, 9 Paige Ch. 219, ,^*= SIf S. C. 1 Ch. Sent. 51, 5: 1066 385. The register or clerk is not entitled to charge a foe for entering the bill, or for entering a memo- randum of any order or decree In the register or minutes of causes, or for filing the draft of an or- der or decree which is to bo entered by him. mw Torh L. Ins. & T. Co. v. Davis, 10 Paige Ch. 507, 4: 1069 386. The charge for counsel's perusing and sign- ing an answer is proper, although the counsel who performed the service was the solicitor in the cause. Orippen v. Brown, 11 Paige Ch. 628, 5: 859 387. The charge for perusing,amending, and sign- ing pleadings, can only be allowed when the service is actually performed by counsel other than the so- licitor in the cause ; and where the name of the so- licitor alone is signed to the engrossed pleadings as counsel, the presumption is, that no other counnel perused and signed the drafts. Doe V. Green, 2 Paige Ch. 347, 8: 938 388 A second fee is allowed to counsel for perus- ing and amending a supplemental biu, or bill ox re- vivor, when such bill becomes necessary, but not for perusing and signing an amended bill. iMd. 389. Where an amended bill was filed by the agree- ment of the parties, embracing all the facts in the case, and as a substitute for the previous bill and answers, to save expense, the complainant, on tax- ation, was allowed for counsel perusing and amend- ing the same, and for the usual engrossments and copies. Ibid. 390. Charges for stipulations and orders allowing 98 COSTS, m. d. to the defendants further time to put in their an- BweT8, etc., are nottai:ableai;ainstthe complainant. But they are taxable as between the solicitor and his client, where the further time is allowed for the benefit of the client, and not for the conrenience of the solicitor merely. Wendell v. Lewis, 8 Paige Ch. 613, 4: 563 391. Where exceptions to an answer for insufficiency are allowed, and the defendant puts in a further an- swer, and succeeds in his defense, he is only entitled to tax against the complainant for so many folios of the further answer as would have been necessarv to have rendered the original answer perfect; and he Is not entitled to charse the adverse party with the expense of perusing, amending, filing, swearing to, or serving the further answer. Ibid. 392. The extra costs occasioned by Inserting un- necessary statements in a bill for foreclosure will be disallowed on taxation. Union Ins. Co. v. Van Bensselcu/r, 4 Paige Ch. 85, 3:353 393. Where a plaintiff asked for further time to ex- cept to the answer, which was granted, and also for leave to amend his bill after such answer, and after a plea accompnnying it, but not noticed for argument, the plaintiff, on being allowed toaineiia his bill, was ordered to pay $6 for the extra costs of the further answer, and the taxable costs of the plea, in case it should become useless in conse- quence of the bill being amended. BYench v. Shotwell, i Johns. Ch. 505, 1: 917 394. The costs of an amendment of the bill, which has been rendered necessary by the complainant's neglect to furnish his solicitor with a full statement of the facts of the case in the first instance, are not taxable as between party and party. Orippen v. Orippen, 11 Paige Ch. 316, 5: 113 S. C.i Ch. Sent. 52, 5: 1152 395. Where amendments are made to abill,andthe ■ollcitor unnecessarily makes a re-engrossment or a f uU copy of the original matter, he will not be en- titled to an allowance for the same in the taxation of his costs. Bennington Iron Co, v. Campbell, 2 Paige Ch. 159, 2: 855 396. Where there is a general decree for costs against the complamant, ne is not cnargeable with the extra expense which has been produced by the neglect of the defendant to put in a perfect answer at first. Stafford v. Brycm, 2 Paige Ch. 45, 3: 806 397. But the draft and copies of so many folios of ^he further answer as would have been necessary to make the first answer perfect, or as have been made necessary by subsequent amendments of the bill, are properly taxable. IWd. 898. The defendant in a suit, prima faeie, is not chargeable with the expense or an amendment o. the complainant's bill. And to entitle the complain- ant to charge it against the defendant, upon taxa- tion, it should be shown to the satisfaction of the taxing officer that the necessity of the amendment did not arise from the fault or negligence of the complainant's solicitor. New York L. Ins. dfc T. Co. v. Davis, 10 Paige Ch. 507, 4: 1069 399. A defendant who is allowed to put in a sup- plemental answer to correct a mistaKe in his ori- ginal answer should be required to pay the extni costs to which the adverse party has been subjected by his neglect to put in a proper answer in the first instance. Hughes v. Bloomer, 9 Paige Ch. 269, 4: 696 400. In case the complainant waives a further an- swer to the amended bill, and the amendment is merely formal, requiring no further answer to pro- tect the rights of the defendant, costs of putting In a new or;further answer will not be allowed. And if the defendant elects to put in an entirely new defense to the bill, in such a case the costs thereof must abide the events of the suit. Trust & Fire Ins. Co. v. Jenkins, 8 Paige Ch. 589, 4: 554 S. C. 1 Ch. Sent. 9, 5: 1053 d. Dfebursemenfs ; Of Witnesses. 401. The only disbursements which are properly taxable against the aUvtjrse party, under the pro- vision in the tee-bill on that subject, are disburse- ments by the solicitor for postage; for exemplifica- tions to be used in the suit; for necessary searches in the public offices; for the publication of notices. when required by law or the practlie of the court" and other disbursements of the like nature. Bwev V. Hovey, 5 Paige Ch. 551, S: 82» 402. The complainant's solicitor is not entitled to have taxed, aMuiuiit tue adverse party, the expense of ascertaining the residences of the defendants, as- a necessary disbursement of the solicitor in the cause. Ibid: 403. In mortgage cases where there is no defense, the complainant's solicitor is not entitled to charge as disbursements for serving subpoenas, notices, etc., in addition to the specified allowance to him- for all his services in the suit as fixed by the Act of May, 1841. Kor is he entitled to charge for disburse- ments paid to counsel in the suit. New TorkL. Ins. & T. Co. v. Davis, 10 Paige Ch- 207, 4: 106» 404. The traveling expenses of the solicitor are not properly taxable as disbursements. Re Root, 8 Paige Ch. 625, 4: 56!i S. 0. 1 Ch. Sent. 13. 6:1054 405. No allowance can be made on taxation, as between party and party, for the personal cxpeiious of the parties or their witnesses, or of the officers of the court, as disbursements in a cause, Doe V. Ctreen, 2 Paige Ch. 347, 2: 938 405. Where a specific allowance is provided in the fee-bill for the performance of any service oy an officer of the court, no additional cuarge, Dyway of disbursement in the performance of such ser- vice, can be taxed in favor of such officer or any other person. Ibid. 407. Instructions to search for judgments, etc.,are only taxable in mortgage cases, and others of that description, where by the practice of the court it is necessary to make all the incumbrancers parties to the suit. Rogers v. Rogers, Z Paige Ch. 460, 2: 989 408. Where the solicitor is entitled to a gross sum for his costs in a foreclosure suit, in addition to his disbursements, he is not entitled to charge the ex- pense of serving subpoenas as a disbursement. New York L. Ins.tt T. Co. v. Davis, 10 Paige Ch. 607, 4: 1069 409. Where papers are sent by express, instead of being transmitted by mail, the amount actually paid by the solicitor upon such transmission, but not exceeding the ordinary postage thereon, may be taxed as a disbursement in the suit. Ibid. 410. The defendant cannot charge, against the complainant, the postage on a further answer sent by mail to be filed. Webb V. Crosby, 11 Paige Ch. 193, 5: 104 411. Nor can a party charge his adversary with postage on the pleadings in the cause, which were sent to counsel to enable such counsel to cross- examine a witness. Ibid. 412. The usual affidavit annexed to the bill of costs, that tne disbursements charged have been actually and necessarily paid or incurred, is a sufficient veri- iication of the charges for disbursements for wit- nesses' fees, unless charges are made for the travel and attendance of witnesses who were not exam- ined, or there is something to raise a doubt as to the good faith of the charges for such disburse ments. Orippen v. Broum, 11 Paige Ch. 628, 5: 259 413. Where there is any ground for believing that witnesses have been subpoenaed for the mere pur- pose of swelling the bill of fcosts against the adverse party, the taxing officer ought not to allow fees for attendance and travel of the witnesses, without an affidavit of the party himself that he not only deemed the whole number of witnesses charged for material and necessary, but that he had actually paid them the full amount charged in the bill for their travel and attendance, previous to the termi- nation of the suit. Ibia. 414. The allowance for witnesses' fees made by the Act of May, 1840, § 8, concerning costs and fees in courts of law, etc., extends to witnesses in suits and proceedings in courts of chancery. Trust F. Ins. Co. v. .Tenkins, 1 Ch. Sent. 9. 5: 1053 415. The allowance in the fee-bill for drawing in- cjtructions tor the examination of a wlbuess, ib nut . applicable to the case of a witness examined before the master on a reference. Christy v. Christy, 6 Paige Ch. 170, 3: 94S 416. Where a complainant is examined as a witness In his own lavor, m a proceeding aj^ainst an absen- tee, he is not entitled to charge for the expense of COSTS, III. e, f. 99 subpoenaing himself to attend before the master on the reference, or for his fees as a witness. 1 bid. 417. Twelve and a half cents is the proper al- lowance for serving a subpoena on a witness in cbanceiy. Rogers v. Rogers, 2 Paige Ch. 460, a : 989 418. Costs of a special application to the court for leave to examine a defeudaiit as a witness in behalf of his codefendants are not taxable against the ad- verse party, as costs in the cause, where the appli- cants had neglected to enter a common order for the examination of such defendant as a witness, Trithin the time limited hv the T66 fiulp. Wendell v. ieitfts, 8 Paige Ch. 613, 4:563 419. Where a witness on his cross-examination is iiitevnigatea as to mattei-s which are irrelevant and improjier, and which cannot benefit either party in the suit, the party at whose request such cross-ex- amination was had is ohargeaWe with the exam, iner's fees for drawing, engrossing, and copying such part of the testimooy aa was useless or Irrele- vant. Stafford v. Bryan, 2 Paige Ch. 45, H: 806 • 420. If the depositions of witnesses are unneces- sarily prolix or irrelevant, although the solicitor at whose request they were taken down may be an- swerable to the examiner for his fees, he cannot be allowed therefor on the taxation ot the costs, even as against his own client. IMd. 431. Where the whole travel of a witness in gomg and returning is less than fifteen miles, no allow- ance for travel can be made, unless it appears that he was obliged to come so early, or was detained so late, that he could not come and return on the day of his attendance. If the whole distance both ways is over fifteen miles and under thirty, one day should be allowed for travel; and if over fifteen miles each way, one day should be allowed for the witness to come and one to return, independent of the time he is detained for examination. Bogers v. Boffers, 2 Paige Ch. 460, 8: 989 422. Charges for disbursements to witnesses, be- yond the amount of their per diem allowance, are not taxable a?ainst the adverse party. Ibid. 423. Where traveling fees are claimed, the affidavit should state the probable distance traveled by each witness. iWd. 424. No charge for engrossing the list of wit- nesses, or for a notice that it is a list of witnesses, is taxable. Orippen v. Brown, 11 Paige Ch. 628, 5: 359 425. No charge can be made by a defendant for subpoenas and subpoenaing witnesses tor a time when such witnesses could Mot be examined, and when the defendant refused to proceed to an exam- ination because he had not given a regular notice of the examination to the complainant's solicitor. lua. c. Of Motion. See also supra, I. m. 426. The counsel fee upon an ex parte motion is only SI. 50. And the larger counsel fee of $2.50 is only allowed upon motions which are actually ar- gued, and when such argument is opposed by an adverse party. Be Boot, 8 Paige Ch. 625, 4: 568 S. a 1 Cii. Sent. 13, 5: 1054 42!'. Where a party obtains a general decree for costs in the cause, ue is entitled to have taxed the costs of a successful interlocutory motion, if no di- rection as to costs was given at the time, unless such application was granted as a mere matter cf favor, or to relieve the party from the consequen- ces of his own default. Stafford v. Bryan, 2 Paige Ch. 45, 3: 806 428. The party opposing a motion unsuccessfully is not entitled to the costs of opposing, as costs in the cause. Ibid. 429. The party maldug an unsuccessful motion is not entitled to the costs of such motion ; but the party opposing the same is entitled to his costs, as costs in the cause, unless a different direction is given at the time. Ibid 430. Eight dollars is the sum usually inserted in an order requiring a defendant in a creditors' suit to attend before a master and comply with the or- der of reference, and to pay the costs or show cause why an attachment should not issue against him. Bammersleu v. Parker, 1 Barb. Ch. 25, 5: 888 431. No tee is allowed for counsel perusing and amending a mere interlocutory petition in the course ol a cause. Ailains V. Stevens, Clarke Ch. 536, 7: 103- 432. Upon special motions and petitions, if the papei-s on which the applicatioa is made or opposed are uunoccssarily prolix or voluminous, costs will be refused to the party using such improper papers, aithiough he otherwise might have been entitled to costs agiiiust the adverse party. Seebur v. Hess, 5 Paige Ch. 85, 3: 637 433. Where a cause, at the hearing, is directed to j>t«ml over lor want of parties, if the defendant naa not made the objection previous to that time, ne.itUer party ought to have costs, as against the other, fur the extra expense occasioned by that proceeding, Uimers V. Rogers, 2 Paige Ch. 459, 8: 988 434. Where a cause stood over at the hearing, with leave to file a supplemental bill, and nothing wns said as to tlio costs ; and a subsequent decree in the cause directed the defendant to pay all the com- plainant's costs not previously disposed of ,— Ifeid, that the costs ot the supplemental bill were em- braced by the decree. Ibid. 435. Where a party successfully opposes a motioa ami nothing is said about costs in the order deny- ing the application, he is entitled to his costs of op- posing, as costs in the cause, if he obtains a decree for costs. Ibid. f. Notices. 436. Where several subjects are embraced in the same notice, the solicitor is not entitled to charge for drawing and serving more than one notice. Sanders v. Marcelious, 6 Paige Ch. 162, 3: 939 Rogers v. Biigen, 2 Paige Ch. 460, 2: 989 437. No charge for notices which are not required by the rui-js or practice of the court can be allow- ed on taxation. Bogers v. Bogers, 2 Paige Ch. 480, , %■ 981> 438. A notice to be served cannot be taxed by the folio, as a specific allowance for every such notice is made by the fee-bill. Be Boot, 8 Paige Ch. 625, 4: 56S S. C. 1 Ch. Sent. 13, 5; 1054 439. The statement of the nature and object of the suit, to be filed in the county clerk's ofiBce, is not a notice, within the meaning of the fee-bill, and is to be taxed by the folio for the draft and en- grossment. Doe V. C?reen, 2 Paige Ch. 347, 3:938 44D. Notices served on the defendants in mort- gage cases, under the 133d Rule, are specifically provided forinthefee-bill;aud only 37 1-2 cents can be taxed for each notice, including copy and service. Ibid. 441. Where the injunction is allowed by the chan- cellor, it is an act of the court, and the charge for fiing the certificate ot the allowance is not taxable. Ibid. 442. Notice to the register to set down the cause is not a proper charge, under the present practice. The notice of the issue is the only one now taxable. Ibid. 443. Notice to the register to enter a decree or or- der is not a proper charge, as the solicitor is allowed (Or attending in person. Ibid. 444. Service of a summons upon the defendant to attend the master on the reference is ail that is re- quisite, and an additional notice for that purpose cannot be allowed. Ibid. 445. The solicitor is entitled to charge for a notice ot the taxation of his costs, in addition to the specific allowance in the fee-bill for a copy of the bUl of costs to be delivered to the adverse party with S"Ch notice. fjocrersv. Boflers, 2 Paige Ch. 460, 3:989 446. It is not necessary, where the copy of a plead- ing is served on the au verse party, to give him no- tice that It is a copy ; and no allowance can be made on taxation for such notice. Ibid. 447. Notice to the clerk to enter the appearance of the defendant is a proper charge on the taxatiuu ot costs, where the defendant's solicitor did not attend the ofSce in person to have the appearance en- Mann V. Bice, 3 Barb. Ch. 42, 5: 807 448. A notice to the opposite solicitor, of the order 100 COSTS, III. g, h. to close the proofs, is not taxable. But a notice to the examiner, of the enterine of such order, is proper. Ibid. 449. A solicitor who serves a paper on the adverse party cannot be alloweu an extra charge for giving nim notice that the paper served is what it purports to be. Ibid. g. Affidavits. 450. A charge for engrossing a copy of affidavits used on special motion, to keep, is not allowable. OMs V Forman, 1 Barb. Ch. 30, 6: 887 451. Anengrossmentof an afttdavit which is not to be filed is not taxable. _ ^ JUonn V. Btee, 3 Barb. Ch. 43, 5:807 453. No charge for an extra afldavit in support of the allowance claimed as disbursements xor wit- nesses' fees should be taxed, except in those cases where the taxing oflcer deems It proper to require the affidavit of the party that the fees for the travel and attendance of the witnesses, as charged In the bill, have been necessarily incurred ana actually Crippen v. Brown, 11 Paige Oh. 628, 6: 859 453. Upon ttie taxation of the costs of a special motion, the solicitor is not entitled to charge for affidavits of the demand of the costs and of the nonpayment thereof. ^ , „ „ Dams V. HawUy, 11 Paige Ch. 434, 6: 188 454. But such affidavits are taxable, or will be al- lowed, as a part of the costs of the order for a pre- cept to compel the payment of the costs of the special motion, if the costs of such motion are not paid within the time allowed for that purpose. *^ Itnd. 455. An affidavit of serving an injunction is tax- 8Dle if actually maae. Butatildavits ot the service of papers upon the solicitor of the adverse party, where evidence of the service is not usually required and will not probably be wanted in the subsequent proceedings in the cause, are not taxable unless such affidavits actually become necessary in the progress of the suit. „ . „ ,„ . _„ Putnam v. BitcMe, 7 Paige Ch. 42, 4.52 456 The rule requiring an affidavit of regularity on bills taken as confessed applies to mortgage cases only. The affidavit is proper, however, in other cases of bills taken as confessed, under the Revised Statutes, to enable the court to ascertain whether the defendants have been personally served with process, or whether they are proceed- ed against as absentees; and a short affidavit for this purpose, not exceeding two or three folios, may be allowed on taxation, if it has been actually made and used. ™. ,<,n o. oao Rogers v. Sogers, Z Paige Ch. 460, »: 989 457. An affidavit of service of a notice of the ex- amination of a witness is not taxable unless it be- comes necessary to make and use such an affidavit on some special application to the court. iOia. 458. An affidavit of serving a notice of the order to answer is taxable. If actually made, although it is afterwards rendered unnecessary by the PutiMng in of the answer. -I"*"- h. Copies. 459. A charge for a copy of the bill of costs to keep is not taxable. „.„,„. _. , „„ Davis V. Hawley, 11 Paige Ch. 434, 5: 1.88 460 Under the fee-bill in the Revised Statutes, the solicitor Is not euudcd to charge by the folio for the draft or copieo of hisbill of oosfa. Staford v. Bryan, 2 Paige Ch. 46, «: 806 461 Charges for provisions of the Revised Statutes set out at length in tue answer, or copies of a master's deed, or a bond and mortgage annexed thereto, will be disallowed on taxation. Orippen v. Brown, 11 Paige Ch. 628, 5:869 462. After a bill has been dismissed, with costs, a copy of the opinion of the vice-uuaucellor is ii>-c wanted by the defendant's solicitor for any of the purposes of the suit, and ought not to be charged to the adverse party, upon taxation. Afann V. Bice, 3 Barb. Ch. 42, 5:807 463. Copies of the opinion of the court furnished to the master on a reference are not taxable. Rogers v. Rogers, 2 Paige Ch. 460, 9: 989 4G4. The solicitor cannot be allowed for an en- grossed copy of charges or discharges before tlio master, or for engrossing objections to the drul't of the master's report. The allowance for en- grossed copies to file applies only to copies of such papers as are to be filed in the register's or clerk's oface. Ibid. 465. A charge for an engrossment or copies of an oruer or decree to be entered is improper, as it is to be entered from the draft after it is settled by the court or register. „ Doe V. Oreen, 2 Paige Ch. 347. 8: 938 466. The complainant cannot charge fur a copy of a decree tor the adverse pai'cy, uuleas in cases where the service of such decree on him is neces- sary. Ibid. VSJ. Where depositions are drawn by the solicitor under a stipuiauou uuLvveeu tue parues, no higher charge can be allowed for the draft or engrossment thereof than if the service had been performed bv the proper officer of the court. Rogers v. Rogers, 2 Paige Ch. 460, Ss 989 468. A copy of the pleadings and depositions for the use of counsel is noi taj^aijle against the ad- verse party ; the abbreviation of the pleadings and deposuiions for the use of counsel is all that can be allowed. Ibid. ' 469. Where deeds and otbsr writings, or parts thereof, are incorporated into pleadings, they cannot be charged as a part of the draft of such proceedings. Ibid. 470. Charges for copies of wills, deeds, etc., to be annexed to the draft of a bill, are not taxable. Nor can parts of an original bill, which are mcor- fiorated m tuee verba in a supplemental bill, be al- owed as a part of the draft of the supplemental bilL Orippen v Orippen, 11 Paige Ch. 216, 5: 113 S. C. 4 Ch. Sent. 52, 5: 1158 471. Where the complainant makes a special ap- plication to the court for leave to amend, nis solici- tor is entitled to charge for a copy of the bill as amended to be served upon the adverse party, but not for a second copy to keep. Ibid. 472. A copy of the subpoena to annex to the affi- davit of service is unnecessary, and not taxable; the original subpoena should be annexed. Ibid. 473. Three folios are allowed for the draft and en- grossments of subpoenas for witnesses, and two for the draft and copies of subpoena tickets. Rogers v. Rogers, 2 Paige Ch. 460, 8: 989 474. Where a witness is directed to be examined on written interrogatories, an engrossed copy of the interrogatories, to be filed with the testimony, is taxable. ioid. 475. The solicitor is not entitled to an allowance for a copy of the order to produce witnesses, and also for a notice of such order, as it is sufficient to serve a notice of the order merely. Nor is he enti- tled to charge for two Usts of the witnesses to be examined, one for the examiner, and another for the solicitor of the adverse party, as only one list is required by the rule of the court. Wendell v. Lewis, 8 Paige Ch. 613, 4: 663 476. The solicitor is only entitled to charge for two copies of his bill of costs,— one to be served with the notice of taxation, and another to be taxed and tiled. And a charge tor a draft of his bill of costs 13 not taxable. Ibid. 477. Copies of cross-interrogatories as settled for the party proposing them and for the adverse party are chargeable. But a notice that the copy served is a copy is not allowable. Mann v. Bice, SBarb. Ch. 42, 5: 807 478. A copy to serve of the order to produce wit- nesses cannot be charged In addition to the notice of the entry of such order. Webb V. Orostyy, U Paige Ch. 193, 6: 104 479. Nor can a charge for draft and copies of a list of witnesses to be examined be charged in addition to a notice of such list. Such list is to be charged for as a notice merely. Ibid. 480. A defendant can charge the adverse party for a copy of the testimony of his witnesses, to be used on the hearing of the cause. Ibid. 481. On taxation of costs, no allowance is to be made for copies of pleadings orproceedings, except where they are actually furnished by order of the court or in the usual course of practice. Richards v. Barlmo, 1 Paige Ch. 323, 8: 664 482. Copies of pleadings for the master are not al- lowed on a reference of exceptions to an answer, unless in cases ot difficulty, where copies are re- COSTS, III. i— k. 101 quired by him anfl are actually made for that pur- pose. IbM. 483. A ((etendant is not entitled to charge for a copy of his answer, to be used in opposing a mo- tion, unless, for some special reason other than the negligence of his solicitor, it becomes necessary to make a new copy for that purpose. Mann v. Bice, 3 Barb. Ch. 42, 6: 807 484. Fair copies of pleadings and proceedings in a cause, to be retained by the solicitor in addition to the drafts, are only allowable on taxation In those oases in which such copies will probably become necessary, or may be wanted for future use,— as in the case of pleadings, petitions, etc.,— and when such copies are actually made and preserved by the solicitor for f iitu re use in the progress of the cause. Be Boot, 8 Paige Ch. 625, 4: 568 S. C. 1 Ch. Sent. 13, 5:1054 485. Only the abbreviations of the pleadings and depositions in a cause tor the use of counsel are taxable, and not full copies of such pleadings and denositlons. Decaters v. La Forge, 2 Paige Ch. 411, 8: 967 486. The solicitor, upon the taxation of his costs as against the adverse party, can only charge for one abbreviation of the pleadings for the use of counsel, although different counsel are employed in fliffcrent stayes of the suit. Putnam v. BitcTiie, 7 Paige Ch. 43, 4: 53 487. One fair copy of each p;leading drawn by the solicitor, to be retained by nim tor the piir'pose of reference during the progress of the suit, is taxable against the adverse party, if actually made. Ibid, 488. Only two copies of the bill or answer, in ad- dition to the engrossed copy to file, are to be al- lowed on a taxation. Sta/ord V. Bryan, 2 Paige Ch. 46, 8:806 489. The jurat should be drawn up by the solici- tor in tne form prescribed by the 18th Rule, and charged as part of the folio contained in the biU or answer, and not as a separate affidavit. Tbid, 490. A defendant can charsre for the draft, en grossing, ana copies or so mucn of his further an- swer as was necessary to make the first answer full and complete, but not for drawing, engrossing, and copying the jurat and for the verification of the name. Webb V. Orosby, 11 Paige Ch. 193, 5 : 1 04 491. The solicitor of the guardian ad litem of an in- raut 18 not eutitieu uj uuiu'^e lur a copy of the or- der appointing the guardian, to be served on the adverse party. The service of a notice of such ap - pointment is all that is necessary. Sandersv. Mareelious, 6 Paige Ch. 163, 3: 939 492. A petition for the appointment of a guardian ad litem for an infant neea not, if properly drawn, contain more than two or thrte folios, including the jurat; and where the solicitor charged, and the tax- ing ofSoer allowed, eighteen folios therefor, it was held to be extortionate and oppressive. Jbid. 493. On reference of exceptions to an answer, no objections are taken to the draft of the master's report, and copies of such draft for the parties are not taxable. „ Richards v. Barlow, 1 Paige Ch. 323, 2: 664 494. The solicitor, on a commission of lunacy or of habitual drunkenness, is not entitled to charge for a copy of the commission to keep: nor for draw- ing and engrossing the return to the commission, or the panel of jurors, or the sheriff's return to the precept to summon the jury; nor for engrossing the precept, or for a copy of the same to keep. But he is entitled to an allowance, by the folio, for the draft of the precept, and for one fair copy thereof, to be signed by the commissioners. Be Boot, 8 Paige Ch. 625, =*lXS? S. C. 1 Ch. Sent. 13, S: 1054 495. The solicitor, upon the execution of a com- mission of lunacy, is not entitled to charge tor drawing oaths to be administered to the jury and to witnesses; nor for instructions to the commission- ers how they are to discharge their duties: nor tor a copy of the inquisition, in addition to the dratt and engrossment thereof. Ibul. i. Briefs ; Orders ; Decrees. 496. A charge for a brief upon the settlement of Interrogatories is not taxable, Mann v. Bice, 3 Barb. Ch. 42, 5: 807 497. Charges for drafts and copies of points upon special motions are not taxable^^ , Orijypen v. Crippen, U Paige Ch. 216, 5: lid 498. A charge for engrossing the points to be used upon the argument of a cause is not taxable. IMd. 499. A written request to the register to enter an order is in the nature of a precipe, and cannot be taxed under the Revised Statutes. Rogers v. Rogers, 2 Paige Ch. 460, 9: 989 500. The charge for perusing and settling a decree applies to a final decree only, and it cannot b« al- lowed on a mere decretal order. ihld- 501. Where an order for fuither time to answer, under the 125th Rule, is obtained as a matter ot ne- cessity, and not for the accommodation or conve- nience of the defendant or his solicitor, the expense of obtaining such order is taxable, as against the adverse party. Lloyd V. Brewster, 5 Paige Ch. 87, 3: 639 502. A charge for the expenses of obtaining an order extending the time to reply is not taxable against the adverse party. Crippen v. Crippen, 11 Paige Ch. 216, 5:113 503. Upon an order for the payment of costs, pro- spective costs can only be taxed for a copy of the order and of the taxed bill, to be served on the ad- verse party at the time of the demand of payment. Chapman v. Munson, 3 Paige Ch. 347, 3: 183 504. A charge for filing the draft of an order is not Otis V.' Forman. 1 Barb. Ch. 30, 5:887 S. 0. 5 Ch. Sent. 19, 5: 1179 505. Charges for serving copy of decree, and for proof of service, are not taxable, unless it is a de- cree that the party is required to serve. Ibid. 506. Engrossing the enrollment of decree is prop- erly chargeable; and five folios, in addition to tue decree itself are allowed for the enrollment. Ibid. 507. Where an amendment of a decree becomes necessary in consequeuue of an error of the solici- tor of the successful party in drawing it up, the costs of such amendment are not taxable against the adverse party. Ibid. 508. A fee to counsel for perusing and settling a final decree is taxable whenever such decree con- tains provisions which are out of the ordinary course, and which are not the usual provisions in final decrees in like cases. aUehrist v. Uea, 9 Paige Ch. 219, 4: 676 j. Term and Prospective Costs. 509. Where a cause is reached upon the calendar, and goes over the term at tne request and tor tue particular accommodation of the counsel of the party who finally succeeds in the cause, such party IS not entitled to charge his adversary with the costs of noticing the cause and for the other ex- penses of the term. But where the cause is not reached upon the calendar, or where it goes off for the mutual accommodation of both parties, those expenses are taxable. Frost V. Frost, 1 Barb. Ch. 492, 6: 469 510. Charges allowed upon taxation for prospect- ive services are to be Ccuucteci from the taxed bill if the services are rendered unnecessary by the Eiayment or tender of costs before they are ner- ormed. If the party in whose favor they are taxed refuses to deduct them, the party compelled to pay can recover them back, with treble damages. Webb v. Crosby, 11 Paige Ch. 193, 5: 104 511. No charge for prospective postage, subse- quent to the taxation of costs, can be allowed. Crippen v. Brown, 11 Paige Ch. 628, 5: 859 512. No prospective disbursements can be allowed, except such as must necessarily be incurred for the fees of oiBcprs which are fixed, by law, and the amount of which can be ascertained and deducted from the taxed bill, when the amount of such bill is paid before such prospective services are per- formed, loiil- k. Of Master, Clerk, or Register ; Extra Allowances. 513. The master who approves the sureties in a tiond Is only entitled to the specific allowance of $1, fixed by the fee-bill; and he cannot be allowed an additional charge for swearing the sureties who are required to justify. Be Boot, 8 Paige Ch.625, 4: 568 .514 Where on a sale the master had attended three days from the distance of forty miles, the court would not direct an allowance in costs beyond the scale fixed in the 48th Rule, especially as no 103 COSTS, III. 1. •reason appeared for placing the sale under the di- rection of a master from so great a distance. Roseboom v. Tedder,Sopi. Ch. 2®, H: 4,03 515. The master is only entitled to 12 cents for signing a summons, and he is not entitled to an attendance fee thereon. Nor is the master entitled to charge for the draft or copy of the underwriting of a summons upon a inference. New York L. Ins. & T. Co. v. Davis, 10 Paige Ch. £07, 4: 1069 516. Upon an ex parte reference to compute the amount due upon the bond and mortgage in a fore- closure suit, the master is not entitled to a fee for attending and adjourning the reference, where it is not necessary to take testimony upon such refer- ence. Nor is he entitled to an attendance fee in such a case, in addition to the specific allowance of $1 for taking an account of the amount due upon the hond and mortgage. Ibid. 517. But where any of the defendants have ap- Ijearea in the suit, so as to entitle them to a sum- mons to attend upon the, reference, or where the master is directed to take proofs of the facts stated In the bill, or as to the situation of the mortgaged premises and the necessity of selling in parcels, the master is entitled to an attendance fee. Und. 618. Where any of the defendants attend before a inaster upon a reference, so as to entitle them to a summons to attend the settlement of the draft of the report, and a further time is assigned by the master to settle the draft, the master is entitled to .an attendance fee, upon the settlement of such draft of the report, of $1 if he settles it ex parte, and $3 if the defendants appear and litigate the settlement. Ibid. 519. Section Z of the Act of May, 1840, in relation to the expenses of foreclosing mortgages in the <30urt of chancery, does not deprive masters in chancery of the compensation previously allowed by way of commissions upon moneys received on a fiale of the mortgaged premises; nor does it deprive either solicitors or masters of the allowtinces for disbursements to which they were entitled under the general f ee-bUl in the Revised Statutes. Ddavan v. Payn, 8 Paige C!h. t59, 4: 503 520. Where the suit is pending before a vice-chan- cellor, the application lor an extra allowance to a master for taking an account must be made to such vice-chancellor; and an order for such allowance must be entered with the clerli. Woodruff V. Straw, i Paige Ch. 407, 3: 49!S 521. To obtain an extra allowance to a master, his aflidavit should state the time he has been acLualiy a,nd necessarily employed in the reference, and the gross amount of his taxable fees, including his charges for the report. Ibid. 522. A solicitor who has been allowed a gross sum for his costs upon a special motion cannot after- wards charge, in his general bill of costs, the fees of the register or clerk for reading and marking his papers thereon. Orippen v. Crippen, 11 Paige Ch. 218, 5:113 513. In the full bill of costs, the fees of the register or clerk for all his services should be charged at the rate fixed by the g;eneral fee-bill. But in the gen- eral costs to be paid out of the proceeds of the sale, only the charges for the services of the register or clerk which are allowed under the Act of May, 1840, and at the rate therein prescribed, should be included. And in the full bill, all the necessary disbursements in the suit should be charged ; but in the other bill only such disbursements as would have been requisite if the answer had not been put in. Frost V. Frost, 1 Barb. Ch. 492, 5: 469 524.Dpon a petition for the sale of infants' estates, it several lulaiiLs are mcludeu in the sauie appiiua- tion, or if several parcels of land are sold at different times, the solicitor for tuo petitioners is enti- tled to an allowance for the extra expense, notwith- standing the limitation of costs, by the 161st Rule, to * K'e Morrell, i Paige Ch. 44, 3; 335 525. The court has no jurisdiction or power to au- thorize the taxation of extra counsel fees in parti- tion suits beyond the amount allowed in the fee bill. And in drawing up the decree, no direction should be inserted therein for the allowance of such extra fees, as the taxing ofBcer cannot legally allow them on taxation. Whittimore v. Whittimtore, 7 Paige Ch. 38, 4: 51 526. In proceedings to obtain a commission, and for the appointment of the committee of the per- son and estate of a lunatic or an habitual drunkanl, the court is not authorized to allow to the solicitor of the petitioner anything beyond the ordinary tax- able costs and taxable disbursements. Be Boot, 8 Paige Ch. 62S, 4 : 668 527. And to entitle the solicitor to an order direct* ing the committee to pay him for his taxable costs a sum beyond the $50 allowed by the 162d Bule of the court, there must be an affidavit stating the spe- cial circumstances which render an increased allow- ance necessary. IMd. 528. Where a speciflo allowance for the services of a solicitor is prescribed in the fee-bill, thf court nas no authority to allow him any grea.er sum forthf performance of such services. Ibid &29. Although he employs and pays some other person an extra compensation for its performance. New York L. Ins. & T. Co. v. Davis, 10 Paige Ch. 507, 4: 1069 1. Unnecessary Costs; Superfluous Parties or Pleadings. 530. Papers unnecessarily voluminous, though ac- tually made, will not uu iuiu-vm except for so much as was necessiiry to bu ■::-.■• porated in the papers. Charges lor useless !■'.<■ will be rejected upon taxntifui. Adams v. Stevens, Clarke Ch. 536, 7: 193 631. Executors, in pursuing a debt, made a person a party whom they had a fair right to suppose held a claim. The latter denied holding such a claim and yet met every allegation of the bill, thereby mak- ing a long answer. The court restricted such de- fendant's costs to a disclaimer and to the ordinary costs of solicitor and counsel fees of opposing the motion. Smith V. Wyckoff, 4 Edw. Ch. 543, 6: 969 532. Where a defendant disclaimed all interest, and then proceeded to answer the bill in detail, he can in no case have more costs than arise upon a dis- claimer, or what was necessary to show that he had parted with the Interest once held by hinu Hutchinson v. Beed, Hofl. Ch. 316, 6: 1167 533. An accumulation of costs, arising from a so- licitor's spreading litigation by a second suit, while the first is pending, and might, by an a"i»rdment or otherwise, be made sufflcient, willbedi^alowed; and, if paid, must be rel'undea. 'Jne client's con- senting to the proceedings, by signature and oath to the pleading involved, does not debar him from questioning its propriety. De Base v. Fay, 4 Edw. Ch. 40, 6: 791 534. Where only one order is entered upon the denial of a motion, with costs to several defend- ants, only one charge for the drawing and entering the order, and attending the register upon the entry thereof, is taxable, although the defendants have appeared by different solicitors. Davis V. Hawley, 11 Paige Ch. 434, 6: 188 535. Where several exceptions are taken for im- pertinence, when one only should have covered the matter, the court will, as to costs, look at it as one exception merely. Benwleh v. Mack, 4 Edw. Ch. 380, 6: 91« 636. Complainants succeeding in a foreclosure suit, excluded from recovering costs unnecessarily in- curred. Oreen v. Storm, 3 Sandf. Ch. 305, 7: 868 537. Where a special motion made against defend- ants jointly, which was opposed by the separate soUcitors of the respective defendants, is denied, with costs to be taxed, the taxing officer cannot restrict the solicitors or defendants to one bill of costs, alth ugh the court might have so restricted the allowance at the time the motion was denied. Davis V. Hawley, 11 Paige Ch. 434, 5: 188 538. Where the solicitor for the complainant in a foreclosure suit iiriugs persons before the court as defendants whom he had no reason to suppose were necessary or proper parties, the taxing officer may inquire into the facts; and he should disallow all charges for extra costs or for disbursements on account of such unnecessary parties. Shaw V. McNish, 1 Barb. Ch. 326, 5: 403 S. C. 5 Ch. Sent. 72, 5: 1190 639. Nor will the taxing officer be precluded from doing this by the formal charge, in the bill of com- plaint, that such defendants have, or claim, some interest in the mortgaged premises as subsequent purchasers or incumbrancers. Ibid. 540. Where the complainant in a foreclosure suit COSTS, III. m. 103 ^mneoessarllr makes the personal representatives ■of a deceased mortgagor or guarantor parties to his *iU, and thereby subjects the estate to the useless expense of taking an account of its administration faere, the court in its discretion may refuse to allow Um the extra costs of that part of his proceedings. Leonard v. Morris, 9 Paige Ch. 90, 4: 681 541. If several defendants appear by the same soli- man v. Munson, 3 Paige Ch. 347, 3: 188 573. A vice-chancellor in the taxation of costs acts- merely in bis ministerial capacity as a taxing officer of the court; and an application to the chancellor to review his decisioQ as such taxing officer, under the 12gth Rule of this court, is not an appeal from an order of a vice-chancellor, or from a proceeding in the nature of an order; it may therefore be made after the time allowed by law for bringing an ap- peal. Lloyd V. Brewster, 5 Paige Ch. 87, 3: 639 574. The order of the chancellor, upon an applica- tion for retaxation of costs in a cause pending be- fore a vice-chancellor, may, when necessary, b© transmitted to, and entered with, the clerk of such- vice-chancellor. Ibid. 575. The last clause of the 130th Hule does not give the taxing officer an absolute and uncontrollable discretion in the taxation of costs; and if he comes to an erroneous conclusion as to the necessity or propriety of putting in separate answers, etc., hit decision may be reviewed by the court, upon an ap- plication for a retaxation. Ibid. 576. It is too late, after two terms have inter- vened and the decree is signed, to move for a re- taxation of costs. Morris v. Mullett, 1 Johns. Ch. 44, 1:53 577. Eetaxation of costs after a long delay and- .liter the taxeu bill has been paid— ODjections made on taxation of costs for prolixity in pleading or dep- ositions must specify the particular parts objected to. Jkfoores V. Saunders, 6 Ch. Sent. 74, 6:1319 578. As the taxed bill, with the affidavit annexed^ thereto, is delivered to the party whose costs are taxed, it is not necessary for the adverse party who apnlies for a retaxation, to produce such affidavit. Ibid. 579. Where such affidavit is not produced by the- party in whose possession it is supposed to be untu It has been reguJarly filed, if there is nothing to in- duce a belief that it was defective, the court may presume that it was in the f oim prescribed by the- l30thRule. Ibid. rv. On Appeal. 580. Where an appellant succeeded only as to part of the matters of the appeal, neither party was al- lowed any costs as against the other upon the ap- peal. Stafford v. Mott, 3 Paige Ch. 100, 3: 74 581. Where a party in the suit has no interest in a. question which is brought up on an appeal by an- other party, the party who has no interest in th& question can neither be charged with nor allowed costs upon such appeal. Bulkley v. Van Wyck, 5 Paige Ch. 536, 3: 819 582. Where there was a joint appeal by two de- fendants, and the decree was reversed as to one and affirmed as to the other, no costs were given in favor of either party on the appeal. V^ltonBank v. New York & S. Canal Co. 4 Paige Ch. 128, 3:37» 583. Where two or more defendants bring a joint appeal, and fail as to tbe main object of such ap- peal, they will be charged with costs, although one of them succeeds in obtaining a modification of the decree in respect to his own interests- merely. Atlantic Ins. Co. v. Storrow, 5 Paige Ch. 285, 3: TaO- 584. Upon separate appeals by the different de- fendants, in a suit to settle their rights to a fund, in court, costs cannot be awarded between the different appellants, unless they have made each other parties to their respective appeals. Potter V. Chapin, 6 Paige Ch. 639, 3: ll3fr 585. Where the construction of a will has been cor- rectly settled by the decree of the court below, tlie appellant who fails in reveraing such decree is per- COSTS, IV. 105. ■onally chargeable with the costs of the appeal, ex- cept in very special ci>'"'i>. Mowatt V. Carow, 1 Paige Ch. 338, 4: 1 75 586. Where a defendant gave notice of his inten- tion to appeal from the decision of a vice-chancel- lor on an interlocutory motion, and that he should bring on the hearing of such appeal on the next motion day before the chancellor, and the com- plainant's counsel attended on that day to oppose the application, but no appeal was in fact entered, the defendant was ohargeji with the costs of op- posing. Mechanies Bank v. Snowden, 2 Paige Ch. 299, 8:916 587. The chancellor has jurisdiction to award such costs, although the cause is not regularly before him by appeal. Ibid. 588. If an order overruling a demurrer is not ap- pealed from within the time limited for appealng from an interlocutory order, that order must stand, and the defendant must pay the costs of the argument of the demurrer, although he succeeds in an appeal from the final decree iuvolvlug the same question which was raised by the demurrer. 'leal V. Woodwmth, 3 Paige Ch. 470, 3:235 589. A mere technical error In drawing up an order, although corrected upon the appeal, which error would have been corrected as a matter of course upon a suggestion to the court below, will not affect the right of the respondent to costs upon an appeal from the whole order. Steward v. Green, 11 Paige Ch. 535, 5: 886 690. Where a complainant files a judgment cred- itor's bill, and a relaxation of costs talies place in the court below, whereby the judgment becomes less than $100, he will not be allowed to dismiss his bill without pa.yment of costs here. Newell V. Burbank, 4 Edw Ch. 536, 6: 966 591. An appeal to the chancellor from a decree of a vice-chancellor is in the nature of a new suit, and the costs of such appeal may be taxed in a separate and distinct bill from the costs in the court below. But where several parties appeal jointly, only one retaining fee and one set of charges can be allowed to their solicitor on the appeal. Wendell v. Lewis, 8 Paige Ch. 613, 4: 563 582. Where the party who is to be charged with the costs upon the appeal wishes to avail himself of the objection that the points were unnecessarily prolix, he must make the objection before the taxation of Waller v. Harris, 7 Paige Ch. 479, 4: 839 593. Where there has been an appeal from an or- der or decree of a vice-chancellor, the costs upon the appeal and upon the proceedings in the suit In the court below may be made out and taxed in sep- arate bills. Orippen v. Orlppen, 11 Paige Ch. 216, 5: 11 3 594. Where there are separate appeals, entered at different times, in relation to two distinct orders of different characters, the solicitor is entitled to an allowance for all the services necessarily rendered on each appeal until the proceedings upon the ap- peal 'ire consolidated by the court. Pulton Bank v. Beach, 2 Paige Ch. 185, 8: 866 595. The proceedings on the remittltur.to make the decree of the court of errors a decree of the court below, and the enrollment of the decree, and the execution for the costs awarded by the appellate court, are a necessary part of the costs on the ap- peal, and are to be taxed in the same bill with the other costs, and annexed to the enrollment of the decree of the court of errors. Ibid. 596. On an appeal to the court for the correction of errors, a counsel fee on the motion to uue the pe- tition of appeal is not taxable, the order to file the petition being a common order : and the solicitor is only entitled to 50 cents for attending to have the same entered. Ibid. 597. The signature of only one counsel is neces- sary to a petition of appeal or to the answer to the same, and only one counsel fee is taxable for that service. Ibid. 598. The solicitor is to be allowed for the draft of original matter to be inserted m a case for the court of errors on appeal, and for two written cop- ies of the case including the matter not original. Ibid. 699. No allowance can be taxed for abbreviating the case ; for, if properly made, it is of itself an ab- breviation of the pleadings and proofs, etc. Ibid^ 600. The points for the court of errors constitute a part of the case, and should be estimated as a part thereof upon the taxation. Ibid. 601. Where a party appealing from a taxation, succeeds only as to part of the items as to which he appeals, neither party is allowed costs of the ap- peal : but where one of the parties is subjected- to additional expense in repelling presumptions arising from affidavits on the other side which are deceptive and calculated to mislead the court,, such additional expense will be allowed against such adverse party. People V. Elmer, 3 Paige Ch. 85, 3:68 602. On an appeal from an interlocutory order of a vice-chancellor, retaining fees for solicitor and counsel are taxable : but not a charge for an ab- breviation of the pleadings, depositions, and ex- hibits for the use of counsel. These last charges can only be allowed where the cause upon the ap- peal is headed as a calendar cause. Denniston v. Viseher, 5 Paige Ch. 61, 3: 68* 603. A charge for abbreviating the schedules an- nexed to a bill or answer is not taxable. Ibid. 604. Upon an appeal from a vice-chancellor tO' the chancellor, retaining fees for solicitor and counsel are proper charges. Lampman v. Hand, 4 Paige Ch. 120, 3: 369 605. So also is a charge for abbreviating the pleadings and proofs for the use of counsel on the appeal. Ibid. 606 But a charge against the adverse party for making copies of the pleadings and proofs for the use of counsel will not be allowed. Ibid. 607. The respondent in an appeal from the sentence rr decree of a surrogate is entitled, upon taxation (f his costs against tne adverse party, to charge for a copy of the return of the surrogate, it such copy has been actually made for the use of the solicitor on the appeal. And one copy of the opinion of the surrogate for the use of the court upon the appeal, if actually made for that purpose, is also taxable. Gilchrist v. Bea, 9 Paige Ch. 219, 4: 67fr 608. A decree upon appeal, containing only the- ucual provisions that the order or deeroB appealed from be affirmed, with costs, is not a decree contain- ing special provisions, which will entitle the re- spondent's counsel to a fee for perusing and settling the same. Ibid. 609. Upon an appeal from the court of chancery tO" the court xor the correction of errors, the party making the case is not entitled to charge by the folio for the printed copies of his points delivered to the members of the court upon the argument. But he is to be allowed for the points in the same manner as if they actually were a part of the case; that is, at the rate of 25 cents a folio for the draft, 10 cents a folio for the copy to be signed by counsel, andforanother copy for the printer, and the actual expense of printing all the other necessary copies. Waller v. Harris, 7 PaJge Ch. 479, 4: 83»- 610. Whether the attorney, upon a writ of error to- tlie ooui-c for the correction ot errors, is entitled to charge by the folio for all the printed points which are required for the use of the members of the cou/t upon the argument of the cause,— QucB»e. Ibid. 611. If the taxing officer, from an examination of the points in connection with the printed case, is satisfied that the objection that the points are un- necessarily prolix is well taken, hemustdisallowthe charge for the unnecessary folios. Ibid. 612. Where the master allowed seven out of thfr eight exceptions taken by defendant to the biU, all of which were disallowed by the vice-chancellor, whose decision, upon appeal, was reversed as to. one exception only; and the order upon appeal di- rected that neither party should recover costs against the other, except that dof endant should pay to complainant six eighths of the costs upon the- exceptions to the master's report,— Kule 62 did not apply, and complainant was entitled to the costs as specified, and was not limited to $10. Emmons v. Caimes, 11 Paige Ch. 380, 5: 169- Editorial Notes. Costs in equity 1: 376, 974 406 COUNTERCLAIM— COURTS, I. a. Discretion as to 1: 68, 101, 393, 546, 765, 851, 4: 115, 403, 404, 7: 1037 In general 3: 164, 530, 841, 4: 801, 5: 133, 141, 604 Konresident plaintiff 1 : 113 "Wlien complainant not charged with 1: 669 .Refusal to answer defeats right to 1 : 917 Right to 2: 401 Against litigant unjustifiably causing expense 3:716 Dismissal without 2; 948 Refusal of, on dismissal 3: 859 Where interests are adverse 3: 823 In surrogate's court 3: 108, 878 Allowance to each party 1 : 53, 351 To neither party where both fail 4: 673, 5: 143 Refused to party who fails in claim 3: 74 Party failing in part, not entitled to 4: 340 Plaintiff en autre droit not liable for 1 : 703 Jlepresentative, when chargeable 1 : 313 Against trustee S: 168 -Allowed to trustees 3: 353, 4: 776 In case of executors 1:53,96,4:1083,5:306 Party substituted not liable for all 3: 811 -Each party pay his own 4: 941 /Purchaser pendente lite subject to 4: 932 Attorney of nonresident liable for 4: 740 'Counsel liable for impertinent matter in pleading 3:712 Application of rulf^s 6: 778 On a mere bill of discovery 6: 779 In mortgage cases 4:746,5:93,6:340 ■Out of proceeds of premises 4: 878 ^'Subsequent incumbrancer; rule as to 4: 840, 7: 1331 On redemption from mortgage 2 : 558 On disclaimer in foreclosure 1: 543 In specific performance 1 : 795 On demurrer 1: 813 Disposal of question on motion 3: 65 On interpleader 3: 877 On feigned issues 3: 527 On lunacy proceeding 4:499, 5:263 :Security for 1; 113, 263, 703, 6: 205, 7: 1163 waiver of right to security 1 : 703 when applied for 6:205 required of nonresident defendant; kind ot nonresidence necessary 6: 205, 371 effect of refusal to file 6:480 Payable out of fund 5. 93 out of assets of estate 3: 432 out of fund in receiver's hands 2: 908 Taxation of 3 : 815, 4 : 878, 5 : 807 ;Retaxation 2: 987, 3: 639, 638 effect of laches on motion for 1:53 "Charges beyond fee-bill 3: 908 Bill of 2: 938 Counsel fees 2: 938 Expenses not taxable 3 : 826 'For full copies of pleading and deposition 2: 967 For copy of answer on motion 5 : 807 Pees of court officers charged to attorney or solicitor, 3: 808 Fees of party as witness 3: 943 On contest of will 4: 617 Admissions of service not taxable 4: 52 For further answer 4: 563 Separate bills allowed, when 4: 563 But one bill where several defendants ap- pear 4: 563 Merits not examined to determine question of; decision on, not reviewed; statute now allows review; merits settled out of court 1 : 393 Stay of proceedings until payment; pre- sumption that second suit vexatious 1:451 Where ground to suspect fraud 1 : 249 Ko rehearing as to 1 : 53 COUNTERCLAIM. See SBT-OrF. COUNTIES. See COBPOBATIONS, 5. COURTS, I. JUBISDICTION AND POWBBS. a. In General ; Qualification of Judge. b. Territorial lAmitations ; JuriscUct/Um of Persons. 0. Conflict; Concurrent or Exclusive JwrisdU:- tion. d. Amount in Controversy. n. KnLES OP Decision. Editobiai, Notes. See also Admirai/fy ; -Appeai. ; Chancellor and Vice-Chancellor ; Discovert, 5, 39, 47; In- junction, 96 ; Patents, 6 ; Probate Courts ; Supbemb Court. I. Jurisdiction and Powers. a. In General; QuaimcaMon of Judge. 1. This court cannot look into alleged abuses in relation to (jetting an Act througrb the Legislature; nor, therefore, set aside an award of compensation autnorized by a section of such Act to a person, merely because he is charged irith having so acted or with being benefited by some provision in it. The court could only act on the award upon the principles which govern it in relation to arbitratoia. BuiSlvwiek & Neiwtown Bridge etc. Co. v. Etibets, 3 B. 358, 6: 686 2. Wherever the jurisdiction of the court of chan- cery, the title ot its oiucers, or the validity of its process or ofMts orders, is disputed or attempted to be drawn in question by a suit in another court against those wno were acting under the process or order of the court of chancery, that court is bound to interfere for their protection. Maekay v. Blachett, 9 Paige Ch. 437, 4: 765 8. But where the process of the court of chancery has been irreguiany and Illegally Issued, and has been set aside by the court itself for that reason, or where an officer of the court, under color or pre- tense of executing its order, has transcended his authoritv and interfered with the personal rights of others, the court may allow the Injured party to seek bis redress by an action at law Ibid. 4. Where process of the court of chancery is set aside for irregularity, the court in its discretion, upon a summary application, ma:^ restrain the par- ties against whom such process issued from pro- ceeding at law for any act done under such irregu- lar process ; although it was not made a conditio! of the order setting aside the process that no such suit or proceeding should be instituted. But the party who desires the court ot chancery to take the matter into its own bands, and to give to the in- jured party such redress as he may be entitled to in that court, must seek the aid ot the court promptly, and before he has tried the chances of a litigation of the matter in another court. J/nd. 5. Where a solicitor of the court of chancery was sued in an action for false imprisonment for caus- ing a party to a suit in chancery to be arrested upon process which was afterwards set aside for irregu- larity,— JfeW, that If he desired the protection of the court of chancery against the suit at law, he should have applied to that court before the trial of tl!at suit. lltid. COURTS, 1. b. 107 ^ 6. Where a complaint is made against an officer k>t the court of ehancuiy for misoouauct, while aot- liiff under color of authority merely, the court may either itself take cognizance of the complaint, and administer justice between the parties, or may al- low the party aggrieved to bring his suit at law for the alleged injury. Parker v. Browning, 8 Paige Ch. 388, 4: 473 7. The Constitution does not prohibit a common- law proceeding in aid of those courts which are cot bound to proceed according to the course of the common law. Vanderheyden v. HeM, Hopk. Ch. 408, »: 467 8. The statute which declares that no Judge of any court can sit as such in any cause in which he would be excluded from being a juror by reason of affinity or consanguinity to either of the parties does not apply to cases where the relative of the judge has no personal interest in the subject-matter of the litigation. Und&rMll v. Dennis, 9 Paige Ch. 202, 4: 668 9. It seems the proper course for the judge, where he is satisfied of the fact of his relationship to either of the parties in Interest In the suit, is to refuse to hear the cause, unless both parties, upon being in- formed of the fact, join in a request to him to bear and decide it. Paddock v. Wells,Z Barb. Ch 331, 6: 663 10. The only exception to this principle is where the Constitution has conferred the jurisdiction upon a particular judge or tribunal, and no provision is made by law for hearing and deciding the matter in controversy in any other way, where such judge is related to either of the parties. liiii(. 11. Jin order of the chancellor in a suit in which he Is Interested as a stockholder in a corporation which is a party thereto is not void, but voidable by apneal to the court nf errors. Jewett v.AVxmy City Bank, 2 Ch. Sent. 39, 5: 1090 lb. Territorial Limitations ; Jurisdiction of Persons- See also Speoipio Perfobmakce, 8, 9. 12. There is nothing in the Constitution of the United States to deprive the courts of one of the States of the jurisdiction which they previously possessed, as to suits against a State brought by citizens of another State, or by citizens or sub- jects of a foreign State. Qarr v. Bright, 1 Barb. Ch. 157, 5:337 13. A court of chancery can interfere to protect and enforce the trusts of an assignment made by a company incorporated in another State while the |>erson or property to be acted upon is within the jurisdiction. Barclay v. Talman, 4 Edw. Ch. 123, 6: 830 14. And this might be done at the instance of a creditor provided for in the assignment or by share- holders where they are to have an express benefit under it. Ibid. 15. Where the ofBcers and trustees of a foreign ^corporation have assigned its property situaced within this State to persons residing here, and the rights of stockholders are thereby endangered, the «ourt has power to grant relief . . ,„„ Barclay v. Macanly, 3 Ch. Sent. 56, 5:1118 16. Where executors appomted in another State have a right to receive, from a trust company lo- cated in one of the chancery circuits of this State, money of their testator deposited with such com- pany, and to apply it in a due course of administr^ Hon at the place where they were appomted, and -where they do thus receive it. the receipt of such money by the executors will not be sufficient to authorize the filing of a bill against them in that •circuit, on the ground that the cause, or right or fiuit, arose within that circuit. r. .io Brown v. Brmim, 1 Barb. Ch. 189, 5: 349 17. To acqiiire jurisdiction of the subject-matter in rem, it is not necessary that the court shall bring the parties withiu reach of its process. The pres- ence of the subject-matter, the rem. within the ter- ritorial dominion of the sovereign power under the authority of which the court acts, confers juris- diction upon such court: and the local laws and regulations determine what service of process, or what form of notice to the defenders, shall suffice to enable the court to proceed to judgment. Monroe v. Douglas, 4 Sandf . Ch. 126, 7. 1049 18. The jurisdiction of the court of chancery in a case of fraud, of trust, or of contract, is sustainable wherever the person sought to be affected is found. although lands not within the jurisdlot.'on of the court may be affected by the decree. De Klyn v. Watkim, 3 Sandf. Ch. 185, 7: 818 19. A bill was filed in this State, agaitist several defendants, of whom one lived in New Jersey, but was served with process here. The principal sub- ject of the suit was land in New Jersey owned by that party, but land in New York was also affected; and the ground of the suit was a fraudulent trans- fer of the whole, executed here. Held, that the court had jurisdiction to set aside the conveyance and make a decree against the New Jersey defend- ant and his lands. Ibid. 20. The trust fund being real estate situated here, and the trustee a resident of this State, the juris- diction of our court of chancery is unquestionable. SlaXl&r V. Carroll, 2 Sandf. Ch. 573, 7: 708 21. Whether the court of chancery has power to direct the application of i-eal property situated without the jurisdiction of the court, in payment af a judgment recovered in one of the State courts,— (mojre. Mitchell V. Bunch, 3 Paige Ch. 606, 2: 1049 22. Where the creditor can, by an imprisonment of the debtor, compel him to apply his property in payment of his debts, the court of chancery will not interfere. Ibid, 23. If the person of the defendant is within the Jurisdiction of the court, the court has jurisdiction as to his property situated without such jurisdic- tion. Ibid. 24. And the jurisdiction is exercised by compel- ling the defendant, either to bring the property in dispute within the jurisdiction of fflie court, or to execute such a conveyance or assignment thereof as will be sufficient to vest in the grantee or as- signee the legal title to, as well as the possession of, the same, according to the laws of the place where the property is situated. Ihid, 25. Thecourt of chancery has jurisdiction to en- force the performance of contracts made in a foreign country, not only where the party pro- ceeded against is domiciled here, but also whore he is a foreigner, if he be within the jurisdiction of the court at the time of the service of process upon him. Joid. 26. The defendants, who were trustees to sell lands sii-uaie in inow jersey,and residents tuere, sold tne property in New York. Upon a bill, by the pur- chaser, for specific performance, filed here, one of the defendants was served with subpcena here and appeared. He then put in a plea to the jurisdic- tion, which was overruled; inasmuch as the court, having obtained jurisdiction over his person, could, notwithstanding the land was out of the State, de- cree the delivery of a deed and enforce it by pro- cess in personam. Shattuck V Cassidy, 3 Edw. Ch. 152, 6: 600 27. A cross-bill in the same court, or an injunction Dill to stay the proceedings in a suit pending, or to obtain relief against a judgment recovered in the same circuit or district court of the United States, between the same parties or their representatives, is not an original suit or proceeding, within the meaning of that provision of the Judiciary Act of the United States which prohibits the bringing of a civil suit before a circuit or district court, byorigi- nal process, against an inhabitant of the United States, in any other district than that of which he is an inhat)itant, or in which he is found at the time of serving the writ. Bates V. Delavan, 5 Paige Ch. 299, 3: 725 28. Where a circuit court of the United States has Jurisdiction of a cause, the court of chancery of a State will not inquire into the regularity of its pro- ceedings as to mere matters of practice, in a new suit founded upon the decree of such circuit court. ibid. 29. Where a citizen of New York brought a suit at law in the Circuit Court of the United States for the district of Vermont, upon two promissory notes given for a part of the consideration money OB the purchase of land; and the defendant thereupon filed a bill in equity, in the same court, not only as a defense to the suit upon the notes, but also to set aside the sale and to have the purchase money which he had already paid refunded and to have another note delivered up, and procured the sub- poena to be served on the attorney of the plaintiff in the suit at law, who was then out of the juris- diction of the court and refused to appear to the suit in equity, and who had also withdrawn the suit upon the notes as soon as the subpoena had been served on his attorney; and the complainant in the 108 COURTS, I. c, d. equity suit proceeded to take his bill as confessed against the defendant therein, for want of appear- ance upon such substituted service, and thereupon obtained a decree for the delivering up and cancel- tag of the notes, and also for the repayment of the purchase money which had been paid on the sale,— ileid.that the circuit court had no jurisdiction over the person of the defendant in the equity suit, so as to authorize such court to make a personal decree against him, for the repayment of the pur- chase money received on the sale of the land, or for the delivering up of thethix-d note, upon which no suit had been commenced by him in the circuit court. loM- 30. Complainant, a citizen of this State, being at Habanna, made a contract with defendant A there, a Spanish subject, for lands In Alabama. Partial payments were made and partial conveyances exe- cuted. Defendant A sent a conveyance for some part of the lands to the defendant T, his agent in New York, to be delivered on the payment of a cer- tain sum claimed, which sum was more than the complainant admitted to be due. Bill for an ac- count, both of payments made and of lands to be conveyed upon the foot of the contract, and to re- strain the defendants from withdrawing the deed out of the jurisdiction, and for relief. Held, that the courts of equity of this State have jurisdiction to enforce the contract. _ „„„ Ward V. Arredondo, Hopk. Ch. 213, !8: 397 31. The principle is that the jurisdiction may he upheld waenever the parties, or the subject, or such a portion of the subject are within the Juris- diction that an efEeotual decree can be made and enforced, so as to do justice. Tbid. c. Convict; Cmicurrent or Exclusive Jurisdiction. 32. The court of chancery will not by injunction restrain asuit or proceeding previously commenced in a court of a sister State or in any of the I ederal Mead v. Merrff, 2 Paige Ch. 402, 2: 963 33. The court of chancery of New York'has no ju- risdiction to restrain parties who have recovered judgment in a court of a sister State from proceed- ing m the court where such judg-ment was obtained, to collect the same. .„,_,,„ m a^^ Bickndl V Field, 8 Paige Ch. 440, 4: 496 34. Where a party is within the jurisdiction of the court, and tue court acquires jurisciiciion of his person, it may, although the subject-matter of the suit is situated elsewhere, by injunction and at- tachment, compel him to desist from commencmg a suit at law either in this State or in any foreign jurisdiction; and may also In the same manner compel him to execute a conveyance or a release in such form as is necessary to transfer the le^l title to the property in question, according to the laws of the country where the same is situated, or as will be sufficient to bar an action in any foreign tribunal. Mead v. Merrtt, 2 Paige Ch. 402, 3: 963 S5. If the court of chancery has the power, it must be a very special case which will induce it to break over the rule of comity and policy which forbids the granting of an injunction to stay tho proceedings in a suit commenced in a court of competent jurisdiction in a sister State. . BwaesB v. Smith, 2 Barb. Ch. 276, 5: 648 S. C. B Ch. Sent. 67, 6: 1316 36. This court has concurrent jurisdiction to com- pel contribution, in regard to a public assessment, as between the owner of the fee and his tenant holding part, who covenants to pay assessments but whose name does not appear on the commissioners' Wmiams V. Oraia, 2 Bdw. Ch. 297, 6: 407 37. The courts of the United States have not even a concurrent jurisdiction with the State courts of chancery, in suits brought by individuals against a State' Gan- v. Brii;M, 1 Barb. Ch. 157, 5:337 38. The circuit court of theUnited States alone ha.« jurisdiction of suits to recover damasjes for the in- fringement of patent rights. The judicial power of the United States extends to all cases arising under the Constitution and laws of the general govern- ment ; but the Federal courts can only exercise ju- dicial power in cases in which it has been delegated to them by the laws of Congress. Burrall v. Jewett, 2 Paige Ch. 134, »: 845 39. Act Feb. 15, 1819, extended the jurisdiction of the circuit courts of the United States to suits, botl> at law and in equity, arising under the patent laws;, but it does not render the jurisdiction of those courts exclusive in such cases. IJytd, 40. The courts of the United States, under the Pa- tent Law of July 4, 1836, have exclusive oogmzanc& of suits in equity relative to interfering patents, ia cases where the ooiu-t under that law is authorized to declare a patent inoperative and void, either wholly or in part, or as to any particular portion of the United States. Oibson V Woodu-iyrth, 8 Paige Ch. 132, 4: 37* 41. Whether the court of chancery has concurrent jurisdiction with the Federal courts in ca.ses in which rights under the patent laws come in ques- tion collaterally, or in suits in which the nature of the relief asked for would not have the effect to in- validate the patent,— gucere. Ibid. d. Amount in Controversy. 42. The jurisdiction of the court does not depend upon the amount whicli mai ulilmately be fouud due to the complainant, but upon the claim actually made by him. Smets V. Willmms, 4 Paige Ch. 364, 3: 471 43. Where the claim as made by the complainant exceeds It^lUU, but upon the hearing it turns out that he is actually entitled to less than that amount, the court may make a decree in his favor for what is due; but in such case he will not be entitled to costs in the discretion of the court. Ibid. 44. Upon a judgment creditor's bill, theamount of the complainant's judgment, and the amount of the defendant's property as claimed by the complain- ant, should each exceed glUO, to constitute a matter in dispute of which the court of chancery will take cognizance. IbU. 45. Whether this court will take cognizance of a cause where the amount in controversy does not exceed the sum of $50, or grant an injunction to stay execution on a judgment in a justice's court,— qucere. Mum-e V. LyUle, 4 Johns. Ch. 183, 1: SOS 46. The court will not sustain a suit by an infant for the interest due on a legacy, directed, by the will of the testator, to be applied to her education, when the amount is less than $50; and the party may sue the executor in a court of common pleas. Fullerton v. Jackson, 5 Johns. Ch. 276, 1: 1081 47. This court will take cognizance of a cause where the amount in controversy appears to be more than £10, though it be not more than $50, to which amount a justice of the peace has jurisdic- ^°Vredenburgh v. Johnson, Hopk. Ch. 112, 8: 361 48. A suit to set aside a release, given by th& nomiuEd plaintiff in an action at law, of the right of action upon a bond which was the foundation of such action, must be dismissed if the amount in controversy does not exceed $100. Winsor v. OrciM,U Paige Ch. 578, 6: 839 S. 0. 5 Ch. Sent (No. 3.) 11, 5: 1169 49. The provisions of the Re.vised Statutes requir- ing the court of chancery to dismiss suits concern- ing property where the matter in dispute, exclusive of costs, does not exceed the value of $100, refers to the costs of the suit in the court of chancery. Spear v. Given. 9 Paige Ch. ii63. • 4: 733 50. A creditors' bill may be filed where the aggre- gate amount of the debt and costs included in the complainant's judgment and still due exceeds $100. Ibid. 51. A bill maybe filed in this court upon a judg- ment which has been obtained for less than $100, provided the costs below have increased it above that sum. The words "exclusive of costs," in the statute, mean the cost<» of the suit in this court. Van Tyne v. R«nce, 1 Kdw. Ch. .583, 6: 855 52. Two or more judgment creditors, whose exe- cutions have been returned unsatisfied, may join in a suit to obtaiu satistuclion of their debts, if the agiji'egate uf the indebtedness exceeds $100, jyix V. Briaas, 9 Paige Ch. 595, 4: 830 S 0. 2 Ch. Sent. 37. 6: 1089 Sizer v. Miller, 9 Paige Ch. 605. 4: 834 .n v. Copland, 2 Sandf . Ch. 251, 7: 583 9. A purchaser of laud subject to an old mortgage, with covenants of warranty and quiet enjoyment, claimed the surplus upon a foreclosure of that mortgage, and he was defeated by an intervening mortgagee. Held, that he was entitled to recover such surplus in equity from his grantor. There was no such eviction by means of the second mort- gage as would enable him to maintain an action at law upon the covenants. But it operated as an equitable eviction as to the surplus money, which entitled him to a decree upon the covenants in the Kinney v. lirCullough, 1 Sandf. Ch. 370, 7: 363 10. Where one mortgages land which has been conveyed to him subject to a first mortgage, aao with a second mortgage upon it which the grantot covenants to pay, and the mortgagee, after fore- closing and buying in the land, subsequently loset it by a sale under the first mortgage, and the sur- plus proceeds are decreed to be paid to the second mortgagee, such second mortgage would not amount to such an eviction as would entitle thi mortgagee losing the property to maintain an ac tion at law upon the original grantor's covenant, but it will amount to an equitable eviction as ti the surplus, which will entitle him to a decree li equity upon the covenants. Ibiil 11. A, owning two adjoining rural building lots bounding on a river, and erecting on one a lamily mansion for his own use, sold the other to B for the lilie purpose, with a covenant by B in the deed to him, that he would not use the lot in a way or for any business which might be in any manner offen- sive to the occupant of the adjoining property, or that would tend to deteriorate or lessen its value, and would not use it for a stone quarry. B soon after leased to C the right to build a wharf on B's river front, and to make a railway to the same across B's lot, in oiiler that C could use the tafl- way and wharf to transport and load into vessels- stone from a large quarry of C situate some dis- tance back of the lots in question. C proceeded to. build the railway and wnarf. Held, that the rail- way and wharf were within the prohibition of the covenants in the deed, and their further erection> was enjoined. tieymmur v. McDonald, 4 Sandf. Ch. 502, 7: 118ft 12. The erection of the wharf was held to be of itself a violation of the covenant, because of its- affording access and attracting to the shore noc- turnal debauches rambling by water from a neighboring city. Ibid, 13. Where the holder of a State-land certificate sold a portion of the land, with warranty, and. then assigned the certificate to persons who cov- enanted to quitclaim to him as soon as a patent should be obtained, and he subsequently sold to a. third person all his rights under the i>ovenaDt,8ucb- person took the right to a deed subject to the right of the previous grantee to a conveyance of the- portion of the lot purchased by him with warranty. Turner v. Peek, 1 Barb. Ch. 549, 5: 49» 14. In such case the assignees took title,under the patent, to the portion of the property which was- te be conveyed with warranty,in trust for the pur- chaser under the contract for the warranty defed and his assigns ; and if they convey to the one who- purchased the rights under the covenant.the latter cannot bold as against the ones claiming under the other contract, Ibid^ 15. Where the holder of a State-land certificate as- signed the same, and the assignees covenanted that, whenever they should obtain a patent from the State, they would convey to the owner three fourths, of the land, and would convey the other fourth to one to whom the owner bad contracted to sell it, the legal effect of the covenant was that, upon ob- taining the patent, the assignees were bound to- convey three fourths of the lot to the owner abso- lutely and unconditionally, and the other fourth they were to convey to the one holding the con- tract of purchase, upon his complying with the terms of the contract, and to receive and retain the purchase money due upon the contract, to re- imburse them for the money they were to pay the State; and, if he did not comply with his contract, they were entitled to retain the portion of land covered by the contract, for their own use "H'l benefit IbiS 16. An eviction is established by proof that, at. the time of the purchase, the lands sold were at;- tually occupied under a valid hostile title, so that the purchaser could not obtain possession of the same, and whereby he never did obtain actual 7: 63* 17. Where a municipal corporation, upon receiv- ing a grant of land for the purposes of a pubUo square upon certain conditions, joined in the deed by executing it under its corporate seal, and cov- enanted to abide by, observe^ and perform the con- ditions imposed upon it by the acceptance of the agreement and conveyance, it was liable to respond to the grantor in damages for the nonperformance of the conditions. Stuyvesant v. New York, 11 Paige Ch. 414. 5: 18» 18. Where two church societies entered into aD> a^aeement for a union, a consolidation ot their estates, and to remain forever as one body, with the provision that the ancient church of one of the constituent societies sbould be rebuilt on the site where its ruins stood, for the use of the united con- gregations as soon as the circumstances would ad- mit, the agreement for the union) Married women cannot be bound by 3: 243 Running with the land 2: 712, 817, 3: 589, 4: 458, 7: 102T In lease 2:712,6:73,1081 Against nuisances 6: 585- Contract to build; when a personal cove- nant 7: 1027 Restriction to terms of 7: 1220- To stand seised to uses 8; 1089, 7: 821 To convey good title 3; 587 Effect of recovery upon covenant of title 7* 523 Remedy upon 4: 768, 5: 762, 7: ill 5 Enforcement of , in equity 3:539 between third parties 3: 138. CREDITOR. See Crbditobs' BiLii; Debtor and CasDiTOBr Execution. CREDITORS' BILL. I. When Lies. a. In General; Separate Suits. b. Exhausting Remedy at Law. 1. Generally; Issuing Execution. 3. In What Court Judgment or Execu- tion must be. 3. To What County Execution must Issue; More than One Execution. 0. To Set Aside Fraudulent Conveyance. d. To Reach Property of Decedent's Estate. n. Parties. a. Complainants; Coming in to Prove Claim. b. Defendants. ni. Form of Bill ; Assignment or Judgment. IV. What mat be Reached. a. In General. b. Expectancy; Income; Trusts. V. Time or Filing : Examination of Defend- ant. VI. Answer; Defenses; Opening Judgment- VII. Amendments; Supplemental Bill. VIII. Liens; Priorities. IX. Dismissal; Decree; Sale. Editoeial Notes. For Eeceiver, see Receivers. See also Action or Suit, 39; Bankruptcy, 25, 30, 65, 74, 79 ; Contempt, 13, 14 ; Discovert, 14 j. Execution, 38 ; Kepekenoe, IV. b. « I. When Lies. 0. In General; Separate Suits. 1. The court of equity assists a judgment creditor to discover and reach the property of a debtor which is beyond the reach of an execution at law. M'Dermutt v. Strong. 4 Johns. Ch. 687, 1 : 981 112 CREDITORS' BILL, I. b, 1. 2. A creditor by decree in chancery is entitled to the same relief upon a creditors' bill aa a creditor by judgment at law. Speiglemyerv. Crawford, 6 PsiigeCh.ZU, 3:975 cWseon V. De Peyster, 3 Paige Ch. 320, 3:171 3. Whether a creditors' bill is a proper proceed- ing against a lunatic, after the return oH an execu- tion unsatisfled, to reach his property and have it -applied in satisfaction of the judgment,— grucBre. Copous V. Kaufman, 8 Paige Ch. 583, 4: 552 I. The remedy of a judgment creditor to reach the interest of defendant in a contract for the pur- .chase of lands is by suit in equity after his execu- tion at law has been returned unsatisfied. Ellsworth V. Cuyler, 9 Paige Ch. 418, 4: 757 3. The only remedy of the creditor to reach the Interest of his debtor in a contract for the purchase of lands Is by filing a bill in equity, after he has ex- hausted his remedy at law for the reco rery of his debt by the return of an execution una itisfled. Grosoenor v. Alien, 9 Paige Ch. 74, 4: 613 6. Where four persons became joint sureties in the official bd^d of a county treasurer, who after- wards misapplied the funds of the county and died insolvent, and a judgment was thereupon recovered against the four sureties in the bond, jointly, and three of them afterwards paid the whole amount of the debt and costs, and an execution was issued upon the judgment for their benefit, on which the sheriff was directed to levy one fourth of the .amount of the judgment of the property of their cosurety, which execution was subsequently re- turned unsatisfied,— Held, that the three sureties who bad paid the whole debt and costs could file a creditors bill in their own names against their co- surety to obtain satisfaction of his ratable pro- portion of the judgment out of his equitable in- terest and choses in action, which could not be reached bv the execution at In-./, Cuyler Y.Ensworth,eFaigeCh.S2, 3:886 7. A creditor whose remedy at law for the collec- tion of a debt contracted by a married woman pre- vious to her marriage is suspended during the life- time of the husband, by his discharge under the Bankrupt Act, may file a bill in chancery a^inst the husband and wife to reach stocks standing in her name for her sole and separate use, and other .property held in the same manner, and which be- longed to her before her coverture, and may have such separate property applied to the payment of his debt. MaUory v. Vanderlieyden, 3 Barb. Ch. 9, 5: 795 8. A judgment against a foreign corporation, founded upon an attacnmeuL or its corporate prop- erty, is a proceeding in rem against the property •attached; and is not a judgment upon which au ordi- nary creditors' bill can be founded upon the return of the plaintiff's execution unsatisfled. Tliomas v. Mereftamt's Bank, 9 Paige Ch. 216, 4:674 9. Before the Act of May 14, 1840, if an execution issued upon a j udgment upon an attachment against a foreign corporation was returned unsatisfied, a creditors' bill was the proper remedy to reach the choses in action so attached by the sheriff. Crosby v. Lumberman^a Bank, Clarke Ch. 234, 7: 101 10. In a judgment creditor's bill, on judgment ob- tained in the supreme court, it should appear that the defendant resided in the county at the time when and to which theyi. fa. was issued. Hope V. Brinckerhoff, 3 Bdw. Ch. 445, 6: 780 11. Where a judgment creditor charges and shows particularly that the defendant has specific prop- -erty, and it is of a kind that could have been taken in execution at law, he should not have filed a bill. Parker v. Moore, 3 Edw. Ch. 234, 6: 639 iZ. While the plaintiff has the body of the defend- ant in execution on a ca. aa., nis rignt to proceed against the property of the latter is suspended. He cannot, therefore, as long as the defendant is so in custody, file a bill in chancery to reach his equl- t" ft "hip fw^itft^j^ Stillwell v. Van Epps, 1 Paige Ch. 615, S: 773 13. Whether the owner of a bond and mortgage, :sf ter he has exhausted his remedy at law upon the bond, can make his creditors' bill a bill of foreclos- ure also, so as to embrace both objects in one suit, ~Palmerv. Foote, 7 Paige Ch. 4?r, 4: 881 14. Where a creditors' bUl was filed on a decree -over against the mortgagor for a deficiency, and upon the return of an execution unsatisfied, before the master's report of the deficiency is conflrmeil, the bill will be dismissed without prejudice. Bank of Rochester v. Emerson, 10 Paige Ch. 115i 4: 909 S. G. 3 Ch. Sent. 74, 5: 1184 15. It seems that a judgment creditor is entitled to the aid of this court to attach a judgment debt due to his debtor, who has no property which can be reached by an execution at law, such judgment debt being considered as so much money held in trust.— Dttbitamter. Egbert v. Pemberton, 7 Johns. Ch. 208, 8: 870 16. Where a creditors' bill is filed in the court of chancery, upon the return of an execution at law unsatisfled, and the defendant is subsequently let in to defend in the action at law, the judgment being left to stand as a security to the adverse party, the proper course is to stay the proceedings in the court of chancery until the final decision of the court of law upon the new trial is ascertained. Drew y. Dwyer^ 1 Barb. Ch. 101, 5: 315 17. The injunction in the creditors' suit should be retained until that time also, unless the defend- ant chooses to give security to pay whatever sum may be recovered against him in the action at law, together with the costs in the creditors' suit. But if such' injunction is dissolved by the court upon motion, a new injunction founded upon the second verdict ought not to be granted, except upon new facts. iZ>id, 18. The owner of a bond and mortgage who has i-'.covered a judgment upon the bond, and has ex- hausted his remedy at law upon the judgment by the return of his execution thereon unsatisfied, may proceed by a creditors' bill against the judgment debtor,without a previous foreclosure of the mort- gage, except where the mortgaged premises have been transferred to a third person as the primary fund for the payment of the mortgage debt. Pahner v. Foote, 7 Paige Ch. 437. 4: 881 19. Where a bill has been filed against the erecu- tors or administrauirs and the devisees or neirs ox a deceased debtor, by cue of the creditors, in behalf of himself and others who may elect to come in un- der the decree; and a general decree for an account and payment of the debts and legacies or debts of the testator or intestate has been obtained, a sepa- rate creditor or legatee cannot file a new bill for the same purpose, except he could not come in under such decree, or where he is entitled to more extend- ed relief than he could have obtained in the former suit; in which oases he may file a new bill as supple- mentary to the former suit. „ „_, a .na Brooks V. CKbbons, 4 Paige Ch. 374, 3: 476 b. Exhausting Remedy at Law. 1. Oenerally; Issui/ng Execution. 20. This court does not of course interfere to aid or enforce an execution at law. Brinkerhoff v. Brawn, 4 Johns. Ch. 671, 1:975 21. 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 execution giving him a legal pref- erence or lien on the goods and chattels, which he has pursued to every available extent at law, be- fore ne can resort to equity for relief. Ibid. 22. It is not sufficient that the plaintiff has become a judgment creditor in the intermediate time be- tween the bill and the answer. And where the de- fendant has made all the discovery sought for in the bUl, he may object to the relief, at the hear- ing, on the ground that the plaintiff does not show a judgment and execution at law. ' " "''^ 23. A judgment creditor must exhaust his remedy at law, before he can file a creditors' bill in chan- cery, for the collection of his judgment. Manning v. Merrttt, Clarke Ch. 98, 7: 68 24. An execution at law upon a judgment docketed January 12, directing a levy upon tne real estate of which the defendants were seised on the 13th of January in the same year, is not an execution which exhausts the plaintiff's remedy at law; and a creditors' bill will not be sustained upon the return of Ruch an execution unsntlsfied. Ibid. 25. Where property is subject to an execution, and a fraudulent obstruction ia interposed to prevent the sale, a creditor may file his bill here to remove ttie obstruction as soon as he has obtained a specific CREDITORS' BILL, I. b, 1. 113 Hen upon the property by the issuing: of his exeou- 'tion. BeOt V. Burdett, 1 Paige Ch. 305, 8: 657 26.But if the property is not a subject of levy and «ale on execution, the creditor must show his rem- edy at law exhausted by an actual return of the -execution unsatisfied, before he can file a bill in this court to reach the equitable property of the debtor. Ibid. 37. To obtain an equitable hen upon property not subject to a levy and sale under an execution, the icredltor must exhaust his remedy under his judg- •ment or decree by the return of an execution un- -satisfied. Clarkson v. De Peyster, 3 Paige Ch. 320, 3:171 28. But to obtain relipf against an incumbrance upon the real estate of the debtor, Improperly or fraudulently created, it is not necessary for the Judgment creditor to sue out an execution previ- ous to filing his bill. Ibid. »). A creditor, to entitle himself to the aid ot this court in the recovery of his debt, must show that he has prosecuted Ills debtor at law to judgment .tmd execution, so as to have gained a legal Uen and preference at the time of filing his bill, or, at least, %ef ore issue joined In the cause. Williams v. Brovm, i Johns. Ch. 682, 1: 979 WDermutt v. Strong, i Johns. Ch. 687, 1:981 30. If a creditor seelisthe aid of tUs court a property, are the same where the defendant an- swers the bin as where he suffers it to be taken a* confessed, except where the defendant has given a stipulation under the 191st Bule. Ibid. 208. The defendant in such a suit should not b» compelled to attend before a distant master,f or the purpose of assigning bis property to the receiver and submitting to such examination as mayb& necessary to ascertain what property is to be deliv- ered up, and producing his books and papers. Bank of Monroe v. Keeler, 9 Paige Ch. 249, 4: 688- 209. A defendant in a bill filed by a judgment cred- itor cannot be compelled to discover property to a later date than the filing of the blU . If a discovery to a later date is required, a supplemental biU should be filed. Gregory v. Valentine, 4 Edw. Ch. 283, 6: 880- 310. The 191st rule was intended to relieve the de- fendant from the burden of making a disclosure of his property at bis own costs, and from the expense- of employing a solicitor for that purpose, wbere,lQ' the operation of the injunction, he is deprived of the means of paying the solicitor for his services. Bank of Monroe v. Keeler, 9 Paige Ch. 349, 4: 688- 211. Upon a creditors' bill filed at terthe return of lui execution at law against the defendant unsatis- fied, the complainant is entitled to a discovery as to a trust created for the defendant's benefit, by » third person, so that the court may see whether it is one upon which the complainant has an equi- table claim for the satisfaction of bis debt. LeBoy v. Rogers, 3 Paige Ch. 234, ■ 3: 138 313. The exception in the last clause of the section of the Revised Statutes, which relates to proceedings in chancery upon creditors' bills, relates to the trusts- held by third persons for the benefit of the debtor or his family; but it does not extend to property in the debtor's bands upon trust, and in which be ba» himself also a beneficial interest. Ibid. 213. Upon a creditors' bill, under the statute,, which is a bill for a discovery in aid of the execu- tion at law as well as for relief against property which cannot be sold on execution, the complain- ant is entitled to a discovery of all the real estate which the defendant owned, within the jurisdic- tion of the court of law, at the time of the docket- ing of the judgment. Ibid. 214. The complainant is also entitled to a discovery of all the estate or property which the defendant had at the time of filing the bill or of putting in his an- swer, although it is out of the jurisdiction of the court of law; as it may be reached through the medium of the court of chancery, or otherwise, upon the discovery being made. Ibid. VI. Answer; Defenses; Opening Jtidgment 215. Complainant in a creditors' bill is entitled to an answer from each defendant as to the separate property of bis codef endant, as well as in relation to bis own property and affairs and the joint prop- erty of all the defendants. Marquand v. Sagusz, 3 Ch. Sent. 55, 6: 1093 216. A defendant who has appeared in a creditors' bill has a right to give a stipulation consenting to an examination before a master, and thus save uim- self the expense of putting in a formal answer People, Perry, v. Gerard, 1 Ch. Sent. 16, 6: 1056 217. The defendant in a judgment creditors' suit has twenty da;^s after the entry of his appearance,, to give the written consent under the 191st Eule. Nesmeth v. Halsted, 11 Paige Ch. 647, 5: 866 218. It is a good plea in bar to a creditors' bill filed upon the return of an execution unsatisfied, to ob- tain satisfaction of a judgment out of the equitable interests and ohoses in action of the defendant,that such defendant had property out of which the judg- ment might have been satisfied, whoUy or in part, which property was not levied upon by the officer CREDITORS' BILL, VII. 131 'rbo held the execution, in consequence of collusion between him and the comxilainant. Storm V. Badger, 8 Paige Ch. 130, 4:371 219. Where the complainant filed a creditors' bill against his Judgment debtor and made the copart- ner of such judgment debtor and a third person who was a debtor to the firm parties defendants, to reach the interest of the Judgment debtor in the co- partnership effects, and alleging iimt tlie debtur ol the Arm had been released from his debt without payment, for the purpose of defrauding the com- plainant; and the debtor of the firm pleaded in bar to all the discovery as to his indebfc ilness, ptc. Jhai before the filing of the bill, the firm being insol- vent, the copartners assigned all the copartuei-shlp property and effects to him and another person, as trustees for the benefit of the creditors ; and such debtor also put in an answer in bar to the whole re- lief sought by the bill,— Hdd, that the discovery be- ing proper, if the complainant was entitled to iilief upon the case made by the bill, the plea and answer could not stand together,aud that such answer over- ruled the plea. Brovmell v. Gurtls, 10 Paige Ch. 210, 4: 948 220. And the copartner of the judgment debtor having pleaded in bar to the whole discovery and relief sough t. by the bill, that the firm was insolvent; and that after the alleged discharge of the debt d ue to the copartnership, and before the filing of the complainant's bill, the copartners assigned all the copartnership property and effects to the alleged debtor of the firm and another person, for the ben- efit ol the copartnership creditors; and that the as- signed property was insufficient to pay such credi- Itors,— HeM, thatthe plea was bad, as it did not show that the copartnership would have been insolvent if this debt had not been fraudulently released, nor show that this defendant had paid the amount wbicli, as between him and his copartner,— the judg- ment debtor of the complainant,— he bad agreed to pay for the goods put into the firm by such judg- ment debtor, as stated in the complainant's bill. Ihid. 221. Where a creditors' bill was filed against a uiuriKit^or to obiaiii saLmlaeauu ut tiie aiuuunt uf the defioleucy on a sale of mortgaged premises, under the usual decree over against him for the payment of such deficiency: and the bill stated the making of the report, by the master, of the amount of the deficiency, as by such report duly confirmed by the court and on file would appear, and also stated the issuing of an execution and its return unsatisfied; and the defendant pleaded in bar that the report of the master as to the defici- ency had neither been filed nor confirmed when the execution was issued for such deficiency, — ifcid,that the plea formed a good defense to the suit. Bank of Rochester v. Emerson, 10 Paige Ch. 115, 4: 909 232. The court will not grant the defendant means to carry on a defense to a judgment creditors' bill out of the property enjoined. Tuthill V. Lupton, 1 Edw. Ch. 564, 6: 848 223. The answer or affidavit of the defendant in a credltors'bill that he has not property to the amount of SlOO, is not a full defense to the suit; nor is it a sufficient reason for refusing to appoint a receiver. WiztmrgU v. Everingliam, 6 Paige Ch. 29, 3: 885 224:.On ajudgment creditors' bill, this court will not go into the validity of the judgment. The court of taw wherein it was obtained is the proper tribunal to uphold or set it aside. Hone V. Woolsey, 2 Edw. Ch. 289, 6: 404 225.TJpon a creditors' bill filed to obtain satisfaction of a judgment after the return of an exeeutiuu at law unsatisfied, the court of chancery is not author- ized to decide upon the regularity of the judgment and execution in the court of law. But, in a proper case, the proceedings upon the creditors' bill will be stayed a sufficient length of time to enable the defendant to apply to the court of law for an order to set aside the Judgment or the execution for ir- regularity. Sandford v. Sinclair, 8 Paige Ch. 373, 4: 467 226. Irregularities in the proceedings in a court of law cannot be taken into consideration in a court of chancery, in a, creditors' suit brought upon the ludgment at law. Barnard v. Darlimg, 1 Barb. Ch. 218, 5: 360 S. C. 5 Ch. Sent. 53, 5: 1184 227. The defendant in a creditors' bill cannot take advantage of a mere irregularity in the return day of the execution at law; the execution not being I void, but merely voidable, the remedy of the de- ' Icndant is to apply to the court of law to have such ' "f "''''tmn set aside for irregularity, and then to set that fact up as a defense to the creditors' bill. WaUams V. Hogeboom, 8 Paige Ch. 469, 4: 506 328. It is no objection to the filing of a creditors* mil that thj sheriir returned the execution on its return day, if the bill is not filed until after such re- turn day. Ibid. 229. The debtor cannot set up in such a suit any defense to the original demand on which the judg- ment was recovered: nor any iri'egularity in its entry or in the execution; nor that the sherifT re- fused to levy on property, unless the creditor col- luded with him in his misconduct. Storm v. WaddeU, 2 Sandf. Ch. 494, 7: 675 230. In a creditors' suit, the court will not consider the regularity of the execution. The party must move to set it aside in the court whence it issued. Rider v. Mason, i Sandf. Ch. 351, 7: 1 130 231. In a judgment creditors' suit, the following objections were held to be untenat)ie. viz.: i. inat the direction in the execution at law to levy on the real estate of the debtor stated the day from which his lands were liable- six days short ol the actual liability. 2. That the execution was issueo within less than thirty days after the recovery of the judgment. 3. That the sheriff's return on the execution bore date prior to the return day; it not being shown that he parted with the writ till after the return day. Oreen v. Bumham, 3 Sandf. Ch. 110, 7; 790 232. A defendant, in answering a judgment cred- itor's bill, has a right to set up the fact that a writ of error has been brought to reverse the judgment, as well as circumstances to show that a judgment ought not equitably to have been obtained. Smith V. Crocheron, 2 Edw. Ch. 501, 6: 482 VII. Amendments; Supplemental Bill. 233. Where, subsequent to the commencement of a creditors' suit agaiust the defendant, the com- glainants' solicitor discovered that a creditors' bill ad previously been filed by them upon one of the judgments set forth in said bill, and that the suit ilius commenced was still pending.; and the com- plainants amended the bill in the last suit by leav- ing out all the statement therein relative to that judgment, leaving the amended bill to stand as an ordinary creditors' bill founded upon the other judgment only, with the original jurat attached thereto ; but the amendments were properly sworn to, for the purpose of verifying the bill as amend- ed,— the amendment was one which could be made of course to a creditors' bill, under the provisions of the 190th Kule. Corning v. Stebbins, 1 Barb. Ch. 589, 5: 506 S. C. 6 Ch. Sent. 29, 5:1303 234. Where the execution was in fact issued to the sheriff of the county in which the defendant resided, if the complainant in a creditors' bill has, through inadvertence; neglected to state that fact iu the bill, he will be permitted to amr^nd. Williams v. Hogeboom, 8 Paige Ch. 469, 4: 506 235. Where a Judgment debtor filed a bill, on his own behalf only, against his debtors and their as- signees, complaining principally of the latter in allowing the debtors to be their agents and receive large compensation, and did not amend, so as to go against the assignment itself until long afterwards, when the property had been distributed, and brought his cause to a hearing on bill and answer when he might, by expedition and replication, have made a sufficient case, his bill was dismissed, but without costs. „ Redmond v. Wemple, i Edw. Ch. 221, 6: 859 236. Where a complainant has filed a mere Judg- ment creditors' bill, upon Judgments which are afterwards set aside at law, and filed a supplemental bill upon a third Judgment which is valid, both the original and supplemental bill wUl be dismissed. Butchers & Brovers Bank v. Willis, 1 Edw. Ch. 645, 6:87'7 237. If the defendants in a creditors' biU insist, in their answer, that the complainants have not made in their bill the necessary averments as to the resi- dence of the defendants at the time of issuing the execution at law, and the complainants, notwith- standing, go on and file their replication and take their proofs and come to a hearing, they will not 133 CREDIT0E8' BILL, VIII. 'then be permitted to amend. By filing their repli- cation and tailnj; proofs, they have precluded them- selves from making an amendment. WiOywr v. Comer, Clarke Ch. 3L5, 7: 130 238. Where a right to property comes to a judg- ment debtor before bill filed, but administration to It takes place afterwards, thesame may be reached t>y a supplemental bill making the administrator a party, although it might be that a complainant, knowing of the right, could have amended and -compelled an assignment of it to a receiver. Hope V. Brinckerhoff, I Edw. Ch. 348, 6: 901 239. Where an answer shows property acquired after a bill filed, a supplemental bill is nccessair to reach it and the particulars of it. ibid. 240. Where a Judgment debtor is entitled to a «hare of personalty oy tue death of a relation, anu such death happens before the filing of a creditors' bill, but administration on the estate of the deced- ent takes place afterwards,— Held, that a supple- mental bill might be filed to impound the fund, al- though the creditor, had he known of the debtor's tight to the fund, might have brought It In by an amendment to the original bilL Ibid. 241. The provisions of the 189th Eule of the court of chancery, requiring certain averments to be in- serted in a creditors' bUl, do not extend to the case -of a supplemental bill, where such averments are contained in the original bill. Thomas v. McEwen, 11 Paige Ch. 131, 6: 82 S. C. 4 Ch. Sent. 33, 6: 1146 242. Where the complainant in a judgment cred- itors' suit, after the filing of his bill, became the owner of another judgment against the defendant, and issued an execution thereon, which was subse- quently returned unsatisfied, and the defendant ac- quired other property subsequent to the filing of the original bill, which could not be reached by such execution, the complainant could file a sup- plemental bill, not only to have such after-acquired property applied to the payment of the first Judg- ment, but also to have the subsequent Judgment satisfied out of the after-acquired property, as well -as out of the surplus proceeds of the property which the def endaut had at the time of filing the first bill, it there should be any such surplus. Ibid. 243. And such supplemental bill could be filed to obtain satisfaction of the second Judgment out of the surplus property which defendant had at the time the first bill was filed, without alleging that defendant had acquired any property subsequent to that time. Ibid. 244. Where, after a creditors' bfll had been filed upon the return of an ezecution at law unsatisfied, the complainant obtained a second Judgment and issued an execution thereon ; but, the defendant having no property which could be reached by the sheriff, the complainant filed a supplemental bill without waiting for the return of the execution, — field, that the supplemental bill could not be sus- tained. McElwainv. TFilZis, 3 Paige Ch. 505, 3: 850 245. After the return of an execution unsatisfied, ibe plaintiff filed a creditors' bill against the judg- ment debtor, and thereupon the defendant and a third person gave a note as collateral security for the payment of the debt and costs, but without dis- charging the Judgment or discontinuing the cred- itors' suit. The note not having been paid at ma- turity, a new Judgment was recovered thereon against the Judgment debtor and his sure^. Held, "that the proper course was to file a supplemental ■bill upon the last Jud(rraent. WimUfW V. PttMn, 1 Barb. Ch. 402, 5:438 246. Where a complainant in a Judgment creditors' suit takes the benefit of the Bankrupt Act, the same becomes defective and can only be proceeded In by his assignee filing a supplemental bill. Itseemn that if the assignee refused to do this, the original complainant might proceed making such assignee a defendant. Springer v. Vanderpool, 4 Edw. Ch. 362, 6: 906 vm. Liens ; Priorities. 247. The commencement of a suit in chancery by a judgment creditor whose execution at law has been returned unsatisfied gives to him an equitable lien upon the thinirs in action of the judgment debtor. Storm V. Waddell, 2 Saudf. Ch. 494, 7: 675 248. Such was the law of this State before the Re- vised Statutes went into operation. Ibid, 249. The filing of a creditors' bill creates a Hen upon the choses in action and equitable assets of the Judgment debtor, but not upon his personal prop- erty tangible by execution. AWanv City Bank v. Schemuirluyrn, Clarke Ch. 297, 7: 181 250. The mere fiUng of the bill, without issuing process thereon, does not create a lien. Boynton v. iJawgon, Clarke Ch. 684, 7: 807 251. A judgment creditor, by filing a creditors' bill after the return of an execution unsatisfied, outaina a lien upon the rents and profits of the real estate of his Judgment debtor which accrue during the fifteen months allowed bylaw to redeem the prem- ises Irom a sale by the sheriff upon execution: and satisfaction of the complainant's judgment may be decreed out of such rents and profits. FamJiam v. Campbell, 10 Paige Ch. 598, 4: 1107 252. A judgment creditor does not obtain a specific lien upon the equitable estate of the debtor by the return of an execution unsatisfied, but by the com- mencement of a suit in equity after the execution has been so returned. Eameston v. I/yde, 1 Paige Ch. 637, 8: 781 253. An assignment by the defendant, of his prop- erty after the filinar of the bill in this court, wiU not devest the Hen of the Judgment creditor. Ibid 254. If property is not a subject of sale by the sheriff, the creditor obtains no specific Uen or pref- erence until his execution is returned unsatisfied, and he has followed up his remedy by the com- mencement of a suit in this court to reach the debtor's equitable assets. Beck V. Burdett, IPalge Ch. 305, 8: 657 255. Where a debtor in insolvent circumstances confesses a judgment in favor of a particular cred- itor for a debt justly due, the juifement creditor wiU retain his priority. Brinkerhoff v. Brown, 4 Johns. Ch. 671, 1 : 975 TTiliftmig V. BroiOTi. 4 Johns. Ch. 682, 1:979 JlTDermutt V. StroTiff, 4 Johns. Ch. 687, 1:981 256. If, however, the debtor makes use of the judg- ment so confessed, for his own purpose, to effect a sale and change of the property, and it is sold at a great sacrifice, and purchased in by him, this court WiU allow it to be redeemed, or to be set up again at the price at which it was sold, and resold for the benefit of the other creditors as to any surplus be- yond that price. TMd. 257. A judgment creditor who has issued an execu- tion which has been returned nuUa hona acquires a priority of right to the property of his debtor in the hands of a trustee; and any payments made by the trustee to the debtor after a bill by such judg- ment creditor, or after notice of such right, are in Ills own wrong, and of no avail against such credi- tor. Spader v. Davis, 5 Johns. Ch. 280, 1 : 1083 258. The lien acquired by the creditor by filing a creditors' bill is defeasible only by a discharge of the debt, or by a successful defense of the suit in some one of the very restricted modes open to the defendant. Storm V. WaddeR, 2 Sandf . Ch. 494, 6: 675 259. A discharge of the debtor, in bankruptcy or insolvency, from his debts, pending a creditors' suit, does not operate to discharge or impair the lien acquired by the commencement of such a suit. The suit may proceed in rem, although the person and the future assets of the debtor may in the mean time be exonerated. Ibid, 260. An assignment by a debtor, under the insol- vent Act, transfers all his estate to the assignee tor the benefit of his creditors generally; and a judg- ment creditor can gain no preference in relation to such property, by a bUl subsequently filed *n this court. Stilwell V. Tan Epps, 1 Paige Cli. 615, 8: 778 261. An assignment, after the Uen of a creditor has attached by the flUngof abUL only conveys the property to the assignee subject to that lien. Corning v. White, 2 Paige Ch. 567, 8: 1031 262. The judgment creditor who first files his bill in chance^ obtains a priority in relation to the prop- erty and effects of the defendant which cannot be reached by execution at law. Ibid. 283. In equity the rule of distribution is equality, CREDITORS' BILL. IX. 123 «nd creditors are paid pari passu, in ratable pro- portions. Bifigs V. Murray, 2 Johns. Cli. 577, 1 : 498 261. A juderment creditor who has taken out execu- tiuu tti law, uau uaa it levied and returneu, but tttm failed in obtaining satisfaction at law, or to reach a residuary trust interest in the chattels of his debtor, and flies his bill for the aid of this court, gains, by his legal diligence, a legal preference to the assist- ance of this court, which cannot be affected or im- paired 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 benefit of a particular creditor. JiTDermutt v. Strong, i Johns. Oh. UBV, 1: 981 265. Though it is the favorite policy of this court to 'distribute the assets of a debtor equally among a)i his creditors part passu, yet when such a judicial {)reference has been established by the superior egal diligence of any creditor, that preference will be preserved in the distribution of the assets. Ibid. 266. Where different judgment creditors fil6 their 'bills on the same day, he who first gets his pleading ■on file has priority of payment. Saffard v. Douglas, i Edw. Ch. 537, 6: 967 267. Among creditors, that creditor who flies his bill first against a judgment debtor obtains a preference in the equitable assets of such debtor; out to ac- quire such preference, he must follow up the filing of his bill by the service of process with all due dil- ifrence. Boynton v. Bawson, Clarke Ch. 584, 7: 207 268. It seems that the filing of a bill by a judgment creditor, and taking out a subpoena and making a hoiux fide attempt to serve it, is sufficient to give complainant in such suit a preference over the oom- plaiuaot in a similar suit afterwards commenced by another judgment creditor of defendant. Hayden v. BuOdin, 9 Paige Ch. 512, 4: 796 269. The decree obtained upon a creditors' biU filed uwiinst a corporation, and founded upon the return ■of an execution unsatisfied, is a decree not only for the benefit of the complainant in such bill, but also -for the benefit of all other creditors of the oorpura- ion who may come in and establish their debts un- der such decree, or under an order of the court made previous to such decree, as authorized by the statute. Morgan v. New York & A. B. Ck). 10 Paige Ch. 290, 4: 981 S. C. 3 Ch. Sent. 30, 5:1110 270. A filed a creditors' bill in June, 1839, but did not serve process thereon until March, 1840. B 'filed a similar bill against the same defendants in August, 1839, but did not serve process thereon •until February, 1840. C filed a similar bill against ■the same defendants in September, 1839, and served process thereon in September, 1839. All the bills were taken as confessed and a receiver appointed; and upon reference as to priority of claim,— Heiri, ' that C was entitled to be first paid, B second, and A last, out of the fund in the hands of the receiver. Boynton v. Baioson, Clarke Ch. 584, 7: 807 271. Where a testator, previous to the Revised Stat- utes,died leaving personal property insured against loss by fire; and M, a cieditor, rucovercd a JudKiiicn i against the executors, and levied hts execution on the property in their hands, which property vrat nfterwards destroyed by fire,— HeW. that M was en. titieu to priority of payment out of the insurance money, over a judgment in favor of other credi- itors, subsequently recovered against the executors. Mapes V. Coffln, 5 Paige Ch. 296, 3 : 7»5 IX. DismssAi, ; Decree ; Sai/r. 272. Where a judgment creditors' bill contains ■.merely a general allegation us to the value of the defendant's property, and by the result of the liti- gation it appears that the defendant has no property which can be reached and applied toward the pay- ment of the complainant's judgment, the bill will be dismissed, with costs. „ „„. „ .», Smefs V. vnUiams, 4 Paige Ch. 364, 3:471 273. Where a creditor files a bill in behalf of him- ■self and all others who sball come in auu ^love their debts under the decree, and contribute to the expenses of the suit, he may discontinue bis suit at -any time before there has been a decree therein ior the benefit of himself and the other creditors. An d the defendant, at any time before such decree, has the right to have the hill dismissed, upon paying what is due to the complainant, with interest aud Inries v. Zjomsing, 7 Paige Ch. 583, 4: )S84 274. The debts, choses in action, and other equitable rights of the defendant, may be assigned or sold under the decree of this court, and the purchaser will be protected both in equity and at law Eameston v. Ijyde, 1 Paige Ch. 637, H: 781 Editorial Notes. Creditors' bill ; wliat should contain 1:1097, 3:167,984, 7:130 Nature and effect of 1: 898 Distinction 1: 380, 4: 1044 Foundation for 4: 742 Right to maintain; effect of 1:981 When lies ; effect of 1 : 150, 334, 979 Creditors at large 1: 324, 7: 675, 1311 Not on judgment in rem against foreign cor- poration 4: 674 Effect of; to bar other suits 3: 698 Where right to file bill doubtful; claim must be established at law 5:537 Against administrator 5: 760 Against absconding debtor 2: 781 By holder of mortgage debt 4: 221 Judgment creditors may file 3: 171, 839, 983, 7:675 Sufficiency of judgment to create lien 4 : 830 Regularity 01 judgment 6:377 Assiifnee of judgment may file 4: 91, 7; 64 Issuing new execution 5 : 1045 ■when necessary 6 : 228 Creditor by decree in chancery may file 3: 173, 886 By cosurety 3: 887 By substituted surety 3: 975 To reach property of decedent 4: 1013 To reach interest of debtor in deceased father's estate 5: 211 To reach equitable assets 2: 657. 1033, 3: 335, 7: 675 To recover property fraudulently conveyed 3: 702,810, 3: 1089, 4: 76, 5: 397. 6; 404, 7:268 Property covered by fraudulent confession of judgment 3: 918 Effects which cannot be reached 7: 75 Interests of beneficiary may be reached 3: 101, 255,476, 5: 435, 6: 1349 Trusts cannot be reached 6: 435,501,7: 1130 Subsequent earnings cannot be reached 4: 546 Surplus not necessary for support may be TP 9.P ll6 d 4: 354, 5: 564, 6: 435, 501, 7: 1130 To reach joint property 4:58 Against husband and wife 2: 918, 4: 552 Against corporation or stockholders 4:831,7:603 To enforce lien of decree 3: 975 Legal remedies must have been exhausted 3: 657, 3: 172, 449, 4: 1073, 5: 432, 6: 163, 7: 675 Process of law; how exhausted 5: 234 Application of rule; distinction between real and personal property 3: 172 Return of execution necessary 5: 547, 6: 381, 4: 103 against joint debtors 4:58 Bill filed when 1: 380, 3: 984, 5: 1044 only after return day of execution 3: 167, 4: 95, 102 134 CREDITORS' SUITS-CY PRBS DOCTRINE. after execution sale 3: 569 after second execution 3: 984, 4: 76, 5: 83 issue of execution 7: 1130 Docketing judgment 4: 995 Not issuing execution to other county 4: 102 Lien created by 2: 932, 3: 190, 607, 6: 684, 7: 121, 207 on rents and profits 4: 1107 priority of 4: 190,-470, 797, 7: 675 not impaired by discharge in bankruptcy 5:152 Preferer-e by superior diligence 7: 873 Classes uC creditor*'; joint and individual 3:101 Priorities in distribution 3: 1055 Neglect to prove claim 4: 151 Parties 2: 781, 3: 449 joinder of plaintiffs 4: 830, 831, 834, 6: 206 on joint judgment 4:335 joined as defendants 3: 629 several judgment debtors united 3: 806 allowing other creditors to come in 2: 79, 794, 3: 476, 4: 1019, 6: 913 officers, directors.and stockholders as par- ties 7: 1315 Double aspect 4:371 Multifariousness 3: 630, 707 One may sue for all 3: 256 One for himself and others claiming a pref- erence 4: 298 Examination of debtor before master 4: 545 Order requiring debtor to deliver property 4:546 Notice to creditors of application for final decree 4: 1019 Injunction; practice 4:349 violation of, by interference with prop erty 4: 190 Order of reference; assignment 3: 886 examination of defendant under 3: 886, 4: 545, 5: 397 Where complainant entitled to injunction 3:567 Supplemental bill 2:932, 3:984 CREDITOKS' See Beceitebs, I. b, i. SUITS. CROPS. See MOBTOAGB, 412. CROSS- APPEAL. See Appeal, 248-250. CROSS-BILL. See PiiEADiNO, IV. CURTESY. See also Doweb ; Husband and Witb, U9. 1. A recovery in ejectment, by the husband and wife, of lands belongini? to the wife, irives to the husband such a constructive seisin of the lands as to entitle him to a life estate therein as tenant by the curtesy initiate. ^„_ ElliwaHh V. Coofc, 8 Paige Ch. 643, 4: 575 2. So a decree in partition, settling the right of the huabnnd and wife to an undivided portion of Che land In possession of and claimed by the com- plainant in the partition suit, and directing a sale ot the whole premises for the purpose of making paiUUOU Oi the fund produced by the sale, is n siif- hcieut constructive seisin to entitle the husband to claim an interest as tenant by the curtesy. Ibid. 3. The husband is not entitled to an estate by th» curtesy m a contingent iniut'est in niB wife, id real property, where the wife was notseised of an estate or interest la possession in such property during her lifej but her whole interest therein will descend Pond V. Bergh, 10 Paige Ch. 140, 4: 91» 4. Where a testator devises Ws real estate to hi» daughter, and empowers and directs bis executors to sell the real estate, and the daughter marries, and has a child, which dies, and the mother also dies before the sale of the estate, and the husband survives, he is entitled, as tenant by the curtesy, to have the interest of the money arising from the sale secured and paid to him during life, in lieu of the rents and proilts of the land. Dunscomb v. Dunscomb, 1 Johns. Ch. 508, 1: !}!55- 5. Where an estate descends to a daughter of th& owner, who is a feme covert, and who dies in the life- time of the mother, to whom dower in the prem- ises is subsequently assigned, .the husband of such daughter will not be entitled to an estate by the curtesy in the third of the premises which is thus assigned to the widow of his wife's father for dower. Be Oregier, 1 Barb. Ch. 598, 5: SI* Editorial Notes. Estate by curtesy Character of estate what necessary to create it 5:510 4:575- 4:575- CUSTODY OF CHILDREN. See also Husband and Wife ; Intantb ; PAiizNr AND Child. CUSTOM AND USAGE. See also Liee Tenants, 5. 1. When common opinion as to what the law is- has been frequently acted upon and for a great length of time, by those whose duty it is to admin- ister the law, and important individual rights hav& been acquired or are dependent upon such practi- cal construction of the law. It is entitled to great weiirht. Utica Bank v. Mersereau, 3 Barb. Ch. 528, 5: 99» 2. The court cannot, from alleged custom of trade at New York, and from the fact that a sale of im- ported goods was at long price, make an agreement- for the vendor that the vendee should nave tho- benefit of debenture upon the goods, which were by law free from duty; or an agreement that, if the- vendor should succeed in recovering back tho- amount wrongfully received by the collector for duties, the purchaser should be entitled to ths money thus recovered. Jlfoore V. Des Arts, 2 Barb. Ch. 636, 5: 78» 3. A custom of merchants must be a mercantile^ usage so well known and established as to form a part of the law merchant; otherwise It is not sufB- cient as a custom. Bucit V. Grirmhmo, 1 Edw. Ch. 140, 6: 89- 4. A custom must be proved by evidence of facts- —by means of witnesses who have had frequent and actual experience of it. ilf«!sv.Hdllo(*,2Edw. Ch. 652, 6:538- Editoriai. Note. Custom and usage, financial; cannot conflict with rules of law 5: 252^ CY PRES DOCTRINE. See Wills, 134. DAMAGES, I.— III. 12S D. DAMAGES. 1. For Breach or Contract or Trust; In General. II. For Taking or Injuring Real Property. Til. In Injunction Cases. IV. Penalties and Liquidated Damages. Editorial Notes. See also Attorney and Solicitor. 61 : Principal and Agent, 59; Waters and Watercourses, 12-15. I. For Breach or Contract or Trust ; In Gen- eral. 1. Where a complainant in a court of equity ■claims a compensation in damages for the nonful- fillment of a contract which has been in part per- formed, the benefit received by him from such part performance wUl be allowed to the defendant in «stimating the damages of such complainant. Taylor v. iJead,4 Paige Ch. 561, 3: 561 2. The proper measure of damages for the breach of a contract for the delivery of goods on sale, to be paid for when delivered, and where no part of the goods has been received,— is the difference be- tween the contract price and the actual value of such goods at the time they should have been deli v- ■ered, and the interest upon such difEereuoe. Ibid. 3. Where particular articles of property are to be delivered within a limited period, to be applied for specific purposes, and not for general merchan- dise, the party who fails to perform his contract to deUver the articles is bound to make ^ood the loss occasioned by his delinquency; but he is only liable for direct damages which, according to the nature of the case, may be presumed to have resulted from his failure to perform the contract, and not for remote or speculative damages. Ibid. 4. If a party entitled to the benefit of a contract can protect himself from a loss arising from a breach thereof- by reasonable exertions or common prudence, and he fails to do so^ he will not be per- mitted to throw the loss which has arisen from such neglect upon the other contracting party. Ibid. 5. Where the defendant contracted to deliver a certain number of sawlogs at a specified price, to be paid for on delivery of the whole, and only a part was delivered, but not paid for; and the con- tract price of those delivered was more than the <3ifference in value between the residue of the logs and the contract price thereof, — Held, that the com- plainant was only entitled to nominal damages for The nonperformance of the contract as to the de- livery or the residue of the logs. Ibid. 6. Mode of computing damages, in a suit for the specific performance of a contract for the sale of real estate, or for compensation in damages, under a decree directing a master to ascertain and report the damages which the vendee sustained by the re- fusal of the vendor to complete the sale. Boyd V. Vanderkemp, 1 Barb. Ch. 273, 5: 383 7. Where stocks loaned are to be returned at a ■fixed time, the measure of damages on a default is •the market price of the stocks at that time. Day V. Perkins, 2 Sandf. Ch. 359, 7: 635 8. Where a trustee has sold land contrary to his trust, he is answerable for its value, not as it ex- isted at the time of sale, but at the time of filing the bill. Hart v. Ten Eyck, 2 Johns. Ch. 62, 1 : 896 8. Chancery, having jurisdiction, can, where it is necessary, ascertain the damages of a party by an issue otquantwmdamnincatus or bv a reference. Jacltson V. Baker, 2 Edw. Ch. 47l, 6: 470 10. The fulfillment of a contract being impossible in consi^queautj of the Improper act of the defend- ant, done after bill filed, is a ground for assessing damages in this couit. Wiswjall V. McGowan, Hoff. Ch. 125, 6: 1087 11. If the act is unknown to the plaintiff when he files his bill, such relief may also be given. Ibid. II. For Taking ob Injuring Beal Property. 12. Upon an assessment of damages for property destroyed by order of the mayor or aldermen of the city of New York to prevent the spreading of a fire, the amount for which the city corporation is responsible is not the whole value of the prop- erty destroyed, but only so much thereof as would probably have been saved if the order to destroy the property had not been given. But as between the assured and the insurers, the liability of the latter is more extensive, as it embraces the property which would have been burned if it had not been otherwise destroyed. Pentu V. ^tna Fire Ins. Co. 9 Paige Ch. 568, 4:818 13. In estimating the damages which the owner of lands taken for the use of a railroad will sustain by the running of the road through his lands, he should be allowed for the expense of making and maintaining only one half of the partition fences, as the other half the railroad company is liable to make and maintain. Be Rensselaer & S. B. Co. i Paige Ch. 553, 3: 558 U. In opening streets in the city of New York, wciere property is taken in which different persons have separate and distinct estates or interests, the proper mode of estimating the damage to the own- ers by the taking of the property is to ascertain the damage to the fee of the lot in the same manner aa it one person only I^ad tTio whole title or intcTcsL therein, and then to apportion the amount among the different persons interested in the lot, as land- lord and tenant or otherwise, according as the in- terest of the one or the other will he affected by the taking of the land for the improvement. Wiggin v. New York, 9 Paige Ch. IB, 4: 591 15. Damages for land taken by a railroad com- pany, where the map, plan, or profile attached to the petition as required by statute shows that the road is to be constructed with a viaduct at a partic- ular point for the convenient passage of the own- er of the lands severed by the road, should be as- sessed with reference to such plan of construction. Kylev.Aubwm&B.B. Co. 2 Barb. Ch. 489, 5: 736 16. In the absence of such map, plan, or profile, or of any agreement relating to such crossing, the damages must be assessed on the supposition that the owner must pay for any crossings by viaduct or other artificial facilities. Ibid. 17. Appraisers appointed to assess damages to the riparian owner, arising from the diversion of the water of the river, should allow to a tenant of a mill (under such owner) the damages he will sustain. Be Water Commissioners, 4 Edw. Ch. 545, 6: 969 18. Mode recommended by the court, of assessing damages in favor of owners of unequal shares in difllerent pieces of land and others on account of the diversion of water of a river. Ibid. III. In Injunction Cases. 19. Master's fees for services which had to be per- 136 DAMAGES, IV.— DEBTOR AND CREDITOR. formed a second time after the dissolution of the injunction, and the expense of readvertising the sale, are properly allowed as part of the damagres sustained by the srrantinsr of an injunction restrain- iuir the sale of mortgaged premises under a decree of foreclosure. Edwards v. Bodine, 11 Paige Ch. 223, 5:115 S. 0. 4 Ch. Sent. 49, 5: 1151 20. Items of damage on a bond given under the 31st Bule, on granting an injunction to restrain the sale of mortgaged premises. Edwards v. Bodine, 4 Edw. Ch. 292, 6: 883 2L The defendants against whom an injunction is granted restraining the sale of premises under a de- cree of foreclosure are not, upon dissolution of the injunction, entitled as damages to an allowance for personal services in attending at the place where the premises were advertised to be sold, and for the attendance of their solicitor at such place to advise them respecting the sale. Edvjards v. Bodine, 11 Paige Ch. 223, 5: 115 22. It is proper to allow the value of the crops, etc., taken by the mortgagor, during the time in which the sale of the premises was suspended by an injunction, as a part of the defendant's damages sustained by reason of an injunction staying the complainant from selling tlie premises under his de- cree. Aldrieh v. Reynolds, 1 Barb. Ch. 613, 5:516 S. C. 6 Ch. Sent. 32, 5: 1303 23. The interest upon the whole sum, the collec- tion of which is either suspended or defeated by an mjuuction, is also a part of the damages sustamed by the defendant by reason of such injunction. Ibid_ 24. A party enjoined is also entitled to recover as damages the counsel fees which he has been obliged to pay to obtain a dissolution of the injunction, as well as the taxable costs of so much of the proceed- ings in the suit as were necessary iio obtain such dissolution. Ibid. 25. The costs of the reference to a master to ascer- tain the amount of damages are likewise a part of the damage which the party enjoined has a right to recover, upon the dissolution of the injimction. Ibid. IV. Penalties ahd Liquidated Damages. 26. An agreement for stipulated damages for the breach of a contract nect'aaai'ily uui^Jit-a tliat such damages are to be received in satisfaction of. and as a full compensation for, the breach of the agree- ment to which such stipulation applies. Shiett V. McNitt, 9 Paige Ch. 101, 4: 684 27. Where the vendor contracted to sell his farm for 85,000, and the vendee agreed to pay one fifth of that sum and $350 for back rent, on a specified day, and to give a bond and mortgage at the same time for the residue of the purchase money, when he was to receive a deed of the premises ; and simul- taneously with the making of the contract the pur- chaser gave to the vendor a bond and warrant of attorney to confess judgment for the $1,1)50, on which a judgment was immediately entered; and the vendee afterwards paid 8250, but neglected to pay the residue on the specified day. whereupon the vendor sold the premises for something lees than the amount which the first purchaser was to have given, —Held, that $1,000 specified in the contract, and se- cured by the bond and warrant of attorney, was in the nature of a penalty merely, and that the vendor was not entitled to collect the whole amount secured by the bond and warrant as stipulated damages. Ibid. 28. Where several things are stipulated to be done, some oi wijich, it not performed, might lead to much, and others to little, injury, and one amount of forfeit only, in case of default, is inserted, it will be looked upon as a penEilty. But where each par- ticular act is connected with a particular specified forfeiture, in such case each neglect will make each forfeiture liquidated damages. Jackson v. Baker, 2 Edw. Ch. 471, 6: 470 29. B. agreed in writing to sell I. a house which was mortgaged. The boud and mortgage were to be taken up at a specified time. I. was, in the mean time, to have the property insured. For any viola- tion of the agreement or any part thereof the par- ties mutually agreed to forfeit and pay to each other $5,000 as liquidated damages. The purchase was consummated by B's giving a deed and receiv- ing from I. the consideration lees the amount due jn the mortgage; but I. did not take up the bond ;ind mortgage within the time stipulated, although ue did not appear to be acting willfully. B. brought an action, in consequence, to recover the $5,000 a^ liquidated damages. On a bill by I. to restrain th» .iction, the court held, the amount a penalty only, and gave B. the liberty of ascertaining his damage* through a reference; out intimated (inasmuch as .lis damages could be nominal only) that further .>roceedings on his part would be at the peril of josts. If fie waived all pretensions to damages, a perpetual injunction was to issue and each party was to bear bis own costs. Editorial Notes. Claim for damages; lemedy at law 6: 590 Specific performance, inquiry into 6: 1087 Bill not sustained merely to obtain compen- sation in 5: 844 Criterion of 5:141 Counsel fees as 5:116 Suit on injunctinn bond; measure of 5: 516 Actions on penal bonds 3: 910 For breach of covenant in deed 4: 927 Penalty on breach of contract 4: 625 Stipulated in contract 4: 635 DEATH. See CiviLiTER Momnus; Evidence, n. d. 4. DEBENTURE. See Bonds, 13. DEBT. Whether an action of debt will lie against a party u recover tue umuuut ui u Lax duly assesubd against liim, and which cannot be levied by the collector ,or want of visible property of such party,— gucere. Albany County v. Durant, 9 Paige Ch. 1^ 4: 65» DEBTOR AND CREDITOR. See also Absent and Absconding Debtors ; Col- lateral Security; Creditors' Bill ; Fraud- ulent Conveyances; Insolvency and As- signment FOR Creditors; Marshaling As- sets; Subrogation, 1. A debtor may give preferences to some of hl» creditors when no legal lien intervenes, and when it is done fairly and from honest motives. luTMenomy v. Murray, 3 Johns. Ch. 444, 1: 67» HTMenomy v. Roosevelt, 3 Johns. Ch. 446, 1 : 67» 2. This court, as well as a court of law, allows a debtor to give a preference to one creditor over another. V .lliams V. Brown, 4 Johns. Ch. 682, 1: 979 £i. And where a debtor in insolvent circumstances confesses a judgment for a debt Justly due, the judgment creditor will retain his priority. Ibid. 4. If, however, the debtor makes use of the judgment so confessed, to eilect a sale or change jf the property for bis own purposes, and the proper- ty is sold at a great sacrifice, and purchased in by the debtor, this court will interfere, and either al- low it to be redeemed, or put up again at the price at which it was sold, and resold, for the benefit of the other creditors, as to any surplus beyond ti")t price. iMt 5. Where there is no bankrupt law, the principle of which is equality among creditors, an insolvent debtor may prefer one creditor to another ; but such preference is to be viewed with jealousy, and should be strictly construed, so as to guard against abuse and fraud. Long V. Majestre, 1 Johns. Ch. 805, 1: 150- 6. A creditor is not allowed to make it a condition DECEASED PERSONS— DEED, I. a. 12'J of a loan that he shall receive a compensatton for his'servlces in procuring the money, as the allowing such a demand has a tendency to usury and oppres- sion. Hine v. Handy, 1 Johns. Ch. 6, 1: 39 7. And if the amount of suoh compensation is included in the eeounty given for the loan, Uie court will, on the debtor's paying into court the amount reported to be due by a master, after de- ducting the sum charged for such services, grant an injunction (on payment of costs by the plaintiff) to stay any proceedings on the mortgage. Ibid. 8. The actual expenses of the writings or securi- ties are to be paid by the borrower. Ibid. 7, 1: 39 9. Where a debtor conceals his ownership of property to prevent its seizure from executions against him, and one of his judgment creditors aids him in this fraud, this court will not interpose in favor of the debtor against suoh judgment creditor, but will leave the parties to their legal rights. Manny v. Phillips, 1 Paige Ch. 472, 8: 719 10. A debtor against whom judgment creditors were pursuing their remedy was allowed to receive for maintenance a part of the funds in the hands of his father's executors, without the consent of creditors — it appearing that the share which such debtor was entitled to under his father's will would bo more than sufficient to satisfy all his creditors. Oraig v. Hone, 2 Edw. Ch. 376, 6: 435 11. A creditor having a particular fund may be compelled to resort to that fund, before he p ursues the debtor personally. Authorities cited in Hays v.Ward, 4 Johns.Ch.l23, 1: 786 Editokial Notes. Creditor; remedy of 5: 796, 6: 399 judgment; equitable relief, practice 5:499 remedies of, against bankrupt debtor 5:734 against heirs of decedent 5: 458 concurrent remedy of 5: 454 when may sue to reach property fraud- ulently conveyed 6: 870 how far a trustee 6 : 299 must not impair, defeat, or destroy secu- rity 6: 299 Re-examination of debtor 5: 99 Rights of creditors at large 5:810 Creditor's lien; priority between creditors; race of diligence 6: 1006 Rights of creditor to recover out of trust estate; may unite in one suit 6:206 Legacy to debtor 6: 320. 439 Right to look to unpaid stock subscriptions 6:632 Relief of debtor: conditions precedent 6: 1148 Agreements between 5: 447 Beneficial interests cannot be placed beyond the reach of creditors 5:889 Creditor of Insolvent debtor 4: 574 judgment; rights under Act to abolish im- prisonment for debt, etc. 4: 540 Covenants not to sue, and releases of debtors 4:410 Right to prefer one creditor as against others 1: 679, 979 DECEASED PERSONS. See also Cehsg^bbt. The heir of a deceased person has a right of ac- tion where the monument or tomb of his ancestor is defaced ; but he has no right of property in the body. Be Brick Preibyterian Church, 3 Edw. Ch. 155, 6: 607 DECEDENTS' ESTATES. See Annuity: Ceediioes' Bill, I. d; Descbni AND Distribution ; Equitable Conversion t. Executors and Administrators, 7, 8 ; Mon- ey IN Court ; Parties, 17, 19 ; Partition, 14 i. Surrogate; Trusts; Wills. DECEIT. See Fraud. DECLARATIONS. See Evidence, IX. DECREE. See Judgment. DEDICATION. Where the owners of land In a city or village lay out such land into lota, wi th streets and a venuea- intersfccting the same, and sell the lots with refer- ence to such streets and avenues, they cannot after- wards deprive their grantees of the benetit of hav- ing such streets and avenues kept open j and the- same principle is applicable to a similar dedication of urban lands to be used as an open square or public- Trustees of Watertown v. Cowen, 4 Paige Ch. 510,. 3: S3&- Editorial Notes. Dedication of land to public use effect of To religious uses By platting land Presumption of, from user Right secured by Gift to inhabitants for school purposes con- stitutes 3: 1135- 3: 536 3:537 3: 15»- 3:537 3:537 3: 537- DEED. I, Form and Requisites. a. In General. b. Delivery and Acceptance, 11. Construction. a. In General; Description. b. What Estate or Property Passes. 1. Generally. 2. Appurtenances 3. Exceptions and BeseroaUoTU. III. Validijjy and ErfEOT. Editorial Notes. For Nature and Validity of Estates in Eeal Prop- erty, see Real Property, I. Deed by Married Woman, see Husband and Wife, IV. h, j. See also Acknowledgment ; Boundaries ; Con- tracts, V. b, c ; Estoppel, II.; Evidence, 16,. VI. f, 307-309; Infants, 167; Waters and- Watercourses, 22, 23. L Form and Requisites. a. In General. 1. A protestation in the attesting clause of adeedi has no effect upon it, provided it la not at variance with the terms of the deed or can have no influence in Qualifying or chansring its meaning. TTriaM V. Taylor, 1 Edw. Ch. 226, 6:119- 2. Where a deed of property, which ought to have- 128 DEED, I. b-II. b, 1. ibeen made by the ancestor and in which infant heirs have an interest, is directed to be executed, their guardian ad litem signs for them; and adult .parties must execute in their own proper persons. Tan Schaick v. Stuyvesant, 2 Edw. Ch.Wi, 6:370 b. Delivery and Acceptance. 3. If, at the time of executing a deed, there was (no delivery or intention to deliver, these are facts ■which should be explicitly proved by the grantor. Souverbye v. Arden, 1 Johns. Ch. 240, 1: 137 i. If a deed has been duly delivered in the first Instance, tlieaubsequentcustody of it by the grant- or will not destroy the effect of the delivery. Ibid. 5. A deed may be delivered to a third person as the servant or bailee of the grantee ; and such de- 4ivery will be valid. IMd. 6. A voluntary settlement fairly made is always binding. In equity, upon one grantor, unless there >be clear and decisive proof that he never parted, or intended to part, with the possession of the deed ; -&nd, if he retain it, there must be other circum- stances, beside the mere fact of his retaining it, to show that it was not intended to be absolute. Ibid. I. If a deed be duly executed in the flrst in- stance, so as to talse effect, any subsequent delivery ^ null and void. Ibld.ZS8, 1:132 8. A deed may be delivered to a stranger for the grantee named therein, without any special author- ity from the grantee to receive it for him. And if the grantee assents to it afterwards, the deed is valid from the time of the original delivery. Lady Superior, etc. v. McNamara, 3 Barb. Ch. 375, 6: 939 9. Where a deed is delivered to a third person without any authority from the grantee, who re fuses to accept or ratify the deed, such delivery is invalid. Ibid. 10. The recording of a deed given as security for a loan is a nullity, but upon the lender's subsequently purchasing the land from the owner the record will become fully operative; the transaction being equiv- 4ilent to the delivery of a deed, which is recorded in anticipation of the completion of a sale. Warner v. Wimlow, 1 Sandf. Ch. 430, 7: 386 II. The retention of the deed or instrument by the urposes as she should b^ will limit and appoint; ■and in default of such appointment by will, to the nise of her children or Issue living- at the time of her death, to be divided among them in the same manner as they would have taken the same if she had survived her husband and had died intestate; and in default of such issue, to her own right heirs, —Held, that this conveyance, in case the power of appointment was not executed, gave to the feme covert an absolute estate for life only, and a vected remainder in fee after her husband's death, subject to be devested in favor of her children or issue by her death in the lifetime of her husband. Jackson v. Edwards, 7 Paige Ch. 386, 4: 300 25. Where B, the executor of D, his son-in-law, and guardian of his infant grand-daughter,received and applied to his own use moneys which by the will of D belonged to such grand-daughter unless she should die under age without issue, but which upon the happening of that contingency belonged to her mother m fee in case she survived, and,if not, to E himself in fee ; and E, havmg become em- barrassed in his pecuniary aiiaii"s, made a convey- ance of certain lands in 5few York to his daughter in fee, in trust for J H D, the grand-daughter, and her heirs and assigns forever, provided she did not •die under age without leaving issue ; but if she died under age and without issue, then for the sole use of her mother and her heirs and assigns ; and the deed recited his appointment as executor of D, and as guardian of J H D, and that as such execu- tor and guardian he was indebted to the estate of D in the sum of 827,000 for moneys received by him on account thereof, in consideration of which indebtedness, and of the sum of $10 paid by his daughter, the grantee, heconyeyed,etc.,— ffe!d,tha1i such conveyance upon its face was an absolute deed, and not a mortgage ; and that it was not an executory trust to sell the premises and raise the $27,000 out of the proceeds thereof for the benefit of D's estate ; but that the interest created by the deed was an executed trust, and that the deed not ■only conveyed the absolute legal estate to the trustees, but the whole beneficial interest in the whole property to the cestuis que trust. Eckford v. De Kay, 8 Paige Oh. 89, 4:356 2. AppuHenmices. 26. By the grant of a mUl, or the grant of land -with the mill thereon, the waters, floodgates, etc., which are necessary for the use of the mill, pass as incident to the principal subjects of the grant. Le Boy v. Piatt, i Paige Ch. 77, 3:350 27. Where lands belonging to the owner of a mill are overflowed by the water of the millpond which ^supplies the mill, a conveyance of the mill,with the waters and watercourses, etc., gives a right to the grantee to continue to overflow lands of the grant- or which are not conveyed, to the same extent that they were overflowed by the waters of the millpond at the time of 1;he conveyance. IMd. 28. Where the right to erect a wharf and to take tolls or wharfage is granted as appurtenant to a lot bounded upon tidewaters, it seems the right of wharfage, etc., wUl pass under the term '• appurte- nances," in a subsequent conveyance of tne lot. Wixwall V. Hall, 3 Paige Ch. 313, 3: 168 3. Exceptions and Beservatinns. 29. Where a deed in fee contained a reservation of the right of " cutting and hewing timber and graz- ing in the woods not appropriated or fenced in," it was held that the right reserved ceased as soon as the premises were fenced in by the grantee, es- pecially where it appeared that the premises had been enclosed for above thirty years, and the right during that period had not been claimed or exer- <:j*ied. Ten BroecH v. lAvingston, 1 Johns. Ch. 357, 1:170 30. Such rights may be lost by lon^ negligence and disuse ; and presumptions of their release or discharge are favored for the sake of quieting pos- Ibid. 31. An exception in a deed Is that which is severa- ble from the thing granted. An inseparable inci- dent does not amount to an exception. Maynard v. Maynard, i Edw. Ch. 711, 6: 1039 Ch. Dig. 32. It djLjs not amount to a reservation where a benefit is given In a deed to persons not parties to it and having no legal title, and where nothing is reserved to the grantor. But there is an intention, to which the court will give effect accordmg to the intent which is to be gathered from the whole in- strument. Ibid. 33. Deed of grant of a farm was given to a son in fee: "Excepting and reserving to my three daugh- ters H .,E. and E. a right of living on the said before- mentioned premises as heretofore, so long as they shall respectively remain single." It appears that prior to and when the deed was executed, the daughters lived with their father and were support- ed with the rest of his family on the farm and they so remained with the son (tbelr brother, the grantee) until his death and they were still on the farm. In a partition suit the question was as to the extent of their right or estate. Held, that the clause implied not only the mere being upon the premises but also subsistence— the means of living, a home. IMd. III. Validity and Effect. 34. Where a deed has been duly executed and de- livered, a subsequent surrender or destruction of it will not devest the estate conveyed by it. JVictoison V. Hals ev, 1 Johns. Ch. 417, 1:193 35. A grant of land is void and passes no title what- ever to the grantee, if at the time of the delivery of the conveyance of such lands they are in the ac- tual possession of a third person claiming under a title adverse to that of the grantor. Burlums v. Bmrhans, 2 Barb. Ch. 398, 6: 690 36. T and J S on the Uth day of December, 1807, executed to A and D two instruments. By one the title to certain premises was vested in fee in A and D to hold to the use of A during her life, and after her death to the use of her two children dur- ing their lives and that of the survivor of them, with remainder to the grantors, their heirs and as- signs. The second recited the first in full, and the desire of TandJ S to convey the premises to the lawful issue of the two children of A absolutely: and then, in consideration of love and affection for A and her offspring and of one dollar, they cov- enanted for themselves, their wives and heirs, with A and D absolutely to convey by good and suf- ficient conveyances and assurances, the same prem- ises to the lawful issue of the two children of A. Held, that the deeds are a good covenant to stand seised to uses, as to the issue of the children of A. Hayes v. Kershaw, 1 Sandf. Ch. 258, 'J: 331 37. Where the intent of the grantor to pass lands by a written conveyance is apparent, if for any reason the deed or instrument cannot operate in the way contemplated by the parties thereto, the court will if possible give it effect in some other way. A conveyance of a future estate by lease and release, which cannot operate as a bargain and sale, for want of a pecuniary consideration, may oper- ate as a valid covenant to stand seised to the use of the grantee, where it appears that there was a relationship of blood existing between the grantor and grantee, which formed the real consideration of the conveyance. „ „ -r. . m. Bank of United States v. Homrnan, 6 Paige Ch. 526, 3: 108S 38. In order to'make a valid conveyance of land under the Statute of Uses,it is suflacientif any good consideration appears upon the face of the deed which will legally raise the use in favor of the grantee. And if the real consideration of the con- veyance was neither corrupt nor illegal, the grantor and those claiming under him are estopped from denying the payment of the consideration,so tar as a consideration is necessary to give effect to the deed. "'*^. 39 The actual payment of the nominal considera- tion expressed in a deed is not necessary to the validity of such deed. It is sufficient if it is stated in the deed to have been paid, as the consideration 'jlertom v. Harsen, 2 Barb. Ch. 232, 5: 686 40. As between the parties, a voluntary actual transfer, by deed, of a chattel interest, is valid, without any consideration appearing. Bunn V. Winthrop, 1 Johns. Ch. 329, 1: 159 41. Plate used in the family passes under a devise or conveyance of "household goods and furni- ture." Ibid. 43. The law sanctions a conveyance founded upon 130 DEED OP TRUST. a consideration of blood or marriage merely. And the legal presumption is that such a conTeyance is valid, and not a fraud upon the rights of anyone. Fra/zer v. Weetem, 1 Barb. Ch. 220, 5: 361 43. The mere fact that a purchaser from the holder of aucu a cuuveyanoe Uas nonce tuat it wus not founded upon a pecuniary consideration is not suf- ficient to make it his duty, at his peril, to inquire whether the title of his grantor was not fraudulent. , Ibid, U. He has a right to act upon the legal presumption ctiax sucn a aeea of gitt,or voluntary seLCiemeui^.was honestly made, unless some other fact is brought to his knowledge, to raise a suspicion in his mind that the conveyance was intended to defraud some- one, ibfd. 45. A man free from debt may execute a valid deed of gift, not founded in fact upon either a pecuniary consideration or a consideration of blood or marriage, by inserting a nominal pecuniary con- sideration therein; the actual payment of which nominal consideration the grantor and those claim- ing under him will not be permitted to disprove. Bank of United States v. Housman, 6 Paige Ch. 526, 3: 1088 46. A deed perfectly gratuitous and voluntary will not, for that reasou, be set aside, when Irue from fraud and when the party has not thought proper to reserve a power of revocation. Powell V. Murray, 2 Edw. Ch. 636, 6: 538 47. A deed free from fraud and made with a view to effect a f&mily settlement, although voluntary, will bo upheld in chancery— public policy and the peace of families encourage it. Oruger v. Douglas, 4 Edw. Ch. 433, 6: 930 4S. On the 28th of May, 1790, husband and wife, for a nominal consideration, conveyed the estate of the wife to G. P., who, by deed dated the next day, also for a nominal consideration, conveyed the property to the husband in fee. Deed recorded. Afterwards the husband alone made long leases, still living in harmony with his wife, and she, with others, executed certain articles dated in February, 1809, in which there was a recital and declaration recognizing the fee in the husband; there was noth- ing to show but the act was a free-will offerincr by the wife; the transaction had been suffered to stand for about forty-flve years unquestioned and undis- turbed; and both husband wife were dead. H€ld, a valid deed. Meriam v. Harsen, 4 Edw. Ch. 70, 6: 801 49. A defective conveyance by a person seised in fee at the time is good, so as to bind the lands con- veyed, in the hands of the grantor and his heirs. Wad^woHh v. WendeU, 5 Johns. Ch. 224, 1: 1064 50. It is good, also, against a subseqent pur- chaser with notice of such prior defective coii vej^ ance. Ibia, 5L As, where a soldier, entitled to military bounty landundertheseveral Acts of the Legislature,by an instrument in writing, purporting to be under his hand and seal, but to which no seal was affixed, for a valuable consideration, sold, quitclaimed, and confirmed unto the plaintiff, his heirs and assigns forever, all his right, title, claim, and demand to and for all the land to which he was entitled as sol- dier, etc., with covenant for further assurance (no patent having then issued for the land); which in- strument of conveyance was duly deposited in the office of the clerk of the county of Onondaga, April 29, 1795, pursuant to the Act of Jan. 8, 1794, and afterwards, March 8, 1799, was duly proved; and the same grantor, Oct. 25, li96, executed a deed In fee of the same land to P, under whom the de- fendants claimed title,— Heid, that, although the first instrument, for want of a seal, was defective as a legal conveyance, yet it passed all the right and interest of the grantor in equity, the omission of the seal being a mistake and contrary to the ex- press intention of the parties ; that the deposit of the instrument in the clerk's ofSce, pursuant to the Act, was legal notice to all subsequent purchasers of its contents, and equivalent. In this respect, to a registry of it ; and that P and those claiming under him were chargeable with notice of the prior con- veyance to the plaintiff ; and the defendants were accordingly decreed to release to the plaintiff all the right and title derived to them under P. Ibid. 52. E, a soldier entitled to a lot of land as a mil- itary bounty, in 1786, before the patent issued, oy an agreement sold the lot to S, and bound himself to execute a conveyance. S sold and assigned the lot, bond, etc., to 1789, to V, who in 1790, by indorse- ment, sold and assigned the same, and all bis rights title, and interest in the land, etc., to 0, to whom he- delivered the original bond and agreement, and discharge of the soldier, and the patent issued in his name. Held, that although, for want of wordi of inheritance, the assignment, in law, transferred only an estate for life, yet as It was clearly the to- tention of the parties to convey the whole estate, » trust estate In fee was to be considered as created and conveyed ; and the court would therefore de- cree an adequate legal conveyance in fee, accord- ing to the intention of the pojlies. Higlnbotham v. Bvmel, 5 Johns. Ch. 184, 1: 105(^ 53. V, In such case, baving stood by for thirteen ? rears a^ter the death of C, unci seen his hens ujaim- ng to be owners in fee imder C, and dealing with the land as absolute owners, and making very val- uable improvements upon it, without disclosing any claim to the reversion or any pretension of right or title, he, and all persons under him. were held to be estopped, by his silence, from asserting his legal title. IM* 54. A deed false in a material point is not entitled: to full credit. Wendell v. Tan Bemselaer, 1 Johns. Ch. 352 1: 16» S."). A deed acquiesced in for thirty-six years will not be set aside. Powell V. Murray, 2 Edw. Ch. 636, 6: 63» Editorial Notes. Deed; delivery essential 3: 939 may be to Uiird person 3: gs* after death of grantor 7: 94 in escrow 1; 143, 2: 686, 3: 1000 intention to deliver 1 : 126 custody 1 : 126> Consideration 1: 126 Kominal consideration 3: 1089, 5: 627, 7: 321 Upon consideration of blood or marriage relation 5:361 Carries the fee when 1:1051 In fee; effect of 4: 65 Reference in deed for description 4:811 to prior conveyance as notice 1 : 834 description of lands 1: 101 Fraudulently altered may be set aside in equity 1:84& Surrender or destruction 1:193 Defective conveyance binds grantor and heirs; omi!>sion of seal; conveyance of military lot; equity jurisdiction 1: 1064 Of trust, acceptance presumed 1 : 433 validitv; corporation deed; trustee under void deed 6:82» On iudicial sale, takes effect by relation 6: 1025 Exceptions and reservations in.distinguished 6: 1029 Of property in expectancy 6:1181 Payment of incumbrances assumed by gran- tee 3: 388 Of realty; what passes 3: 350 Voluntary, not ^er«e fraudulent or void 8: 899, 108& Grant of mill; water-right, etc., passes 3: 35t> Execution of, by corporation 3: 896 Jurisdiction to set aside 2: 997 Of land; reservation of right to annul 7:516 DEED OF TRUST. See MOBTGAOE ; Tbusts. DEFAULT— DEPOSITIONS. I. a. 131 DEFAULT. Bee Jtjbgmbht, etc., I. a, vn. o; Mobtgaoe, VII. f ; Practice, VI. b, o. DEFEASANCE. See MOBTOAGE. DEFICIENCY. Bee Mortgage, VII. k. DEFINITIONS. 1. Affinity. See ApriNiTY. 2. And. See Wills, 163, 164. 3. Where an order of the court made in the city of New York refers to the amount of the annual rent received at Its date by one entitled to the net Income of real estate,— the direction is to be deemed as intendingr the rent for the year ending on the Ist day of May. Janeway v. Oreen, 2 Sandf. Ch. 415, 7; 646 4. Children. See Wills, II. o. 3.; 5. daims. See Claims. 6. Easement. See Easements, 1, 2, 7. Eldest ohUd. See Wills, 356. 8. Family. See Wills, 166. 9. Grandchildren. See Wills, 11. o, 3. 10. A householder is a housekeeper who is the master or head of a family. Ten Bach v. Simpson, 11 Paifre Ch. 177, 5: 98 11. Issue. See Wills, 196. 12. Land. SeeBEAL Property, 2; Wills, 221, 223. 13. Lawful issue. See Wills, 195. 14. liens. See BANKRUPTcr, 35. 15. May. See Stattites, 5. 16. Money. See Monet; Wills, 219. 17. Must. See Statutes, 5. 18. Nephews. See Wills, II. o. 4. 19. Next of kin. See Wills, n. c, 4. 20. Nieces. See Wills, II. c, 4. 21. Or. See Wills, 163, 164. 23. Plate. See Wills, 219. 23. The term "record," in the 17th Rule, does not apply meiely to records which do not admit of con- tradiction, but to such as are made prima facie evi- dence also. Cogswell v. Bwrtii, Hofl. Ch. 198, 6: 1114 24. Securities. See Bankruptcy, 34. 25. Shall. See Statutes, 5. 26. Survivors. See Wills, 165. 27. Tenement. See Real Property, 3. 28. Where a corporation was authorized to pur- chase lands at a sale upon a foreclosure of a mort- gage held by it, and a riprht was given to the mort- gagor to redeem the lands, so long as they remained in the hands of the corporation unsold,— Held, that the term "unsold" did not mean a contract of sale, but a consummated sale. Merntt v. Lambert, Hoff. Ch. 166, 6: 1103 Editorial Notes. Children 4: 176, 616, 5: 974, 6: 53, 170 does not include stepdaughtar 4:468 Chose in action 5: 99 Eldest child 6: 1158 Estate 6: 121, 7: 346 Felony 5: 968 Grandchildren 5: 983, 6: 52, 170 Heirs; not a word of limitation 6:826 Heirs and legal representatives 4: 628 Household goods and furniture include what 1:159^ Next of kin; nearest kindred; blood relations 6:1115 Ordinary course of business 4: 630 DELIVERY UP OF INSTRUMENTS. See Contracts, 94 ; Equity, I. f ; Injunction, 273. DEMURRER. See Pleading. DEPOSIT AND PAYMENT INTO COURT. See also Money in Court. 1. It is a sufficient compliance with the eighty^ third section of the statute regulating appeals Irom decrees of the court of chancery, for tlie appellant to deposit with the cleric of the court where the- decree is entered the articles required by the de-- oree to be assigned or delivered by such appellant. Leavitt V. De Launay, 4 S. 480, 7: 11 7* 2. No previous order of the court is necessary for such deposit, where the articles consist of securities and State stocks. Ibid. a. if the articles consist of merchandise or other property which the clerk cannot receive and keep in his office, the appellant must apply to the court for the appointment of an officer or receiver with whom the same may be deposited, as provided ia the same section of the statute. Ibid. 4. "Paying into court," and "bringing into court," where used in the statutes and rules of court or in decrees, mean paying to, or depositing with, the register, assistant register, or clerk of that branch of the court in which the suit is pending or the de- cree was entered. Ibid, 5. It is the duty of the clerk to receive and pre- serve all securities deposited with him pursuant to such statutes, rules, and decrees. Ibid. 6. Semble, it is his duty, if bills receivable be de- posited, which are about to mature, on being apprised of it, and the expense, if any, being ten- dered, to cause such bills to be presented and pro- tested. IMd. 7. If plaintiff in a judgment creditors' suit, after defendant has been enjoined from collecting his ohoses in action, levies under a new execution upon money paid to defendant's agent upon one of such choses in action, it will be ordered to be brought into court to abide the event of the suit, particularly when the defendant, by his answer, fully denies the indehtednpai. Price V. Church, Oarke Ch. 358, 7: 148 DEPOSITIONS. I. Eight to Take. a. In General. b. De pene Esse. n. Taking and Returning. a. Interrogatories; Notice. b. Executing and Uetwrnimg. III. Suppression ; Use as Evidence ; Amending. Editorial Notes. See also Infants, 119; Judicial Sales, 50; Wit- I. Right to Take. a. In General. 1. The article of the Revised Statutes relative to taking testimony of witnesses out of the State only applies to the taking of such testimony in actions brought in courts of common law. Brown v. Sovthworth, 9 Paige Ch. 351, 4: 728 S. 0. 1 Ch. Sent. 77, 6:1074 2. The court, upon a special application, is an. 133 DEPOSITIONS, I. b— II. b. thorized to grant a commission to examine wit- nesses, although it is a case in which the commis sion might have been issued by the register or clerk, under the provisions of the statute and the 69th Ku !■ of tlie court. _ Clark V. Bwitdy, 6 Paige Ch. 433, 3: 1050 3. The court of chancery, independent of any statutory authority, has always possessed the power to issue a commission for the examination of wit- nesses, either In or out of the State, and to direct the manner in which the commission shall be re- turned. Brown v. Southworth, 9 Paige Ch. 351, 4: 788 S. a 1 Ch. Sent. 77, 5: 1074 4. The courts of common law have no authority to take testimony, upon a commission issued for that purpose, except such authority as is conferred upon those courts by statute; and in tailing such testimony the regulations prescribed by ^ the Legisla- ture must be strictly complied with. Ibul. 5. A master cannot grant a certificate for a gen- eral commission, upon a reference, to examine wit- nesses not named therein, unless ail the parties in- terested and who have appeared in the cause consent to the issuing of such general commission. BenvAdk v. Brnwlcli, 10 Paige Ch. 430, 4: 1035 6. To authorize the master to grant a certificate for a commission upon a reference, except by con- sent, the party amlying for it must produce to the master an afBdavit showing the names, residences, and materieility of the witnesses sought to be ex- amined, to the end that if any of the witnesses named are not credible persons, or the adverse party wishes to examine other witnesses to explain or rebut their testimony, such adverse party may join in the commission, and may name.witnesses on his part, or may obtain a certificate for a separate commission for that purpose at the same time, ibid 7. And the lUie notice of the examination of wit- nesses, under a commission to be executed in this Sf;ate, upon a proceeding in the master's .oflice, must be given as is prescribed in the 74th Hule. IhM. 8. The 73d Kule of the court of chancery only provides for the case of an examination of a de- fendant as a witness, against another party to the suit, ptevioua to a hearing of the cause ; it does not authorize the entry of an order of course to examine a defendant as a witness, subsequent to the hearing, upon a reference to a master to take and state an account, Pratt V. Adrnnx, 1 Paige Ch. 615, 4: 300 b. De B:ne Esse. 9. This court will order a witness to be examined de bene esse, tuuugh no answer has been put in, if the necessity for taking his deposition is satisfac- torily shown by afiSdavlt. Fort V. Roffumi, 2 Johns. Ch. 146, 1:386 10. Where a witness is about to depart out of the State, permanently to reside abroau, the court, on petition verified by afildavit, and motion for that purpose, win order him to be examined debene esse, without previous notice of the motion. BoekweU v. Fohom, 4 Johns. Ch. 165, 1: 803 11. If it appears that any person is making a claim adverse to the title of the vendor at a judioia 1 sale, or that there are probable grounds for sup- posing such a claim will be made, the court will di- rect the testimony of the witnesses to be per- petuated. Be Browning, 2 Paige Ch. 64, 8: 814 II. Taking and Returning. a. Interrogatories; Notice. 12. Copies of direct interrogatories to be put to witnesses under a Joint commission are to be terved fcy each party upon the other simultaneously. Brusft V. Vcmderbergh., 1 Bdw. Ch. 64S, 6: 878 13. Where by mistake the witness intended to be examined under a commission was not rightly named therein, but the commissioners, notwith- standing such mistake, examined the witness upon the interrogatories annexed to the commission,— Held, that the deposition was extrajudicial and could not be received as evidence in the suit. Brown v. Southworth, 9 Paige Ch. 351, 4: 788 14. Where a party who had not received due no- tice of the examination of witnesses before com- missioners suffered ten months to elapse before making application to the court, he was held to have waived by this delay any right to cross-ex- amine the witnesses, or to object to a want of no- tice. Skinner v. Dayton, 5 Johns. Ch. 191, 1: 1053 15. A witness was discribed as a " stone , " in the list of witnesses furnished by the complainant His residence and the number of his dwelling were given, and he was a stone-cutter. The residence of another witness, N, was described as Bronx P. O Westchester Co. He resided in Bronx Village' neither place being a town or Incorporated village' The notice omitted the occupation of N and S a third witness, K: and the name of a fourth witness W, was given, without his residence or occupation' N, K, and W had been examined as witnesses against the defendants in a prior suit, by other parties, in- volving the same facts, when the defendant's solici- tor attended; and on the examination In this suit he had in his hands their depositions previously taken. There was no allegation of any actual sur- prise or mistake on the part of the defendants. A motion to suppress the depositions of the four wit- nesses was refused. Blaekett v. La4mbeer, 1 3. 866, 7: 368 b. Executing and Retwming. 16. The manner of executing and returning com- missions to take testimony in the court of chan- cery is regulated by the rules and practice of the court, and not by any statutory provision, except as to the right of parties and their counsel to be present and to examine and cross-examine the witnesses oraUy. Brown v. SoiMmoorth, 9 Paige Ch. 351, 4: 788 S. 0. 1 Ch. Sent. 77, 5: 1074 17. By the settled practice of the court of chan- cery, a commission for the examination of wit- nesses in suits pending in that court may be re- turned by the commissioners by mail, directed to the proper olflcer of the court with whom the dep- ositions are to be filed, unless the court has made a special order for the return of the commission in a different manner. IbUl. 18. The commissioners, after taking the testimony of witnesses under a commission, should enclose the commission and the depositions under their seals, and should severally write their names upon the outside of the envelope. But a mere irregularity of the commissioners, in suffering one of then- number to write the names of all the commissioners upon the envelope, through mistake or inadver- tence, where there is no doubt as to the genuine- ness of the depositions, and that they have not been altered since they were fallen and certified by the commissioners, will not prevent the court from receiving the testimony. Ibid. 19. The stating a fact afiirmatively in a deposition is not to be put down by a negative deposition. Thus, where a party swears to the service of a pa- per. It is not enough to deny service. People, Wyekoff, v. Boyd, 2 Bdw. Ch. 516, 6; 488 20. Examinations of parties taken before a mas- ter, as evidence, when not signed. Burger v. Tobias, 4 Ch. Sent. 27, 5: 1144 21. The deposition of a witness, taJien down by the proper officer after he was sworn, but which he refused to sign, was allowed to be read in evidence. Clatrke v. Samyer, 3 Sandf. Ch. 351, 7; 879 22. On a reference to a master, aged witnesses i-esiding In a distant part of the State may be exam- ined on interrogatories before a master in the county where they reside, under the dtreotions of the master before whom the reference is pending; and examinations so taken may be used on the ref- erence, saving all just exceptions. Mdsoji V. Hooseuelf, 3Johns. Ch. 627, 1: 739 23. Where the order for a commission 1 o take the answer of a nonresident defendant is for the com- mon dedimus to take the answer of the defendant, and not for a special dedimus authorizing the com- missioners to take his plea, answer, or demurrer, it is irregular for the commissioners to take and return the demurrer of the defendant, instead of his an- swer. Ldkens v. Mdden, 11 Paige Ch. 644, 6: 865 S. C. 5 Ch. Sent. (No. 3 ) 10. 6: 11S9 DEPOSITIONS, III.— DESCENT AND DISTRIBUTION, I. m. SuppBBSSioN ; TTSB AS EvrDBNCB ; Amending. 24. Where, on a cause cominsr on to a hearing, it appears that a witness has miehehaved in Ids an- swers to the interrogatories, the depositions may be suppressed. PhilUpg V. Thompson, 1 Johns. Ch. 140, 1: 93 25. Or, if a further answer to the interrogatories be deemed materisU, the court may order a further examination of the witness on tiie interrogatories, before a master or in open court. iWd. 26. Where some of the witnesses who were examined under a commission which bad been Issued upon the certificate of the master were not named in such certificate and commission, tlie court ordered their depositions to be suppressed. Benwick v. Benwick, 10 Paige Ch. 420, 4: 1035 27. The deposition of a witness, whose examina- tion was not closed until afiei' publication had passed, was allowed to be read, he haying been cross-examined by the opposite party, and no ac- tual abuse appearing; but such practice is irreg- ular. Underhillv.Van Cortlundf, 2 Johns. Ch.339, 1: 400 28. A witness shall go before the examiner, free to answer all interrogatories, and not with a depo- sition already prepared. Ihid. 29. If a cross-bill contains a charge of fraudulent misconduct in arbitrators) but no such allegation is made in the answer to the original bill, though, by a general order of the court, the depositions taken in the original suit are allowed to be read in the cross-suit, yet such parts of these depositions as relate to the fraudulent misconduct not charged in the original suit in which they were taken will be suppressed. Ibid, 30. Depositions of witnesses are clearly inadmis- sible to be read at the hearing against a person if they were taken before the case was at issue as to him, and no consent, express or implied by his at- tending and cross-examining appearing, even if the latter would be suffii-ient without notice of the in- tent to use tbe depositions, given betore the closing of the proofs. iee V. iHuntoov-, Hoft. Ch. 447, 6: 1803 31. The deposition of a disinterested person, who afterwards becomes interested, can be read. Hiteheock v. Skinner. Hoff. Ch. 21, 6: 1050 32. The assignees of the equity of redemption, pending a suit to redeem, filed a supplemental bill against the original defendants, and afterwards liled a second supplemental bill against one who had purchased the right of the mortgagee in pos- session at sheriff's sale under a judgment recovered prior to the suit. Held, that the testimony in the original and supplemental suits could not be read iT^ainst such purchaser. Borst V. Boyd, 3 Sandf. Ch. 501, 7: 935 33. Testimony taken by the complainants on a supplemental bill cannot be read against those de- fendants in the prior suits who were not made par- ties in such bill. Ibid. 34. Where the point in issue in both suits is the same, no testimony hEis been tanen in toe original suit, and the cross-bill is filed in time, the deposi- tions taken In the cross-suit may be read in both causes, when they are heard together. Draper v. Gordon, 4 Sandf. Ch. 210, 7: 1079 35. A witness who has been examined before a commissioner, by consent of parties, on affidavit that his testimony was not truly taken down by the commissioner, who had mistaken it materially, was ordered to be re-examined before the examiner, there being no suggestion of any tampering with the witness. Trustees of Kingston v. Tappen, 1 Johns. Ch. 36^ 36. After publication passed and the cause set down for hearing, the deposition of a witness was allowed to be amended, on examination of the wit- ness by the court, he being aged and very deaf, and a mistake made in taking down his testimony by the examiner. Denton V. Jactoon, 1 Johns. Ch. 526, 1:833 Not admissible in adultery case When receivable in equity suits Amending on trial Motion to suppress 133 6:663 6:665 1:333 1:400 DEPUTY. See Sheriff. DESCENT AND DISTRIBUTION. 1. In General. n. Disinheriting Heir ; Property Not Dis- posed OF BY Will. III. Liability of Heiks. Editorial Notes. See also Advancements ; Aliens, II. ; Conflict op Laws, I. ; Evidence, 43 : Executors and Administrators ; Wills, II. 1, 243. Editobial Notes. Commissions to take testimony in foreign country 3: 650 When not received as evidence 4: 738 I. In General. 1. The distribution of the estates of persons who died previous to the adoption of the Kevised Stat- utes must be made according to the law as it then existed, and not according to the rules of the Ke- vised Statutes. Hosack V. Bosers, 6 Paige Ch. 415, 3: 1044 2. The death of one of the next of kin of the in- testate, within the time fixed by the Revised Stat- utes for calling the administrator to account, does not entitle the surviving next of kin of the intes- tate to the whole of tHe personal estate; but the share of such deceased next of kin is vested, and belongs to his or her personal representative. Hose V. (JlarK, 8 Paige (Jh. 574, 4: 548 3. The law never casts either a legal or equitable estate upon a' person who has no right to hold it. Leggett v. D«Z)oi«, 5 Paige Ch. 114, 3: 649 4. The right to real estate by descent is governed by the municipal law of this State, and the Legisla- ture may enable aliens to inherit. But while the law remains as it now is, the question of the right to inherit must turn upon the alienage or citizen- ship of the person claiming to be the heir. Ijynch, V. Clarke, 1 Sandf. Ch. 583, 7: 443 5. Where a deed to the testator comes into the possession of the executor, who does not produce it or account for its loss, the most favorable in- tendment as to its contents will be made for the benefit of the heir. lAvingston v. Newkirk, 3 Johns. Ch. 312, 1: 630 6. An equitable interest in land, founded on arti- cles of agreement, if undevised, passes to the heir; and the executor must pay the purchase money for the benefit of the heir. Ibid. 7. Where the legal and equitable estates in land, being coextensive, unite in the same person, the equitable is merged in the legal estate, which de- scends according to the rules of law. NicTiolson v. Salsey, 1 Johns. Ch. 417, 1: 193 8. Thus, if the legal estate in fee descend ex parte matema, and the equitable estate in fee ex parte patema.the equitable estate is merged in the legal, and both go m the line of descent of the legal estate. Ibid. 9. As, where A, having paid money for the pur- chase of land, died betore any conveyance was made, and B afterwards took a conveyance of the land in trust for the infant daughter of A, to whom he afterwards executed a deed in fee, she was held to have acquired the legal estate by purchase ; and on her death without issue the estate descended to her brothers and sisters of the half blood, to the exclusion of her paternal uncle. Ibid. 10. An unborn child, after conception, is to be considered in esse for the purpose of enabling it to take an estate, or for any other puiTiose which la for the benefit of the child if it should afterwards Marsellis v. 'ThalMmer, 2 Paige Ch. 35, 8: 802 11. But, as it respects the rights of others claiming 134 DESCENT AND DISTRIBUTION, II. through the child, if It is born dead, or in such an early stage of pregnancy as to be incapable of liv- ing, it is to be considered as if It never had been t)om or conceived. Ibid, 12. Where the mother dies before the birth of the child, and the latter is delivered by the CsBsarean «peration, it is considered in existence before its buTth for its own benefit, to take the estate of the mother by descent, but not for the benefit of the father to enable him to hold as tenant by the cur- tesy. Ibid. 13. On the death of a son without issue, leaving no mother, brother, or sister, his real and personal es- tate, though it came ex parte materna, goes to his father in fee and absolutely. Beeckman v. acliermerhurn, 3 Sandf. Ch. 181, 7:817 14. The words ex parte materna, at common law, apply to a descendible estate when it is a question of ioneritance among collaterals on the father's or mother's side. If the point be as to property ac- quired by purchase and the party last seised die without issue or lineal descendant, the heirs on the father's side are preferred and those ex parte mater- na do not tal^e until the father's side are extinct. But where the estate comes to the person last eeised by descent and no act has changed it, the de- scent goes to the blood of the first purchaser, so that if the property came by descent from or through the mother, it will descend ex parte ma- te/ma, Tiyrrey v. Shaw, 3 Edw. Ch. 356, 6: 687 15. Under the Statute of Distributions, brothers and sisters of tlie half blood are entitled, equally with those of the whole blood, to ashare in the per- sonal estate of the intestate, without regard to th( ancestor from whom it was derived. ChampUn v. Baldwin, 1 Paige Ch. 562, 2: 753 16. And if such personal property had been in- vested in land by the intestate, the land would have descended in the same manner. " Ibid. 17. Under the Statute of Descents which was in force previous to the Revised Statutes, there was no representation among the collateral heirs of a decedent beyond brothers' and sisters' children. Hannan v. Osbom, i Paige Ch. 336, 3: 460 18. Where the decedent, at the time of her death, left no relatives in the direct line of ascent or de- scent, and her nearest collateral relations were an aunt of the half-blood of the decedent's father, and another aunt of the full-blood on the side of the mother,— Held, that the two aunts were entitled to share equally in the distribution of the decedent's personal estate. Hallett V. Hare, 5 Paige Ch. 315, 3: 733 19. In successions to personal estates, relatives of the haU-blood in equal degrees of cognation to the intestate talce equaUy with relatives of the whole- blood ; and they also take by representation, where representation would be aUo wed among relatives of the whole-blood. Ibid. ZO.By S§ 8-10 of the chapter of the Bevlsed Statutes relative to the descent or real property, the descent to collateral relatives of the decedent is placed upon the same footing as the descent to lineal heirs. 'Hiat is, if all the heirs are in the same degree of consan- guinity to the intestate they take equally, however remote they may be from him ; but if some of the class of relatives nearest to the decedent are dead and leave issue, the survivors of the class take equal- ly among themselves, and the representatives of those who are dead take the share which their ancestors of that class would be entitled to if liv- ing. Pond V. Bergh, 10 Paige Ch. 140, 4: 919 21. Where the decedent dies intestate, leaving a mother and brothers and sisters, but no wife or children or descendants, and no father, the mother is entitled to an equal share of his personal estate with his brothprs and sisters and the children of a deceased brother, who take his share by representa- tion. But If the mother be also dead, the whole will go to his brothers and sisters and the represen- tatives of the deceased brother, to the exclusion of the grandparents and the uncles and aunts of the decedent. Bogert v. Farman, 10 Paige Ch. 496, 4: 1065 2S. And where the decedent dies intestate, without leaving a wife or any issue, or a father or mother, or any brothers or sisters or maternal grandparents, but leaving a paternal grandmother surviving him, she Is entitled to his whole personal estate, as his nearest of kin, to the ezcltision of his uncles and aunts. Ibid. 23. Where the trustees of a legacy for an infant f&me covert, which is invested on bond and mort- gage in theu: names as trustees, take a release of the equity of redemption on the mortgaged premises, the nature of the infant's property is not changed so as to alter the course of descent upon her death during her minority; and the proceeds of the mort- gaged premises belong to the husband, as her per- sonal representative, and not to her heirs at law. Rogers v. Pateraon, 4 Paige Ch. 409, 3: 49% 24. Though the widow of an intestate may accept her third ol the personal estate in stoclu, securities, or movables, she has no right or title to a third of any specific chattel or thing in action; and she can- not be compelled to receive either one or the other, or anything but money. HmiiUmd v. HechscUr, 3 Sandf: Ch. 519, 7: 948 25. Before a widow has distinctly accepted her third of her husbaud's property in speeiilo debts owing to the estate, she is in no sense a creditor of persons who stand as debtors to the intestate. Ibid. II. DisiNHBBiTiNO Heir; Pbopbktt Not Dis- posed OF BY Will. 26. Where a specific devise of real estate does not take effect, either from the incompetency of the devisee to take or otherwise, it descends to the heir at law, as property not disposed of by the wilL James v. Jamee, 4 Paige Ch. 115, 3: 367 27. The heir at law can only be disinherited by ex- press words or by necessary implication. He is therefore entitled to the real estate which is not le- gally and effectually disposed of by will, although the testator has attempted to devise the same to Yan'Kleeek v.Beformed Dutch Chwrch,'6 Paige Ch. 600, 3: 1118 38. The testator's whole plan for the division of his estate being in effect duSLioyed by its conflict with the rules of law, the whole of the devises and be- quests for the children which were embraced in the trust were declared void, and the estate directed to be divided as upon an intestacy. Field V. Field, 4 Sandf. Ch. 528, 7: 1197 29. Under the provisions of the Kevised Statutes, giving to a post^testamentary child the same por- tion of the real and personal estate of the father as would have descended or have been distributed to such child if the father had died intestate, all the devisees and legatees must contribute ratably, in proportion to the value of the real or personal es- tate devised or bequeathed to them respectively, to make up the distributive share of such post-testa- mentary child. And in making such contribution, no distinction is to be made between specific, g:en- eral, and residuary legatees, but each legacy is to abate ratably in proportion to its amount or value. MUcheU V. Blain, 5 Paige Ch. 588, 3: 841 30. Even a legacy given to the widow of the testa- tor in lieu of dower must be taken into account in estimating the amount wttich the other legatees are bound to contribute to make up the snare of a gost-testamentary child in the estate of the father, ut as between the widow and such child, the lat- ter cannot take a child's portion of the real estate discharged of the widow's right of dowerj and also a ratable proportion of a legacy given by the testa- tor to a widow in lieu of such dower. Ibid. 31. Where a contingent interest in personal estate Is not legally and effectually disposed of by the will of the testator, it belongs to the personal represen- tatives of those who were his next of kin at the time of his death. Be Kane, 2 Barb. Ch. 375, 5: 681 32. The surviving husband of a niece who was the next of Un of the testator at his death and during her coverture, and not the children or next of kin of the deceased niece, who were the nearest of Mn to the testator at the time of the bappenine of the contingency, — ^is entitled to a contingent interest in Che personal estate of such testator not effectually disposed of by the wilL Ibtd, 33. Where a reversionary Interest in personal prop- erty is not disposed of by the will of the testator, it belongs to the widow and next of Idn of the de- cedent, who are entitled to distributive shares in DESCENT AND DISTRIBUTION, III.— DISCONTINUANCE AND DISMISSAL. 135 •such unbequeathed interest at the death of the tes- tator. Hoes V. Van Hoesen, 1 Barb. Ch. 379, 5: 484 S. C. 8 Ch. Sent. 6, 6: 1193 34. If any of the parties entitled to such dis- tributive shares die without disposing of their in- terests therein, their shares wiil go to their person- al representatives as a part of the personal estate ■of such decedents. Ibid. m. LlABIliITT OP HeiBS. 35. Heirs who are liable to creditors of their ances- tor in consequence ot lands havinp descended to them must be sued jointly for such liability, and ■not sepHrateiy. Cassidy v. Cassidv, 1 Barb. Ch. 467, 6: 458 36. Where an adult heir whose share of a fund is in •court, as well as the infant heirs, is liable to coutiib^ cte towards the payment of the debts of the ances- tor the creditors should be left to proceed by suit -aitainst all of the heirs jointly. Ibid. gl. All the heirs or the devisees of the decedent who are liable turthu payment ot his debts mus4 ■be sued jointly for the recovery of a debt due by «uch decedent. But if one of such heirs or dev- isees has died without leaving any property, his Jiersonal representative need not be made a party Wambaugh v. CMes, 11 Paige Ch. 505, 6: 814 38. Where one of the devisees of the testator is a •devisee ot lands in another ijtate only, it seems thftt he ought to be made a party to a suit against the -other devisees to obtain satisfaction of a debt due from the testator, if, by the laws of the State where «ucb lands are situated, the devisee is liable for the debts of the testator. Ibid. 39. A creditor cannot file a bill against the per- gonal representatives of his deceased debtor and against the heirs or devisees jointly, to obtain sa^ isl'action of his debt. But he must exhaust bis rem- edy against the pereonal representatives in the first place, or he must show, by his bill, that the person- al estate was not sulfioient to satisfy his debt, in or- -rter to authorize him to proceed against the heirs or ■devisees. IJW. Editorial Notes. Law governing distribution 1: 902 Interest of heir subsequently born 2: 802 Posthumous child 6: 245 Claim of next of kin, passing to personal representatives 4: 548 The heir sits in the seat of his ancestor 3:889 Interest in contract descends to heirs 3: 715 ■Children ot decedent not devested of their estate by lease of premises 3: 1033 Heir not devested by a contingency which fails 4:464 Distribution; necessary parties in suit for 1:813 Heir and devisee; suit against; what facts must be established 3: 708, 5: 215 •cannot be brought within three years 3:708 legal rights of 5: 983 statutory remedy for enforcement of vested rights against 4: 186 JEnforcement of equitable claims against ancestor 3: 708 DESCRIPTION. 'See CoNTBACTS ; Deeds, II. a. DEVASTAVIT. See ExEotraoRS and Administbatoes. DEVISE AND LEGACY. See Chabitable Uses; Bescbnt and Distbibtj- tion; Bxecutobs and Adminisieatobs ; Wills. DILIGENCE. See MOETGAOE, 466. DIRECTORS. See COBPOEATIOKS. III. c. DISABILITIES. See Husband and Wife; Incompetent Peb- soNS ; Infants ; Limitation op Actions, V. b DISCHARGE. See Bankruptcy ; Guardian and Ward ; Iksol- vbnoy and Assignment poe Cbediiobs; Judgment, etc. ; Moetoage, VI. DISCLAIMER. 1. Where a defendant disclaims, the complainant may bring the suit to a hearing, and if there were probable cause for making such defendant a party, the co'mplainant may have a decree against him and all claiming underbim. and this, too (as to such dis- claiming party), without costs. Spofford V. Manning, 2 Edw. Ch. 358, 6: 439 2. A party who disclaims and shows he has parted with his interest, and points out to whom he has disposed of it, need not answer further. Ibid. 3. A disclaimer may be suflicieut to take away the complainant's right to a lurther answer, and yet not entitle the party disclaiming to an immedi- ate discharge from the suit. Ibid. 4. A deed of disclaimer is not essential, though most prudent. Bawman v. Bainetaux, Holt. Ch. 160, 6: 1096 5. A defendant who has improperly interfered with a party's right so as to muKe a suit necessary may be compelled to answer the whole bill, with a view to charge him with costs, notwithstanding a HutcMnson v. Beed. Hoff. Ch. 316, 6: 115T 6. A subsequent purchaser or mortgagee of prem- ises who has a present and subsisting interest there- in which makes him a necessary party to a bill to foreclose a prior mortgage cannot disclaim. Jay V. Ensign, 9 Paige Ch. 230, 4; 679 7. A defendant cannot, by a disclaimer, deprive the complainant of the right of requiring a full an- swer from him, unless it is evident that the defend- ant ought not, aftsr such disclaimer, to be con- tinued a party to the suit. Ellsworth V. Cii/rtis. 10 Paige Ch. 105, 4: 905 8. Where the complainant is entitled to an answer, and the defendant puts in a simple disclaimer, the proper remedy is to move to take the disclaimer off the flies. Ibid. DISCONTINUANCE AND DISMIS- SAL. See also Costs, 1. 1; Peaotice, VI. 1. It seems that if a suit at law is commenced upon a bond, and, before judgment is obtained thereon, a bill is filed in chancery to foreclose the mortgage accompanying the bond, the filing of the bill and the operation of the statute work a discontinuance of the suit at law. "Williamson v. Champlin, Clarke Ch. 9, 7: 37 2. When the complainants give an -order to the DISCOVERY, I., n. a. defendants upon their solicitor, to discharge a suit upon payment of costs, which order is revoked by the complainants to the defendants, but, notwith- standing, the defendants sro to the complainants' solicitor and comply with the terms, and the so- licitor marks the suit as settled, but no order for discontinuance is entered, the solicitor, upon being informed of the facts, may proceed with the suit. The revocation of the order given by the complain- ants, before its terms are complied with, is a revival of the suit; and the defendants were not justified in making use of tbe order without informing the so- licitor of its revocation. Monell v. CoU, Caarke Ch. 321, 7: 98 3. Where it appears that the complainant is enti- tled to relief, but his bill is not properly framed to obtain such relief, the bill should not be dismissed absolutely, but it should be dismissed without pre- judice to his riKhts in any future Utieation Wilber v. Collier, 3 Barb. Ch. 427, 5: 959 4. Where there is a want of jurisdiction in the court to declare a will void, upon a bill filed for that purpose, the bill should not be dismissed ab- solutely, so as to bar the complainant's rights, but it should be dismissed without prejudice to ms rights at law. Clarke v. Sawyer, 2 Barb. Ch. 411, S: 695 5. Even though a defendant absconds and there- by the object of a suit is defeated, yet a complain- ant, upon motion, cannot dismiss his bill without costs. Palmer v. Van Barm, 2 Bdw. Ch. 384, 6: 438 6. Complainant may dismiss bill at any stage be- fore a decree or decretal order by which defendant has acquired rights, if he is not in contempt, upon payment of costs. Sea Ins. Co. v. Day, 9 Paige Ch. 247, 4: 688 S. C. 1 Ch. Sent. 64, 5: 1071 Simpson v. Brewster, 9 Paige Ch. 245, 4: 687 S. C. 1 Ch. Sent. 65, 6: 1071 Watt V. Crawford, 11 Paige Ch. 470, 5: 201 7. But after a decree has been made in a cause,by which a defendant therein has acquired rights, either as apainst the complainant or as against a codefendant in the suit, the complainant cannot dismiss his bill without the consent of all the parties interested in the decree; nor can the decree be va- cated and the bill dismissed, even on such consent, except upon a rehearing or by a special order to >ie made by the court. Watt V. OraiDford, 11 Paige Ch. 470, 5 : 201 8. Where the complainant enters a common order ror the absolute nismissal of his bill, with costs, without the previous permission of the court be- fore which the suit is pending, such order is irregu- lar; and the defendant may apply to have it set aside upon that ground; or he may treat it as reg- ular, and proceed to collect his costs by execution. Saxton V. Stowell, 11 Paige Ch. 526, 5: 233 S. C. 5 Ch. Sent. 2, 5: 1164 9. The proper course for a complainant, where the suit is in a situation to be discontinued by him, is to enter a conditional order to dismiss his bill up- on payment of costs. Ibid. 10. It is only where complainant, after properly commenciog a creditors' bill, parts with his interest, either wholly or in part, that the defendant may apply to the court to dismiss the bill, unless the as- signee is brought before the court by a supple- mental bill in the nature of a bill of revivor. Hathaway v. Scott, 11 Paige Ch. 173, 5: 96 S. 0. 4 Ch. Sent. 47, S: 1150 11. If, after defendant has obtained an order re- quiring the executor of a deceased complainant to snow cause why the suit should not be revived in his name, or, in default thereof, that the bill should be dismissed, the counsel for the respective parties stipulate that the time for showing cause shall be extended twenty days, at the expiration of which time no court is appointed to be held at the place specified in the order to show cause, it is irregular for defendant, on the next motion day, to take an order by default dismissing the bill, with costs to be paid out of the estate. Rogers v. Toole, 11 Paige Ch. 212, 0: 1 11 Editoeiai, Note. Dismissal; allowed of course on payment .of costs 1 : 455 DISCOVERY. I. Nature of Bill; Jcrisdictioh. II. Eight of. a. In General. b. To Aid Defense. c. To AM Foreign Suit. d. Papers in Bands of Attorney or GouraeL e. Against Corporations, Their Officers on* Members. t. Time for Seeking. m. Defense; Pbivileob. Bditobial Notes. See also Contempt, 15 ; Costs, I. j ; Cbeditobs*' Bill, 185, 209-214 ; Landlord and Tenant, 71;. Pleading, III. a, 7 ; Production and Inspec- tion OF Books. I. Nature of Bill; Jurisdiction. 1. If the bill contains no prayer for relief, it will be considered as a biU for discovery merely, al- though, in the prayer for process of subpcena, the word " decree " is erroneously added to the words- usually inserted in a bill of discovery. Melntyre v. Trugtees of Union College, 6 Paige Ch. 289, 3: 97»' 2. But if the bill prays any relief whatever against a defendant who is made a party for the purpose of discovery only, such prayer makes it a bill for re- lief as well as discovery as to such defendant, and authorizes him to put in an answer containing a. full defense. Ibid. 3. Where the complainant makes an officer of a corporation a party defendant for the purpose of obtaining a discovery as against the corporation,, no relief , either general or special, should be prayed against such officer; and the prayer of the bill should be so framed as to show distinctly that the relief sought is intended to be confined to the cor- poration,and that no relief whatever is to be asked as to the officer of the corporation, at the hearing, even as to costs. Ibid.. 4. A bill of discovery in aid of the complainant's- defense in a suit at law is not a suit in chancery concerning property, within the meaning of the provision of the Kevised Statutes requiring the court of chancery to dismiss suits concerning' property where the matter in dispute does not ex- ceed $100. Schroeppel v. Bedjield, 5 Paige Ch. 245, 3: 703 5. A bili;of discovery to aid a suit at law, although the sum in controversy is under $100, will be sus- tained. Goldey v. Becker, 1 Edw. Ch. 271, 6:135- See also Courts, I. d. II. Eight of. a. In General. 0. The court of chancery compels a discovery ir^. aid of the prosecution of a suit at law upon the same principles and to the same extent that it com- pels a discovery in aid of the defense of a suit. Lane v. Stebbim, 9 Paige Ch. 622, 4: 841 S. C. 2 Ch. Sent. 56, 5: 1093 7. This court will not uphold a bill of discovery, unless there is a clear necessity for it. It, besideB> the mere production and disclosure of written in- struments, the bill seeks to illicit facts within the personal knowledge of the opposite party and which cannot otherwise be proved, this court will entertain such a bill. Fitzhugh v. Everingham, 2 Edw. Ch. 605, 6: 520- 8. If the complainant makes oath that a discov- ery from the defendant is necessary, he is entitled to an order that the defendant answer the bill or be- attached; and the court will not, in that stage of the suit, inquire whether a discovery is necessary. But if the complainant abuses the power to compel, an answer from the defendant, under the 24th Rule,, the court will take it into consideration in de- ciding the question as to the general costs of the cause. Stafford v. Brown, i Paige Ch. 360, 3: 470- 9. If a bUl seeks discovery in aid of the jurisdic- DISCOVERY, II. b. VdT tlon of a court of law, it must appear that such aid is clearly necessary, and the discovery material to the defense ; for where the facts depend on the tes- timony of witnesses, and the court of law can com- pel their attendance, this court will not Interfere. Gelston v. Hm/t. 1 Johns. Ch. 643, 1 : 840 10. It ^eems that this court will not sustain a hiU of discovery and an injunction merely to procure such admissions by the party as might be used in mitigation of damages in an action of trespass at law, unless, perhaps, in very special oases. IMd. 11. Where the complainant wishes to obtain a dis- covery of facts to anticipate and rebut the defense which may be set up by the defendant, he should, in the charging part of the bill, state the anticipat- ed defense as a pretense of the defendant, and then charge the real facts, to lay a foundation for the discovery which is sought. Stafford v. Brmim, i Paige Ch. 88, 3: 355 12. Where a simple bill of discovery In aid of a suit at law shows that the complainant has a Kood cause of action against the defendant in the action at law, and that the discovery sought for is mate- rial to enable the complainant to succeed in such action, it is not necessary, except for the purpose of obtaining an injunction, for the complainant to allege in his bill that he caannt establish his right at law without a discovery from the defendant. Vance v. Andrews, 2 Barb. Ch. 370, 5: 679 13. The flUng of a bill of discovery in aid of a suit at law is justillable where the costs of such bill will probably be less than the expense of executing a commission in a foreign country to proce the facts of which a discovery is sought. Ibid. 14. This court lends its aid to a judgment creditor by compelling a discovery and account against a debtor or third person, who has possession of the debtor's property, and placed it beyond the reach of legal process ; but the creditor, before he is en- titled to such aid, must have sued out execution at Hendricks v. Bobinson, 2 Johns. Ch. 283, 1 : 380 15. The court of chancery has jurisdiction to com- pel a debtor who has been discharged from impris- onment for debt to discover his property, in order that it may,by the order of the court, be applied in satisfaction of his debts. Mitchell V. Bunch, 2 Paige Ch. 606, SS: 1049 16. A bill for discovery in aid of a cause before the surrogate, brought for an account and distribution of the intestate's estate, must charge certain facts within the knowledge of the defendant, the dis- closure of which is material and necessary to the party's defense in that court, and that he has no means of showing the facts, without such discovery. Seymour V. Seymour, 4 Johns. Ch, 409, 1:885 17. But it seems that where the bill is for discov- ery merely, and no injunction is asked for, and there is a demurrer to the bill, the court will not examine so nicely as to the materiality of the dis- covery. Ibid. 18. Where the complainant had purchased the rent and reversion of the lands of an attainted person, and had received rent from the tenant for more than forty years at a particular rate and in a par- ticular manner, — Held, that he was not entitled to a discovery from the tenant as to the amount of rent reserved by the original lease, or as to the terms of payment, iMnsing v. Pine, 4 Paige Ch. 639, 3: 591 19. The court of chancery will not aid a landlord in obtaining a discovery from his tenant, as to the existence of covenants in a lease by means of which the interest of the tenant in the land may have be- come forfeited. Ibid. 20. Where a church corporation, in the call of one of its niinisters, agreed to pay him a salary which was less than the salaries of its other ministers, and covenanted to raise the same to an equality with the salaries of the other ministers whenever the in- come of the church would enable them to do so; and the bill alleged that the income of the defend- ant was sufficient at all times to enable them to pay such increased salary, but they had neglected and refused to increase the same; and a discovery of the defendant's property and income was called for by the bill,— Held, that the defendants must either ad- mit by their answer that their income was sufBcient to pay such increased salary, or must make the dis- covery of their property and income. Kuypers v. Bef armed Dutch Chv/rch, 6 Paige Ch. 670. 3: 1106 21. A bona fide purchaser in possession of an eS' tate is entitled to a discovery of the grounds on which his title is sought to be impeached by the de- fendants, who had revived a judgment against the person from whom the plaintiff derived hi*, title, and which he alleged had been satisfied, and had issued an execution under which the sheriff had levied on the estate and advertised it for sale. Kimberly v. Sells, 3 Johns. Ch. 467, 1: 68ff 22.1f a bill be brought to impeach a stated account, and it charges that the complainant has no counter- part of the account, and prays the same may be set forth, the defendant will be obliged to do so or an- nex it to his answer or plea, even though he sets up or pleads a stated account. Bullock V. Boyd, 2 Bdw. Ch. 293, 6: 405- t). To Aid Defense. 23. The complainant in a bill of discovery is noi; entitled to the discovery of a mere insulated fact in aid of his defense at law, and to deprive his ad- versary of the benefit of a luU answer showing that in reality the alleged defense in the action at law does not exist. Jewett V. Belden. 11 Paige Ch. 618, 6: 855 24. A defendant atlaw may file a bill of discovery for the purpose of rebutting the evidence which i» necessary to sustain the plaintiff's action. He i» entitled to the discovery of evidence for the pur- pose of attack on the case of bis adversary. Atlantic iiui. Go. v. JjUnar, 1 sanai. l.u. sfi, 7: 358- 25. It is not necessary, in a simple bill of discovery, to allege that the complainant is not able to prove his case at law without the benefit of the discovery sought. Ibid. March V. Damson, 9 Paige Ch. 580, 4: 883 S. 0. 2 Ch. Sent. 35, 5: 1088 26. To sustain a biU of discovery filed in aid of a defense at law, the complainant must show in his bill that the discovery prayed for is material to his defense at law; and a6o that his defense at law can- not be established by the testimony of witnesses, or without the aid of the discovery which he seeks. Leggea v. PostIei/,2 Paige Ch. 599, 8: 1046 27. A discovery wUl not be allowed merely to guard against anticipated perjury in a suit at law. Ibid. 28. To sustain a mere biU of discovery in aid of a. defense at law, it is only necessary to show that the discovery is material to such defense; not that it is- absolutely necessary. March v. Davison, 9 Paige Ch. 580, 4: 823 S. C. 2 Ch. Sent. 35, 5: 1088 29. But where the complainant seeks to give Ju- risdicuoci to tiie court oi unniicery lo^iant uim full relief, upon the ground that he is compelled to come into that court for a discovery, he must not only show that such discovery is material, but must also state affirmatively that he cannot establish such de- fense without the aid of the discovery sought. Ibid. 30. In a bin of discovery the complainant must charge, either upon his information and belief or otherwise, that the matters of which he seeks a dis- covery are true in point of fact. Ibid. 31 In a bill of discovery for matters material to- the defense of the party in a suit atlaw against him, the nature of the defense at law must be stat- ed irintyre v. Maneius, 3 Johns. Ch. 45, 1: 547 32. In order to sustain a bill of discovery, the com- plainant therein must show what his defense to the suit at law is, so that the court can see that the fact of which a discovery is sought, it admitted tc be as stated in the bill, may be material in the es- tablishment of such defense. IMd. Deas V. Ha/rvie, 2 Barb. Ch. 448, 6: 710 Lane v. Stebbins, 9 Paige Ch. 622, 4: 841 Jewett V. Belden, 11 Paige Ch. 618, 5: 855 33. The complainant in a bill of discovery in aid of a defense in a suit at law must state a case which - will constitute a good defense to such suit. Williams v. Harden, 1 Barb. Ch. 298, 6: 398 S. 0. 5 Ch. Sent. 55, S: 1184- 34. A party to a suit at law cannot be compelled, to discover the grounds of his claim in such suit. But the complainant In a bill of discovery must state some fact, which is material to the prosecu- tion or defense of the suit at law, which he wishes to establish by the answer to the bill. Lane v. Stebbins, 9 Paige Ch. 622, 4: 841- 138 DISCOVERY, II. c— e. 35. It is not suffolent in a bill of discovery for ■the complainant to aver that the matters as to which a discovery is soufrht are material to his de- fense in the suit at law; hut he must state bis case dn such a manner In his bill that the court can see how the matters of wbfch a discovery is aslied may 'be material upon the trial of the suit at law. Ihid. 36. The defendant Id a suit at law cannot file a bill of discovery, aerainst the plaintiff and another per- son who is a mere witness, to obtain a discovery from the latter, in aid of the defense at law, al- though the plaintiff in the suit at law has derived his title to the subject-matter of the suit from or 'Under the person from whom such discovery is flousrht. Post V. Boardman, 10 Paige Ch. 580, 4:1098 37. Where a defendant in a suit at law has a de- fense of usury whicn he can estaoilsn oy a com- petent witness without a discovery from the al- leged usurer, but where he is so situated that he cannot avail himself of the testinnony of that wit- ness in the suit at law, he may resort to the court 'Of chancery for relief; and he is not bound to rely upon the testimony of the real plaintiff In the suit ■a,t law to prove the usury. Morse v. Hovey, 1 Barb. Ch. 404, 6: 433 38. Where the payee of a usurious note pretended to have sold and u-ansi!errea the same to a third person, in whose rame a suit at law was brought upon the note whereby the makers of the note were induced to suppose that the payee of the note •could be examined by them as a witness in that suit to prove the usury; and when called as a witness at the trial, such payee testified that he was one of the real plaintifTsin interest in the suit, and declined to testify as to the alleged usury: and from the state of the pleadings he could not be examined as a plaintiff under the Act of 1837, for the prevention of usury,— Held, that the defendants in the suit at law could sustain a bill in chancery against the real plaintiffs in the suit at Jaw for discovery and relief, upon the ground that such defendants had been de- ceived and defrauded out of their defense at law. Post V. Boardma/n, 10 Paige Ch. 580, 4: 1098 39. Where the loser is sued at law upon a note given upon an illegal bet or wager, he may file a ■Sill in chancery for a discovery of the consideration of the note, in aid of his defense at law, although the amount of the note is less than XIOO. Schroeppel v. Bedfleld, 5 Paige Ch. 245, 3 : 703 40. The complainants in a bill of discovery were TSued at law as insurei-b of specie shipped in a vessel which was lost during the voyage. They charged Jn their bill that the claim under the policy was 'fictitious and fraudulent: that the defendant, who had sued them at law, never possessed any such -specie, or but a small portion of it; and that, on diligent inquiry at the ports of shipment, they had -been unable to obtain any information or trace of the specie said to have been shipped, or of the de- fendant himself. The bill also alleged various cir- cumstances which made the claim suspicious and of doubtful authenticity; and it sought a full and minute discovery as to the defendant's interest in the shipment, and as to all the circumstances of the rshifiment itself. The suit at law was on a valued -policy, tai^en out by an agent, on account of whom It might concern. The plaintiff at law, by testi- mony taken de bene esse, was prepared to make out his case on trial, upon proving his interest merely. A I'f'nmrrpr to the bill wrs ovprniled. AOantw Ins. Co. v. Lunar, 1 Sandf . Ch. 91, 7:258 41. It seems that the plantift in a libel suit may be compelled to discover the ti-uth of the alleged libel, - in aid of a justification at law, where such discov- -cry will not subject him to a criminal prosecution, or to a penalty or forfeiture, or render him infa- mous. March v. Davison. 9 Paige Ch. 580, 4: 823 42. As a general rule, the defendant in any civil suit may file a bill of discovery in aid of his defense 'in such suit, where the discovery sought is mateiial to his defense. But no peison can be compelled to make a discovery In aid of the complainant's de- fense at law, or otherwise, when the effect of such discovery might be to subject him to indictment and punishment for an offense against the laws of thp State. VM. 43. Where a defendant in a suit at law applies -Che attorney of the plaintiff for a discovery, he •should at least state to the attorney the material fact which he wishes his client to admit, to save •the necessity of a bill of discovery. And If the ai- tomey does not possess the information necessary to enable him to make the admission, the defendant should request him to communicate with his client and obtain such admission from him, and should then wait a reasonable time to enable the attorney to obtain such admission from his oUent. Deas V. Harvie, 2 Barb. Ch. 448, 6: 710 44. The defendant in an action at law cannot file a bill in chancery to obtain from bis adversary a discovery of the nature and grounds of the claim to recover against him In that action, to enable him to judge whether he has any defense. Ibid. 46. The defendant in a suit at law brought against him as acceptor of a bill of exchange, by the payee of such bill, is not entitled to a discovery from the plaintiff as to the genuineness of the acceptance, upon a bill which .charges, upon Information and behef , that such acceptance is a forgery. Ibid. c. To Aid Foreign Suit. 46. A bUl of discovery will be sustained to aid the prosecution or defense of a civil suit in a foreign tribunal. Mitchell v. Smith, 1 Paige Ch. 287, 2: 650 47. The court of chancery in this State has juris- diction ana win entertain a bill of discovery in aid of the prosecution of a civil suit in a sister Stata or in a foreign tribunal, or Id a court of the Unitea Burgess v. Smith, 2 Barb. Ch. 276, 5: 642 S. C. 6 Ch. Sent. 67, 5: 1216 48. But it will not entertain such a bill when filed against a person wno is not a party to the suit in which the discovery sought for is to be used, even though such person is the substantial party in in- terest in tlie defense of that suit. Ibid, 49. Although this court can compel discovery in aid of au acllOD in a foreign court, yet it will not do so where an answer would not be available— as, for instance, against a codefendant in the action. Dykers v. Wilder, 3 Bdw. Ch. 496, 6: 738 d. Papers in Bonds of Attorney or Counsel. 50. It is useless and improper to make the coun- sel of a person a party to a mere bill of discovery as to papers alleged to be in his possession, even if the matters inquired of by the bill could be prop- erly disclosed by the counsel if called as a witness against his client. Wakeman v. Bailey, 3 Barb. Ch. 482, 5: 981 51. In ordinary cases, it is only necessary to call upon the client to answer as to the contents of the deeds or papers of which a discovery is sought, al- leging that they are in his hands or in the hands of his attorney or counsel, and thus within his power. md. 52. If the client cannot get them, the proper course is to make the bill of discovery against the client a bill for relief against him and his attorney or counsel, by charging that the latter will not de- liver the deed or paper to his client, or permit him to examine it for the purpose of settmg out its contents in an answer, or that the cUent alleges such to be the fact; and therefore praying that the defendants may not only discover whether the deed or paper is in tbe bands of the attorney or counsel, out that, if it is in the hands of the latter, he and his client may be ordered to produce it, or that the attorney or counsel may be ordered to produce it to his client, so that the latter may set it forth in his answer. Ibid. 53. A party being bound, in the court of chancery, upon a bill of discovery or for discovery and reUe^ to produce or discover the contents of deeds and other papers material to the prosecution or defense of the rights of the adverse party, that court, upon a bill properly framed, will give similar relief where the deeds or other papers are alleged to be in the possession of the party's attorney or counsel. ibid. e. Against Corporations, Their Officers and Members. 54. Where a creditor of an insolvent corporation whose execution has been returned unsatisfied is ignorant of the names of tbe stockholders, whose snares of the capital stock have not been paid in full, he may pray for a discovery of their names. Morgan v. New Torh W. 17. A widow of a partner is entitled to dower out ot real estate purcuasea with partnership funds; but, having in this case joined her husband in mort- gages, she had an equitable right of dower in a moiety only and in its avails. Smith V. Jackson, 2 Edw. Ch. 28, 6: 395 ]R. Five persons purchased real estate for joint benefit, and sign an agreement that it shall be (which it is) taken in the name of one who is to hold and receive avails for joint account, until a sale and conversion into money. A bill is filed for partition. The court lield, that the wife of the party in whose name the property had been taken intrust had no inohonte riirht of dower. Coster V. Clarke, 3 Edw. Ch. 428, 6: 714 19. If lands descend to a son charged with the right of dower of his mother, which is afterwards decreed to her, and he then dies in her lifetime, his widow is only entitled to dower in two thirds of the premises. Bei/nolds v. Beynoldg, 5 Paige Ch. 161, 3: 669 20. Where a son takes laud by descent from his father, subject to the dower of his mother in the same, and her dower is afterwards assigned to her, such assignment relates back to the death of the father, so as to deprive the widow of the son, who died in the lifetime ot his mother, of dower even in the reversion of the third of the estate which is as- signed to the mother for dower. r- rr^i^'^r. 1 Barb. Ch. 598, 5: 510 g. C. 6 Ch. Sent. 31, 6: 1803 21. Where an estate comes to the husband or wife by purchase, subject to the mere contingent right of dower of the wife of the grantor in case she sur- vives him, upon the death of the grantee during the life of the widow of the grantor, the husband or wife of such grantee is entitled to an estate by the irtesy or in dower in the whole premises, subject only to the incumbrance of the prior right of dower in one third of that estate, during the actual con- tinuance of that right, iWd. 22. Where the widow of the father has dower as- signed to her in the whole of the land, before the widow of the grandfather has been endowed,— whether such assignment was voluntary or was ob- tained by suit against the son and heir,— if the wid- ow of the grandfather is subsequently endowed, the widow of the father, after the death of the widow whose claim was paramount, will be entitled to be restored to her dower in the whole premises, in the same manner as if the title of her husband had been conveyed to him by the grandfather in his lifetime, instead of coming to him by descent, subject to the immediate rignt of his mother to a life estate in one third thereof. Ibid. 23. In a case where two widows are claiming dower as against the infant heir, in the same pai-t of the estate simultaneously, the grandmother is to be considered as first endowed of one third of the infant's share ; which endowment, by relation, de- feats the seisin of the father of the infant, from the time of the descent oast upon him, as to that third ; and the mother of the infant is only entitled to one third of the other two thirds, as her dower. Ibid. 24. When the maxim dos de dote peti non debit ap- pli«s. ^»<2- 25. A purchaser under a decree of the court, whose 143 DOWEE, II., III. purchase has been conflrmed and who has paid a part of the price, becomes equitably seised pro tan- to, and his mte acquires in equity an inchoate right of dower in the land,subject to the payment of the residue of the purchase money. Church V. Chmch, 3 Sandf . Ch. iSi, t: 910 II. Character and Extent op Dower Biqht. 36. Where a mortgage for the purchase money of land is executed by the purchaser to a third per- son, with the assent of the seller, the widow of the purchaser will take her dower subject to the mort- gage. Kittle V. Van Dyck, 1 Sandf. Ch. 76, 7: 346 27. The dower right of the widow of a purchaser of lands is subject to the vendor's lien for the pur- chase money. Warner v. Van AUtyne, 3 Paige Ch. 513, 3: 853 28. H, on the eve of buying a farm of C, agreed with his mother, M, for the Joan to him of the prici which he was to pay to C, and to give to h0r a mort fage on the farm for her security. C conveyed the arm to H, who on the same day received from his mother the amount of the purchase money, paid il to C, and executed to M his bond and mortgage on the farm therefor. Held, that the mortgage was given for the purchase money of the land, and that the widow of H was dowable of the equity of re- demption only. KUfle V. Van DycH, 1 Sandf. Ch. 76, 7: 246 29. Where a wife joins her husband in a mort- gage of his real estate, and the promises are sold un- der the mortgage, the wife can only be endowed in the surplus which remains after payment of the morterage debt and costs of foreclosure. HawUy v. Bradford, 9 Paige Ch. 200, 4: 667 30. But she is entitled to the value of her dower in such surplus, free from any charge for costs, as between her and the creditors of her nusband. Ibid. 31. The wife, joining with her husband in a mort- gage for the security of his debt, is, after his deatu, entitled to the rents and profits of her dower, or other interests in the premises, until foreclosure : and where the debt is payable by installments, and the amount which has become due can be satisfied by a sale of one parcel only of the premises, the in- come of her share of the residue cannot be taken to satisfy that part of the debt which is not yet due. Bank of Ogaengburgh v. Arnold, 5 Paige Ch. 38, 3: 617 33. Where a widow is entitled to dower in the equity of redemption of moiiga^ed premises, she must keep down one third of the interest upon the amount unpaid upon the mortgage at her husband's death, until the amount which was thus unpaid is required to be paid off; and then she must contrib- ute towards such payment a sum which will be equal to the then value of an annuity for the resi- due of her life of the amount of one third of the interest upon the sum unpaid when her estate in dower commenced by the death of her husband. House V. House, 10 Paige Ch. 158, 4:926 S. 0. 3 Ch. Sent. 12, 5: 1103 33. If the owner of the legal estate purchases in a mortgage executed by both husband and wife, with the intention of protecting himself against the claim of dower to tne extent of that incumbrance, the widow can only be endowed of the equity of re- demption, and she is bound to contribute her share towards the payment of the mortgage. Russell V. Austin, 1 Paige Ch. 192, 8: 612 31. A defendant continues seised of his real estate sold under a judgment and execution, until the time for redemption expires ; and where he dies be- fore the time for redemption expires, his widow will be entitled to arrears of dower. VM. 35. Arrears of dower against the purchaser of the premises in which dower is claimed can only be re- covered from the time of the purchase. Ibid. 36. Where there is an outstanding mortgage upon the premises, the arrears of dower will be comput- ed by deducting from one third of the rents and profits over and above the necessary repairs, taxes, etc., one third of the interest on the amount due on the mortgage at the time the defendant acquired title to the premises. Ibid, 37. Where a mortgage has been executed by hus- band and wife, she can only be endowed of the equity of redemption. Ibid. 88. Where land Is aliened by the husband, the widow's dower is to be taken according to the valu of the land at the time of the alienation. Hale V. James, 6 Johns. Ch. 258, 8: lift 39. If the husband mortgages the land, but con- tinues in possession, and afterwards releases the- equity of redemption to the mortgagee, the time of the release of the equity of redemption is to be- deemed the time of alienation at which the value of the land is to be taken, and which is to be esti- mated without regard toisubsequent improvements- made by the purchaser. ibid, 40. If the husband dies seised, the widow takes- her dower at the value at the time it is assigned to her by the heir. Ibid. 41. Whether the widow is entitled to the advan- tage of an increase of value arising from extrinsic causes,— as the discovery of a mine, etc.,— quwre. XMd. 42. Where it is agreed, between the widow and the tenant, that he ^aJl allow her a yearly sum, instead of having the dower assigned to ner,accord- ing to law, the interest of one tmrd of the value of the premises is the proper measure of the annuity- But where the house and buildings on the land!, constituted the principal value of the premises, 1 per cent was allowed, as a compensation to the ten- ant, on account of necessary repairs and the risk of loss by Are. Ibid. III. How Barred; Alienation. 43. Although a divorce a mensa et thoro be had» yet the wife is entitled to dower out of the hus- band's lands if she survives him. Day V. West, 2 Bdw. Ch. 592, 6: 515- 44. No act of the husband without the wife's con- sent, or her misconduct, can bar her dower. Matthews v. Matthews, 1 Edw. Ch. 565, 6: 848- 45. A woman cannot be deprived of her dower^ except by a voluntary act of her own. Van Gelder v. Post, 2 Edw. Ch. 577, 6: 510 46. A suit in partition cannot take away a wife's- right to dower. Matthews v. Matthews, 1 Edw. Ch. 565, 6: 848- 47. Partition at law, where she is not a party, and in which she does not join, will not bar a wife's right to dower. Van Gelder v. Post, 2 Edw. Ch. 577, 6: 510- 48. The court cannot compel a husband, who has- married a woman having a dower right, nor the- female either, to join in a deed releasing it. Be Lane, 1 Edw. Ch. 349, 6: 16T 49. A wife cannot relinquish herdowerin thereat estate of her husband by executing a release there- of to him, or in any other way than by joining with- him in a conveyance to a third person. Carson v. Murray, 3 Paige Ch. 483, 3: 841 50. Before assignment and entry, a widow cannot convey her dower right to a stranger,by any of the ordinary modes of conve^ng freehold estafies, so a& to vest the legal interest in her grantee. Tompkins v. Fonda, 4 Paige Ch. 448, 3: 510- 51. But if the widow is in possession,or is entitled to an assignment of dower immediately, the want of a mere formal assignment of her dower is not considered material in equity. And her interest.in such a case, may be reached upon a creditors' bill,, and applied to the satisfaction of the complainant's- judgment. Ibid. 52. A widow's right of dower, before assignment, is a mere right or chose in action, and not an estate or freehold in the land, or such an interest as can^ be sold on execution against her. Ibid. 53. It is a thing in action, within the meaning of the statute autnorizing the court of chancery to- decree satisfaction of a judgment out of persona] property, money, or things in action, of a defend- ant, after the return of an execution unsatisfied. Ibid. 54. The wife having joined with her husband in a mortgage of his real estate to secure a partnership- debt due from him and his copartner, upon a writ- ten stipulation given by the copartners to her that the mortgage should be paid out of the partner- ship funds ; and the firm having afterwards failed and assigned all their property and effects to the- mortgagee and another person to pay other debts of the firm,— Held, that the mortgage was not a specific equitable lien upon the parnership f unds- as against the other debts due from the firm, and DOWER, IV. US. that the wife's contingent right of dower in the mortgaged premises was liable to be sold if her husband's interest in the premises was not sufEl- cient to satisfy the mortgage. Paton V. Murray, 6 Paige C!h. 474, 3: 1066 55. Where the wife joins with "her husband in a rmudulent conveyance to delay and hinder credi- tors from collecting their debts, her right to dower in the property is extinguished, although the con- veyance is declared void as to the creditors. Manhattan Co. v. Evertsan, 6 Paige Ch. 457, 3: 1060 56. Where a wife who is an infant unites with her husband in a deed of conveyance of his real estate to trustees for the payment of his debts, under an ignorance of her legal rights, being informed at the time she signs and acknowledges the deed that the same will not prejudice her rights, such deed cannot afterwards be set up against her as a bar to her right of dower in the land so conveyed. Sandford v. McLean, 3 Paige Ch. 117, 3: 80 57. A sale under a judgment against the husband obtained before marriage wUl devest the right of dower of his wife in the land sold. Ibid. 58. W, being seised of laiids subject to a mortgage which had not been executed by Ills wife, ooQveyi.u them to D, his wife joining with him in due form. D subsequently reconveyed them to W. Held, that the wife's inchoate right of dower was extinguished by the deed to D, and was not restored as against the mortgage by the reconveyance; and that she wa« dowable of the equity of redemption onlv. Hoogland v. Watt, 2 Sandf. Ch. 148, 7; 544 59. A legal jointure settled upon an infant before marriage is a legal bar of her dower; and, by an- aloj^y to the statute, a competent and certain pro- vision settled upon the infant in bar of dower, to which there is no other objection but its mere equitable quality, is an equitable bar of dower. arcartee v. Teller, 2 Paige Ch. 511, 2: 1011 60. To make a mere equitable jointure binding on the infant, the provision should be as beneflci^ to her, and as certain, as that required in the legal jointure to constitute a legal bar. Ibid. 61. The equitable proiTsion, to bar dower, must be a provision to take effect m possession or profit immediately on the death of the husband, and to continue during the life of the widow; and it must be a reasonable and competent livelihood for the wife, in reference to the circumstances and situa- tion in life of the parties, the value of the hus- band's estate, and the extent of the portion re- ceived with the wife on her marriage. llrui. 62. An estate for life, or during the widowhood 01 the grantee, is a base or determinable freehold ; and if an adult actually accepts such an estate in lieu of dower, it will constitute a legal bar ; but if such an estate is settled upon an infant, who has no legal capacity to consent to an acceptance of such a qualified freehold, it will not bar her dower. Ibid. 63. Where the husband entered into an antenup- tial contract with an infant and her guardian, by which she was to receive a certain annual sum dur- ing her widowhood, in lieu of dower,— it was held that she was not bound by the agreement, and might disa£9rm the same and claim her dower, after the death of her husband. , Ihiil. 64. But by the Revised Statutes the distinction between legal and equitable jointures is abujiji..ou ; and any estate or pecuniary provision made foi' the benefit of the wife, whether an adult or an in- fant, in lieu of dower, will, tt assented to by her in the manner prescribed in the Revised Statutes, now constitute a legal bar of her dower. Ibid. 65. An antenuptial agreement that the intended wife shall exclusively enjoy property held by her as widow and administratrix of her former hus- band, and which is not expressed to be in lieu of dower, is no bar to her claim for dower in the estate of her second husband. Swain v. Parine, 5 Johns. Ch. 482, 1 : 1148 66. A conveyance of land by the husband, during coverture, in trust for his wife, to whom the trus- tee afterwards conveyed it, bat which was not in- tended or accepted in lieu of her dower, is no bar to her claim of dower after his death. Ibid. 67. A deed given by the husband, just before his second marriage, to his daughter, without any con- sideration, and kept secret until after the marriage. is fraudulent and void as against the wife's cimm of dower. Ibid. 68. A release, by the husband, of his equity of re- demption in lands mortgaged, not executed by the wife, though she joined in the mortgage, is no bar to her claim of dower in the equity of redemption or remaining interest of the husband in the land after satisfaction of the mortgage. Ibid. 69. She is, however, bound to contribute ratably to the redemption of the mortgage. Ibid. 70. Where the heir has redeemed the land by pay- ing off the mortgage, and the widow nies her uiii against him for dower, the mode in which she is to contribute is by paying, during her life, to the heir, one third of the interest on the amount paid by him, to be computed from the time of such pay- ment, or the value of such an annuity, according to the circumstances of the case, to be computed by the master. Ibtd^ 71. And the husband being considered as having died seised of the land subject to the mortgage,, the widow is entitled to one third of the rents and profits from the time of his death. Ibid. 72. Where a wife joins with her husband in a mort- gage of his lands and he dies after sale in foreulos- ure and after confirmation of the report of such sale, she will not be entitled to any amount by way of dower out of any bnlance of the avails of the sale. Frost V. Peaeoek, i Edw. Ch. 678, 6: 1016^ 73. A widow is entitled to dower in rents of lands leased by her husband, notwithstanding she ex- ecuted a release to the lessee of her dower right. Such release only has the effect of a conflrmatioa 0^ the tenant's estate, and is not an abandonment of her dower as between herself and her husband's heirs. WilHarm v. Cox, 3 Edw. Ch. 178, 6: 617 74. An asnei sment upon a testator's realty must be borne by i.ue heirs. The widow can only be re- quired to bear a third of the interest of the capital of the assessment on the lots assigned to her for dower, at 7 per cent, to commence from the con- firmation, or, if not confirmed, till after the hus- band's death, then from such death. Hiid. 75. Where a widow entitled to dower in land of which her husband died seised accepts an equiv- alent m other laud, or money, sjie wiU be barred from asserting her claim for dower; especially after enjoying the equivalent for twenty years, and see- ing the land of which she was dowable sold, with- out setting up her claim. Jones V. Powell, 6 Johns. Ch. 194, 2: 97 IV. Assignment. 76. The court of chancery has concurrent juris- diction with courts of law in suits for recovery or assignment of dower. Badgley v. Bruee, 4 Paige Ch. 98, 3: 359 77. Though a widow's remedy for dower is prima facie in a court of law, yet when the title is ad- mitted, and impediments are thrown in the way of her proceeding at law, this court will sustain a bill filed by her for dower. Swaine v. Perine, 5 Johns. Ch. 482, 1: 1148 78. On a bill for the recovery of dower, if the right of the widow is admitted by the answer, the court will proceed at once to assign the dower, and to take an account of the arrears, if it is a case in which she could recover damages at law; but if her right is disputed, the court will retain the bill, and direct a suit at law to ascertain the tittle. Badt/iey V. Bi-uce, 4 Paige Ch. 98, 3: 359 79. Where the husband in his lifetime sold several lots of land in which his wife had a contingent right of dower, to various individuals, and cou- veyed such lots with warranty, and afterwards died seised and possessed of a large real and personal estate, which he devised to the complainant in trust for his daughter; and the trustee after the death of the testator offered to assign to the widow her dower out of the estate of which the husband died seised, as well for that estate as for the lands sold and conveyed by her husband with warranty, which offer she refused and commenced ejectment suits against the several purchasers for the pur- pose of recovering her dower in each lot separately, —Held, that the widow was in equity bound to accept an assignment of the whole dower out of the estate of which her husband died seised, and which was ultimately liable to sustain the whole charge of her dower right in the lands conveyed with warranty. „,.,„„ o ,nco Wood V. Keyes, 6 Paige Ch. 478, 3: 1068 141 DRAINAGE ACTS. 8U. Where, upon a bill filed to restrain a widow ■from proceeding at law to recover her dower, the •complainant fails in defeating her claim to dower, it is not the practice for the court to proceed to the assignment of the dower, but to dismiss the bill upon the merits, and allow the defendant to proceed at law. Sajndfard v. ITciean, 3 Paige Ch. U7, 3: 80 81. In a suit at law, if the dowress dies before her right is established, her personal representa- tives have no remedy either for costs or for the mesne profits. Johnson v. Thomas, 2 Paige Ch. 377, 2: 950 82. If the husband died seised, the death of the dowress pending a suit in this court for her dower will not deprive her personal representatives of the arrears due at the time of her death; but they may revive the suit for the purpose of obtaining such arrears of dower. Ibid. 83. But where the husband did not die seised of the premises, if a suit in chancery abates by the death of the complainant before her right to dower is established, the personal representatives are not entitled to any arrears of dower, and therefore cannot revive. Ibid. 84. The Eevlsed Statutes, however, have now given the widow a better remedy for her dower, and a more extended right to damages for arrears, than was provided by the former law. Ibid. 85. After the death of a testator who had, in his lifetime, purchased land and given a bond and mortgage for the purchase money, his widow, who was sole executrix and empowered to sell the estate to pay debts, etc., conveyed the estate to S M, who .gave his bond and mortgage for the same sum, which were accepted by ihe mortgagee in lieu of the testator's bond and mortgage, which were therefore given up and canceled. Held, that the widow, in her account as executrix, with the heirs, was not to be allowed the estimate of her dower in the land, as the heirs derived no benefit whatever from the sale. Evertson v. loppen, 5 Johns. Ch. 497, 1: 1154 86. Where a widow and executrix was empowered to sell the real estate of the testator, to pay debts, etc., and to release her dower on such sale, and re- tain the value thereof out of the proceeds,— Held, that the dower was to be computed according to the value of the property at the time of her hus- band's death. Ibid. 87. An executrix suffered land of which the tes- tator died seised, subject to a mortgage, to be sold under the mortgage, and became the purchaser thereof in her own right, and sold it. Held, that - she was liable to account to the heirs for the pro- ceeds of the sale ; but as widow of the testator she was entitled to her dower out of the proceeds, sub- ject to her ratable contribution towards the ex- tinguishment of the mortgage debt. Ibid. 88. Where dower cannot be assigned by metes and bounds, it may be held to attach to rents, profits or other produce— and any equitable mode of compen- sation can be adopted; and the amount is to be reg- ulated by the value at the time of the husband's -alienation. Van Gelder v. Post, 2 Bdw. Ch. 577, e: 510 89. Where the mdow elects to redeem by the pay- ment of a gross sum equal in value to her propor- tion of the interest on the amount due for life, or where her equitable right of dower has been re- deemed by the rents and profits received by the mortgagee in possession, or where her life interest in one third of the premises Is sold to satisfy the mortgagee for her proportion of the debt, the ad- measurement of her dower must be made upon the principles adopted in the Eevised Statutes relative to proceedings (or the admeasurement of dower. Bell V. New York, 10 Paige Ch. 49, 4: 881 90. On a bill for dower, the widow was aeld en- titled to the value of the mesne profits arising from the use of the undivided third of the premises of which her husband died seised, from tne deith of her husband, exclusive of the improvements since made thereon. Hazen v. Thurber, i Johns. Ch. 604, 1: 951 91. And, there being several heirs and terre- tenants, the amount was directed to be assessed upon them respectively, according to the time of their enjoyment of the premises. Ibid. 92. But as the widow had never claimed her . dower, and there was no opposition or vexation on the part of the defendant, costs were denied hen Editosial Notes. Dower; estate in 5; 510, 6: 740, 7: 1147 Bight of, in widow 1: 53, 3: 190, 510,735, 995, 4: 971, 6: 617 Equitable right of v? idow 7: 910 Wife's inchoate right ; when ceases 4: 882 Former wife; when and when not entitled to 4:871 Subordinated to equitable rights of other parties 3: 1068 As a consideration 8: 223 Application in payment of judgment , 3: 510 May be reached by judgment creditors 3:510 Effect of conditional limitation upon 2: 779 In land taken by husband by descent; hus- band must have been seised of freehold 2:780 Right of, in partnership lands 6: 295 Widow of deceased partner entitled to 5: 601 In mortgaged property 1:1139,1148,2:612,4:881 Right in surplus after sale 1 : 1139, 1148 In surplus money 4:882 Not subject to dower of son's widow 4 : 147 Release by joining husband in conveyance 3: 1060 Right to, cannot be defeated by act of hus- band 1:446, 6:515 Voluntary conveyance by husband; fraudu- lent as to wife 1 : 1148 In land conveyed by husband 4: 201 Money awarded in lieu of 2: 119 Acceptance of money in lieu of 3: 97 Antenuptial settlement in lieu of 2: 1009 Release of equity of redemption as a bar ^ ^ 1:1148 Court may protect 4: 300 Assignment and admeasurement of 3: 510, 4: 883 Action to recover 4: 882 Concurrent jurisdiction of chancery 1:1148 Damages for withholding 2: 950 DRAINAGE ACTS. See also Injtjkotion, 93. 1. Under the Act for draining swamps and bog meadows in the counties of Orange and Dutchess, passed April 9, 1804 (Sess. 27, chap. 91), the in- spectors appointed by the court of common pleas for dramlng the great swamp or bog meadow near Newburgh must strictly observe the precise limits prescribed by the Act, and can only continue the main ditch dug for that purpose, at the north end of the Great Pond through lands adjoining the swamp. They have no authority to dig down the outlet at the southeast end of the pond, and there- by injure or destroy valuable mUls, etc., erected on the outlet and on land not adjoining the great swamp, or to break up ancient and useful streams of water by draining the natural reservoirs which feed them. Belknap v. Belknap, 2 Johns. Ch. 463, 1: 453 2. And if they exceed their power In this respect the court will grant a perpetual injunction to re- strain aU proceedings touching the outlet of the pond, and for quieting the plaintiffs in the enjoy- ment of the water for their mills, etc. Ibid. 3. Act March 6, 1807, to raise moneys to drain the DROWNED LANDS— DUTIES. 145 •drowned lands in the county of Orange, gives the right of voting for commissioners un'l<='r ilie Act only to the porsons who own <&nds iu fee. PhflHps V. WicKham, 1 Paige Ch. 590, »: 763 4 The commissioners umder the Act relative to ■draining the drowned lands in Orange County (Sess. %. chap. Z5) had no right to use the lands of a party or to remove or destroy his property, with- out, a valid and legal contract with 1-im for that purnnse, or until compensation had been made and tendered to him according: to tljc Act. Phaiipa V. Thompson, 1 Johns. Ch. 133, 1: 87 5. Under Act April 12, 1816, for draining the great marsh or swamp on the Canasaraga Creelj, in the towns of Sullivan and Lenox, in the county •of Madison, the proprietors of the lands overflowed by that creek have a right to drain the marsh ac- cording to the provisions of the Act, although in so ^lolng they would divert the water from the mill of the complainants, which is situated on the Chit- teningo Creek ; inasmuch as at the time the Act was passed they could have drained the marsh in the manner contemplated by that Act, without in- juring the mill of the complainants on the stream oelow ; since which time the greater portion of the waters of the Chitteningo Creek have been diverted by the State to supply the Erie Canal. By § 5 of the Act the complainants have a complete remedy Against the proprietors of the land to be benefited for aU damages they may sustain in consequence of •the draining of the marsh. French v. Klrkland, 1 Paige Ch. 117, »: 583 6. Whether they would have such remedy against *he State,— guwre. Ibid Editorial Note. Drainage Act construed 2:583 DROWNED LANDS. £ee Dkatnage Aots. DRUNKARD, HABITUAL. •See also Incompetent Persons. Where a person, for any considerable part of his time, is intoxicated to such a degree as to deprive him of his ordinary reasoning faculties, it is prima facie evidence that he is incapable of managing his Be Traay, 1 Paige Ch. 580, 8: 760 DRUNKENNESS. See also Contracts, 115. Voluntary drunkenness will not protect a person •from UabiUty for torts or from punishment for ■crimes committed while in that situation. Prentice v. Achom, 2 Paige Ch. 30, 8: 800 DUPLICITY. •See Pleading, I. b. DURESS. 1. A deed obtained by duress is merely voidable, Ch. Dm. —not void. It cannot be avoided by a creditor of the grantor. JVmt v. Pymer, 2 Ch. Sent. 20. 5: 1085 2. If a party is arrested by due process of law for a demand claimed to be due, and chooses to com- promise by giving his .note or bond for the pur- pose of obtaining liis liberty, although for the want of bail he may be unable to obtain it in any other way, yet such compromise will not be, therefore, set aside nor the security decreed to be delivered up. There must be fraud or Illegality in the proceeding 0'' 'II obtninii"^ the s'^o'irity. Farmer v. Walter, 2 Edw. Ch. 601, 6: 519 Editorial Notes. Transaction set aside for duress When sufficient to avoid promise 5:228 6:519 DUTCHESS COUNTY. See Drainaoe Acts. 10 DUTIES. See also Sobroqation, 16. 1. Where debenture certificates are given for goods bonded and subsequently exported, if the bond given for the duties is not paid, and a suit is subsequently brought thereon,the debenture cer- tifioates should be applied in part payment, as of the time when the bond fell due, so that interest shall not be charged upon any greater sum than the balance remaining due upon the bond after de- ducting the amount of the certificate. JIforfon V. Z/udloU), 5 Paige Ch. 519, 3:813 2. Where the collector receives bonds with sure- ties, as required by law, for the duties upon import- ed goods deposited in a public storehouse under a special permit, the lien of the United States for the duties ceases, and the collector cannot sell such goods to pay the duties. Dias V. Bmichaud, 10 Paige Ch. 445, 4: 1044 S.The defendant imported into New York a quanti- ty of spelter, upon which the collector claimed and received a duty of 20 per cent ad valitrem.; wiiieh spelter was not a dutiable article, being included in tbe class of articles exempted from the payment of duties, under a dilt'ofent name. He suL)sequently sold such spelter to the complainant at long price, which by custom was a sale of the vendor's right of debenture, where such right existed. Afterwards, while thn spelter remained in the hands of the pur- chaser, and in a situation in which it might have been exported with the benefit of drawback had it been a dutiable article, the secretary of the treasury decided that spelter; was exempt from duty, and directed all duties which had been previously re- ceived on the Importation of that article to be re- funded to the importers; in pursuance of which de- cision and direction the defendant received back from the collector the 20 per cent duty which had been paid by him upon the importation of the spel- ter in question, although the plaintitf claimed it as belonging to him. Held, that the duties thus re- funded belonged to the importer, and not to the vendee of the article on which duties had been wrongfully charged; and that such vendee could not compel the defendant to pay the refunded du- ties to him. Moore v. Des Arts, 2 Barb. Ch. 638, S: 78a 146 EASEMENTS. E. EASEDIENTS. See also Ancibitt Lights ; Evidencb, 66 ; Ikjunc- lION, I. d. 1. An easement is an incorporeal hereditament and passes with the dominant tenement by grant or suc- cession; and the servient tenement is transmitted subject to the easement, in like manner. TToI/e T. JProst, 4 Sandf . Ch. 72, 7:1037 2. An easement is a privilege, without profit, which the owner of one neighboring tenement has of an- other, in respect of their several tenements, by pre- scription or by grant, by which the servient owner is obliged to suffer or not to do something on his own land, for the advantage of the dominant owner Ibid 3. The right claimed'under an agreement between the owners of two adjoining city lots, that if the one wUl build a dwelling upon his lot, three feet back from the line of the street, the other will, whenever he builds on his lot, set his buildings back the same distance from the street, is an easement. Ibid, i. Where M purchased land in a village, adjoin- ing a public street, and it was at the ^ame time a^eed between him and the vendor that a triangular piece of land belonging to the latter, on the oppo- site side of the street, and in front of the land sold, should never be built upon, but should be deemed public property; and the vendor executed to H a deed of the land sold, and a bond for the perform- ance of the agreement as to the triangular piece of land, and both instruments were duly proved and recorded; and H afterwards purchased of M the land opposite the triangular piece, after being in- formed by him of the privilege secured by the bond, —Held, that H was entitled to the benefit of the easement; and that M could not, without his con- sent, be permitted to make a new arrangement with the holders of the legal estate in the triangular piece of land.by which buildings should be erected thereon. Hflls V. MiOer, 3 Paige Ch. 254, 3: 141 5. Easements are annexed to the estate of the owner of the dominant tenement, and pass to the grantee of such estate. They are also a charge up- on the estate of the owner of the servient tenement, and follow such estate into the hands of those to whom the servient tenement, or any part thereof, is conveyed. Ibid. 6. An easement is not destroyed by a division or sale of a part of the estate to which it is appurte- nant. And the assignee of any part of the dominant tenement may claim the benefit of the easement, so far as it is applicable to his part of the property, provided the right, as to the several parcels, can be enjoyed without any additional charge or burthen upon the proprietor of the servient tenement. IbiO. 7. The owner of land has a natural right to the use of the same in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lota; and the owners of such ad- jacent lots have no right to destroy his land by re- moving these natural supports or barriers. LaxaXa v. HoXbrook, i Paige Ch. 169, 3: 390 8. Where a person, in the exercise of ordinary care and skill, in making an excavation for the im- provement of his own lot, digs so near the founda- tion of a house on the adjacent lot as to cause it to crack and settle,he will not be liable for the injury, if such excavation would not have injured the ad- jacent lot in its natural state. Ibid. 9. Aliter, as to ancient buildings or those which have been erected upon ancient foundations, and which by prescription are entitled to an exemption from injuries resulting from the improvements on the adjacent lots; or as to those buildings which have been granted In their present situation by the owners of such adjacent lots, or by those under whom they derived their title. Ibid. 10. If a man con veys to another a piece of land sur- rounded by utUur iuiiLis ui luu ^Taucur, tiie grantee and those claiming under him have a right of way of necessity through such other lands of the grantor,, as incident to the grant. And the same principle applies where the piece of land conveyed is sur- rounded in part by the lands of the grantor and la part by lands of a third person. New York L. Ins. 70. If the facts which constitute a legal defense to iin action at law can only be established by a dis- covery from the plaintiff, and the defendant can, by the aid of such discovery, avail himself of such de- fense at law, he should resort to that mode of de- fense to the action, or be may be precluded by the judgment. But in cases of that kind the court of chancery, if a satisfactory excuse is given for not resorting to a bill in the first instance, may grant re- lief , after judgment has been obtained in the action at law. Ibid, 111. The court of chancery will entertain a suit for an equitable set-off of one judgment against au- other, although the complainant has another retne- dy by a summary application to the court of lawin which the judgment against him was recovered. ffrldiej/ V. Garrison, 4 Paige Ch. 647, 3:595 72. But as the complainant, in ordinary cases, has a more cheap and expeditious remedy, by the appli- cation to the equity powers of the court of law, such suits in this court wUl be discouraged by re- fusing costs to the complainant, except in special oases. iind. 73. This court will not relieve against a judgment at law, on the ground of its being against equity, unless the defendant in the judgment was ignorant of the fact in question pending the suit, or it could not be received as a defense at law, or unless, without any neglect or default on his part, he was prevented, by fraud or accident, or the act of the opposite party, from availing himself of the de- Fosier v. Wood, 6 Johns. Ch. 87, 2: 63 74. Where a defendant paid part of a judgment recovered against him, and the plaintiff in that judgment afterwards brought an action of debt on the judgment, in which P was special bail, and re- covered a second judgment for the whole original debt and costs against the defendant, who neglect- ed to prove the payment, which was omitted to be credited by the plaintiff, who afterwards sued P, the special ball, and recovered judgment against him for the whole debt, interest, and costs, by de- fault, P being ignorant of the payment on the first Judgment,— fleJd, on a bill filed by P, the ball, that he was not entitled to relief. Ibid, EQUITY, I. d— g. 75. Where several defendants are sued at law upon • joint contract, a part of the defeiiuants cannot ilJe a bin In chancery for the purpose of enabling them to use the testimony.of the others, to make out a lepal defense which Is common to all of them. But if the defense Is valid as to some of the defendants in the suit at law, and is invalid as to the others, and the same cannot be established except by the testimony Of the defendants who have no defense to the suit, those who have'a valid defense may file a bill in chancery for relief. Beggs v. Butler, 9 Paige Gh. 226, 4: 678 d. Retaining Jurisdiction for Complete Relief. 76. The power of this court to apply the remedy In the case is coextensive with its jurisdiction over the subject-matter. Kershaiw v. Thompson, i Johns. Ch. 609, 1 : 954 77. Where the court of chancery has properly ob- tained jurisdiction of a suit, for the purpose of a discovery of facts which could not be proved in the suitatlaw, it may retain the cause and give the necessary relief, although the facts constituting the defense at law are admitted by the defendant's an- swer; which answer might be read aa evidence in the suit at law. Jlfiiler V. JUcCan, 7 Paige Ch. 451, 4: S87 78. Although the same facts which will in equity discharge a surety on a simple contract may be pleaded as a defense to an action against him in a court of law, yet, as the court of chancery had originally the exclusive jurisdiction in such cases. It wfll not relinquish its jurisdiction because the complainant may now have an adequate remedy at law. SaiBy v. Elmore, 2 Paige Ch. 497, 2:1004 79. But if a suit at law has been commenced, and the defendant in that suit unnecessarily flies a bill in chancery to set up a defense of which he might avail himself at law, the court may refuse to inter- fere by way of preliminary injunction, or it may refuse costs to the complainant on the final decree. ibid. 80. Where the defendant deprives himself of the power to perform his contract speolflcaUy, during the pendency of a suit against him to compel such performance, the court wUl retain the suit, and wiU award to the complainant a compensation in damages for the nonperformance of the contract by the defendant. Morgs V. Elmendorf, 11 Paige Ch. 277, 5:135 81. It seems, also, that the court will retain the suit and award a compensation in damages for the nonperformance of the contract, where the defend- ant was unable .to perform the same at the time of the filing of the bill for that purpose, where the complainant was ignorant of that fact, and filed his bill for a specific performance in good faith, sup- posing that the defendant was able to perform the contract specifically. Ibid. 82. But the complainant cannot entitle himself to a decree for a compensation in damages merely by concealing the fact, in his bill, that the defendant is not able to perform his contract specifically, where such fact is known to the complainant at the time of the filing of such bill. Ibid. 83. A bill filed solely to correct a mistake in a con- tract wHl not be retained on the ground that there is money due on the contract from the defendant. Getman v. Beardsley, 2 Johns. Ch. 274, 1: 376 p. Preventirw or Simplifying Leglslatirtn. 84. Chancery can act, although there may be a remedy at law— as, where repeated autious might have to be had or remedies at law are not full or adequate. Tyatk v. Bromley, 4 Bdw. Ch. 258, 6: 871 85. A bill of peace to prevent litigation at law is allowed only in case the plaintiff liaa oatisfactorily established his right at law, or where the persons who controvert the right are so numerous as to render an issue, under fje direction of the court, necessary to bring in all tht parties concerned, and to prevent a multiplicltv of suits. Blridge V. Hill, 2 Johns. Ch. 281, 1:378 86. Where a deed is alleged to be a forgery, and nas been Improperly certified as duly proved and recorded, the court of chancery may take Juris- diction of the cause, for the purpose of settUng the title to a large tract of land, and to prevent a multiplicity of suits. But in such a case, it is proper to submit the question as to the genuine- 153 ness of the deed to a jury under the direction of the court. Apthnrp v. Comstock, 2 Paige Ch. 482, a: 99T f. Enforcing Bights in Instruments; Compelling Delivery. 87. Chancery has jurisdiction in general to compel the delivery up of securities wroujrfully withheld; and It will be exercised, although the case be re- inodiable at law, if no objection to the Jurisdiction, be taken by demurrer or in the answer. EobU V. PmdojMJl, SSandf. Ch. 277, 7: 851 88. This court has power to order a bond or other Instrument to be delivered up to be canceled whether such instrument is or is not void at law or whether it be void on the face of it, or by matters shown by the proofs in the cause ; but the exercise of this power rests in the sound discretion of the court, and is regulated Dy the circumstances of each particular case. Hamilton v. Cummlngs, 1 Johns. Ch. 517, 1: 839 89. Where a bond is good on the face of it, but had been held by the def euuant for twenty-seven years, and he admitted that it was given on a trust which he ought not to disclose, and depended on a con- tingency which had not happened, though it might by possibility happen, the court ordered the bond to be delivered up and canceled. Ibid. 90. So, where a bond was conditioned to pay a cer- tain sum, and good on the face of it, and on which a suit at law was pending, and the obligor had a good defense in equity, arising from matter dehors the bond, it was ordered to be delivered. Ibid. 91. A subscriber to the capital stock of a corpora- tion to whom shares were awarded by the commis- sioners, on its being filled up, secured the payment of the par value of his shares by a bond and mort- gage. The shares were thereupon placed in hia name In the books of the corporation, and entered to his credit in the stock ledger. The corporation subsequently refused, on invalid grounds, to issue to him scrip for the stock, or to permit him to trans- fer the stock upon the books of the institution. Held, that this proceeding did not render the bond and mortgage invalid, or entitle the mortgagor to have them delivered up for want or failure of the consideration. His remedy is by an action at law. TTwrp V. Woodhull, 1 Sandf. Ch. 411, 7: 378 92. This court aids defective conveyances, exe- cutes powers, and isives effect to instiuments inop- erative at law, where the intent is certain, the con- sideration valuable or meritorious, and the trans- action is fair. FaricTc V. Edwards, Hoff. Ch. 382, 6: 1180 93. The rule is, that where there is ground to infer an intention to convey an estate or interest upon a valuable or meritorious consideration, and the legal estate does not pass, this court will interpose. Neither covenant nor express contract is necessary. Ibid. 94. If parties upon relinquishing securities and taking notes issued in violation of the banking law have expressly stipulated for a pledge of other securities as collaterals, they may insist on a fulfill- ment of the stipulation by way of equitable mort- gage; and the court on proof will compel a restora- tion as a condition of annnlline- the new security. Leavltt V. Yates, 4 Edw. Ch. 134, 6: 828 95. Although by the Bevlsed Statutes the courts of law can take cognizance and do Justice in cases of lost notes, yet the jurisdiction of chancery in like cases is not gone or affected. TVhite V. Meday, 2 Bdw. Ch. 486, 6: 476 96. No part of the ancient and well-established Jurisdiction of the court of chancery can be de- stroyed by the assumption or grant of new powers by statute to courts of law ; and it cannot be taken away, except by express enactment of the Legis- lature. lbid_ 97. The fact that a suit at law would answer a better purpose, being more expeditious and less expensive, will not defeat chancery jurisdiction. Ibid g. Fraud ; Mistake ; Trust ; lAen. 98. In cases of fraud, a court of equity has Juris- diction, although the party seeking its aid might have obtained relief in an action at law. Bradley v. Bosley, 1 Barb. Ch. 125, 5: 334 99. In all cases of fraud, if the party who has been 154 EQUITY, II. a, b. defrauded is entitled to come into this court for .any relief arising: out of the contract as to which he has been defrauded, and where it is neceasarjr for him to aUege and establish the fraud in order to obtain such relief, he may obtain full relief here, without resorting to a suit at law; although as to a part of the relief claimed he had a perfect remedy in an action at law for damages. Ibid, 100. It is aproperhead of equitable jurisdiction to relieve against fraudulent deeds. Apthorpe v. Camstoek, Hopk. Ch. 143, 8: 372 101. An answer denying all knowledge and belief ■of the alleged fraud is not sufficient whereon to •dissolve an injunction against ejectments pros- -ecuted on such deed. Ibid, 102. An injunction is, in such case, properly auzil dary to the relief sought, as this court takes the whole controversy into its own hands to prevent double litigation and give more effectual relief ■than can be done at law. ibid. 103. The court of chancery has concurrent jurisdic- tion with courts of law in cases ot fraud; and where the complainant flies a bill for relief against a fraudulent contract and for a discovery of the fraud, the court may proceed and grant relief, and make a final decree between the parties after such ■discovery has been obtaip^d. Gram v. Bunnell, 10 Paige Ch. 333, 4: 999 104. Although a vigilant creditor will not be de- ■prived of a preference over other creditors which he has obtained by his superior diligence, yet tht> court will not correct the mistakes of his solicitor for the mere purpose of securing to him such a £ reference at the expense of other creditors who ave acquired rights m consequence of such mis- takes. Bank of Bochester v. Emerson, 10 Paige C!h. 359, 105. Where both parties to an agreement have acted upon a mistake as to the law, li the nature of ibe transaction is such that they cannot be restored substantially to their rights as they existed previous to the agreement, the court of chancery cannot re- ■lieve against the consequences of such mistake. Oroaier v. Acer, 7 Paige Ch. 137, 4:97 106. Whether the court of chancery can relieve a party against a mere mistake of law in any case, where the adverse party has been guilty of no fraud or unfair practice,— gtoBCe. Ibid. V37. Courts of equity sometimes give relief incase of mutual mistakes uuaccumijanied by fraud, wulu the property which one party intended to sell and the other intended to buy did not in fact exist; or where the subject-matter of the sale and purchase Is so materially variant from what the parties sup- posed it to be that the substantial object of the sale «nd purchase entirely fails. Marom v. Bennett, 8 Paige Ch. 312, 4: 441 108. Where there is neither accident nor mistake, misrepresentation nor Iraua, tiiis court has no juris- diction 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 bin of discovery. _ Penny v. Martin. 4 Johns. Ch. 566, 1: 938 109. It seems that where a statute gives to certain persons a discretion in a particular case and for a special purpose, a mistake of judgment in that case cannot be reviewed and corrected by the HoigM T. Dov, IJohns. Oh. 18, 1:44 110. But their power may be controlled, if exer- cised in bad faith and against conscience. Ibid. 21, 1: 45 111. Where a testator devised 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 that, by the trust, the assets were placed under the jurisdiction of this court. Benson v. Le Boy, 4 Johns. Ch. 651, 1:969 112. And this court ■will therefore enjoin a suit brought by a creditor, at law, for the purpose of gaining a preference over other creditors. Ibid. 113. The court of chancery has jurisdiction in matters of account and trust ; but the boundaries of its jurisdiction depend upon the circumstances of each particular case. EOas V. ioctoioood, Clarke Ch. 311, 7:188 114. The court of chancery may enforce an equi- table lien, either upon a legal or upon an equitable estate In lands. _ Buehan v. Summr, 2 Barb. Ch. 165, 6: 599 11.5. But where the Uen is created by statute, and the lien itself, an well as the est«t« amiinst which it is sought to be eulorced, is purely legal, chancery is not authorized to extend the lien to cases not provided for by the statute. ibid. 116. Where the common law or a statute creates a Uen upon a legal interest in land, the court of chan- cery, by analogy, sometimes declares and enforces a similar lien upon an equitable estate therein. Ibid. 117. A person having an equitable Uen upon land for the unpaid purchase money may come into this court, in the first instance, to enforce such lien, without resorting to a suit at law to recover the amount: and as an incident to the right to en- force such hen, this court will ascertain the amount thereof. Bradley v. Bosley, 1 Barb. Ch. 125, B: 3!i4 n. Equity Fbinciples and Maxims. a. In General, 118. One coming into a court of chancery for equity must be willing to do that which is equit- able. TTooS V. OoMei/, 11 Paige Ch. 400, 5:176 119. If a party comes into chancery to obtain relief ou the gruunu that He has not ac adequate remedy at law, he must satisfy this court that bis claim to iulief is just and equitable, or it wiU not interfere in his behalf. Wolcott V. SvlUvan, 6 Paige Ch. 117, 3: 988 120. Bquity ascertains object and design. It looks for substance, rather than at form. Where words admit of different meaning, it grasps at that which upholds, not that which destroys. Cniger v. Douglas, 4 Edw. Ch. 433, 6: 930 121. Equality among creditors having a common right to payment out of a fund provided for the benefit of all is a settled principle of equity. Shepherd v. Guernsey, 9 Paige Ch. 357, 4: 730 Bank of Bochester v. Emerson, 10 Paige Ch. 359, 4: 1011 122. Where the equities of the parties are equal, the party who has the legal right will prevail. Covell V. Tradesmans Bank, 1 Paige Cn. 131, 8:689 123. If neither party has the legal right, the maxim, qui prior est in tempore, potior est in jure, appUes. ibid. 124. Where the conduct of the complainant had been immoral and reprehensible, and the delay of both parties had been great, those circumstances did not deprive him of relief, under the special facts in the cause. Legget v. Edwards, Hopk. Ch. 530, 8: 518 135. That reUef granted on special terms. Ibid, 126. Where the equities of parties are equal, and neither has a strict legal right as against the lien of a judgment, the one whose equitable right fiist ac- crues is entitled to a preference in having his prop- erty discharged from such lien. Noithrup V. Metcalf, 11 Paige Ch. 570, 5: 837 127. It is a principle of equity that where one of two innocent persons must suffer by the wrongful act of a third party, the one who by his negligence has enabled such third party to do the injury must him- self bear the loss occnQioned therebv. Hertell v. Bogert, 9 Falge Ch. 53, 4: 60S b. Forfeitures; Penalties. 128. This court does not lend its aid to devest an estate for the breach of a condition subsequent. Livingston v. Tompkins, 4 Johns. Ch. 415, 1: 887 129. It does not assist the recovery of a penalty or forfeitures, or anything in the nature of a for- feiture. IMd. 130. It will only interfere to protect the property from waste and destruction, or to prevent its re- moval out of the jurisdiction of the court pending an action at law to recover the possession. Ibid, 131. Where the plaintiff granted to the defendant the exclusive right of navigating with steamboats, for a certain time, between the city of New York and the quarantine ground on Staten Island, etc.; EQUITY OF REDEMPTION; ESCAPE. 155 and It wag provided in the grant or assignment that if the State or Legislature of New Jersey should at any time thereafter obstruct or prevent the plain- tiff from navigating with steamboats the waters of that State, thenceforth the grant should cease and he void, etc. Held, that though the casus fwderis may have occurred, yet this court would not inter- fere to restrain the defendant from continuing his right under the grant to him, until the plaintitf had established the fact at law, and his rleht to resume the grant. Ibid. 132. Chancery will frequently relieve from the- ■operation of conditions subsequent or precedent, where compensation can be made in damages ; and, by analogy, where no in.iury arises. De Forest v. Bates, 1 Edw. Oh. 394, 6: 184 133. Although equity will relieve against a penalty -or forfeiture introduced for the purpose of security In a case where compensation can be made, yet, when it is not a question of penalty or forfeiture, ^ut of a privilege conferred upon payment of money at a stated period, the privilesre is lost if the 'money be not paid; and the court will not restore it to the party. BnUmon v. Oropsey, 2 Edw. Ch. 138, 6: 340 134. Where the Act granting a bridge franchise provides that one maintaining an unauthorized bridge at the same point should pay treble tolls to the donee of the franchise, to be recovered in an action of debt before a justice, equity will not en- force the penaltv provided >iy thp Aot. Thompson v. New York A B. B. Co. 3 Sandf . Ch. ■625, 7: 980 135. A court of equity wiU not lend its active aid «to enable a party to enforce a penalty or forfeiture. It will not, therefore, set aside a regular decree by -default, on the application of the defendant, for the mere purpose of enabling him to enforce a for- feiture in a suit at law. Baxter v. Lcmsinn, 1 Paige Ch. 350, 4: 184 136. A court of equity gives relief against a pen- elty or forfeiture, where the case admits of certiiin •compensation; but not where the sums cove- •nanted to be- paid are in the nature of stipulated damages ; but it will not interfere unless the party can be clearly and fully indemnified, and placed in the same situation as if nothing had happened. Skinner v. Dayton, 2 Johns; Ch. 526, 1:475 Editorial Notes. Jurisdiction of equity 1: 210, 339, 413, 500, 808, 3: 343 origin of 2:657 of suits on lost instruments 1: 845 Power of, to control commissioners to re- ceive bank subscriptions 2: 533 to decree lowering of dam 2 : 614 as to reviewing errors and irregularities of inferior tribunals 2: 48 Bill for award of damages merely 1:936, 1054 Judgment at law, relief against 1; 357, 645, 773, 3: 63, 190 aid in enforcing 1 : 975 •Correction of errors and irregularities in courts of law 1: 616 Remedy at law must be first exhausted 6:163, 366 Relief in aid of law'action; subjecting prop- erty to sale; relief toucliihg personal as- sets 6: 366 Proceedings in, bar remedy at law 6: 645 Relief obtainable in 6: 1059 In law actions 6: 1148 Belief against judgment on bond and war- ranty of attorney, or foreclosure under power of sale 1 : 1030 Will interfere with proceedings at law, when 1:318 -Jurisdiction where remedy at law lost by mere ignorance of fact 1 ; 938 No jurisdiction over legal titUs; rescission of executed contract 1 : 478 recovery of rent on covenants ' 1:843 Remedy by assignee 1: 210 Power to prevent multiplicity of suits; right must be established at law, when nu- merous persons interested; nature of rifiht claimed 1: 878 Fraud; relief from 1.645,988,2:956 in sale under execution 1 : 788 Surprise; relief from 7:83 Mistake in written instrument, correction of 1: 263, 500, 519, 773, 795, 3: 587, 3: 1015 relief from mistake 3: 833, 3: 468, 950, 1015 mistake of law 1 : 337, 393 Accident; relief from 1:645,3:833 Ignorance of law not ground for relief 1:337, 292, 3:950 Trusts, equity will enforce 7: 501 jurisdiction over trust estates 6: 1115 jurisdiction of trusts 1: 414, 439, 957 Forfeiture; relief from 1:476, 3:865, 5: 159 not enforce penalty or forfeiture 1: 887 penalty as security, breach of condition against alienation, where contract for one or two things, no relief 1 ; 476 Cannot relieve from breach of condition pre- cedent 6: 340 no relief from statutory requirements 6:416 Equitable relief; when, and when not granted 4: 44 Court will not relieve from negligence 4: 115, 1016 Party seeking, must do 1: 174, 8: 262, 460, 4: 106 Must do with own, so not injure another 1: 190 Where equities equal, prior prevails 3:316, 803 Will compel a refunding of money 5: 852 Prior equities may be adjudged 5: 1035 Chancery protects equitable rights of third persons 3: 330 EQUITY OF REDEMPTION. See MOBTQAOB. ESCAPE. 1. Where one who was committed to Jail for con- tempt in violating an injunction sued out a writ of habeas corpus, and the judge committed him to the custody of the sheriff pending the hearing. If the sheriff allows him to go at large until the time for the hearing it will be an escape, although he pro- duces him before the judge who remanded him to prison. People V. Sfon€, 10 Paige Ch. 606, 4: 1110 2. If after such remand to prison the sheriff suf- fers him to go at large in the sheriff's sitting-room, without confining or imprisoning him by looking the door or otherwise, it will be an escape. ItM. 3. The sheriff will be guilty of a contempt in suf- fering the prisoner to go at large, and, in willfully refusing and neglecting to execute the process of the court committing him to prison. Ibid. i. Where a defendant who is imprisoned in. exe- cution is brought up by the sheriff upon a habeas corpus before a judge or commissioner at a place distant from the prison,and such defendant is to be detained a short time only, and it would be inexpe- dient to transport him back to the jaU for safe cus- 156 ESCHEAT— ESTOPPEL, I. tody until the decision upon the habeas corpus, it will not be an escape, or a contemning of the pro- cess of the court, for the sheriff to detain him in actual custody out of the common jail, although the prisoner ;is committed to the custody of the shenfF who brings him up. Ibid. 5. But as such prisoner Is still in the custody of the sheriff under the original process of commit- ment, as well as under the order of the judge, it is an escape if the sheriff voluntarily suffers him to go at large without restraint. Ibid. 6. Where a sheriff is ordered by a writ of habeas corpus to bring up the body of a person in execu- tion, it is his duty to convey him by the shortest and most convenient route to the court or ofScer where the writ is returnable ; and If he takes the prisoner by any other than the shortest and most convenient route, merely to accommodate him, or suffers him to go at large to attend to his own af- fairs, it is an escape, although he has him at the return of the writ. Ibid. 7. So where the habeas corpus issues at one term and directs the sheriff to bring up a prisoner who is In execution before the court at the ensuing term , if the sheriff lets him go at large in the mean time it is an escape, although he appears with him in custody at the return of the wnt. Ibid. 8. Where the United States district Judge issued a habeas corpus directing the sheriff to take a prison- er who was In jail upon a conviction for contempt, before the prisoner's assignee Injbankruptcy, at his office in Lockport, at all times required by such as- signee for the purpose of arranging, explaining, and aiding in making out the accounts of the bank- rupt's estate; and such sheriff, after receiving such habeas corpus, permitted such prisoner to go at large, — Hela^ that this was an escape. Ibid. 9. neld, also, that the sheriff, under such a writ of habeas corpus, was not authorized to carry the prisoner to any other place than the office of the assignee, nor to remain at such office with him for any longer time than the assignee himself remained "there: and that when the assignee left his office it was the sheriff's duty to take the prisoner back to jail, and return with him to the omce from time to time when the assignee required his attendance there for the purposes Intenoed by the habeas cor- pus. Ibid. 10. If, upon a writ of habeas corpus ad testiftcan- dum, the sheriff voluntarily suffers the prisoner to go at large out of his custody in the mean time, or If he goes with him out of the way, to accommodate him and answer his own purposes, and not in the accomplishment of the legitimate purposes of the writ, it is an escape for which the sheriff is liable. Ibid. 11. It is a misdemeanor at the common law for the sheriff to permit a prisoner charged with a criminal offense and committed for trial, to go at large out of that part of the building appropriated for the purposes of a prison, Into the part occupied by the sheriff as a residence for himself and his family, and without taking any precautions against an escape. Ibid. ESCHEAT. See also Aliens. Where an alien purchased land in fee, and at the same time inorc^a^ed il lu uic veiiaurc Utt- lUc pur- chase money, and it was subsequently escheated to the people of the State, It was held that the title ol the people was subject to the lien of the mortgage. Farmere Loan & T. Co. v. People, 1 S. 139, 7: «71 ESCROW. See also Deed, 16. 1. It is essential to an escrow that It be delivered to a third person to be delivered to the obligee or gran- tee upon the happening of some event, or upon the performance of some condition. James v. Vamderheyden, 1 Paige Ch. 385, *: 686 2. Where a bond and mortgage and deed were de- livered to a tnird person, to be kept by him during the pleasure of the parties, and subject to their fur- ther order,— Held, that the papers were not escrows, and that he was a mere depositary. Ibid. 3. A deed delivered as an escrow takes effeo only from the time of the performance of the con- dition and the actual delivery to the grantee, ex- cept in cases where a relation back to the first de- livery is necessary to give effect to the deed, or to the intermediate conveyances of the grantee ; but not as between third persons. Frost V. Beekman, 1 Johns. Ch. 288, 1: 143 4. Where a deed was delivered as an escrow, to be delivered to the grantee upon the payment oC a sum; of money due from him to the grantor, and one of the heirs at law of the grantor, after the death of the latter, settled with the grantee and delivered the- deed to him, which was thereupon duly recorded, It wiis held to be a valid delivery as to such heir. Keirsted v. Avery, 4 Paige Ch. 9, 3:319 5. A deed of land, or other sealed Instrument, can- not be delivered to the grantee or obligee himself as an escrow, to take effect upon the performance of a condition which is not expressed in the deed or in- strument; and if so delivered the deed or instrument becomes absolute at law. Arnold v. Patrick, 6 Paige Ch. 310, 3: lOOO- Editorial Notes. Delivery in escrow 1: 143; Deed delivered to grantee absolute at law 3: lOOO ESTATE TAIL. See Annuity, 9 ; Eeal Pbopektt, L b : Wills. 266, 364. ESTATES. See Descent and Distribiition ; Executors and- Administrators; Heirs and Devisees; In- competent Persons, IV. ; Infants, IlL ; Bbai. Property; Wills. ESTOPPEL. I. By Kecord. II. By Deed. III. Equitable Estoppel; In Pais. a. General Principles. b. By Agreement ; Silence: Acquiescence, 0. By Receiving Benefits ; Inconsistency. d. By Character or Relation of Parties. Editorial Notes. See also Accobntinq, 19; Executors and Ad- ministrators, 135; Husband and Wife, 135 1 Partition, 104 ; Wills, 121 ; Witnesses, 16. I. By Record. See also Judgments, etc. 1. An interlocutory decree in partition following the bill in stating that a party and his -wife were- seised in her right does not estop him from claim- ing a lee, where the wife was a proper, if not a^ necessary party,because of an accountmg, and the allegation as to title was made in that form, disre- garding for sake of simplifying the proceedings, & change in the title by which the husband acquired the fee, and the decree was soon after abandoned by a compromise and settlement in which the hus- band's title was recognized. Jtfer-lam V. Harsen, 4 Edw. Ch. 69, 6:801 2. Where the wife had conveyed her real estata to her husband through the medium of a tiilru ^jur- son; and the husband aftei-wards commenced a suit in chancery, in the name of himself and wife, for a partition of a part of the estate, and for other pur- poses; and the bill stated the original title of the- "wite to such real estate, without mentioning the subsequent conveyance of the property to the hus- band; and the suit was afterwards compromised and settled between the complainants and defend- ants, and mutual releases executed, conveying the interests of the defendants in certain portions of the property in controversy to the husband,— as be- ESTOPPEL, II. 157 tween the devisees of the husband and the heirs at law of the wife, the devisees were not estopped from showing that the lands actually helonged to the husband at the time of the filing of the bill,and at the time of the entering of the interlocutory de- cree in such suit. Meriam v. Harsen, 3 Barb. Oh. 232, 5: 686 3. Where a person apparently Indebted to the es- tate of a deceaseo creditor, upon being: called upun lor payment, voluntarily confesses a Judgment for the debt to the personal representative of the sup- posed creditor, without aoprisiiifr him that the de- mand is illegal, the defendant in the judgment, and those claiming under him subsequent thereto, ars estopped from denying the validity of such judg- ment. Shufelt y.Shufelt, 9 Paige Ch. 137, 4: 639 II. By Deed. 4. By the common law, if a grantor who has no interest, or only a defeasible interest, in the prem- ises granted, conveys the same witli warranty, and afterwards obtains an absolute title to the property, such title immediately becomes vested in the gran- tee or his heirs or assigns, by estoppel. And if tlie grantor, or anyone claiming title from him sub5e- quent to such grant, seeks to recover the premises by virtue of such after-acquired title, the original .grantee or his heirs or assigns, by virtue of the warranty which runs with the title to the land, may plead such warranty, by way of rebutter or -estoppel, as an absolute bar to the claim. Utica Bank v. Meisereau, 3 Barb. Ch. 538, 5: 998 6. This principle gives the grantee and those claiming under him the same right to the premises as if the subsequently acquired title or interest therein had been actually vested in the grantor at the time of the original conveyance from him with warranty, where the covenant of warranty was in full force at the time when such subsequent title was acquired by the grantor. Ilnd. 6. Although the grantee in a deed which con- tains a covenant of seisin in connection with gen- eral covenants of warranty, and the heirs and as- signs of such grantee, are not estopped by such deed from showing that the grantor had no title to the land attempted to be conveyed, the warrantor Ani those claiming under him in the post are es- topped by his covenants from alleging that he had not a perfect title to the land when he conveyed the same with warranty. Ibid. 7. Hence a reconveyance of the land by the gran tee thereof, without covenants of warranty in such reconveyance, will not prevent such original gran- tee from recovering for a breach of the covenant of seisin contained In the conveyance of the prem- ises to him. Ibid. 8. As a covenant of warranty runs with the land, so as to give the heirs and assigns of the gran- tee the benefit of the estoppel as against the war- rantor. It runs with the subsequently-acquired in- terest of the warrantor, in the hands of the heirs and assigns of the latter, so as to bind that inter- -est, by the estoppel, as as^ainst any person claiming the same under him in the post. Ibid- 9. Where an estoppel runs with the land it op- -erates upon the title so as actually to alter the in- terest in it, in the hands of the heirs or assigns of the person bound by the estoppel as well as In the liands of such person himself. ibid. 10. Where the breach of the covenant of seisin in a deed affects the whole title, so that nothing pas- ses to the grantees, a recovery by such grantees for the damage sustained by the breach of that covenant may have the effect to prevent the oper- ation of the estoppel created by such covenant, or «ven by a covenant of warranty, by creating a counter-estoppel which would prevent the gran- tees, or those claiming under them, from alleging that they acquired the title to the land by the or- iginal conveyance to them. Ibid. 11. Where one who is owner of the equity of re- demption in his own right, and also nolder of a mortage upon the premises as trustee, conveys the premises with warranty, he will be estopped from enforcing payment of the mortgage for his own benefit. naaiev V. Chopin, 11 Paige Ch. 245, 6: 184 12. Where a grantor conveys In fee with warranty be is.estopped from alleging that he had an interest in the purchase money, which created a resulting trust in his favor. Squire v. Harder, 1 Paige Ch. 494, 8: 788 13. Where a grantor in a quitclaim deed covenants to warrant the premises aKUiust all persons claim- ing by or under himself, and, subsequent to such conveyance, he acquires the legal title to the prem- ises, the same will enure to the benefit of the grantee. Smeet v. Oreen, 1 Paige Ch.473, 8: 780 14. A subsequent purchase by the lessor of an outstanding claim against the premises will enure to the benefit of the lessee by virtue of the cove- nant of warranty. Van norm v. Grain, 1 Paige Ch. 455, 8: 713 15. The same result follows where the purchase is made by an assignee of the reversion. Ibid, 16. It appears that a conveyance by one out of possession shall prevail as between the parties by way of estoppel, although a stranger cannot set it up against the ejectment of the grantor. A release by one out of possession to one in possession being valid, and invalid only when made to strangers,— Held, that such a release to a party who had con- tracted for the purchase of the premises, aud paid part of the purchase money, was operative in a court of chancery. Bias v. Glover, Hofl. Ch. 71, 6: 1068 17. Where several tenants in common of mere life estates in the premises held in common made a partition of such premises by parol, and one of them afterwards conveyed the lots set off to him in such partition, in fee, with warranty, and, subsequent to such conveyance, acquired an undivided interest in the remainder in fee in the whole premises, his grantees of the part of the premises so set off in severalty were not entitled to the undivided share which their grantor had thus acquired in those portions of the premises not embraced in their deed from him. Carpenter V. Sc?ie7T7ierhom, 2 Barb. Ch.314, 5: 656 18. Where P contracted with M for the purchase of land, and afterwards mortgaged it to the State, before he had paid for the same or obtained a con- veyance from M, and the mortgage was afterwards foreclosed, and the premises bid in by the comptrol- ler in the name of and as the agent of M, aud P af- terwards, upon the representation of M that he had settled with the State, or was holden for the pay- ment of the mortgage, tools from him a warranty deed of the premises, and gave back a bond and mortgage for the purchase money, including the amount of the mortgage to the State, the whole of which was paid by P, and M afterwards denied the authority of the comptroller to bid in the premises for him as his agent, and refused to pay such bid, whereupon the attorney-general filed an informa- tion against P and his grantees to foreclose the original mortgage to the state, and they filed a cross-bill against M and the attorney- general, to compel the former to pay off the mor tgage , so as to reUeve the premises therefrom,— i/eid, that M was bound to pay off and discharge the mortgage to the State, and to indemnify, P and his grantees against Attarney-Oeneral v. Pumwrt, 5 Paige Ch. 620, 3: 856 19. A feme oouert not being bound by a covenant 01 warranty cofitaiuea maueea executed by her and her husband jointly for the purpose of con- veying land which the husband holds in right of his wif ej such covenant will not operate by way of estoppel, so as to vest an interest subsequently ac- quired by her in the grantee in the deed. Carpenter v. Schermerhorn, 2 Barb. Ch. 314, 5; 656 20. Where land was devised by the testator to his two sons, witn a limitation over to tfie survivor it either of them should die without issue; and both joined In a conveyance to a purchaser tor a valu- able consideration; and one of them afterwards died without issue in the lifetime of the otherj— the purchaser was entitled in equity to the land devised to the brother who died first, and which afterwards came to the survivor under the executory limitation over to him. Variek v. Edwards, 11 Paige Ch. 289, 5: 139 31. A recital in a deed, founded in mistake and untrue in fact, will not be allowed to operate, by way of estoppel, to exclude the truth satisfactorily shown to the court. Staughton v. I/ynch, 2 Johns. Ch. 210, 1: 351 22. A general recital in a deed does not conclude 158 ESTOPPEL, III. a, b. a party, though the recital of a particular fact may estop him. Huntington v. Havens, 5 Johns. Ch. 23, l! 995 23. A recital cannot control the plain words in the granting part of a deed. BM. 24. As, where a deed of assignment by a debtor In trust for creditors, reoiiea tuau lug uebtur wue desirous to convey his property to secure three ol his creditors, by name, in full, and the residue for the benefit of iiis other creditors ; and in the body of the deed it was expressed to be in trust to pay and satisfy those three creditors, and three others, also named, and the residue to be divided among his other creditors,— Held, that the three creditors named in the recital were only entitled to be paid ratably with the three other creditors named in tlic body of the deed, in proportion to their demf Ibid. 25. A mortgagor of land who holds a prior mort- gage upon the premises at the time he mortgages his interest in the property to another cannot set up such prior mortgage as against liis own mort- gagee. wmiana v. Thorn, 11 Paige Ch. 459, 5: 198 III. Equitable Estoppel ; Ii^Fais. a. Oenercd Principles. 26. It is a general principle, both at law and in equity, that when a party, uy nis ueclarauun or hit conduct, has induced another to act in a particular manner, which he would not otherwise have done, such party will not afterwards be permitted to set up a claim inconsistent with such declaration or conduct, if such claim will work an injury to the other party or to thosp claiming under him. Banks v. American Tract Soe. 4 Sandf . Ch. 438, 7: 1163 27. The doctrine of estoppel, as a mere technical rule, is not favored in courts of equity; and where there is no estoppel at law. the court of chancery will not resort to it to deprive a party of his rights. But the verdict of a jury in an ejectment suit be- tween the same parties and upon the same ques- tion is proper to be taken into consideration in de- termiumg a doubtful question of fact in a subse- quent suit in chancery; and it may be a sufttcient reason for refusing to award a feigned issue in a case where an issue would otherwise have been proper. Tan Wyek v. Seward, 6 Paige Ch. ( 3: 899 b. By A-greement ; Silence ; Aequieseenee. 28. Where the mortgagees named in two bonds and mortgages assigned'the bonds and mortgages to a grantee of the mortgagor as valid and subsisting mortgages, in order to protect bis title to the mor^ gaged premises against subsequent bens thereon; and at the time of the assig-nment such mctgagees held judgments against the mortgagor for the same debt for which their mortgages were given, recov- ered subsequent to the recording of such mort- gages, but before the conveyance of the mortgaged premises to such grantee and assignee, — Held, that the mortgagees and all persons claiming under them subsequent to such assignments were estopped from alleging that the mortgages were not duly executed and accepted by the mortgagees named therein. XiOomtev.Sf«i/»e«ant,10PaigeCh. 400, 4: 1062 29. Where a prior mortgagee or incumbrancer witnesses a subsequent conveyance or mortgage, knowing its contents, without disclosing his own incumbrance, he will be postponed or barred. Brfnc7iwfto#v. iansing, 4 Johns. Ch. 65, 1: 765 30. This rule, however, does not apply where the prior mortgage is duly registered, for then the subsequent mortgagee is charged with notice. Ibid, 31. To affect the right of such prior mortgagee mere silence is not sufficient ; there must be actual fraud charged and proved; such as false representa- tions, or denial on inquiry, or artful assurance of good title, or deceptive silence, when information is asked. Ibid. 33. And the burden of proving such fraud lies on the subsequent purchaser or mortgagee. Ibid. 33. A mortgage given to secure a certain sum ac" cording to the condition of a certain bond of the KM me date, which was conditioned to pay that sum, ur indemnify the mortgagee against a note for the same sum, made by the mortgagor, and indorsed by the mortgagee, and discounted at the bank for th« accommodation of the mortgagor, will continue, as a subsisting and valid security, as long as such note shall be run or kept alive in tlie bank, in whole or in part, by renewals thereof, from time to time, ac- cording to the customary course of such transac- tions with the bank,— such mortgage with a refer- ence to the bond being sufficient to apprize a sub- sequent purchaser or mortgagee of the nature of the debt secured. Ibid. 84. Where a iierson, having a conveyance of land keeps it secret for several years, and knowingly Buffers third persons afterwards to purchase par& of the same premises from the grantor, who re- mained in possession and was the reputed owner, and to expend money on the land, without giving any notice of his claim, he will not be permitted afterwards to assert his legal title against such in- nocent and bona flde purchasers. Wendell v. Van Rensselaer, 1 Johns. Ch. 344, 1: 165 35. C purchased of V a military lot, and, though the whole estate was intended to be transferred, the assignment, for want of words of inheritance, conveyed only an estate for life ; and C entered anS continued in possession of the land untU his death,, having made valuable improvements thereon ; and V stood by, for thirteen years after the death of C, seeing his heirs in possession, claiming to be owners in fee under C, and dealing with the land as absolute owners, and making great improvements in the property, without disclosing any claim to the rever- sion, or any pretension of right or title. He, and all persons under him, were neld to be estopped, by his silence, from asserting his legal title. HiginbotTiam V. B«mef, 5 Johns. Ch. 184, 1: 1050 36. Where an attorney who held a mortgage upon certain premises was employed by the mortgagor to draw the deed and to assist him in conveying a part of the mortgaged premises to another person who was ignorant of the existence of the mortgage, and such attorney, knowing that the purchaser was paying the vendor the full value of the premises, concealed from him the fact of the previous incum- brance,— HeW, that the attorney could notin equity be permitted to enforce the lien of his mortage against the part of the premises conveyed to such j)nrchaser. VAmoureiix v. Van Denburgh, 1 Paige Ch. 316» 4: 171 37. Where a person holding a mortgage, or having a claim to property which another, who is ignorant of such mortgage or claim, is about to purchase from a third person,either encourages the purchaser or acts in the sale of the property in any way in- consistent with his prior mortgage or claim, and conceals from the purchaser the existence of hi» mortgage or claim, he will not afterwards be per- mitted to set it up OS against such purchaser, ibid. 38. Whether a mere stranger to a transaction, hold- ing a mortgage on lanas, who neither encour- ages the sale thereof, nor takes any part in its con- summation, but who knows that the sale isaboutta be made to a person ignorant of the existence of such mortgage, is bound to give notice of bis claim to the purchaser when no application is made to- him on the subject,— gucBre. Ibid. 39. Where an admlnistratix sold real estate of the- decedent under a surrogate's order, in which estate she was entitled to dower, and in the terms of sale it was stated that a clear title would be given, and. the purchaser paid the full value of the premises under a belief that he was obtaining a perfect title,— Held, that the silence of the administratrix as to her claim of dower was such a fraud upon the purchiis- er as to preclude her from afterward setting up- such claim against iiim or his assigns. Dougrey v. Topping, 4 Paige Ch. 94, 3: 36T 40. Where the owner of real estate suffers another to purchase the estate from a third person, and to- erect valuable buildings thereon, under the erro- neous belief that he has a good title, and intentional- ly conceals from the purchaser his claim to the property, such owner will not afterwards be per- mitted to enforce bis legal rights against such pur- chaser. Ibwnv. iVe«dham,3PalgeCh. 548, 3:268- 41. A person having the legal title, who acquiesces in the sale of the land to another claiming or hav- ing color of title to it, is estopped from afterwards assorting his title against a purchaser, especially if ESTOPPEL, III. c, d. 159- he bBB advised and encouraged the parties to sucn ■ale to deal with each other. Starrs v. Barker, 6 Johns. Ch. 166, 8: 88 42. As, where a feme eovert seised of land deviwr It to her husband and died without issue, leaving her father as heir at law; and the husband, as dev- isee, took possession of the land and continued to occupy and improve it, with the knowledge of the father, and afterwards sold it, by his advice, to the plaintiff, for a valuable consideration ; and the father did nOt pretend, but disavowed, any claim to the land as heir to Us daughter ; and the devise was void by statute,— HeM, that the father was estopped from asserting his legal title as heir, against the purchaser, on the ground that he was ignorant, at th<^ time, that the devise was void by statute. Ibid. 43. Where in compromising a suit the parties agree that one of them snail take a certain niortgnffe aii' foreclose it for the benefit of both, and he takes thi mortgage and neglects to foreclose it until the property so diminishes in value as to entail a loss, fi request by the other party, made after that period, not to sell during his temporary absence from the country, was not an acquiescence in the previous delay. North Arcorican F. Ins. Go. v. Mowatt, 2 S. 108, 7:588 44. P gave a mortgage of land, the title to which was in S, who was in possession thereof with P; and S, if he was not present and assenting to its execu- tion, treated it afterwards as a valid and subsisting mortgage, and voluntarily paid part of the money due on it . Held, in a suit by the mortgagee against P and S for a foreclosure and sale, that S was es- topped from setting up his title to the premises, in avoidance of the mortgage. Lee V. Porter, 5 Johns. Ch. 268, 1: 1079 o. By Receiving Benefits ; Inconsistency. 45. The complainant's partner had received a pay- ment on account of his debt from his debtor's as- signee; but he had been informed that the creditors were all to share alike under the assignment, and be was ignorant of the fraudulent circumstances con- nected with it. Held, that he was not, by such re- ceipt, precluded from setting aside the assignment for fraud. Van Nest v. Toe, 1 Sandf. Ch. 4, 7: 816 46. Where a testator directed his executors to sell his real estate to the best advantage in their power and as sound discretion might direct, and to divide the proceeds among his children equally; and the executors made a sale which was alleged to be in- valid by the heirs of one of the daughters of the testator who survived him; her husband having ratified the sale and received a part of the proceeds —HeM, that there was an equitable conversion of the land, and that her husband was entitled, with her assent, to receive her share of the proceeds, and that his ratification of the sale was conclusive in re- spect of the same. Martin v. Sherman, 2 S. 341, 7: 618 47.,The real estate of H M, before her marriage with E W M in 1810, was vested in K O in trust for her support. Slie joined with her husband in conveying separate parts of the estate to W and G. and they obtained decrees against K C, to release to them, after which they conve.ved to E W M. In 1820 and 1821, E W M, by an agreement with hia wife (who was then living separate from him), and with R C, conferred on her an annuity of 8600. This was in consequence of an understanding lie- tween thetn when she ioinen him in the deeds Tf^ w and G. B W M executed to K C, to secure the agreement, a mortgage on a part of the same real estate. In June, 1822, he procured a divorce from his wife on the ground of adultery. She received her annuity quarterly until 1840. Held, that she could not disturb the decrees or the title of E w M under them. Wright v. Milleir, 1 Sandf. Ch. 103, 7: 856 48. Plaintiffs are estoppi?d to deny the legal title under which they claimed In recovering possession of land, when defendant sets up an equitable title derived from theu: grantor prior to his conveyance to them. VairicTt V. EOwards, 11 Paige Ch. 289, 6: 139 49. A complainant cannot avail himself of a part of the new matters which are set up in the deieud- ant's answer, as a mere pleading, to make out a case for relief not stated in his bill, and at the same time reject other matters connected therewith as a part of the defense stated in the answer. MiUer v. Avery, 2 Barb. Ch. 662, 5: 768 50. Where testator devises land to one with whom, he is Jointly liable for certain debts, suluect to mo payment of such debts, the devisee, lf%e accepts the devise, cannot iraise the question whether the debts are the proper debts of the devisee, but they are chargeable upon the land, whether they are the debts of the testator or devisee. Smith V. Wyclcoff, 11 Paige Ch. 49, 6: 63; 51. Where one of two residuary legatees obtains an- accounting by the executor to be made before a master, and the other legatee subsequently adopts- it in proceedings against the executor, the latter will be precluded from subsequently questioning its correctness. Newcoml) v. St. Peter's Church. 2 Sandf. Ch. 636, 7: 73^ d. By Character or Relation of Parties. 52. Where parties go into possession of premises- claiming title thereto under a conveyance to a par- Wi^'ilar grantee, they cannot set un an outstanding tnie in a stranger, to defeat a person who claims the premises under the same title as themselves, but by a prior right which overreaches their claim. Utica Bank v. Mersereau, 3 Barb. Ch. 528, 5: 998 53. Where a party enters into the possession of land claiming under a particular title, he cannot set up an outstanding title in a stranger as a de- tense to a suit brought by the owner of the title- undei* which he entered, to recover the possession', of the premises. Ibid.. 54. But a party who has gone into possession of land as the tenant of another, and acknowledging his title, is only estopped from denying the validity of that title and setting up a better right in him- self, so long as he retains the possession, or during the continuance of the tenancy. Ibid, 55. Where the owner of land conveys away the south part, and subsequently mortgages the north part, after which he gives a second conveyance to the purchaser of the south part, which is accepted by him, such purchaser is not estopped from deny- ing that the owner bad any title to the south part when he mortgaged the north part, or at any subse- quent period. Kelloga V. Band, 11 Paige Ch. 59, 5: 56 Editorial Notes. Estoppel; what constitutes 1: 765, 856 Doctrine of .5: 952 By record 3: S99 By judgment 7: 858, 6: 418, 451 By recitals in deed 1: 995 By deed with covenants 3: 568, 4: 854 Fraudulent giantor cannot impeach his own grant 4: 931 Privies, including those who come In by law,, or in the post, bound and protected by 5:998-: Title, as fast as acquired, enures to mort- gagees 5: 999' Grantees estopped by deed of common grantor 5: 999' Married woman not estopped by her acts 5:65T In pais 3: 357 Election under written instrument as an es- toppel mjjois 6; 1029" Equitable estoppel by silence 1: 165, 1051, 2:88 or Inaction 8:268- Where improvements made by one in pos- session 3; 1034 Widow estopped from claiming dower by her silence at sale of property 3: 358' By acquiescence 1:530 By waiver 1:580' Bv recognition of mortgage 1: 1079- Settlement with and release of wrongdoer bars relief in equity 4: 82S 160 ESTOVERS— EVIDENCE, II. b. Estopped by laches to claim relief 4: 592 WittiholBiag iDformation 2: 88 Misrepresentations 2: 88 Equitable, by fraudulent concealment of claim 4: 171 Iiessee estopped to deny lessor's title 5: 1000 Mortgagee estopped to set up title against his own sale 5:516 <7rantor estopped to set up title against his prior grant 5: 998 Mortgagor cannot set up prior mortgage against his own mortgage 5: 198 Of mortgagee back, to deny delivery of con- veyance to him 4: 1062 ESTOVERS. Where a lessee is entitled to a right of estovers for the use of his farm, in the unappropriated lands «f his landlord, if the latter makes a coloraWe dease of all the unappropriated lands in the vicinity -of the farm for the purpose of def eatinK the right -of estovers, the lessee of such farm may resort to ■other lauds of the lessor which are more distant, and where the wood and timber is much more valuable. But in ordinary cases, the taking of estovers of val- uable timber, and at a great distance from the premises to which the right of estovers is appurte- nant, would be deemed an unreasonable exercise ■of the privilege. It is therefore not impertinent in answer to state the colorable lease as an excuse for the taking of the estovers upon such other premises of the landlord. Van Rensselaer v. Brice, i Paige Ch. 174, 3: 392 EVICTION, •See Covenant, 16; Landlord and Tenant, 16. EVIDENCE. I. Judicial Notice. n. Presumptions and Burden of Pboop. a. Lavjs. b. EstabHshing Allegations or Claims. c. Defenses. d. CmiceminQ Persons. 1. Oenerallv: Identity. Z. Legitimacy. 3. Marriage, i. Death. e. Knowledge ; Assent ; Fraud. f. Official Acts. g. As to Bights, jTistruments, amd Property. 1. Instruments Generally. 2. Alteration of Instruments. 3. Ownership ; Interests In Property. h. Payment. III. Best and Secondary Evtdenoe. IV. Documentary Evxdbnce. a. In General; Preliminary Proof; Authen- ticity ; Ancient Deed. b. Certificaies; Official Records. c. Judgments ana Judicial Records. d. Pleadings amd Other Papers in Suits. e. Evidence Previously Taken or Used. f. Beaitals; Letters; Accounts. V. Demonstrative Evidence. VI. Parol and Extrinsic Evidence Con- cerning Wbitinqs. a. Generally. b. Fraud; Mistake; Omissions. c. Condition ; Trust ; DefeasHMity. d. To Identify Subject or Person. e. To Explain Terms; Ambiguities. f . Consideration or Value of SubSeet-Matter. g. True Pa/rty; Agency; Circumstances. Vn. Opinions. Vin. Admissions and Confessions. IX. Hearsay ; Declarations ; Ees GESTJt. a. Hearsay ; Public Matters. b. Declarations and Acts of Parties. c. Privileged Communications. d. Acts and Declarations of Third Personi Generally. X. Belevanoy and Materiality. a. In General. b. Under Particular Pleadings: Variance. 0. Character and Reputation. XI. Weight and Sufficiency. a. In General. b. In Divorce Cases. o. Documents; Evidence to OvercoTne. d. Variance. e. Pleaditigs; Evidence to Overcome. Editorial Notes. See also Bilus and Notes, 40-^; Depositions. I. Judicial Notice. 1. The laws of other States must be proved; otherwise the courts of this State cannot take no- tice of them. Hosford V. Nichols, 1 Paige Ch. 220, S: 624 2. A court of chancery will judicially notice the fact that courts of law recognize and protect the rights of assignees suing In the name of their assignor. Southoate v. Montgomery, 1 Paige Ch. 41, 2: 554 II. PKji^..AiPTioNS AND Burden OF Proof. a. Lams. 3. It is a natural presumption that on the settle- meut o* anew terriDory by a colony from another country, and where the colonists continue subject to the government of the mother country, they carry with them the general laws of that country, so far as those laws are applicable to the colonists in their new situation, which thus become the un- written law of the colony until altered by common consent or legislative enactment. De Ruyter v. St. Peter's Church, 3 Barb. Ch. 119, 5: 840 b. Establishing Allegations or Claims. 4. A fact charged in the bill, but which is neither admitted nor denied bj^ the answer, cannot avail the complainant unless it is established by proof. Brockway v. Copp, 3 Paige Ch. 539, 3: 266 5. Matter of fact in an answer, which is not within the discovery sought, but set up in avoid- ance.must be proved or made out by circumstances, before a defendant can have the benefit of it. AtVMter V. Fowler, 1 Edw. Ch. 417, 6: 193 6. Upon a bill taken as confessed and an order of reference thereupon to a master, such allegations of the bill as are distinct and positive are to be taken as true, without proof. Williams v. Corwin, HofE. Ch. 471, 2: 491 7. And such allegations as are indefinite, and such demands of the complainant as are uncertain, must be established by proofs. Ibid. 8. So, demands which, from their nature or the course of the court, require an examination of details, must be made out by evidence, to be produced by the complainant. Ibid. 9. Where an agreement stated in a bill is denied by the answer, the comp^nant must prove such an agreement as would be valid within the Statute of Frauds, although nothing is said in the answer on that subject. ChampUn v. Parish, 11 Paige Oh. 405, 5: 1 78 10. The burden of proof is upon the party who attemps to impeach a stated account. Weed V. Smith, 7 Paige Ch. 573, 4: 280 Philivsv. Baden. 2 Edw. Ch. 1, 6: 285 De Mott V. Benson, 4 Edw. Ch. 297, 6: 884 11. The burden of proving the due execution of a wiU lies upon the party seeking to establish it. Chaffee V. Baptist Missionary Conv. 10 Paige Ch. 85, 4: 896 12. Where the executor, on the return of the cita- tion upon a petition to compel him to give secu- rity, answers the petition and denies the allegations therein upon oath, the petitioner must produce Sroof to establish the truth of such allegatiuns- and : he falls to do so, his petition should be dismissed. Colegrove v. Horton,ll Paige Ch. 261, B: 128 EVIDENCE, II. c— d, 4. 161 13. Where complainants filed a supplemental bill In the nature of a bill of revivor and supplement, to which defendant put in an answer without ■oath, denying Its allegations, unless the facts there- by put in issue were proved by complainants In the usualway, the bill should l» dismissed at the ilieariner. Day V. Potter, 9 Paige Oh. 645, 4:861 14. Complainant in a foreclosure suit cannot, by a lalse averment that no judgment has been recov- ered for the mortgage debt, cast the burden upon defendant of alleging and proving that the remedy *t law has not been exhausted by the return of the execution unsatisfled,af ter proving that a judgment at law has been recovered previous to the filing of *he bill. North River Bank v. Rogers, 8 Paige Ch. 648, 4: 677 c. Defenses. K. Where an answer is put in issue, what is con- *f essed and aduiitted ueea not be proved; but where the defendant admits a fact, ana insists upon a dis- ■tinct fact by way of avoidance, he must prove the fact so insisted on In defense. Hart V. Ten Eych, 2 Johns. Ch. 62, 1: 896 d. Concerning Persons, 1. Oenerally ; Identity. 16. Where two persons have the same name, and a •deed is given to one of them omitting the word "junior," it is only presumptive evidence that the •eldest person of the name, and who will answer the description in the deed in other respects, was Intended as the grantee, which presumption may 'berebutted by showing that the grantor intended to convey to the youngest one by the name and description in the deed. Padgett v. iMmrence, 10 Paige Ch. 170, 4: 931 17. Where the names of father and son are the rsame, and both reside in the same place, and it is -doubtful to which of them the conveyance of a farm was in fact given, and the father devises the farm to tbeson, charged with the payment of sev- eral legacies, the subsequent payment of some of the legacies by the devisee, without objection, is -evidence to show that the conveyance of the farm was to the devisor, and not to the devisee, Lockwood v. Stcekholm, 11 Paige Ch. 87, 5:66 18. When it is shown what the prior usage and • doctrines of a religious association were, it is in- cumbent on those who allege a departure there- from in the founders of the particular congrega- tion, or the donors of its temporalities, to prove such departure. Kniskem v. iMtheran Clatrehes, 1 Sandf. Ch. 439, 7: 388 19. Where an adulterous intercourse has once been established, if the parties thereto continue to reside together, it may be presumed that the crim- inal connection still subsists, although there is no positive evidence of the fact. Smith V. Smith, 4 Paige Ch. 432, 3: 503 20. It will be presumed that an insolvent exhibits -a just account of his debts and credits, and not tliat he has committed perjury or intended wrong in regard to such account. Hewlett v. Heooletf , 4 Edw. Ch. 7, 6: 779 2. Legitimacy. 21. The legal presumption is that a child bom sub- sequent to the marriage of its mother, although be- gotten before that time, is the child of the husband. And the admission by a third person that the child was begotten by him, and not by the subsequent husband of the mother, is not evidence to rebut such legal presumption. In a suit to annul the mar- riage upon the ground that the consent of the hus- band to the marriage contract was obtained by fraud. T. ,Tu ion Montgomery v. Montgomery, 3 Barb. Cm. 132, 5: 845 22. Sexual intercourse will be presumed where personal access is not disproved, unless such pre- -sumption is rebutted by satisfactory evidence to the contrary. „ _„ Cross V. Cross, 3 Paige Ch. 139, 3: 89 23. The admissions of the wife, of the nonaccess of her husband, will not be received as evidence to bastardize her issue. Ityid. 24. The legitimacy of a child begotten before the I •Ch. Dig. H commencement of the suit for a divorce must be presumed until the contrary is shown; and such presumption can only be rebutted by the most con- clusive evidence that the husband was not the fath- er of the child. 2l/id. 25. Where sexual Intercourse Is either proved oi presumed, the husband must be deemed the father of the child, unless it was either physically or natu- rally Impossible that such intercourse should have produced such child. jj,j^. 26. Although actual adultery with other persons is established at or about the commencement of the usual period of gestation, yet if access by the hus- band has taken place, so that by the laws of nature he may be the father of the chfld, it must be pre- sumed to be his, and not the child of the adulterer. Ibid. 27. The ancient rule of the common law, that the husband must be presumed to be the father if he was within the realm during any part of the period of gestation, has long since been repudiated by the courts. Tan Aemam v. Tan Aemam, 1 Barb. Ch. 375, 5: 438 28. It is not necessary. In order to bastardize the issue, that the evidence should be such as to render it impossible that sexual intef course should have taken place between the husband and wife. It is sufficient if it proves beyond a reasonable doubt that no such intercourse did take place during the usual period of gestation previous to the birth of the cmld. Ibid 3. Marriage. 29. In a suit for dower,proof of actual solemniza- tion of marriage is not necessary. Evidence of cohabitation, general repute, acknowledgment of parties, reception in the family, and other cir- cumstances from which a marriage may be In- ferred, will be sufiScient. Van Gelder v. Post, 2 Edw. Ch. 577, 6: 510 30. An actual marriage may be presumed from matrimonial cohabitation and the acknowledg- ments of the parties that they are husband and wife. And even where such matrimonial cohabita- tion commenced between the parties under a con- tract of marriage which was void, a subsequent marriage after the removal of the disability may be presumed, from acts of recognition by the parties of each other as husband and wife, and from con- tinued matrimonial cohabitation, and general repu- tation. Bose V. C!ar7f, 8 Paige Ch. 574, 4: 548 31. But the mere fact that a man and woman Uve together, and carry on an iUioit Intercourse, is not sufficient to raise a presumption that they are mar- ried. Such presumption only arises from matri- monial cohabitation, where the parties not only live togethei: as husband and wife, but also hold themselves out to the world as sustaining that hon- orable relation to each other. Ibid. 32. A bill of foreclosure of a mortgage executed to an unmarried female, filed by her and her hus- band, subsequently married, alleging the marriage, to which there is an answer not admittmg the mar- riage, and a replication to such answer filed, cannot be sustained at the hearing, without proof of the marriage. The marriage, being a fact not charged to be within the personal knowledge of the defend- ant, must be proved to sustain the allegations or the bill, and show the rights of the complainants Jaeobs v. Vandervoort, Clarke Ch. 165, 7:81 4. Death. 33 Where a person has not been heard from m seven years, and. when last heard from, he was beyond sea, without having any known residence abroad, the legal presumption is that he is dead. McCartee v. Camel, 1 Barb. Ch. 455, 5 : 453 S. C. 6 Ch. Sent. 9, "= H"" 34. The only presumption arising from such a pro- tracted absence is that the absentee is dead, it ne has not been heard from within the seven years; not that he died at any particular time within tne seven years, or even on the last day of that term. 35. Even where a person whose existence is in question has remained beyond sea for seven years, It he had a known and fixed place of residence ma foreign country when he was last heard from, ne ought not to be presumed to be dead, without some evidence of Inquiries having been made tor mm at 162 EVIDENCE, II. e— g, 3. such known place of residence, and without success. Ibid. 36.Tbe mere fact that a person has absented himself trom the place of his birth or from bis original aom- icile for more than seven years does not raise a pre- sumption that he is dead. Ibid. 37. Where the mother and daughter perished at sea and by the same disaster, and there was no evidence of survivorship, there was no legal presumption that the daughter survived the mother. Moehi-ing v. Mitchell, 1 Barb. Ch. 264, 5: 379 38. It seems that where the husband and wife per- ished together at sea, and where there is no evi- dence to authorize a different conclusion, it will be presumed that the husband survived his wife. Ibid 39. Ignorance, in a family, of the existence of one of the children, who had gone abroad at the age of twenty-two unmarried, and had not been heard of for upwards of forty years, is sufficient, with other circumstances, to warrant the court or a jury to presume the fact of his death without issue. urComb V. Wright, 5 Johns. Ch. 263, 1:1077 40. Where a oerson embarked at Npw York to co to Liverpool March 11, 1841, and nothinir was ever again heard of the ship or of any person who sailed in her, he will be presumed to have been lost at sea before May, 1841. dm>enheim v. Leo Wolf, 3 Sandf. Ch. 571, 7: 961 41. Where a person whose death is to be presumed is in fact within the United States, and not techni- cally beyond sea, "absenting himself in this State or elsewhere," as used in the statute, means absenting himself from his last place of residence in this State or in the United States, which was known to his family or his relatives. McCartee v. Camel, 1 Barb. Ch. 455, 5: 453 42. Children bom within the first six months after conception are presumea to be incapable of Uvmg, and therefore cannot take and transmit property by descent unless they actually survive long enough to rebut that presumption. MarseUis v. Thalhimer, 2 Paige Ch. 85, 3:802 43. The party who claims property through the child is bound to establish the fact that it was bom aUve; and if the child never breathed there is no legal presumption in favor of the fact. Ibid. B. Knowledge; Assent; Pravd. 44.The assent of a grantee in a deed to its delivery to a stranger for him will be presumed from his beneficial interest therein, unless a dissent is proved. Lady Superior, etc v. McNamara, 3 Barb. Ch. 375, S: 939 45. It is a reasonable presumption that those who are dealing in articles of commerce, especially those who purchase by wholesale from the importers, are acquainted with the different names by which such articles are known to the commercial world. Mum-e V. Lie) Arts, 'i Barb. Ch. 638, 6: 788 46. Where a church site has been sold, even if there had been a trust, the court, from the lapse of time andthe circumstances, may presume that the sale of the site and other appropriations of the fund were by the direction and with the consent of those interested. Cammeiuer v. United German Luthercm Churehes, a Sandf. Ch. 186, 7: 558 47. The burden of proving fraud is on the party asserting it. Brinckerhoff v. Lansing, 4 Johns. Ch. 65, 1: 765 48. Fraud may be Inferred from circumstances, such as the smallness of the consideration expressed, compared with the fair price of the property con- veyed ; the want of proof of any price having been actually paid ; the grantor confinuing in possession or exercising acts of ownership ; or circumstances attending the delivery and execution of the deed, Wldreth v. Sands, 2 Johns. Ch. 35. 1: 8S6 t. Official Acts- 49 The presumption is that an affidavit was tnken within the Jurisdiction of the officer taking ParTcer v. ParTter, 8 Paige Ch. 428, 4: 490 60. An injunction allowed by the vice-chancellor before whom the bill is filed, the order for which is entered on his fiat with the clerk, will be presumed to have been allowed by him in his character oA judge of the court, if the injunction would have been irregular if allowed by him in the character of an injunction master merely. Melick V. Drake, 6 Paige Ch. 470, 3: 106ft g. As to Rights, Instruments, and Property. 1. Instruments Generally. 51. Where the complainant in his bill states aa agreement which, by the Statute of Frauds, would be invalid unless it was in writing and subscribed by the vendor, or his agent duly authorized, the legal presumption from the statement of the agree- ment in the bill is that it was in writing, unless the- fact that it was a mere parol agreement appears from the bill itself. Cowles V. Bowne, 10 Paige Ch. 526, 4: 107» 52. The possession of a bill or note by an Indorser is presumptive evidence that it was transferred to him on a good consifderation before its maturity. Smedberg v. Whittlesey, 3 Sandf. Ch. 321, 7: 868- 53. In suit upon a new note given, without objec- tion, by the 'debtor on a usurious obligation, tue holder may rely upon the admission so made that ' the holder of the old note is bona fide, in connec- tion with his possession of the old note, to over- come the defense of usury in the latter. And the burden of proof will be cast upon the defendant^ to prove that the holder had notice of the usury, or received the usurious note without a sufficient con- sideration. Ibidi^ 54. Amortgage, by aparty to a partition suit, up- on his interest in the premises of which partition ]» sought, given to hissoUcitorin such suit during th» pendency thereof, is not even nrimo fade evidence- of the existence of the debt for which such mort- gage purports to have been given. Ellis V. Messervie, 11 Paige Ch. 467, 5: 200> 55. In a suit upon a bond and mortgage which upon their face import a good consideration, it i» not necessary for the complainant to prove what the real consideration was : but it lies upon the de- fendant, who attempts to impeach them, to show that they were given without consideration, or that the consideration was illegal. Jarvis v. Peck, 10 Paige Ch. 118, 4: 910 56. Where a deed to the testator comes'into the possession of the executor, who does not produce it or aecount for its loss, the most favorable intend- ment as to its contents will be made for the benefit of the heir. Livingston v. Newkirk, S Johns. Ch. 313, 1 : 63<> a. Alteration of Irusbniments. 57. The burden of proof, in case of the alteration of an instrument, is cast upon the party seeking to recover under it, to show that the alteration was not made by him or by those under whom he claims, or with his or their privity or consent. Waring v. Smyth, 2 Barb. Ch. 119, 5: 580 58. A material alteration in an instrument wiU not be presumed to have been made by a party thereto. Van Brunt v. Tan Brunt, 3 Edw. Ch. 14, 6: 553 3. Ownership ; Interests in Property. 59. Purchasing real estate and taking a convey- ance in the name of his child is presumed to be a gift or advancement by the father who pays the consideration. Partridge v. Havens, 10 Paige Ch. 618, 4:1115 60. Where there are negative averments, in a plea of adverse possession claiming title in severalty, to the effect that the defendant has never paid or ac- counted for any rents or profits, and has never held or possessed the land in common, or undivided, etc., the principal burthen of proof is upon the complainants. The defendants are only bound to raise a presumption from their acts in respect of the property, its use and disposal, that no such facts exist; which presumption must be rebutted bv proof on the other side. Bogardus v. Trinity Church, 4 Sandf. Ch. 633, 7: 1235 61. In support of a plea in equity, the defendants are bound to prove only its substance, and to such an extent as will maintain the bar wnich it inter- poses to the suit. Itnd. 62. Where a person enters into possession of land EVIDENCE, II. h-IV. a. 16S Fe under a cOBveyance from one olaimine the title, such titlo Is preBumed to be good until tue contrary is shown. Pitney v. Leonard, 1 Paige Ch. 461, f): 715 63. Where a farm had been occupied and culti- vated for above eighty years, during which time the original tenant and his descendants uniformly paid rent to the landlord, built houses, and made valuable and permanent improvements on the premises,— field, that a lease in fee, at the aoknow- iedged rent,waa to be presumed to have been origi- nally given , or, at least, that there was an agreement lor a lease, under which the tenant took possession, and upon the faith of, and in execution of, which he made his improvements. Ham V. ScJmj/ier, 4 Johns. Ch. 1, 1: 743 64. Equity, as well as a court of law, may make such a prefiumption from length of time and pos- session. Ibid. 65. Where a husband and wife join in executing two mortgages, one on bis lands and the other on her inheritance, and the husband receives the money advanced or secures his debt thereby, the one alleging that the wife's lands were primarily liable and not a surety for the husband's lauds, by reason of the fact that the money was used for the benefit of the wife or her lands, or of the existence of other circumstances, must prove the faot.- Loamer v. TFTieelwrigM, 3 Saudf . Ch. 135, 7: 800 86. Where a landowner and those under whom he claims have diverted a part of the water of a spring from its natural course, for the use of their land, by means of an artificial conduit, and have continued to enjoy the water in that way for twenty years without interruption, a grant of the right to divert the water to toat extent for the use of the premises will be presumed. SmtOi V. Adams, 6 Paige Ch. 435, 3: 1051 h. Payment. 87. Presumptions, arising from lapse of time and the circumstances of the case, of the payment of a debt, are allowed as much in this coiu-t as in a court of law. Giles V. Baremore, 5 Johns. Ch. 545, 1: 1169 68. Presumptions of payment founded on lapse of time are matter of evidence, and not, in most cases, proprio jMre, matter of plea in bar. Ibid. 69. Presumptions drawn by courts against stale demands are founded in justice and policy. Ibid. 70. Where a defendant, in his answer, does not di- rectly insist on the presumption of payment, but declares his entire ignorance as to the fact, and in sists on his having a complete title to the premises mortgaged to secure the debts, having purchased bOTUifide from the mortgagor without notice^ etc., and has been in the quiet possession above thirty years,— Held, that this was suiBcient to entitle him to raise the objection, at the hearing of a presum- tion of payment of the mortgage debt. Ibid, 71. Where a mortgage had been executed forty years, and there was an interval of thirty-flve years from the time the State was supposed to have ac- quired an interest in the debt, by the attainder of the mortgagee, to the commencement of the suit, and no interest paid or demanded, the mortgage was presumed to have been satisfied, either to the mortgagee, before his attainder, or to the proper agente of the State, afterwards. Ibid. 72. A mortgage is no evidence of a subsisting title, if the mortgagee never entered, and there has been no interest paid for twenty years. Ibid_ 73. The presumption is that a mortgage which has not been for more than twenty years recog- nized as a subsisting indebtedness is paid, where the mortgagee has never entered under the mortgage. Dunham v. Minard, 4 Paige Ch. 441, 3: 506 74. Bill by mortgagor not setting forth the origin of tne debt, but the answer showing how it was made for a balance of account, yet denying the amount to be due. In such a case, the court having arrived at the conclusion that such was its origin,— it iocm Tield, that the onus of proof, to rebut amount, was on the defendant. De Mott V. Benson, i Bdw. Ch. 297, 6: 884 76. Where there was a perpetual lease reserving an annual rent.and no rent had been demanded for forty-four sears from the date of the lease, on a Dill for a discovery, by the lessor, on the ground of a loss of the counterpart 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. tAoiftgston v. Livingston, 4 Johns. Ch: 294, 1: 845. 76. Though a lapse of thirty years affords a pre- sumption that a legacy has been paid.yet that pre- sumption may be repelled by circumstances. Arden v. Arden, 1 Johns. Ch. 313. 1: 15S 77. Silence of parties for several years and until aa action at law is barred raises a presumption of satis- faction of a claim on account. Bertine v. Yarian, 1 Bdw. Ch. 343, 6: 165 78.TTpon the transfer of stock, the presumption is that the holder receives payment therefor, in the absence of evidence to the contrary. Spencer v. Spemcer, 11 Paige Ch. 299, 5: 14a 79. A money bond or annuity bond wUl not be pre- sumed paid until there Is a lapse of twenty years' nonpayment. Nothing short of this period will do, unless there are special circumstances to aid the presumption. Clarfc V. Bogardus, 2 Edw. Ch. 387, 6: 43» 80. Where a power of attorney is given to pay the> debt of another who holds a promissory note, sucb debt— after lapse of time— will be valid, although the note may not be forthcoming. There has beea substituted security, and there is no presumption oS payment. Be OoMey, 2 Edw. Ch. 478, 6: 473- III. Best and Secondary Evidence. 81. Foreign laws may be proved by witnesses as matters of fact. Brush V. Wilkins, 4 Johns. Ch. 520, 1: 9a» 82. The general law of a foreign State Or country may be proved by parol, where it does not appear that such law exists as statute or written law, and of which law an authenticated copy of the recordk raight be produced. Be BobeH's Will, 8 Paige Ch. 446, 4: 497 83. The copy of the docket of a judgment is nofc legal evidence to prove the existence of such judg- ment, except in special cases provided for by staw ute ; but the record of the judgment, or a sworn ur exemplified copy thereof, must be produced. Baker v. Kingsland, 10 Paige Ch. 366, 4: lOlS IV. DOCtJMENTABY EVIDENCE. a. In General ; Preliminary Proof; Authenticity ^ Ancient, Deed. 84. Where a written document is the basis of a suit it will be necessary to prove it, even though the principal defendant may admit the same. Desplaces v. Ooris, 2 Edw. Ch. 422, 6: 453 85. An important exhibit or document, not read but marked before an examiner, and not used on tne hearing, was brought in afterwards before a master on a reference as to title, and admitted as evidence by the court. Scott T. Thorp, i Edw. Ch. 1, 6:777 86. Papers or writings of every description may be proved at the hearing ; and the witnesses may be cross-examined, at the discretion and under the direction of the court. Consequa v. Fanning, 2 Johns. Ch. 481, 1: 457 87. But no paper can be proved as an exhibit at the hearing, unless satisfactory reasons be shown to the court why it was not regularly proved, in the usual way, before the examiner. Ibid, 88. An assignment to a receiver, purporting to be executed by a corporation through its president and under its corporate seal, was produced, and the president's signature proved, and there appeared to be a seal attached; but there was no evidence whether the seal was that of the president or of the corporation. Held, that the court could not decide that point upon inspection, and that the executiou of the instrument was not tirovpd. Mann v. Pentz, 2 Sandf. Ch. 257, 7: 88* 89. If an assignment, by the officers of a corjpora- tion, of a bond and mortgage exceeding $1,000 and) constituting part of its capital stock, is duly au- thenticated for the purpose of authorizing it to be recorded, it may be received in evidence, without further proof, subject, however, to the right of the adverse party to show that it was not duly execut- ed by the corporation because no resolution of the directors had authorized the person entrusted with the corporate seal to affix the same thereto. Johnson v. Bush, 3 Barb. Ch. 207, 6: 875 164 EVIDENCE, IV. b-d. 90, Where letters of administration under the seal of the court of probates are produced, the court will deem them valid without looking beyond them. WestcoU V. Cody, 5 Johns. Ch. 334, 1: 1101 91. A will not proved before the surrogate can- not be i>ro ved as an exhibit at the hearing by exam- ining witnesses. Cogswell v. Burtis, Hofl. Cb. 198, 6: 1114 93. A will duly set forth in a pleading may be read at the hearing upon previous notice, where it has been pro ved before a surrogate pursuant to the Kevised Statutes. Itnd- 93. To render a deed admissible in evidence as an ancient deed, an uninterrupted possession must have been held under and in conformity to it for thirty years. Orowder v. Bopliins, 10 Paige Ch. 183, 4: 937 t>. Certificates ; OMeial Becordi. 94. The certificate of the clerk of a court is not evidence of the existence of a Judgment, except in those cases where it is made evidence by statute. Lansing v. B««seII, 3 Barb. Ch. 325, 5: 919 95. Independent of any statutory provision, the proper way to prove the existence of a judg- ment is by the production of the record itself, or of an exemplification thereof, or of a sworn copy of such record. Ibid. 96. The probate of a will of personal property is evidence of the execution of tne will. Van Rensselaer v. MaiTis, 1 Paige Ch. 13, S: 543 97. Where letters of administration with the will annexed are granted, and the will, having been made in a foreign country, remains as a record in some public office there, the proper course is to an- nex an authenticated copy of the will to the letters of administration. Ibid. c. Judgrnents and Judicial Records. 98. Where the forms of pleading are such that a party has no opportunity to plead a former Judg- ment or decree in another suit as an estoppel, the record of the decision in the former suit may be given in evidence, as conclusive of the fact adjudi- cated and decided in such former suit. Dows V. McMichael, 6 Paige Ch. 139, 3: 931 99. The final decree of a court of equity may be given in evidence, in another sxiit, although such decree has not been formally enrolled. Bates V. Delavan, 5 Paige Ch. 299, 3: 786 100. A record cannot be read as evidence in a suit, unless both parties, or those under whom they claim, were parties to the suit in which the record was filed. Dale V. Rosevelt, 1 Paige Ch. 35. 8: 558 101. A decree in a suit in which executors are par- ties is not binding upon the heirs of their testator, unless such heirs are also parties to the suit. Ibid. 102. Previous to the Act of April, 1843, which made a judgment recovered against the personal repre- sentatives of the decedent, upon a trial on the mer- its, prima facie evidence of the existence of the debt before the surrogate, upon an application for an order to sell or mortgage the real estate for the payment of debts, such a judgment was no evidence whatever of the existence of the debt, as against the real estate of the decedent in the hands of his heirs or devisees. Baker v. Kin^sland, 10 Paige Ch. 366. 4: 1013 103. In a suit for relief against a judgment at law, neither the judge's notes, nor the case made and settled therefrom, are legal or proper evidence to conclude the parties, as to the facts which occurred or were proved upon the trial of the cause ; and they ought not to be referred to and made a part of the answer. The facts which occurred on the trial at law should be directly stated in the answer, leaving the truth of the allegations to be established by proof. In the usual manner. Norton v. Woods, 5 Paige Ch. 260, 3: 711 d. Pleadings and Other Papers in Suits. 104. The answer of a defendant, responsive to the bill, is evidence aeainst the complainant, but not against a codefendant. Webb V. Pai, 3 Paige Ch. 368, 3: 191 105 The answer of one defendant is not evidence against his codefendant, except in those cases where the defendants are either legally or fraudu- lently combined, so as to create a unity of interest between them. Christie v. Bishop, 1 Barb. Ch. 105, 5: 31C S. C. 5 Ch. Sent, fi), 6: 1179 106. Admissions or statements in the separate an- swers of one defendant cannot be read in evidence to sustain the complainant's case, against a code- fendant, unless the defendants stand in such a relation to each other that the admissions of each, if not under oath, would be evidence against the other,— as, in the case of several defendants standing in the relation of copartners, or as having a joint mterest In the subject-matter of the litiga- tion. iSid. 107. The admissions in the answer of one of the de- fendants in a suit are not evidence against his co- defendant But where one copartner, in a joint and several answer put in by both, makes admissions as to his own acts relative to the business of the firm, and the other copartner states his belief that what is thus admitted by bis copartner is true, a decree may be made against both upon such admis- sions. judd V. Seaver, 8 Paige Ch. 548, 4: 637 108. The defendant is bound to answer the charg- ing part as well as the stating part of the bill ; and his answer to the charging part, if responsive thereto, is evidence in his own lavor, if an answer on oath has not been wtuved by the complainant. Smith V. CZarfc, 4 Paige Ch. 368, 3: 473 109. The answer of a corporation under its corpo- rate seal, which the complainant does not require to be verified by the officers of the company for the purpose of discovery, is not evidence in favor of the corporation, although it is responsive to the iMvett V. Steam Sawmill Asso. 6 Paige Ch. 54, 3:896 Be Kip, 1 Paige Ch. 601, 8: 767 Vermuyea v. Fidton Bank, 1 PaJge Ch. 37, 8: 553 110. Where ananswer on oath is waived, the an- swer is not evidence in favor of the defendant for any purpose ; but, as a pleading, the complainant may avail himself of admissions and allegations contained therein which estabhPh the case made by hisbm. Bartlett v. Oale, 4 Paige Ch. 503, 3: 533 HI. In matters of account before a master the de- fendant's answer (on oath) is evidence so far as it is responsive to the complainant's biU. De Mott V. Benson, 4 Edw. Ch. 297, 6: 884 112. A plaintiff cannot read his own answer to a bill of discovery in a cross-suit, in evidence, unless the defendant chooses first to produce it. Phillips v. Thompson, 1 Johns. Ch. 131, 1: 87 113. If a cross-bill is taken as confessed, it may be used as evidence against the complainant in the original suit, on the hearing, and will have the same effect as if he had admitted the same facts in an answer. White V. Buloid, 2 Paige Ch. 164, 8: 857 114. Upon a bill to set aside a bond and mortgage Alleged to have been given by an insolvent deotor to the mort^gee, to defraud the creditors of the mortgagor, if the assignees of the mortifdf e deny any knowledge of the alleged fraud, by a separate answer, the answer of the assignor cannot be used as evidence against tbeni to establish such fraud. Duntomv. Gates, 3 Barb. Ch. 196, 5:871 115. But if they join with him in an answer, and admit their belief that what he states in the answer is true, if his admissions in such answer establish the fraud, it is sufficient to entitle the complain- ant to a decree against the assignees of the mort- gage, ibid. 116. Where the assignees of the mortgage put in a joint answer with tne assignor, what is stated by him in such answer, responsive to the charges or interrogatories in the bill, will be evidence in favor of the £signees, to the same extent that it is evi- dence in favor of the assignor. Ibid- 117. It seems that where a question of fraud de- pends, not upon the answer and the testimony of one witness, but upon facts and circumstances dis- closed by the pleadings and proofs on both sides, all of which, taken together, still leave the point in doubt, the defendant has a right to read bis answer on a feigned issue. At any rate, it is a fair matter of discretion to give him the benefit of evidence before the jury as fully as It exists upon the plead- ings and proofs. It would follow that the bill EVIDENCE, IV. e-VI. a. 165 should be read with a view to a better understand- iDg of the answer. Sturtevant v. Waterbwry, 1 Edw. Ch. 442, 6: 201 118. Where conveyances had been decreed valid the eraotors were allowed the lioerty toreadtbe an- swers of the lirruntees on an issue, in order to show the motives for purchasing; provided the opposite party attempted to use the conveyances on the trial. Hid. 119. The answer of infants by their guardian is a inuadiug merely, and not an examination for the purpose of discovery; it is not evidence therefore in their favor, although it is responsive to the bill sworn to by their guardian ad litem. Bulkley v. Van WycH, 5 Paige Ch. 536, 3: 819 e. Evidence Previously Taken or Used. 120. A deposition taken in an ejectment suit at law, brought by tue aeiehuania against a third person, as tenant, to recover the land, the subject of the suit here, is not admissible in evidence against the plain- Ufls, it being res inter aiins acta, Roberts v. Anderson, 3 Johns. Ch. 371, 1: 653 121. Proofs taken in a cross-suit will not be allowed to be read on the hearing in the original cause, un- less the parties by themselves, or by their privies by representation, are the same in both causes. Ferine v. Swaim, 2 Johns. Ch. 475, 1:455 122. Where a defendant has been examined on oath before a master upon a reference to appoint a re- ceiver upon a creditors' bill, his exammation may be given in evidence by the adverse party, upon the hearing of the cause, to contradict his answer, al- thouirh the master required him to answer questions which he was not legally bound to answer. GHum V. Albert, 7 Paige Ch. 278, 4: 155 123. A deed charged in the bill and admitted in the answer may be read at the hearing without having been made an exhibit before the master. Dey v. Dunham, 2 Johns. Ch. 182, 1: 340 f. BecitaU; Letters; Accounts. 124. The recitals in an insolvent's discharge are not the only evidence of the regularity of the pro- ceedings ; neither does an omission to state in the discharge the performance of an act which was re- quired by the statute to be done raise a legal pre- sumption that it wa;s done. Salters v. Tobias, 3 Paige Ch. 338, 3: 179 135. Where one e2e.cuted his bond and transferred .livers effects to another, and at the same time de- livered to him a letter giving a history of the trans- action and stating that the transfer was in trust to secure the latter from loss in consequence of his fiving his securities as collateral for debts of the ormer, the letter is admissible to prove a consid- eration for the transfer other than that mentioned ir the bond. Shall) V. Leavttt, 3 Sandf. Ch. 163, 7: 810 128. Where, upon a bill filed to compel the defend- ant to discover and deliver over to the complain- ants a pass-book alleged to belong to them, and which they wanted to use as evidence against him in a suit of law, and the defendant, by his answer, admitted that the pass-book was in his possession, and referred to it in such a manner as to entitle them to an inspection of the same, as a part of the answer,— Held, that the complainants were not en- titled to use the pass-book as evidence in their suit at law, separate from the defendant's answer, pre- vious to a final decree declaring their right to the irafts V. iaiorence, 3 Paige Ch. 159, 3:97 127. As a general rule, entries made in the books of the firm, during the continuance of the copartner- ship, are evidence for and against the ditterent members of the firm in a subsequent adjustment of their accounts between themselves; and it lies upon the party alleging a fraud or mistake in such entries to establisti it by proof. Caldteell v. LeBber, 7 Paige Ch. 483, 4: 840 128. An agent being dead, a written statement of an account,made by him at the time of a settlement is evidence against the principal. Van Rensselaer v. Morris, 1 Paige Ch. 13, 8: 543 V. Demonstrative Evidence. See also Incompetent Persons, 17, 18. 129. In a suit to annul a marriage on the ground of the physical incapacity of the defendant, if the answer admits the present incapacity, but denies that it existed at the time of ihe marriage, and the nature of the incapacir./ is such as to render a sur- gical examination of the defendant necessary, in connection with a personal examination on oath as to the commencement and progress of the disease which has created tbe incapacity, the court will dl- I'ect the defendant to submit to such examination, although she has been previously examined expa/rtf and without oath by her own medical atteuiiants. Newell V. Newell, 9 Paige Ch. 25, 4: 596 130. Upon a bill filed to annul a marriage on the ground of impotence, the court has the necessary power to, and will, compel the parties to submit to such a surgical or other examination as may be ne- cessary to ascertain the facts necessary to a cor- rect decision of the cause ; but in a suit brought against a female the court will not compel her to submit to a further examination, if it appears that she has been already sufficiently examined by com- getent surgeons whose testimony can be obtained y the complainant, to show that her physical in- capacity is incurable. Devanbagh v. Devanbagh, 5 Paige Ch. 554, 3: 887 VI. Paeoi, and Extrinsic Bvidbnoe Concern- ing Writings. a. Generally. 131. Where an agreement is reduced to writing, all previous negotiations resting in parol are extin- guished by the written contract, and cannot be re- sorted to, to help out or explain its meaning. Parkhurst v. Van CorfUmdt, 1 Johns. Ch. 273, 1:138 132. A contract cannot rest partly in writing and partly in parol ; and where a part performance is set up to take the case out of the Statute of frauds, the party is not allowed to resort to parol evidence in aid of the written agreement. Ibid. 133. The written agreement itself is the best evi- dence of what the parties intended should be the final and binding contract between them, where nothing has been left out of the agreement, by fraud or mistake, which either of the parties sup- posed was inserted therein when they executed the agreement. Jarvis V. Palmer, 11 Paige Ch. 650, 5: 867 134. Parol evidence to contradict or change the ex- press terms of a written agreement, by proving that one of the parties to the agreement represent- ed that such agreement would give to the other partv whnt the written agreement distinctly de- clared he should not have, is inadmissible. Ibid. 135. Parol evidence is inadmissible to support an agreement set up in contradiction to a deed. , Mnvan v. Hays, 1 Johns. Ch. 339, 1: 163 136. Where no trust appears on the face of a deed, nor any manifestation or evidence of it by writing, parol evidence is inadmissible to show the trust. ibid. 137. Where several lots of land are mortgaged, the mortgagor, or purchaser under him, cannot set up a parol agreement, made at the time of the mortgage, that,in case the mortgagor sold either of the lots, the mortgagee would release the lot so purchased from the mortgage, on being paid a certain sum per acre by the purchaser. Stevens v. Cooper, 1 Johns. Ch. 425, 1:196 138 The rule that parol evidence is inadmissible to contradict or substantially vary the legal import of a written agreement is the same in courts of law and of equity. - - „~ Ibid, m, ^ 198 139.Evidence that an agreement in writing, con- cerning lands, has been discharged by parol, is gooa as a defense to a bill lor a specific performance, but is totally inadmissible at law or equity, as a ground to compel a performance in specie. lout. 140. Parol evidence is not admissible to show that a bond and mortgage were not to be paid unless the mortgagee, and two other persons to whom he furnished materials, fulfilled a contract of the lat- ter for executing the stone work of certain houses which the mortgagor was erecting, there being no Irniid or mistake, surprise or accident in the case. Russell V. Kinney, 1 Sandf. Ch. 34, 7: 828 Ul.Parol evidence is inadmissible to supply or con- 166 EVIDENCE, VI. b, c. tradiot, enlarge or vary, the words of a will, or to «xplain the intention of the testator, except there is a latent ambiguity arising dehors the will, as to *he person or subject meant to be described, or to vebut a resulting trust. Mann v. Mann, 1 Johns. Ch. 231, 1:183 Ui, Where the language of the will was plain and ;iot amoiguous, using no doubtful terms or desig- nation of objects requiring explanation to make *hem intelligible, extrinsic evidence, although it •was offered in the testator's handwriting, was held Inadmissible to show that he intended to give a devise and bequest in different shares or propor- tions from those iodicated by the words of the will Bunner v. Storm, 1 Sandf. Ch. 357, 7: 358 143. Where certain creditors agreed to compound with their debtors, and to receive twelve shillings In the pound in full satisfaction of their respective debts; and it was expressly provided in the compo- sition deed that it should not be binding on any of the creditors executing the same until all and every creditor of such debtors had executed the deed,— EM, that the debtors could not vary the terms of the written agreement, by showing that, there was a, parol understanding, between them and those who executed the composition deed, that certain, credi- tors, denominated confidential creditors, were not to execute the same, but were to be paid by the debt- ors in full. ■ Acker v. Phcenix, i Paige Ch. 305, 3: 447 144. A receipt is always susceptible of explana- tion. Von Rensselaer v. Jlforris, 1 Paige Ch. 13, 2: 543 145. A written agreement may be waived by parol. Botsford V. Burr, 2 Johns. Ch. 409, 1: 430 146.trpon an application to a surrogate, by a cred- itor whose debt Has been liquldatea oy a aeui-ec in chancery, for the sale of the real estate of a de- 4;eased debtor, parol testimony cannot be received to show upon what evidence the master based his ^decision as to particular items of the account, on the reference to take an account in the suit in which the creditor's decree was obtained. But to xebut the prima facte evidence of the correctness of the master's decision, the whole evidence before Jliim should be produced. Wood V. BylngUm, 2 Barb. Ch. 387, 5: 686 b. Fraud ; Mistalie ; Omissions. 147. Parol evidence in contradiction of the words of a will, or to add an omitted clause which will alter the effect of what is written, is inadmissible. Sturges v. Cargill, 1 Sandf. Ch. 318, 7: 344 148. The defendant in a suit for specific perform- ance may show in his defense, by parol evidence, that the written contract relied upon does not cor- rectly and truly express the agreement of the par- ties, but that there is some material omission, in- sertion, or variation, through mistake, surprise, or frjuid. Best V. Stow, 2 Sandf. Ch. 298, 7: 691 149. Where circumstances denote fraud in omitting to reduce a pare of an agreement into wruiiig, tiic whole of it is open to parol proof. The court disre- S-ards the writing and treats the whole transaction as a verbal contract. Phyfe v. Warden, 2 Bdw. Ch. 47. 6: 304 150. Parol proof is admissible to correct a mistate ni a written contract, in favor of the piamtllt seeli- Ing a specific performance of that contract ; espe- cially where the contract, in the first instance, is Imperfect without referring to facts aliunde. Keisselbrack v. Livingston, ' i Johns. Ch. 144 1: 796 151. As, where there was an agreement to execute a lease for three lives, "containing the usual clauses, restrictions, and reservations contained in leases given by the defendant;" it being necessary, by proof dehors the agreement, to ascertain what were the usual clauses, etc., in such a lease,— it was held to be open to the plaintiff also to show, by parol evi- dence, 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 ex- ecute. JIM, 152. Parol proof to correct a mistake in a contract is admissible, as well in favor of the plaintiff as the defendant. Ibid. 153. Equity relieves against a mistake, as well as against fraud, in a deed or contract in writing; and parol evidence is admissible to prove the mistake. though itis denied in the answer, and this, either where the plaintifl: seeks relief afnrmatlvely on the ground of the mistake, or where the defendant sets it up as a defense, or to rebut an equity. (MUespie v. Moon, 2 Johns. Ch. 585, 1 : 500 154. As, where a trustee for an infant, in 1799' agreed to sell 200 acres of land (part of a lot con- taining 250 acres), and executed a deed to the pur- chaser (a tenant on the lot), which described the premises by metes and bounds, "containing 200 acres more or less," and the bounds included the whole lot or 250 acres; and the trustee died in 1814, without taking any measures to have the mistake corrected, though she expressed her intention to do so in 1806; and the cestui que trust, immediately after her death, filed a bill for relief against the mistake,— the vendee was decreed to reconvey to the plaintiff the 50 acres without any allowance for valuable improvements made thereon ; they being made after he knew of the mistake, and had de- clared his intention ta take advantage of it. Ibid. 155. The evidence to show a mistake in a written instrument must be clear and strong, so as to estab- lish the mistake to the entire satisfaction of the court. Ibid. o. Condition; Trust; Defeasibility. 156. Parol evidence is admissible to show that an absolute deed was intended as a mortgage, or that the defeasance had been destroyed by fraud ormis- Marlis V. Pell, 1 Johns. Ch. 594, 1 : 858 Whittickv. Kane, 1 Paige Ch. 202, a: 617 157. The doctrine that a deed absolute on its face maybe converieil into a mortgage Dy parol testi- mony is unquestioned, where the acts or declara- tions are contemporaneous with the instrument. Subsequent statements should be more scrupu- lously admitted. Mclntvre v. Humphreys, Hoff. Ch. 31, 6: 105'* 158.But where bill was filed for an account and for a reconveyance, thirty years after the deed, allegeu to be a mortgage, was given, during all which time the defendant had been in possession, parol evi- dence of the mere confessions of the defendant, made seventeen years after the deed, that it was taken as security for a debt, was held insufficient. Marks v. Pell. 1 Johns. Ch. 694, 1: 858 159. Parol evidence is admissible to show that a mortgage only, not an absolute sale, was intended; and that the defendant had fraudulently attempted to convert the loan into a sale. Strong v. Stewart, 4 Johns. Ch. 167, ' 1: 802 160. Where an assignment is on the face of it gen- eral, yet, if it be admitted to be different in itsririf(i toyi\-p!. eb-M-uctcr. Be Taylor, 9 Paige Ch. 611, 4: 836. 219. The acts and declarations of a man and woman- and other attending en uumstances liuring their co- habitation together, being part of the res gestae, are proper evidence to show the character of thel'- in- tercourse, whether it was matrimonial or mc- ■• oious. Ibid.. 220. But general reputation as to the character of such intercourse, after it had ceased, or the declara- tions and admissions of the parties made subsequent to that time, are not legalevidence to rebut the pre- sumption of an actual marriage arising from such, cohabitation and other acts, and to establish the fact that their children are illegitimate. Ibid.. EVIDENCE, IX. c. d. 169' o. PriMeged OommunicaUam. 231. Where an attorney is professionally employed, any communication made co liim by his client, with reference to the object or the subject of such em- Sloyraent, is under the seal of professional confl- ence, and is entitled to protection as a privileged communication . Vtica Bank v. Mersereau, 3 Barb. Ch. 628, S: 998 222. This seal of professional confidence is not the seal of the attorney, but of his client, which the attorney is by law, as well as by professional honor, bound to keep intact ; and it cannot be removed except by the consent of the client. Ibid. 223. So far as a counsel has got information solely from a person coming to him in the character of client, the rule of secrecy holds, but no further, Bogert v. Bogert, 2 Edw. Ch. 399, 6: 444 224. To protect communications from client to at- torney as privileged, 't is not necessary that they should be made in relation to a suit pending, or even in contemplation of a suit. Orosbj/ V. Crosby, 2 Ch. Sent. 15, 5: 1084 225. Where there is a dispute, and one of the parties consults an attorney, suiicitin-, or counsellor uu ilie subject, the communications between such party and his legal adviser are sacred, and the courts will not permit them to be divulged without the client's consent. March v. Lvmum, 3 S . 35. 7: 760 226. There is a dispute when there are conflicting rights In existence, or claims made, to the same Property, whicii, unless abandoned by one party or he other, or arranged amicably, will terminate in litigation. IWd, 227. The privUege is not atEected by the circumstance that the client offered no compensation, aud the legal adviser did not make or expect to make any charge for his opinion. Ibid. 228. It is highly important to the prevention of liti- gation, and indispuusable to the administration of justice after it ensues, that the privilege of free and unreserved communication by parties with their legal advisers should be preserved inviolate, ibid, 229. The privilege of an attorney or counsellor ex- tends to information derived from his client as such, either by oral communications orf rom books orpapersshowntohimby his client, orplacedin his hands in his character of attorney or coun el by such client. Orosby v. Berger, 11 Paige Ch. 377, 5: 168 S. 0. i Ch. Sent. 63, 6: 1156 230. The privilege does not extend to information derived from other persons or other sources, al- though the information is derived or obtained while acting as such attorney or counsel. Ibid. 231. Whether the privilege of an attorney or coun- sellor is not at an end when he becomes executor and legatee of his client by appointment of the laX- teT,—gucBre. Ibid. 232. The seal which the law once fixes upon such communications remains forever, unless removed by the party himself in whose favor it was there placed. Ufica Bank v. Meraereau, 3 Barb. Ch. 528, 5: 998 233. Where the privilege belongs to several clients, it seems that neither one of them, nor even a ma- jority, contrary to the expressed will of the others, can waive the privilege so as legally to justify the attorney in giving testimony in relation to such privileged communications, especially in a case where the testimony of the attorney equally affects the moral characters of all his clients by showing that they employed him professionally to assist them in giving a fictitious judgment for the pur- pose of defrauding their creditors. Ibid. 234.Nor wiU the fact that the client whose assent to the removal of the seal of professional confidence from privileged communications has not been ob- tained is not a party to the suit in which his attor- ney is called upon to testify alter the case. Ibid. 235. Neither wUl the fact that an attorney was a subscribing witness to a warrant of attorney pre- pared by him for his clients to execute alter the question as to the admissibility of his evidence tending to the conclusion that the object of giving the warrant of attorney and having judgment en- tered thereon was to hinder and delay their credi- tors in the collection of their debts, and that the judgment was given for a much larger sum than was justly due tothe judgment creditor. Ibid. 236. An attorney who is professionally employed tO' prepare a deed for bis client, and who afterwards witnesses its execution, may be compelled, not only to prove the execution of such deed, but also to- testify whether it was antedated; whether it was in the same form in which it now appears at the time- of its execution, or has been altered; and whether it was actually delivered at the time he subscribed, his name thereto OS a witness. Ibid^ 237. If the deed has been lost, or is in the hands of the adveise party, who refuses to produce it upon- the trial or lor the purposes of the suit, the attor- ney who witnessed the deed may be compelled tO' testify as to the contents thereof, although in the preparation of such deed he was professionally em- ployed. Ibid. 238. It seems the seal of professional confidence has- never been held to cover a communication' made to an attorney to obtain professional advice or assist- ance as to the commission of a felony, or other crime which is malum in se. Ibid.^ 239. But the fact that an attorney was employed/ by his clients to assist them in a transaction which^ from what was said in his presence, he must have- known to be a fraud upon their creditors, will not deprive their communications of the sea) of profes- sional conildence. Ibid 240. The privileged relation of attorney and client ought only to be permitted to exist for honest pur- poses, and not to enable the client to perpetrate a fraud, or to violate the laws under the advice of counsel or through any other professional aid. But the law appears to be settled otherwise, ibid. 241. A solicitor who is made a defendant, and who desires to protect himself from answering on the ground of co'itidential communication, must dis- tinctly show that his knowledge and information came solely from his client. He is not exempt, merely because he obtained it while engaged in business for his client. And should he afterwards- become the executor of his client and be made a defendant to reacL Ihe property which had been held by such client, the privilege would cease and> he must answer in connection with it. Orosby v. Berger, 4 Edw. Ch. 254, 6: 870 242. Where a solicitor who hnd been employed to foreclose a mortgage, was asked, as a witness before an examiner, whether he had received any instruc- tions from the complainants, his clients, as to the sale thereunder and the amount to be bid, and he demurred to the question as involving a breach of professional confidence,— iT6!d,to be within the rule, and that he was not bound to answer. Stuyoasant v. Pechham, 3 Edw. Ch. 579, 6: 769- 243. Where the master, upon a reference to take^ proof of the adultery charged in a bill for a divorce, received the testimony of a physician, disclosing in- formation which he had acquired in attending up- on the defendant in a professional character, and which information was necessary to enable the wit- ness to prescribe for his patient,— iJeld, that such, testimony must be rejected by the court, in decid- ing whether the defendant had been guilty of the adultery, as charged in the bill. Johnson V. Joftnsoii. 4 Paige Ch. 460, 3:515 244. A divorce for adultery will not be granted upon the testimony of a physician disclosing intor- mation which he had acquired in the course of his professional employment; such testimony being prohibited by statute. But the case may go back to a master for further proofs. Hanfard v. Hanford, 3 Edw. Ch. 468, 6: 788- d. Acts and Veclaraiions of Third Persons Oenerally. 245. Declarations of a person not a party in inter- est or a party to the suit, and who is a witness in the cause, are not competent evidence. Phittips V. Thompson, 1 Johns. Ch. 131, 1:87 246 The declarations of a party to a sale or trans- fer going to destroy or take away the vested rights of another, cannot, ex post/acto, work that conse- quence: nor can they be regarded as evidence- against the vendee or assignee. -. „ « Christie v. Bishop, 1 Barb. Ch. 105, ,^; ?lf ' S. C. 5 Ch. Sent. 40, 6:1175 247 The declarations of the alleged testator are not competent to prove the existence or execution of a will. „ ,„ «, «,- ■,. Qio- Orant v. Orant, 1 Sandf . Ch. 235. 7:31* 248. Where a vendor can be examined as a witness^ 170 EVIDENCE, X. a, b. Jiis declarations, even before the sale, are not com- petent evidence. Toppinov. Fan Pelt, Hoft. Ch. 545, 6:1839 249. The acts and declarations of a grantor, made subsequent to his conveyance, are not admissible .«s evidence against his ^antee. Orowder v. Hoplans, lOPaige Ch. 183, 4: 937 250. Declarations made by a person in possession of real estate, as to his interest or title to the same, may be given in evidence against those who have .subsequently derived their title from or under him, Jn the same manner that such declaration could have been used against him if he had not parted Tvith his possession or interest in the property. Padgett v. Lawrence, 10 Paige Ch. ITO, 4: 931 251. But declarations of a former owner of proper- l.r,vvuiuu were made at cer he Imd parted with hisin- terest therein, or which declarations are overreached by the purchase of the party who claims through or UDder him, cannot be received as evidence to affect the legal or equitable title of such party to the .premises. ItM. 252. Thus the declarations or admissions of an own- ^r ot land, made subsequent to the docketing of a judjfment against him, are not admissible as evi- ':d of his admissions that he had taken usury in the mortgage, also that the mortgagors paid him more than 7 per cent, and that they paid him 10 or 12 per cent, neither of which rates would produce the sum named,— Held, that the proof did not sup- port the answer. Ibid, 324. In the defense of usury, the proof must strictly sustain the allegation made in pluading. So, where in an answer the usurious agreement was stated to be that H was to advance the borrowers 82,000, and D was to give them his notes, om tor $1.50, and on» for S45U, making the $2,ii00, lor which the security was given: and the pronf showed an agreement by which H was to advanci- *' n.v> in cash, and 1548 ip the notes of D, one for $414, and the other for $148» —Held, a fatal variance. Betjleld v. Neviton, 3 Sandf . Ch. 564, 7: 958 325. Where the testimony in a divorce case does not correspond with the bill in relation to the timej place and person named therein, a decree will not EVIDENCE, XI. e. 173 *e made althoug'h there be evidence of barefaced ■acts of adultery with others, brought in under the general charge of adultery with persons '"to the complainant unknown"" Kane v. Kane, 3 Edw. Ch. 389, 6: 699 326. On a bill for divorce, containing an allegation (and no other) of adultery with B. M. it is not «nough for the master to report that the act was ■committed with a woman whose name is unknown. ^he charge in the bill is the one to be proved. Bokel v. Bokel, 3 Edw. Ch. 376. 6: 69* e. Pleadings ; Evidence to Overeome. 337. The test of the application of the rule as to an answer being responsive seems to be, whether the <]uestion answered would be proper In a trial at law, whether it would be relevant to the issue ; such as the witness would be bound to answer; and the answer be competent testimony. Dunham v. Gates, HofE. Ch. 185, 6: 1110 328. Two defendants united in an answer. The one' an assignor, met tbe allegations of the bill on his own knowledge, and the other, an assignee, on in- formation and belief. The answer of the latter does not fall within the rule r*uiring two witnesses to prevail against it. Nor can it be aided by the answer of the other. Ibid. 339. The admissibility of an answer as responsive •does not settle its oredlbiUty. It may refute itself. Ibid. 330. Where the answer of the defendant is respon- sive to the bill, it is evidence in his favor, and is conclusive, unless disproved by more than one wit- ness. SUiford V. Bryan, 1 Paige Ch. 239, 3: 631 331. Where a cause is brought to a hearing on the bill and answer, the answer is to be taken as true in all points. Brinckerhoff v. Brovm, 7 Johns. Ch. 217, 8:873 332. And where the defendant, in his answer, states that he believes and hopes to be able to prove such -and such matters, they will be considered as proven. Ibid. 833. Upon a bill to set aside an assignment on the eround of fraud, the answer of the defendant deny- ing the fraud, if unrepUed to, is conclusive evl- 'dence that no fraud exists, unless there are other admissions or statements in the answer inconsistent with such denial. Cunningham v. Freeborn, 8 Paige Ch. 557, 3: 873 334. Where a replication is filed, no statement in -the answer not responsive to the bill can avail the defendant, unless it is established by proof. Wakeman v. Graver, 4 Paige Ch. 23, 3: 385 336. On a bill filed by heirs against an agent of the .administratrix for an account, the testimony of the administratrix, although she was released by the pl^intitCs, is not of itself sufficient against the answer of the defendant. Mason v. Boosevelt, 5 Johns. Ch. 534, 1: 1166 336. As to the force and effect of an answer upon an application to the vice-chancellor to revive a prellminaiy injunction after an appeal from his order dissolving it, when the oath is waived,— gioBre. Jewett V. Albany City Bank, Clarke Ch. 59, 7:31 337. In an Interpleader suit, where it appears by the answer of each defendant that he claimed the fund in dispute from the complainant, no other evi- -dence of that fact need be produced to entitle the complainant to a decree. Balehen v. l , awMd, 1 Sandf . Ch. 380, 7: 366 338. Where the facts charged in a bill are full y de- inied by the answer, there can be no decree against the answer, on the evidence of a single witness ■only, without corroborating circumstances to sup- ply the place of a second witness. Smith V. Brush, 1 Johns. Ch. 459, 1: 808 339. Where an answer is positive, no decree can be made against it upon the testimony of a single wit- ness. If, however, there are circumstances which strengthen the witness and entitle him to greater credit, this forms an exception. In weighing cir- «umstances,equal credit is to be given to each, and it is to be forgotten that one is a disinterested wit- ness. Stwrtemnt v. Waterlmnj, 1 Edw. Ch. 443, 6: 801 340. Where a defendant, in his answer, only denies ^ fact charged in the bill, according to the best of •his knowledge and belief, a single witness on the part of the complainant is sufficient to establish the fact. Knickerbacker v. Harris, 1 Paige Ch. 209, 8: 619 Town V. Needham, 3 Paige Ch. 546, 3; 868 341. Where a principal witness has promoted a stale claim (eleven years old) and his hostility to the de- fendant is apparent, his testimony will be far out- weighed by an answer fairly responsive to tbe bill. Plet V. Bouehaud, 4 Edw. <5h. 30, 6: 787 S&. When the oath of defendant to his answer is waived, the answer is a mere pleading. Hatch V. Euataphiem, Clarke Ch. 63, 7: 68 348. Where an answer on oatn is not waived, mat- ters stated in the bill as being within the personal knowledge of the defendant are to be taken as true, upon the hearing ; but not where the complainant, by waiving an answer on oath, elects to take upon himself the burthen of sustaining the allegations in his bill without the aid of a discovery from the de- fendant. Miller v. Avery, 2 Barb. C\a. 583, 6 : 768 Editorial Notes. Judicial notice 3: 395, 7: 961, 1S38 Burden of proof ; of undue influence 7: 879 in divorce proceedings 6: 371 on payment by note 6:478 of complaint 4: 1075 plea must be established by proof 3: 395 statement in answer, not responsive, must be proved 3: 336 Presumptions ; as to time of making altera- tion, and by whom made 5: 582 of death from lapse of time 5: 453 death occasioned by catastrophe; no presumption of survivorship 5: 379 of grant from exclusive possession 3: 1051 3:f}68 3:506 3:376 4: 840 6:371 4: 937, 7: 1236 4:887 4: 1075 1:918,4:497 1:79 3:328 3:646 attending phy- sician must be rejected as 3: 515 Omitted, leave to supply; practice 3: 707 Parol, not admissible to vary or contra- dict instrument Documentary mortgage to prove title books of account partnership books master's report as ancient deeds To prove marriage Newly discovered; material Proof of foreign laws Must agree with pleadings In support of character In foreclosure suits Information acquired by 3: 365, 4 exceptions to rule to show intention to show mistake 1: 197, 490, 98,508, 5: 367, 7: 328 7:601 7:515 1:795 to show deed to be a mortgage 1: 259,803, 3: 603, 6: 303,1053 to explain mortgage 5 : 906 to establish resulting trust 1:254,427,988 to rebut trust, not contradict recital in. deed 1:428 to cure or remedy defects in recorded title .. 2:478 of contract required to be in writing, not admissible 5: 472 Insufficient to sustain decree 5:404 Proof of existence of judgment 5:919 of signature 5 : 919 Admissions ; of husband during coverture, evidence of payment of wife's legacy 5: 155 in answer of one defendant, not evidenc against his codefendant 4: 537, 5: 317 174 EXAMINATION— EXECUTION, I. b. Admissions: when against interest 6: 1074 by silence or omission to act 2: 536 Confessions 1: 111 Acts and declaiatlons of parties 3: 998 Communications ; between attorney and cli- ent privileged 5: 168,1001, 7: 760 exception to rule 5:1003 statute prohibiting testimony as between husband and wife 6: 997 Proof must correspond with pleading 7:488 Variance in dates and pleading; garded Pleadings as evidence Exceptions Evidence necessary on denial in answer 1: 208,6:201 Answer as admission 6: 1110 Answer of corporation not evidence 3: 897 disre- 4:907 1:396 6:201 EXAMINATION. Of Person, see Evidence, V. Witnesses, see Pbactice, VI. d, 4, 6 j Witnesses, IV. EXCEPTIONS. See Deed, II. b, 3; PtEADiNO, IV. ; Bepebencb.V- EXCHANGE. See BxECUTOBS and Administbaiobs, 188. EXECUTION. I. Against Propebty. a. Issuing. b. Levy; Return. 0. What may lie Reached. d. Enforcement; Sale; Rights of Pwrchasers. e. Setting Aside. t. Priorities. g. Abatement; Satisfaction of Debt. n. Against Person. Editorial Notes. See also Appeal, 263, 264; Creditors' Bill, 12; DowEE, 52, 53 ; InjunC3tion, 1. i, 6, 198 ; Judg- ment, ETC., 293; Laches, 5-7 ; Pabtnebship, 74. I. Against Pbopebtt. a. Issuing. 1. The statute allows tlie court of chancery to en- force its decrees by execution, and the successful party is entitled to an execution as a matter of right, unless the decree itself prohibits the issuing of an execution thereon. Otis V. Wnrman, 1 Barb. Ch. 30, 5: 887 3. The issuing of an execution after the lapse of two years, without reviving the judgment by scire facias, where all the parties to the judgment are alive, is an irregularity merely, and does not ren- der a sale under it void. Pierce V. AIsop, 3 Barb. Cai. 184, 6:867 3. As the process of courts of common pleas, and of the Superior Court of the City of Wew iforn does not, in ordinary cases, extend to other couu ties, it is necessary to have the judgfaent docketed in the manaer prescribed in the Act of May, 184( § 29, to authorize such local courts to issue their ex ecutions to any other county than that in whic' »uch courts are held. Corey v. Cornelitts, 1 Barb. Ch. 571, S: 499 4. Where proceedings are stayed upon a second verdict in a suit at law, until an application for .'. oew trial can be made, it is irregular for the plain- tiff to take out an execution upon a iudgmen; which has been ordered to stand as security for the amount of such second verdict. Drew V. Dwyer, 1 Barb. Ch. 101. 6: 3 15 5. An execution cannot issue againt a part^ who has been discharged under the bankrupt: Act, and whose discbarge is a bar to the collectiott of the damages directed to be paid by a decre* which was made before the proceedings in bant- Boyd V. Vanderkemp, 1 Barb. Ch. 273, 5: 38S 6. It is irregular to issue an execution upon ai judgment or decree which is prima facie dischargecb by a bankrupt certificate, so as to be no longer in existence as a subsisting debt against the defendant or his property, without a previous application to the court and upon due notice to the discharged bankrupt. It"'' AlcoU V.Avery, lBa,Tb.Ch.3i7, 5:411 S. C. 5 Ch. Sent. 70, 5: 11S» 7. The recovery of a second judgment in a sujt upon a former judgment will not prevent the judg_ meat creditor from issuing an execution upon the previous judgment, to obtain satisfaction of bis- debt. Howard v. Sheldon, 11 Paige Ch. 558, 5: 883 8. A ca. sa. is not to be taken out on a decree for costs and dismissal of bill. Prince v. Camman, 3 Bdw. Ch. 413, 6: 708.- 9. Cannot be issued against personal representa- tives of mortgagor, to recover deficiency, until ac- count of administration taken. ieoTiard v. Morris, 1 Ch. Sent. 31, 5: 106(K 10. Upon the usual decree over against a mort- gagor or other defendant who is personally liahle> for the mortgage debt, for the amount of the defi- ciency, execution cannot regularly issue against him previous to the filing and confirmation of the: master's report of such deficiencr. Batik of Rochester v. iimei sun, lU Paige Ch. 115, 4:90»' 11. The solicitor has no authority to alter the teste of an execution in the court of chancery. Merrill v. Townsend, 5 Paige Ch. 80, 3: 636^ 12. The court of chancery has the power to issue all process to carry its decrees into execution. Ludlow V. Lansing, Hopk. Ch. 231, S: 404 b. Levy ; Betv/rn. 13. If the return of a sheriff upon an execution is Irregular by reason of its being made before the re- turn day, the remedy of defendant is to apply to- the court of law to set it aside. Piatt V. Codweli, 9 Paige Ch. 386, 4: 74» 14. It is irregular to make an execution return- able on Sunday. But in general the court will per- mit process thus detective to be amended, in. order to promote the purpeses of justice. Boyd V. Vanderkemp, 1 Barb. Ch. 273, 5: 383 15. The returning of an execution issued on a judgment In the supreme court, to the wrong clerk's office, it seems, is a mere error of form, which even that court would not notice upon an applica- tion to set aside the return for irregularity. Ctorfc v.Da/cin, 2 Barb. Ch. 36, 5:547" 16. But if such a return is irregular, application must be made to the supreme court to set aside the return. lud. 17. If the sheriff improperly returns an execution unsatisfied, when there Is property of the defend- ant in his bailiwick sufficient to pay the judgment^ either wholly or in part, the proper remedy of the defendant is by an application to the court out of which the execution issued, to set aside the retiun^ or by a suit 11." ainst the sheriff. Stoors v. Kelsey, 2 Paige Ch. 418, 2: 970- 18. A return to an execution at law against three defendants, that they had no goods, chattels, or real estate of which the execution could be collected, without stating that neither of them had such prop- erty, is a sufficient return to show that the execu- tion could neither be collected of the joint property of the defendants, nor from the separate property of either of them. Winchester v. Oondall, Clarke Ch. 371, 7: 14» 19. Where, in a judgment creditors' suit, the de- fendant put in issue the return of the execution- issued out of the supreme court against his prop- erty, and the complainaat produced at the hearing- an execution with a proper return indorsed, which, had been filed nunc pro tunc as of a day prior to- the commencement of the suit, pursuant to a rute of that court made on a motion without notice af- ter the issue was joined in the creditors' suit, on the ground that the original execution had been lost on its transmission from the sheriff to the clerk, it wa? EXECUTION. I. c, d. 17& lield that the evidence sustained the issue on the part of the complainant. Bradford v. Bead, 2 Sandf. Ch. 163, 7: 649 20. The circumstance of its beingr relied on as a de* fense to tlie creditors' suit would be no answer to such a mocion in the supreme court, and ought not to interfere with the force of the rule thereupon granted. Ibid. 21. If a second execution comes into the hands of the sheriff or of one of bis tireneral deputies, be- tween the levy under the first execution and the sale of the property, there is a constructive levy of the second execution from the time it comes into his hands, which will bind the surplus proceeds of SUidei. Va/n Vechten, 11 Paige Ch. 81, 5: 48 c W?iat may be Beached. 23. The interest of one partner in the partnership property may be taken and sold under an execu- tion at law, in a judgment against such partner for his separate debt ; and equity will not stop such execution or sale by injunction, until the partner- ship Eiccounts are taken and liquidated. Moody V. Payne., 2 Johns. Ch. 548, 1: 484 23. A judgment debtor's interest in lands under an executory contract of purchase cannot be sold upon execution, under the provisions of the Re- vised Statutes. EUsworth V. OuyUr, 9 Paige Ch. 418, 4: 767 Brewster v. Power, lO Paige Ch. 562, 4: 1091 Boughtim v. Orleans Barik, 2 Barb. Ch. 458, 6: 714 ToOMy. Chamberlin, 3 Paige Ch. 219, 3: 124 24. Eeal estate held in that manner forms an ex- ception to the general rule that the interest of a defendant in laBds of which he is in possession may be sold on execution against him. BaugUon v. Orleans Sank, 2 Barb. Ch. 458, 5: 714 25. The interest of a person in possession of land under a subsisting contract for the purchase there- of cannot be sold on an execution at law ; but in all other cases the bare possession of the defendant in the execution, although it be a mere tenancy at will or on sufferance, or a possession without color of right, is such an interest as may be sold on the execution, TaOoi V. Chamberlin, 3 Paige Ch. 219, 3: 134 26. The purchaser under such a sale, after the timp for redemption is past, has a right as against the defendant in the execution and those claiming under him, to be substituted in his place as to the possession and all his legal rights connected there- with ; and during the time allowed for redemption the defendant and those claiming under him may be restrained from committing waste. Ibia. 27. The fourth section of the Statute of Uses (Sess. 10, chap. 37, 1 B. L. 72), rendering lands liable to execution against the cestui que use or cestui que trust, applies only to those fraudulent and covinous trusts m which the cestui que trust has the whole real beneficial interest in the land, and the trustee the mere naked and formal legal title. Boaart V. Pern/, 1 Johns. Ch. 52, 1:66 28. An assignment of property subject to a judg- ment Hen will not prevent the judgment creditor from selling the property under execution upon his judgment. Spear v. WardeU. 3 Barb. Ch. 291, S: 648 29. A judgment creditor other than the mortgagee may seU the equity of redemption on execution. Shottenkirk v. Wheeler, 3 Johns. Ch. 275, 1: 616 30. The lands of a judgment debtor were not liable to bb sold on execution, by tbe lingiisn common law, but by the Statutes of Extents and Elegits they were set off to the judgment creditor until his debt should be paid. ntica Bank v. Mersereau, 3 Barb. Ch. 528, 5: 998 31. The Statute of 32 Hen. VIII. chap. 5, givmg a remedy to the creditor to whom the debtor's land had been delivered in extent upon elegit, where the tenant by elegit was afterwards evicted out of, or from the possession of, such land, became a part of the common law of the colonists, in connection with the principles of the Statutes of Extents and Executions then existing in England. But when the Statute of 5 Geo. 11. chap. 5, subjected real estate in the Colonies to sale upon execution, in the same manner as personal property, the writ of elegit was virtually abolished here. Ibid. 33. If a judgment or decree has not been dock- eted, the execution issued thereon will only author- ize the sale of such Interest as the debtor has in the- land at the time of the seizure and sale, subject to> the rights of those who have acquired interests la. or liens upon such lands as purchasers or incum- brancers, subsequent to the judgment or decree. Corey v. Cornelius, 1 Barb. Ch. 571, 6: 49»» 33. By sections of the Revised Statutes relative tii executions and the duties of ofHcers thereon, in connection with the other provisions of those stat- utes relative to the docketing of judgments and de- crees, the right to sell real estate and chattels real on executions upon judgments of courts of com> men law, and upon executions founded upon de- crees of the court of chancery, is placed upon the- same footing; and If the judgment or decree has. been docketed, so as to make it a lien upon lands of the debtor in the county to which the execution is. issued, it will authorize the sale of the interest which he had in the land at the time of such dock- eting, if the time prescribed by law for the contin- uance of such Hen has not expired. Ibid.- 34. The mere equitable interest of a debtor in per- sonal property assigned by him as security cannot be reached by process at law, or be boimd by exe- cution. flendricfcs V. Bohiruon, 2 Johns. Ch. 284, 1: 38fr 36. Suing out execution merely does not create a> lien on goods and chattels ; but there must be aa actual levy of the execution to bar any subsequent bona fide sale. Ibid. 36. The property of the debtor in goods and chat- tels is not changed until the execution is executed. imd. 37. An execution against the goods and chattels- and real estate of a defendant in n. bv the agent of the executors of R, is wrong- ful and void. Ibid;. 43. Where the master sold a parcel of the land under a decree, with the assent of the agent of the exec- utors of Rea, and a mutual understanding that the sale should be valid, and the execution be satisfied by the master out of the proceeds of such sale, and' that was made known to the purchasers at the time ; and the agent of the executors of R after- wards sold the land, under the execution, to per- sons who knew all the circumstances, such subse- quent sale was held to be fraudulent and void. Ibid. 176 EXECUTION, I. e. 44. When an execution has been acted upon by itaklng the property into possession, or, perhaps, iby advertising it for sale, the person who began It must finish it. IJM. 180, 1: 339 45. Where a tract of land is divided Into separate and distinct lots and parcels, it is the duty of the sheriff who has an execution againt the land to sell it in parcels, and not the whole tract together. Woods V. MoneU, 1 Johns. Ch. 503, 1: HHS 46. The sheriff, under an execution, ought not to sell at one time more of the defendant's property than, in the exercise of a sound judgment, would appear to be sufBclent to satisfy the debt, if the part selected for sale can be conveniently and reasonably detached from the rest and sold separately. Tieman v. Wilson, 6 Johns. CHi. 411, 8: 167 47. Where the sheriff had levied on perishable property, and the execution was stayed by injunc- tion, the chancellor allowed him to sell the property and pay the proceeds to the register, to abide the further order of the court. Heath v. Hand, 1 Paige Ch. 329, 8: 667 48. Where the Interest of the husband in his wife's real estate is sold by virtue of an execution issued upon a judgment recovered against him, before a <8eparation has taken place between him and his wife, and before the filing of ablU for a separation by the wife, and when the parties were living to- igether as husband and wife, the purchaser of such interest at tbe sheriff's sale is entitled to protection aa a bona fide purchaser, where he had no notice of her right to a separation. SaekM v. Oiles, 3 Barb. Ch. 204, 5: 874 49. Where a judgment and execution which had been f uUy paid and satisfied were kept on foot by the assignees of the Judgment, fraudulently, for the purpose of speculating on the property of the debtor, and which the defendants, assignees of the Judgment, purchased at the sheriff's sale, they were decreed to execute a release of all the title and in- terest so acquired, to the owner of the lands so fraudulently sold on execution, and to deliver up the possession thereof, pay the rents and profits, a.nd damages for any waste committed, with all ^oflts etc IVoup V. Wood. 4 Johns. Ch. 228, 1: 883 50. All agreement by the owner of an execution, ■on which lands to an amount in value far exceed- ing the debt had been seized, to prevent the usual competition at the sheriff's sale, and in order to leave a balance due on the execution, for the pur- pose of having lands of the debtor in other counties peized and sold, is fraudulent ; and the execution is deemed in law to be satisfied. IMd. 51. Where certain lands belonging to E were sold under a loan-office mortgage, and W, by request, bid off the same for B, E being absent, E, a few days after the sale, refunded the money to W. At the time of the sale, T, one of the commissioners •of loans, held a Judgment against W. T, together with his co-commissioner, in June, 1819, executed a -deed to W. In March, 1819, T issued an execution against W, and in August, 1824, caused the mort- gaged premises to be sold under his Judgment, and bid in the same himself. In September, 1819, w ex- ecuted to E a release of all his interest in the prem- ises ; and it was agreed between them that no deed should be executed to W by the commissioners. T purchasedin the premises under his Judgment, with a full knowledge of E's nghts. Held, that the piir- ■chase by T could not be sustained, and that he could not retain thelienof his Judgmentuponthepremises. Ells V. Toiisley, 1 Paige Ch. 280, 8: 647 52. Under these circumstances, if the deed had 'been executed by the commissioners at the time of the sale, the title would have been In E as a result- ing trust, and W could only have held the deed as a security by way of mortgage for the money ad- vanced by him. Ibid. 53. Where a creditor who issues an execution becoEies the purchaser of his debtor's household effects, an 1 leaves them, as a matter of kindness (as alleged), in the possession and to be used by the de- fendant without hire or reward, and that, too, for « space of eight years, the same will be considered fraudulent as to other creditors. This might not t>e so where a third person fairly bought and lent ^em out of mere kindness to the debtor. Taykyr v. Smis, 2 Edw. Ch. 318, 6: 414 54. The purchaser of lands under a Judgment ob- alns all the right of the defendant to the premises. and no equity can be set HP aKaiSS"*5l?"f,?| uSa of notice which did not affect the title to the land in the hands of the judgment debtor. _ Sweet V. Green, 1 Paige Ch. 473, »: ' 80 55. A sale of corporate property under execution issued upon a Judgment recovered before proceed ings were instituted to have the dissolution of the corporation judicially declared because of nonuser is vaUd and effectual to transfer the title of su.-h prnnerty to the purchaser. Mlehles v. Boehester City Batik, 11 Paige Ch. 118 5: 77 56. A stockholder may purchase the corporate property for his own benefit at an execution sale; and, in the absence of fraud, he is not accountable to any other stockholder, although the property is bid in at much below its value. IbU. St. AJudgment creditor whose judgment becomes a legal lieu upon the whole interest of the mort- gagor in premises incumbered by a prior usurious QQortgage may obtain a perfect title to the premises, by a sale and purchase under his judgment, and may then enjoy the same as fully as the Judgment debtor could have done had he continued to be the owner. _ „ ..™ Post v. Dart, 8 Paige Ch. 639, e. Setting Aside. 4:673 58. A person has no right to apply to the court to set aside an execution for irregularity, so far as it affects his rights, in a suit to which he is not a party. Pierce v. ^isop, 3 Barb. Ch. 184, 5: 867 59. Where the creditor of a bankrupt who has been discharged subsequently to the decree issues an execution against his property, without having taken any steps to test the validity of such dis- charge, the court of chancery will grant relief by setting the execution aside, upon motion. Aleott V. Averu, 1 Barb. Ch. 347, S: *11 60. Where an execution was set aside for irregu- larity, the court d ireoted that the defendants should not be permitted to bring an action against the complainant or his solicitor, for anything done un- der it. Boyd V. TanderTcemp, 1 Barb. Ch. 273, 5: 383 81. Where the plaintiff— whose personal property had been seizea under an execution againsL him for about $600, and a sale of it forced with great vigor and oppression by the deputy acting in con- cert with the creditor, who was the chief bidder at the sale— was induced, in order to avoid a sacrifice of his whole property, to yield to the demands of the creditor, and to give him a bond and mortgage for $2,500, so as to cover, not only the amount of the execution, but alse a debt due to the creditor from the plaintiff's son, who was insolvent,— the sale was declared oppressive and illegal ; and the bond and mortgage, as having been unduly and fraudulently obtained, were directed to stand as security only for the amount of the execution, with interest and JVeiison v. iTDonald, 6 Johns. Ch. 201, 8: 100 62. But, to set a sheriff's sale aside, there must be satisfactory evidence of fraud or abuse of power in the sheriff. Woods V. Monell, 1 Johns. Ch. 502, 1:383 63. A sheriff ought not to sell more than is requisite to satisfy the execution ; and if he sells a whole tract when a small part of it would be sufficient, or probably sufficient, for the purpose, it is a fraud that ought to set the sale aside. Ibid. SK, 1: 884 64. Where, on an execution for $10.25, the sheriff sold two lots containing together 4ib acres a moits- ty of which belonged to the defendant, and was worth above $800. for the sum of $13, the sale was setasldeas frmTlnlent and vo^-^. Tieman v. Wilson, 6 Johns. Ch. 411, 8: 167 65. And the sheriff, though guilty of no intention- al fraud, yet, on account of his gross negligence and abuse of his trust, was decreed to pay costs. Ibid. 66. Aa execution sale will be set aside whion was made upon a judgment recovered by a creditor of a testator who devised lands to his sons, who were also his executors, against such executors. If the property sold was the land so devised. Wambaugh v. Gates, 11 Paige Ch. 505, 6: 21 1 67. Such sale will not affect the force of the judg- ment as against the executors. IbUl EXECUTION, I. f— II. 177 f. Priorities. 68. One holding a judgment which is a lien upon ^certain mortgagred real estate prior to the mort- gage cannot withdraw from the sheriff's bands an execution against the personal property, in order to let in other judgment creditors whose judg- ment liens are subsequent to the mortgage, and then enforce his judgment against the land. De PeysUr Y.Hildreth, 2 Barb. Ch. 109, 6: 576 69.. A mortgage or assignment of personal prop- erty, to secure the payment of antecedent debts, IE not entitled to a preference over an execution pre- viously placed in the hands of the sheriff to be exe- cuted, although no lery had been actually, made at the time of executing the mortgage or assignment. Warner v. Paine, 3 Barb. Ch. 630, 5: 1037 70. As between different creditors, equality is •equity. De La Vergne v. Evertaon, 1 Paige Ch. 181, 8: 608 71. And where there are several judgment cred- itors, and the land is sold under a prior mortgage, the holder of the eldest judgment, as against the others, has no greater lien upon the surplus moneys than he had upon the equity of redemption before the sate. IMd. 73. If the judgment creditors are equitably enti- tled to interest as agamst the debtor, but have no right to collect it on their executions against the land, the principal of their judgments must be first paid out of the fund according to their priority, and. If any thing remains, it can be applied to the payment of the interest on the several judgments ratably. 1^^^- 73. Where the owner of the northeast comer of a 4ot of laad sold the same, but by mistalce conveyed 'to the purchaser the northwest comer of the lot, which belonged to another person; and the pur- chaser afterwards sold the same land to the com- plainants in payment of an antecedent debt, but made the same mistake in his conveyance to them; And upon the discovery of the mistake the grantor -and grantee in the first deed joined in a deed to the ■complainants for the northeast corner of the loi, tor the purpose of correcting the error in the form- er deeds,— Held, that the complainants were entitled to the land in equity in preference to the delendan'., who had purchased in the same, after notice of the mistake, under a judgment recovered against the original vendor after the giving of the first deed but before the giving of the deed In which the er- ror was corrected. Gouvemeur v. Tttus, 6 Paige Ch. 347, 3: 1015 g. Abatement ; Satisfaction of Debt 74, At law, where an execution is in the hands ■of the sheriff at the time of the abatement of the suit by the death of the defendant, the proceed- ings under the execution will not be stayed, as it ■can be executed without any further order from WaOiirigton Ins. Co. v. Slee, 2 Paige Ch. 365, 75. But if a new execution is necessary, or any other proceeding which is either actually or con- structively to be done by the court, the proceed- ings must be suspended untU the judgment is re- vived by scire facias. Ibid. 76. It seems that the same rules prevail in equity, «t least in favor of parties who have acquired Tights under an execution issued upou a decree previous to the abatement of the suit. Itm. 77 Whether the purchaser at a master's sale under similar circumstances would obtain a valid ■title where an order of confirmation is necessary -before the sale becomes absolute,— gucBce. Ibid. 78. Where a decree cannot be carried into effect without a direct application to the court, an order -for that purpose cannot be made after an abate- ment by the defendant's death and before the «uit is revived. Ibid. 79. It seems that anything which could be legally urged, by plea or otherwise, as a de- fense to a bin of revivor, constitutes a valid ground of objection to an order to revive, under the statute. Jo»» 80. Where, before the adoption of the Revised Stat- utes, the creditor of a deceased debtor commenced a suit against his four devisees to recover his debt out of real estate of decedent in their hands, and one was not served with process, but judgment against all was taken by default, and property of Ch. Dig. 12 the one not served was seized and sold under the execution issued thereon, the sale conveyed no title, the judgment being wholly void as to the defend- ant not served. Schermerhom v. Barhydt, 9 Paige Ch. 28, 4: 697 81. In such case if property in which all were in- terested was soUi and bid iu by the lire tenant, who must be presumed to have known the terms of the will under which he held title, the amount bid was a satisfaction of plaintiff's debt pro tanto, although plaintiff took the bond and mortgage of the pur- chaser for the amount in lieu of money. Ibid. 83. Where in such case property of one not served with process was seized and sold in execu- tion, and bid in by plaintiff, who did not know that the other defendants had no interest in the proper- ty, the amount bid was not an extinguishment of any part of plaintiff's debt. Ibid. 83. The levy of an execution upon property of the defendant, which is not sufficient to satisfy the whole judgment debt, is only a bar to a scire facias, or a suit upon the judgment, pro tanto; and such a levy cannot be pleaded in bar of the suit or scire facias generally. Cuyler v. Moreland, 6 Paige Ch. 273, 3: 983 n. Against Person. 84. No execution can be issued out of the court of chancery, against the body or the property of a party, except upon a decree, or upon a positive order of the court. Van N'ess v. Cantine, i Paige Ch. 55, 3: 339 85. A party who is equitably entitled to costs must apply to the court and obtain a positive order for their payment before he can take out an execution for tlie same. Ibid. 86. Exemption from imprisonment on execution, under the Act to abolish imprisonment for debt and to punish fraudulent debtors, extends to a decree against the complainant for costs on the dismissal of a creditor's bill, filed for the purpose of obtain- ing satisfaction ofajudgmeut founded on contract. Merrill v. Townsend, 5 Paige Ch. 8U, 3: 636 87. A precept to commit to prison under the statute relating to proceedings for contempts (3 Rev. Stat. 534,8 4) is an execution. Tan Wezel v. Van Wezel, 1 Bdw. Ch. 113, 6: 79 88. The effect of § 39 of the Act of 1831 to abolish im- prisonment for debt, etc., was to repeal so much of the provisions of the title of the Revised Statutes relative to courts held by justices of the peace as authorized the execution issued in a suit commenced by attachment, where the defendant was not per- sonally served with process and did not appear therein, to be levied upon the goods and chattels of the defendant generally. That section also repealed by implication so much of the provisions of that ti tic of the Revised Statutes as made the filing of the transcript vji. ouch a judgment in the county clerk's olfice a lien upon the real estate of the defendant, and as authorized the county clerk to issue an exe- cution against such real estate, founded upon the filing of such transcriot. Corey v. Comdius, 1 Barb. Ch. 571, 5: 499 89. Where a biU was filed iu the court of chancery lo -orrect an erroneous description of premises in a deed, and the bill was dismissed by the court of chancery: but upon an appeal to the court for the correction of errors, the decree of the chancellor was reversed, with costs to the complainants, both in the appellate court and in the court below, — Held, that the defendant was not exempt from im- prisonment, upon an execution tor the recovery of such costs. Rogers v. Dibble, 8 Paige Ch. 10, 4: 385 90. The Act to prevent imprisonment for debt does not exempt the defendant from imprisonment on the execution upon every decree of the court of chancery founded on the contract, but only in those cases where the suit or proceeding in chancery was instituted for the recovery of money due upon a contract, or upon a previous judgment or decree which was founded on a contract, or for the recov- ery of damages for the nonperformance of a con- tract. Ibid. 91. A party to a suit cannot be imprisoned upon an execution tor the costs of a writ of error or of an appeal, where he would have been exempted from imprisonment upon the judgment or decree against him in the original suit. Ibid. 178 EXECUTION OF POWER; EXECUTORS AND ADMINISTRATORS. 92. Where a defendant in a suit in chancery is ordered or decreed to pay a sum of money, it be- comes a debt, and the ordinflry precept to commit the defendant, for not paying the money according to the orderof the court, is inthenatureof acapttw ad satisfaciendum; and the defendant may be dis- charged from such imprisonment under the insol- vent Acts, upon a surrender of his property. People V. SvcHding, 10 Paige Ch. 284, 4: 978 93. The Act to abolish imprisonment for debt is based upon the principle that equality among creditors is equity in the case of an insolvent debtor. Spear v. WardOl, 2 Barb. Ch. 291, 6: 648 91. A debtor, pending proceedings against him for an actual or Intended fraud, is entitled to a dis- cbarge from imprisonment upon his paying, or se- curing the payment of, the creditors who have pro- ceeded against him, or giving security to retain bis property in its then situation until they have had a reasonable time to exhaust their remedies at law and to file a creditors' bill to reach his property, or upon his making an assignment of his property to Buch assignee as may be appointed for that purpose by the judge before whom the proceedings are had, for the benefit of all the creditors ratably. Ibid. 95. It is not a fraud upon the Act, it seems, for the debtor, pending the proceedings against him, to make a general assignment of all his property, with proper inventories showing the particulars thereof , and the names of bis creditors, with the amounts due to them respectively, to a proper and responsi- ble assignee for the benefit of all bis creditors rat- ably, and giving to such assignee the same author- ity to convert the property into money and to apply it to the payment of his debts, and for the same compensation to which an assignee appointed under tbe Act would be entitled. ibid. 96. But any other disposition of his property would be a fraud upon tbe Act, and would renuer the as- signment void as against the prosecuting creditor. And the debtor who has been guilty of such a fraud ought not to be discharged from imprisonment, upon making a mere formal assignment of bis property, alter having committed such a fraud upon the rights of the prosecuting creditor. Ibid. 97. The statute authorizing the court out of which an execution issues to discharge the defendant, upon his executing an assignment of his property for the benefit of the party at whose suit he is im- prisoned, extends to an execution for the collection of money only, issued out of the court of chancery. Van Wezel v. Van Wezel, 3 Paige Ch. 38, 3: 48 98. But the statute does not authorize the dis- charge of a party In execution for a flue imposed for a contempt of court, or where he is committed for the nonperformance of some act or duty which it is in his power to perform. Ibid. 99. An insolvent may assign his property for the benefit of all his creditors ratably, without depriv- ing himself of the privilege of applying for a dis- charge from imprisonment for debt, under the statute. Coming v. WMU, 2 Paige Ch. 567, 8: 1031 Editorial Notes. Proceedings In aid of execution 3: 657 Of decree after dea*,h of plaintiff 2 : 945 Summary proceedings to obtain possession 2: 977 Amount of property to be sold; equity ju- risdiction 2: 167 Notice of equitable title to purchaser 2: 647 Against property of paitners 1: 484 Injunction to restrain; contribution among debtors 1 : 765 Sale of lands under 5: 604, 7: 968, 970 Against interest under land contract 4:613,757,5:714 Sale of lots in mass; setting aside sale 1:223 Equitable interests in lands cannot be sold on 4: 1092 When equity of redemption cannot be sold upon; when equity will interfere 1:318 Will not reach equitable interests 1: .S81 Will reach determined interest in chattel? with possession 1 : 381 Levy on chattels in hands of executors 3:725. When trust estate subject to 1 : 57 Set aside for irregularity 5: 38S Not set aside for mere irregularity 5: 86T Sale vitiated by preventing competition 1: 833, 2: 100 Equity relief from fraud 1 : 784 Who may not purchase at execution sale 1:784 Inadequacy of price 2: 167 Relief from fraud in sale 1: 788- Purchase by judgment creditors 1 : 83S Necessity of scire facias 1 : 823 Forfeiture of priority by withdrawal of 5: 576 Equitable, to reach choses in action 4: 108 Aid of, in equity 6: 36ft Lien of, superior to assignee's title 5: 43, 1037 Non-Imprisonment Act, construction 5: 648 Discharge of debt by taking debtor 1: 437 Effect of arrest of debtor upon 2: 774 Right of debtor to redeem 1: 784 EXECUTION OF POWER. See PowEES, rv. EXECUTORS AND ADKINIS- TRATORS. I. Appointment and Removal. a. In General ; Bight to Administer; Priorities. b. Application for Letters. 0. Validttv of Appointment; Ttemoval; Dis- charge. d. Necessity of Administration. n. Powers, Buties, and Liabiuties Geneb- ally: Conduct oe Estate. a. Bights, Powers, and Duties in GeneraL b. Assets; Inventory; CoUeetion. c Bights and Powers as to Property. 1. Beat Property. 2. Personal Property ; Investments. d. Vnautlwrized Dealings vMh Estate. e. Personal lAaJbility for Negligence, etc t. Security; Bonds. g. lAabilities and Actions on Bonds, a. Coexecutors: Powers and Uabilities. in. Suits Br and Against Estate. a. In General; By Creditors. b. By Heirs. Legatees, etc. o. By Executors and Administrators. TV. Distribution and Settlement. a. Debts and Obligations. 1. Presentation and Allowance. 2. Payment QeneraOy. 8. Priorities. 4. Betairwr ; Set-Off. i 5. Allowance to Family. 6. Marshaling Assets. a. In General. b. Liability of Bealty and Personalty. c. Payment of Land Contracts and Mortgages. 0. Distribution ; Overpayment ; Recovery Back.. c. Accounting. 1. Jurisdiction; Bight to Demand. 2. Procedure. 3. Charges and Credits, i. ETpenses. 5. Compensation. 6. Effect; Beopening ; Attacking. d. FoUowing Property ; Liability of Person* Who Beceiveait. 1. In General. 2. IMbiUty of Beirs and Devisua. V. Sale of Land fob Debts. a. In General; Bight to SeU, b. Procedure ; Sale. EXECDTORS AND ADMINISTRATORS, I. a— c. 179 VI. FoBEiON Executors and Administbatobs. EDiTORiAii Notes. See also Accounting, 16-18 ; Advancements; As- sessment, 1 ; Conflict of Laws, I. ; Costs, 1. o; Greditobs' Bill, I. d, 3; Debtor and Creditor, 10; Deceased Persons; Equity, 111, 113 : Husband and Wife. 32. 38, 55, 56, 60, 63-65, lil; Injunction, I. J, HI; Interest, I. d, e, 99, 100 ; Life Tenants, 8-10 ; Limitation of Actions, IV. e ; Parties, VI. ; Paetnebship, 132, 133, III. d : Set-Off, I. e ; Subrogates ; TBUsts, 144 ; WILLS, II. h. I. Appointment and BsMOVAii. a. In QenerdL ; Bight to Administer ; Priortties. 1. The court of chancery has no power to appoint an executor. Be Van WycH, 1 Barb Ch. 565, 5: 496 2. If no other person wlU administer upon a deceased debtor's estate, the judgment creditor should himself apply to the surrogate, and obtain letters of administration, and then apply the per- sonal property of the deceased to the payment of debts in the due course of administration. Wilber V. Collier, 3 Barb. Ch. 427, 5: 959 3. Whenever the right of administration devolves upon an infant, the proper course is to grant ad- ministration to his guardian or some other person durante minore cetate. If, through mistake or inad- vertence, the office has been conferred upon an infant, it may be revoked by the surrogate. Carow V. Mowatt, 2 Edw. Ch. 57, 6: 307 • i. An infant administrator is responsible for all acts done after coming of age and before revoca- tion. A court of equity regards him as a trustee and compels him so far to account, but not with respect to assets which came to his hands during infancy. Ibid. 5. The surrogate has no discretion to exclude a person declared by the statute to be entitled to a pref erence,except for some of the causes specified m the statute. Coope V. Lowerre, 1 Barb. Ch. 45, 6: 893 5. 0. 5 Ch. Sent. 36, 5:1178 6. No degree of legal or moral guilt or delinquen- cy is sufficient to exclude a person from the aainin- istration, as the next of kin, in the cases of prefer- ence given by the statute, unless such person has been actually convicted of an infamous crime. Ibid. I. The conviction intended by the statute Is upon an indictment or other criminal proceeding. Ibid. 8. The improvidence contemplated by the statute as a ground of exclusion is ctiut want of cat-e ur foreslght in the management of property which would be likely to render the estate and effects of the intestate unsafe and liable to be lost or dimin ished in value by improvidence, in ease administra tion thereof should be committed to the improvi- dent person. Ibid. 9. Where a surrogate has a discretion to select be- tween two or more individuals of the same class, he may properly take into consideration moral fit- ness in makmg such selection. Ibid. b. Application for Letters. 10. Whenever the property of an intestate, of which the public administrator in the city of New ifork is entitled to take charge, exceeds the sum of $100 in value, the latter must serve a personal notice upon the widow and all the relatives of the decedent WDo are entitled to any share of his estate, if they are to be found in the city, of the Intention to apply to the surrogate fur letters of administration; and in all cases where the notice is not personally served it must be published for four weeks. Proctor V. Wanmaker, 1 Barb. Ch. 302, 5: 3941 II. Where letters of administration are granted by the surrogate to the public administrator, with- out a personal service of the citation upon the wid- ow and relatives of the decedent, or the publication of a notice in the manner directed by the He vised Statutes, the letters of administration may be re- voked. Ibid. 12. Sections 31 and 32 of the title of the Kevised Statutes relative to public administrators were not Intended to deprive the widow or next of kin of the light to have the grant of administration to the public administrator vacated and set aside for ir- regularity, where it has been improperly obtained without a compliance with the directions of the statute on that subject, although the application for that purpose is not made within the time limited by those sections in respect to cases where all the pro- ceedings of the public administrator have been cor- rect and regular. ibid. 0. Validity of A%>pointment ; Bemoval; Discharge. 13. The surrogate's court is the appropriate tribu- nal for the removal ol uu executoi' who is irrespon- sible, and for the appointment of another person in his place, when any of the property of the decedent remains in his hands unadministered. Hbsacfe V. Boaere, 11 Paige Ch. 603, 5:848 14. The mere fact that an executor is an octogena- rian, if in possession of his faculties in other re- spects, is not a sufficient reason for removing him from his trust, or for taking the property out of his hands. Hosach V. Borers, 6 Paige Ch. 415, 3: 1044 15. Although a surrogate hae no power to recall letters of administration under the Kevised Stat- utes, yet the authority given to him by the Act of May 16, 1837, allows him to do so in cases where let- letters were granted prior to the last-mentionedAct- Pet-ley v. Sands, 8 Edw. Ch. 825, 6: 67 B 16. If i«om7(J seem that where letters of administra- tion are granted on a mistake of facts, this may be brought within the spirit of misrepresentation un- der which a surrogate could revoke them. IMd. 17. An executor who has renounced his executor- ship may retract his renunciation at any time be- fore the granting of letters testamentary to the other executors, or the issuing of letters of admin- istration with the will annexed, Bobertson v. MeOeoch, 11 Paige Ch. 640, 6: 864 S. C. 5 Ch. Sent. (No. 3) 10, 5:1169 18. One of several executors, who renounces the executorship, may as a matter of course retract his renunciation after the death of the executors to whom letters testamentary were issued. Ibid. 19. If all the executors renounce, and adminis- tration with the will annexed is actually granted, they cannot retract, at least during the life of the administrator. Ibid. 20. The Revised Statutes have authorized the court of chancery, upon petition, to accepc tne res- ignation of a trustee and to discharge him from his trust in certain cases. But it seems this staf utory power does not extend to the case of an executor, so far as relates to his power to sue for and collect lebts due to the testator, or as relates to his liabil- ity to creditors, legatees, and next of kin on ao- oount of the personal estate which may have come to his hands. Be Van Wyclc, 1 Barb. Ch. 565, 5: 496 21. Whether the court of chancery has the power' to remove an executor, upon a mere petuiou pre- sented by sotne of the persons interested in the estate, and without the institution of a suit for that purpose,— (7«CBre. Be Wadgworth, 2 Barb. Ch. 381, 6: 683 22. The committee of a lunatic execute r is enti- tled to notice of an application to the court to re- move such executor. And if the alleged lunatic has no committee, the court will direct the appli- cation to stand over until a committee shall have been appointed. Ibid. 23. Independently of the statute of 1837, a surro- gate has power to call in and revoke letters of ad- ministration which have been irregularly and im- properly obtained upon a false suggestion of a matter of fact and without due notice to the party lic'htfuUy entitled to administration. Proctor V. Wanmaker, 1 Barb. Ch. 302, 5: 394 24. Where an executor or other trustee miomnn. ages the estate confided to his care, or puts the as- sets in jeopardy by his actual or impending insol- vency, the court will restrain him from all further intermeddling with the estate, and compel him to restore the funds in his hands. „^ „„ , „„^ Elmendorf v. Lansing, 4 Johns. Ch. 562, 1: 937 25. An executor, on a bUl filed against him by his coexecutors, was restrained from all further in- terference in the management of the estate, and or- dered to restore to the plaintiffs a bond and note of the estate in his possession, but not to account for the money he had received on the bond, or to jay the costs of the suit. Iota. 180 EXECUTORS AND ADMINISTRATORS, I. d— II. c. 1. 26. Executors of a will of real and personal prop- erty had filed no inventory in New Yorlt, where part of the personalty was, and one of them was controlling the estate, and a wasting: of ,it was al- leged, while their pecuniary inability was stated, and it was suggested that coercive steps were about to be taken in the surrosate's ofliee (where they had, however, lately given bond on ap- plication of the present complainant) and the Dill prayed that the executors be enjoined and also suspended, and a receiver appointed. The court held, that the surrogate bad full power in the premises, and there were not such special circumstances as made it necessary for this court to interfere on the ground of having concurrent jurisdiction. Whitney v. Monro, i Edw. Ch. 5, 6: 778 d. Necessity of Administration. 27. A person who is the next of kin cannot sus- tain a suit in equity for the recovery of personal property belonging to the decedent, without taking out letters of administration upon the estate, al- though he is exclusively entitled to the beneficial interest therein. Jenkins v. Freyer, 4 Paige C\a. 47, 3: 336 28. Where a person entitled to a portion of a fund in court had been dead more tuau cweuty yeais, and had died under age. the court allowed the par- ties entitled as next of kin to the decedent to take the money out of court without the expense of taking out letters of administration. Bogert v. Furman, 10 Paige Ch. 496, 4: 1065 29. Where the plaintiff and defendant were the only children and heirs of their mother, who died intestate ; and the defendant, who was indebted by bond and mortgage to the estate, would not admin- ister, and there were no creditors of the estate, or other persons entitled to administration, — Held, that though, generally, a bill by a creditor or a per- son entitled to a distributive share ot the personal estate of an intestate will not lie against a debtor to the estate, yet that the plaintiff might, under the circumstances of this case, sue the defendant for a moiety of the fund or debt in his hands. iTDowl V. Charles, 6 Johns. Ch. 132, 8: 77 II. POWEKS, DCTIES, AND LIABILITIES GENERAL- LY; CoNDtrcT OF Estate. a. Bights, Powers, and Duties in General. 30. The administrator of an assignee is not bound to assume the supervision of the trust property. Bowman v. Bainetaux, Hoff. Ch. 150, 6: 1096 31. Whether, where a testator gives to his trustees a distinct character as trustees, entirely independ- ent of their character of executors, an administra- tor with the will annexed can execute such trust, gucere. De Peyster v. Clendining, 8 Paige Ch. 295, 4: 434 32. Where it was doubtful whether the adminis. trator with the will annexed was authorized to ex- ecute a trust power given to a person who was also named in the will as executor, but who refused to accept the trust, the court appointed such adminis- trator trustee, and directed him to execute the con- veyance of the property, under the power in trust, both as administrator and as trustee. Ibid. b. Assets; Inventory; CoUeetion. 33. The personal property left by a decedent be- longs to the personal representatives, and can only be reached by a proceeding against them. Wilber v. CoVier, 3 Barb. Ch. 427, 5: 959 34. An executor who is a debtor to the estate is chargeable with the amount of the debt due by him, as assets in his hands for the payment of the debts of the testator. Declier v. MiUer, 2 Paige Ch. 149, a: 851 35. A mortgage interest, before foreclosure, is a chattel and personal assets belonging to the execu- tor. Demarest v. Wynkoop, 3 Johns. Ch. 145, 1: 573 36. The administrator of a mortgagor is not, as such, entitled to the surplus money arising from the sale of the mortgaged premises ; but it is considered as part of the real estate, and goes to the heirs, and will be assets in their hands. Moses V. Muraatroyd, 1 Johns. Ch. 119, 1: 88 37. And where the heirs were before the court by their parent, it was ordered to be distributed, as equitable assels, among all the creditors part passu. Ibid. 38. But as the creditor has a remedy at law against an equity of redemption, it is questionable whetheij before a sale of the mortgaged premises, it could be deemed equitable assets. Ibid. 39. Assets may be partly legal and partly equita- ule, and the court will discriminate in the distriliu- tion of them, following the rule of law as to the legal assets, so as to prevent confusion in the ad- ministration of the estate ; but directing the equita- ble assets to be applied ratably among all the cred- itors without preference. I/nit. 40. Where the testator or intestate. In his lifetime, has made a fraudulent transfer ot Uis property to de- fraud his creditors, and afterwards dies insolvent, bis executors or administrators may, under the provisions of the Revised Statutes, recover the property from the fraudulent grantee for the bene- fit of the creditors of the decedent. BrowneU v. Gurtis, 10 Paige Ch. 210, 4: 948 41. Where a person leaves a contract for the sale of lands unperformed at the time of his deata, and application is made, under the statute, for his in- fant children to perform it, the purchase money will go as assets and not follow the course of real Be Everit, 2 Edw. Ch. 597, 6: 517 42. Where there is a contract for the purchase of land, and the vendee dies, the land descends in equity to his heirs as real estate ; and thevmay call on the executor or administrator to discharge the contract out of the personal estate of the vendee, so as to enable the heirs to demand a conveyance from the vendor. Champion v. Broion, 6 Johns. Ch. 398, »: 163 43. Where a debtor placed securities in the hands of one of his creditors tor his debt^ and after the debtor's death his attorney placed other securities in the hands of the same creditor, with directions to pay the surplus to a certain other creditor of dece- dent, which the one receiving the securities agreed to do, the administrator of decedent, and not such other creditor, was entitled to the surplus. Oppenheim v. LeoWolf, 3 Sandf . Ch. 571, 7: 961 44. It seemi that the public administrator in the city of New York has no power (under the Act rela- tive to persons dying intestate, etc., in New York, •iess 38. chap. lS7) to administer on goods which wore shipped at a f oreisn port, and arrived here ,,ftpv the death of the intestate. namnvmd v. WLea, 2 Johns. C!h. 493, 1 : 463 45. At any rate, this court wiU not interfere by injunction in such case, but leave the parties to contest their rights at law. Ibid. 46. It seems that an executor or administrator who has taken probate of the will, or obtained ad- ministration of the estate of the decedent within the j urisdiction where he was domiciled at the time of his death, and by virtue thereof obtained posses- sion of the securities against debtors residing in an adjoining jurisdiction, is bound to use reasonable diligence in collecting such debts, although the debtors are not within the State where the decedent was domiciled, and have no property there. Shultz v. Pulver, 3 Paige Ch. 182, 3: 107 47. Where a legatee or distributee of an estate owes a debt to the testator, so much of such debt as can be collected by the executor, including the interest due at the testator's death, must be appor- tioned and distributed. Smith V. Kearney, 2 Barb. Ch. 533, 3: 743 48. If an administrator omits to file an Inventory of the goods of the deceased, pursuant to the stat- ute, it is a strong circumstance in support of the charge of improper condue t. Hart V. Ten B)/cfc, 2 Johns. Ch. 62, 1:296 49. If an administrator exhibits an untrue ac- count ot the personal estate of the deceased to the court ot probate, by which he fraudulently obtains an order for the sale of the real estate, he must not only account for the personal effects omitted in his statement, but is answerable for the real estate aold, and that according to its value at the time of filing the bill against him. iDia. c. Bights and Powers as to Property. 1. Beal Property. 50. The statute authorizing executors to bring the EXECUTORS AND ADMINISTRATORS, II. c, 3. 181 proceeds of real estate into the 8urrog:ate'8 ofBce for distribution is only for the benefit or protection of the executor, and it does not require the execu- tor to place such proceeds in the surrogate's hands, where the real estate is sold under a power con- tained in the will. Holmes V. Cock, 2 Barb. Ch. 426, 5: 701 51. Where executors are obliged to foreclose a mortgage belonging to the estate of their testator, If the property will probably sell tor a sum below it« actual vaiue, so as to endanger a collection of a part of the mortgage debt, it is their duty to bid in the property for the benefit of the estate, and to take the conveyance to themselves as such execu- tors, and to hold the premises until they can ba sold for a fair price. And where the property re- mains in their hands unsold at the time of account- ing before the surrogate, he may direct a sale thereof, and a distribution of the proceeds of such sale as a part of the estate. Clark V. Clark, 8 Paige Ch. 152, 4: 379 52. An agreement by an administrator to convey the real estate of the intestate, previous to obtain- ing the surrogate's order of sale, and in anticipation thereof, is Ulegal and void. BoU V. Rogers, 3 Paige Ch. 154, 3: 95 53. The administrators of a vendee cannot as- sign the contract or compel its performance, with- out the consent of the heirs. Champion v. Brovm, 6 Johns. Ch. 398, 8: 163 54. Where the administrators of the vendee assigned a contract for the purchase of land, to the defend- ants, who convenanted with them to take up and cancel the contract, and to indemnify and save them harmless from all damages, etc., by reason of the contract, etc., — Held, that the administrators were entitled to a specific performance of the cov- enants on the part of the defendants, who could not set up a want of personal assets as an objection, in limine, to the relief sought by the bill. Ibid. 55. Where a testator by his will gives no authority to his execut ors to sell his real estate, the executors cannot sell any portion thereof, either for the pur- poses of division or otherwise. Craig v. Craig, 3 Barb. Ch. 76, 5: 834 56. Where an express power in trust is given to executors to divide a specified part of the real and personal estate of the testator into four equal parts, and to invest two of the shares for the benefit of two of his children, this is a valid and imperative power in trust, under the provisions of the Revised Statutes, to divide such real estate into four equal parts by a valid and legal instrument setting otf the share of each devisee in severalty, under the will. Ibid. 57. A devise to executors in trust for C for life, and if she died without issue, then in remainder over, with power to the executors '" to sell and dis- pose of so much of the real estate as should be ne- cessary to fulfill the will,"is sufficient to authorize executors (the persons in remainder being infants) to execute leases for years of the real estate, for such terms and upon such conditions as are reason- able and necessary to carry into effect the inten- tions of the testator, expressed in the will. Hedfles V. Bifcer, 5 Johns. Ch. 163, 1:1044 58. But, without resorting to such a power, as necessarily implied in the will, this court having a general jurisdiction over the proi«>>ty of infants, may authorize the executors to m^ke such leases, with consent of the tenant for life, for the term of twenty-one years, or building leases, as should be deemed most beneficial to the interest of the ten- ant for life and those entitled to the reversion or remainder in fee. Ibid. 59. Where the power to sell given to executors by the will is special, it can only be exercised in the mode prescribed by the testator. Pendelton V. Fay, 2 Paige Ch. 202, 8:874 60. Where an executor was authorized to sell the real estate at public vendue, to pay off the legacies to the children of the testator as they became of age, and he sold the property at private sale to raise money for his own use, before the legacies became payable, the sale was held to be void. Ibid. 61. Where the testator gave his real and personal estate to executors in trust, to and for the uses mentioned in the wUl, and then directed them to pay certain annuities to his wife and children dur- fug life, and the income of the estate was insufflcient to pay all the annuities,— it was held that the exec- utors were authorized to sell such part of the estate as would be necessary to raise a sufficient sum to purchase the annuities given in the wUl. Bradliurst v. Bradhurst, 1 Paige Ch. 331, 8: 668 62. On a devise to executors iu trust to sell, where there is no direction for them to receive the rents and profits, they have no estate in the land, but a mere power in trust. Nevertheless they were held accountable to the heirs for the rents received by them under the impression that they were entitled to collect such rents as executors. Campbell v. Johnston, 1 Sandf. Ch. 148, 7:375 63. They were also required to account for the 10 per cent paid down on two public sales made by them, which the purchasers tailed to complete. Ibid. 64. If an executor be directed to sell land, if seems that he cannot retain it as he may personal assets. Livingston v. Newkirk, 3 Johns. Ch. 312, 1: 630 2. Personal Property ; Investments. 65. Only the executor or administrator can repre- sent the personalty, and he alone can give a valid discharge, upon payment of the demand due the testator or intestate. JenMiis V. Freyer, 4 Paige Ch. 47, 3: 336 66. Where testator bequeaths the residue of his personal estate for the life of the legatee or for a shorter period, the executor must take sufficient se- curity from the legatee to secure the return of the capital if he lets it go into the hands of such legatee to collect the income himself, or he will be liable for its loss. Clark V. dark, 8 Paige Ch. 152, 4: 379 67. As a general rule, upon a bill filed against an executor or administrator for a distribution of the estate of the decedent, if it appears that there is a clear balance in his hands uninvested, beyond all just claims made by him upon the fund, such balance will be directed to be brought into court and invested pending the suit. Hosack V. Rogers, 6 Paige Ch. 415, 3: 1044 68. Even where executors loan on real estate, they must use care as to title ana ascertain that the value is such as will, in all probability, be an adequate se- curity for repayment whenever the money shall be called in. Bogart v. Van Velsor, 4 Edw. Ch. 718, 6: 1031 69. Criterion of value tor executors in loaning on real estate is the estimate of men of ordinaiy pru- dence who would deem it safe to make a like loan with their own money. Ibid. 70. As a general rule an executor or trustee, dur- ing the pendency of a suit for an account and dis- tribution of the fund in his hands over and above his just claims thereon, should ask for leave to pay such f u«-d into court, or for authority to invest it under the direction and sanction of the court ; and if he invests it without the sanction of the court, on insuffioient security, he will be charged with the amount thus invested, as a misapplication of so much of the fund. Hosack V. Rogers, 9 Paige Ch. 461, 4: 776 71. It would seem that where there is no direct and pomted allegation ot luisconduct m tne oui against executors lending money upon insufficient securit.v or contrary to the directions of the will, they will not be held personally liable on a reference to ac- count where a loan has been made on personal se- curity. Holley V. S. 0. 4 Edw. Ch. 284, 6: 880 72. Where a life estate is bequeathed in the testa- tor's residuary personal estate, with remainder ovei . to others, it is the duty of the executors to have the fund properly invested so as to produce an in- come of at least 5 per cent; and if it is not so in- vested, they will be liable to the remaindermen f oi the capital of the residuary fund with the interesi or income thereof from the death of the legatee f o> ^WaUamscm v. WiUiamson, 6 Paige Ch. 298, 3: 994 73. An executor or administrator is not author- ized to loan moneys of tue estate in his hands, tu Luc nayment of which an adult legatee or distributee is entitled immediately upon demand, without the authority of such legatee or distributee. If he does loan such moneys without authority, it will be at his own risk. 1 1 Jocot V. Emmett, 11 Paige Ch. 142, 5:86 S.C.i Ch. Sent. 32, 5: 1145 182 EXECUTOKS AND ADMINISTRATORS, II. d--f. d. Unauthoriaed Dealings vMh Estate. 74. A testator devised real estate which was sub- ject to morcg-ages, to Ins exucucoi-s iu trust to sell the same and divide the proceeds among his chil- dren. He also made the executors their guardians. The property produced an income exceeding the interest of the mortgages, but the interest was not paid, the mortgages were foreclosed, and one of the executors became the purchaser at the sale. Held, that the executor had a duty to perform in respect of the property whicb was Inconsistent with his becoming such purchaser; and the sale was set Cmkpbea v. Johnstm, 1 Sandf. Ch. 148, 1: aiS 75. Where an administrator of a deceased partner, without applying to the court for its direct.un, bona fide permitted the surviving partner to sell the joint stock in the usual course of the trade, for the joint benefit of himself and the intestate's estate, he was held not to be responsible to the creditors for any loss; though he might be personally liable for any debts contracted bv surh af°nmed partner. Thompson v. Brown, i Johns. Ch. 619, 1: 957 76. Where a person named as executor in a wlUi but wno never quaUSed as such, took possessio" of part of the pei-sonal estate of the testator, ana paid Borce of the "lebts,— Held, that these acts were proof of his election to act as executor, and made him chargeable as executor. Fan Home v. Fonda, 5 Johns. Ch. 388, 1:1118 77. An executor or trustee cannot buy in mort- gages. Judgments, or other debts of the testaLor, for Bis own benefit; nor can he, in any way, deal or traffic with the estate for his own emolument. Ibid. 78. Under the provisions of the Revised Statutes no one can be liable to account to the next of kin, as an executor, of his own wrong. They are only liahieto his personal representatives. ^ _, ,„„ JkTutr V. ieoTce* W. OrpTianHoiMe, 3Barb. uient of pruuua- aory notes given by the testator, in an action at law brought thereon, or to restrain him from pros- ecuting a bill of discovery filed in the court of chan- cery for the purpose of ascertaining the considera- •tion of such notes. Be Parker, 1 Barb. Ch. 154, 5: 333 173. No decree can be made against the personal representatives of a deceased mortgagor which will entitle the mortgagee to an execution against them for a deficiency unless an account of decedent's es- tate has been taken or they admit assets in their hands sufficient to pay such deficiency and all other debts of an equal and higher class. Leonard v. Morris, 9 Paige Ch. 90, 4: 6S0 173. An administrator who has no funds of the tes- tator or intestate in his hands for the payment oi debts is not authorized to pay alleged debts whicii are barred by the Statute of Limitations, and then to obtain an order for the sale of the real estate of the decedent to reimburse himself for the amount of the debts thus paid. aachrist V. Bea, 9 Paige Ch. 66, 4: 610 174. After a flnal decree has been made for the ad- ministration of a fund in the hands of executois, •etc., for the benefit of all creditors who have a claim upon such fund, the court may compel creditors to come in and establish their claims under the decree, ■or lose them Re Gity Bank of Buffalo, 10 Paige Ch. 378, 4: 1019 175. Nor will such creditors be permitted to file a new original bill agamst the exei;utor or trustee ol the fund; but if any of the creditors are so situated tha*; they oannot come in under the decree in the original suit, nr it tbey are entitled to more exten- sive relief than they can obtain under such decree, they will be permitted to file a new bUl in the nature •of a supplemental bill. ItHd. 176. The provisions of the Kevised Statutes author- izing the surrogate to decree the payment of a debt, where the executors or administrators do not think proper to ask for a final settlement of their accounts, are not imperative. Kidd V. Chapman, 2 Barb. Ch. 414, S: 69G 177. Accordingly, where the claim of the creditor is inleuded to be contested in good faltb, and where the same has in fact been rejected or disputed by the executors or administrators at the time it was E resented to them for payment, and the claimant as neglected to proceed at law to establish the va- lidity of bis claim, it seems the surrogate, in the ex- ercise of a sound discretion, may refuse to permit the claim to be litigated before him, in the iirst in- stance, upon a direct application of the claimant for the payment of his debt. Ibid. 178. The surrogate has the power to decree the payment of a judgment recovered against the testa- tor in his lifetime, although the executor does not ask for a final settlement of his accounts. Ibid. 179. It is not a proper exercise of discretion on the part of the surrogate to refuse to proceed further upon the petition of a judgment creditor for the payment of his debt by the executors of the judg- ment debtor, where such cl^^ditor has sworn, in hia petition, that the debt is still due, merely because the counsel for the executors says that his clients dispute the debt. But the answer to such petition should either deny the recovery of the judgment, or should state that it has been reversed, or paid, either in whole or in part; and it should be verified by oath. ■ B/id. 180. The mere neglect to pay a just debt, by an ex- ecutor, when he is called oa for payment, or even a refusal to pay, upon any other ground than that the debt claimed, or some part thereof, is not le- gally or equitably due, is not a disputing or rejec- tion of the debt, within the meaning of the statute, so as to require the creditor to sue for its recovery within six months, or be barred. Ibid 181. It is the duty of an executor or administrator whenaelaimispresenteaairainst the estate of the decedent, to inform the claimant explicitly wheth- er he means to reject or dispute such claim, or any part thereof, upon the ground that it is not justly due. Or, if he wishes further time to investigate the justice or legality of the claim, he should ap- prise the claimant of such wish, and should be prepared to admit or reject the claim, or to refer it, within a reasonable time thereafter. Ibid. 183. What evidence may be required, by an ex- ecutor, of the justice of a claim presented against the decedent's estate. Williams v. Harden, 1 Barb. Ch. 398, 5: 398 ■ S. C. 5 Ch. Sent. 55, 5: 1184 3. Pajment Oenerany. 183. From a principle of convenience, the court of chancery has adopted the rule that the personal representatives of the testator or intesrate shall have one year, after his death, to collect in the assets, and to liquidate and pay off the debts, and prepare for a distribution of the estate, or to in- vest the same in the manner directed by the will, except in those cases where other directions were given by the testatoi. The interest or income of the estate, for that year, may therefore be applied in the payment of debts, under a direction con- tained in the will, and in exoneration of the principal of the estate, without violating either the letter or the spirit of the statutory provisions against accumulations. Hawley v. James, 5 Paige Ch. 318, 3: 734 184. Where an adult residuary legatee is informed of the fact that a final dividend uas been maae by the executor to the several residuary legatees, aud that the executor is ready to distribute the amount among them, it Is not the iiity of the executor to go to him and tender tue amount of his distributive share, especially where the legatee has previously refused to receiv, a portion of his share when it was tendered to her. Burtis V. Bodge, 1 Barb. Ch. 77, S: 306 185. Where oneofthenextof kin of the decedent, entitled to a distributive share of his estate, left her domicile of origin, and went to reside at another place, and continued to correspond with her mother and sisters, but had not answered their letters for about twelve years previous to the death of the de- cedent, but there was nothing else to raise a leeal presumption of her death, the administrator of the decedent was not justuied in paying the share of the estate belonging to the absentee, to her sisters, without making inquiries at the last known place of residence of the absentee, to ascertain whether she was living or dead. MeCarteev. Camel, 1 Barb. Ch. 455, 5: 453 186. Payment of a legacy or distributive share to the guardian by nattire of an infant is at the peril of the executor or administrator, who may be com- pelled to pay the same over again. Otherwise, where the payment is to a guardian appointed by this court, who has given the requisite security. Genet v. TaUmadge, 1 Johns. Ch. 3, 1: 37 187. Where alegacydue to a/emecouert as her sep- arate estate is paid over to her by the executor, un- der a decree of the surrogate obtained upon the ap- plication of her husband, and is accepted by her, it seems such payment will protect the executor, not only as to the payment, but also from a further ac- counting to her. Guad V. Peck, 11 Paige Ch. 475, 5: 803 EXECUTORS AND ADMINISTRATORS, IV. a, 8, 4. 187 188. Legacies directed to l)e paid in Loudon in ster- ling inouey, in paia iat the par of exchange; and if remitted, the cxuou- tors are to purchase exchange on London for the amount in sterling. Stewart v. Chambers, 8 Sandf. Ch. 382, 7: 634 3. Priorities. 189. The doctrine of equitable assets, by which all ■the creditors are paid pari passu, is not affected by the statute, Sess.^, chap. 93, 1 N. K. L. 36; f or the ■omiBsion of the 1th section of the English statute, 3 W. & M. 114, which excepts devises of lauds to pay debts, does not vary its construction. Benson v. Le Boy, i Johns. Ch. 651, 1:969 190. And a devise of aU the testator's estate, real And personal, In trust to pay debts and to distrib- ute the residue, places the assets under the Jurisdiction of this court. Ibid. 191. The priority given to the United States in the event of the death of the debtor arises after iis estate has passed to executors or administra- tors. Congress has no-where subjected the real estate in the hands of the heir to the payment of the debts contracted by the ancestor with the government. United States v. OrooTssharik, 1 Edw. Ch. 233, 6: 181 192. A creditor holding a specialty debt due from an intestate and comin g against the estate ■of his administrator on account of a devastavit ■can only take equally with such administrator's «imple-contract creditors; while his sureties must make up the balance. Carow V. Mowatt, 2 Edw. Ch. 57, 6: 307 193. Voluntary bonds given by a testator wiU be ■operative as debts against the estate, unless he was turn compos mentis, or the bonds were obtained by ■fraud or undue influence; but they will have to be gostponed to bonds and simple-contract debts aris- ig upon valuable consideration. Yet they have a ^preference of legacies. IsenJmrt v. Brtywn, 2 Edw. Ch. 341, 6: 483 194. Where the heir at law of an intestate who did not lea^vo sufficient personal estate to pay his debts conveyed to a creditor of the decedent a portion of the real estate which descended to him as heir at law, in part payment of the debt owing to the grantee by the decedent, such conveyance was not ■entitled to a preference over the legal lien of a judgment previously obtained by another person .against the heir at law, it not appearing that there was no other real estate to pay the debts of the testator after applying the personal property for that purpose. Pierce v. Alsop, 3 Barb. Ch. 184, 6: 867 195. To entitle the creditor to such preference, he must himself proceed to a judgment or decree .against the heir at law, for the debt due from the latter, in respect to the lands descended from the deceased debtor; or he must apply to the surrogate for a sale of the land to satisfy the debts of the de- -cedent which the personal estate is InsufQcient to pay. Hid. 196.Eent due from the testator upon a church pew is not a preferred debt, unless it is rent due upon a term of years in such pew, which belongs to the -executors or administrators as a part of the per- sonal estate of the te^tntor. Johnson v. Garbett, 11 Paige Ch. 265, 5: 129 197. Where decedent left personal estate sufiioient "to pay his debts, except such as were secured by mortgage on real estate, the surrogate cannot allow the secured debts to be paid pro rata with those un- secured, out of the proceeds of the personal estate. Ibid. 198. An executor or administrator, pending a -suit in equity and prior to a decree, may confess a judgment at law, so as to give priority; and chan- cery will not interfere with the remedy at law, in favor of a simple-contract debtor, -until there is Maetier v. Lavyrenoe, 1 Johns. Ch. 206, 8: 869 199. A decree in this court is equivalent to a Judgment in law, and if prior in time it is to be -the first paid. Thompson v. Brown, 4 Johns. Ch. 619, 1: 957 200. Upon a joint judgment against two or more persons, if one of them dies, the debt, except so far -as it is a lien upon real estate, survives as against tlie other only, and the representatives of the de- cedent cannot be sued thereon at law; and if the judgment creditor in such a case comes into the court of chancery to obtain satisfaction of his debt out of the personal estate of the decedent, that court, acting upon the principle that equality among creditors is equity, will not give him a preference iu payment over other creditors. HosaeU v. Rogers, 8 Paige Ch. 229, 4: 410 201. By the provisions of the Revised St atut judgments docketed and decrees enrolled are enti- tled to preference in payment out of the personal estate of the deceased debtor, according to the pri- ority In point of time of docketing the judgment or of enrolling the decree, and without reference to any supposed lien of the judgment or decree upon the real estate of the decedent. And a judgment which had been docketed or a decree which had been enrolled more than ten years before the death of the decedent is therefore entitled to be paid out of his personal estate, in preference to a junior judgment or decree which had been docketed or enrolled within the ten years. Ainslie v. BadeUff, 7 Paige Ch. 439, 4: 888 202. Where the decedent died insolvent and Intes- tate, leaving several outstanding and unsatisfied judgments against him, two of which were docket- ed more than ten years previous to his death, and th^ others within that period.— Held, that th- 231. If an executor or administrator pays debts out. of his own money, to the value of the personal as- sets in band, he may apply those assets to reimburse himself; and by such election the assets become his- own property. . Ibid. 232. In marshaling assets, the estate descended to the heir is to be applied to the payment of debts before the estate devised, unless devised specially to pay debts. Llvinggton v. lAvin^ston, 3 Johns. Ch. 148, 1: 573 233. Where the personal estate is insulBcient for the payment of tne testator's or intestate's debts,, the court of probates, under the Act for that pur- pose, may sell the real estate of which the testator or intestate died seised ; but not lands held in trusts for the testator. Ibid^ 234. The heir is not entitled to contribution from the devisee toward the satisfaction of creditors ibid; 235. Nor does equity help a pecuniary legatee to- throw a debt against the personal estate upon a devisee of land. ibid. 236. But different devisees, in respect to a charge on all the estate devised, must contribute, on a de- ficiency of assets, in proportion to the value of their respective interests ; as, to pay an annuity to the widow of the testator, or debts of the testator remaining unsatisfied after the personal estate,, and aU the real estate not devised, had been ex- hausted. Ibid. EXECUTORS AND ADMINISTRATORS, IV. a, 6. 189 237. Equity will marshal assets descended to the lieir, in favor of, and for the reUef of, specific leg- :atee8. Ibid. 153, 1: 675 238. Where a surrogate decrees a distribution of the personal estate of the deceased debtor among his creditore, If any of such creditors has a security for his debt upon another fund which is primarily liable tor the payment of the debt, the surrogate should ■compel such creditor to exhaust his remedy against such fund, and only to come iu as against the per- sonal estate for the deficiency. HaXsey v. Reed, 9 Paige Ch. 446, ^^4: 769 239. If the property of the deceased wife comes to the hands of the personal representatives of the husband, who survived her, such property is liable for the debts of the wife in preference to the debts of the husband due at the time of his death. Lotkwood V. StocKholm, 11 Paige Ch. 87, 5: 66 240. If the whole amount of a debt due by a legatee to the testator, and interest, can be collected or re- oeived, by the retainer of the income by the ad- ministrator, the interest which has accrued upon the amount which was due at the death of the tes- tator is properly distributable among those who have present interests in the pereonal estate of the testator ; and the sum due at the death of the testa- tor is to be considered and treated aa a part of the Smith V. Kearney, 2 Barb. Ch. 533, 5: 743 241. But, in such a case, a proportionate part of the ■receipts, subsequent to the death of the testator where the whole debt, with the intere-it which has accrued thereon after his death, cannot be col- lected, should be considered as interest accrued and received upon the capital of the estate, and should be paid over to those who are entitled to Ufe inter- ests in such capital. Ibid. 243. And the proper way to apportion partial pay- ments between the persons entitled to the life in- terests and the remaindermen, in such a case, is to consider as capital so mueb of the amount as, with the legal interest thereon from the death of the testator, will produce the whole principal and in- terest collected and which is to be apportioned. Ibid. 243. In distributing a fund received and retained t)y the executor on account of a debt due from a legatee or distributee to the estate of the decedent, where the legatees and the widow and the next of kin of the testator had a vested interest In such -debt from the time of his death, although the con- tingency upon the happening of which that inter- est was to vest in possession did not occur until some of them were dead, the executor must appor- tion the same among the legatees and widow and next of kin and those who maybe their representa- tives, from time to time, in the same manner, or, rather, so as to produce the same effect, aa if the fund had been received and retained by such exec- Titor immediately after the death of the testator. Ibid. b. lAdbUlty of Realty and Personalty. 244. As between heirs and devisees, by the common law, lands undisposed of by the will are first to be iit-j.i.euto tne payment ot the debts of the testator, where the personal estate is not sufScient for that purpose. Graham'v. Dickinson, 3 Barb. Ch. 169, 5: 861 245. The personal estate is the primary fund for the payment ot debts and legacies. And i^ tlie testator does not specify who shall pay the legacies, or out of what fund they shall be paid, the presumption is that he intended they should be paid out of the personal estate only. The result is the same where he directe the executors to pay the legacies, and gives them no other fund than the personal estate out of which to pay them. Harris v. Fly, 7 Paige Ch. 421, 4: 213 246. The personal estate of an intestate is the pri- mary f imd for the payment of debts, and is to be first resoi'ted to by the creditor at law. JkTKay v. Green, 3 Johns. Ch. 56, 1: 548 347. He can only come into this court for an account •and discovery of assets, and on the ground of a trust in the executor or administrator to pay debts; not for a sale of real estate on a supposed equitable lien arising from the money advanced by him hav- ing been applied to purchase the land. Ibid. 248. Whether a creditor in au ordinary case, and without some special cause, can come into tnis court to collect his debt from an executor or ad- ministrator, or merely to enforce a ratable distribu- tion of assets, quaere. ibid- 249. The personal estate of a testator Is the pri- SJSiJ^+'i l^°'^.,t'^e payment of debts, notwith- standing the will contains an express dedication of a portion of the real estate for the payment of debte or legacies, and the testator has disposed of all his personal estate speoiflcally. "P"™" "^ Hoes V. Van Hoesen, 1 Barb. Ch. 379, 6: 484 iupf on V. iupton, 2 Johns. Ch. 614, 1:512 350. Where a testator in his will devises lands to a devisee in lee, and then gives several legacies to be paid by such devisee, and the devisee survives the testator, and then dies, his personal estate is the primary fund for the payment of such legacies. McLachlan v. McLacKUm, 9 Paige Ch. 534, 4:805 ^1. Personal debts of a testator not provided for by the will are primarily chargeable upon testator's re- siduary personal estate not specifically devised. Smitft V. Wyclmff, 11 Paige Ch. 49, 5:63 252. Debts due by the devisee to testator and charged upon the real estate devised constitute a fund for the payment of the debte of the testator which are not otherwise provided for by the will 253. Where estate, both real and personal, is de- vised, chargea with tne payment oi a legacy, tne personal estate is the primary fund for its payment; and the real estate cannot be resorted to in the hands of assignees until the personal estate has been exhausted in the payment of debts of the tes- tator, or those. who are accountable for it are irre- si ii-."=ible. Dodger. Manning, 11 Paige Ch. 334, 5: 166 254. Where real estate devised was charged with the payment of a legacy, and was mortgaged by the nevisee and sold under a decree of foreclosure, if the devisee and third persons each purchase separate portions of the property, that purchased by the devisee must be first resorted to for the pay- ment of the legacy before resorting to that of the third parties. Ibid. 255. Where real and personal estate is devised to one for me, with remumaer to another when he should arrive at the age of twenty-one years, subject to the payment of a legacy one year after that time, the legatee may maintain a suit to charge the real estate with the payment ot the legacy at the end of one year after the remainderman becomes twenty- one, without waiting for the termination of the Ufe estate; and the estate may be sold, subject to the life interest, for the satisfaction of the legacy. Ibid. 256. The personal estate is the primary fund for the payment ot legacies, althouga such legacies are charged upon real estate, whether such real estate be devised with a direction to the legatee to pay the legacies, or is charged with such legacies, or is gi^'en to trustees for that purpose. Boes V. Yarn, Hoesen, 1 Barb. Ch. 379, 5: 424 257. But in reference to legacies, an absolute and specific disposition of all the personal estate of tne testator, and not a mere residuary bequest, is suf- ficient to manifest the intent of the testator to charge the realty in exoneration of the personalty. Ibid. 258. Where the personal estate is not, in terms, ex- onerated from lue payment of debts or legacies, and where the debts and legacies are not declared to be chargeable upon the real estate exclusively, an interest in personal property not disposed of by the will is not exonerated, but is the primary fund for the payment of legacies as well as debts. Ibid. 259. Even where the personal estate is in terms exonerated for the ueueut of a particular legatee, and not for the benefit of the estate generally, the failure of the particular bequest destroys the ex- oneration pro tanto. Ibid. 360. Personal property of the testator, which is not legally and effectually disposed of by his will, is the primary fund for the payment of debts, al- though he has directed the debts to be paid out of the rents and profits of the real estate, unless it is evident from the terms of the will that the testator contemplated the event of his dying intestate as to some ofhis personal estate, and intended to exempt it from the payment of debte, for the benefit of those who might be entitled to it under the Statute of Distribution. ^ „,„ „ „o, Hawley v. James, 5 Paige Ch. 318, 3: 734 361. The mere charging of a secondary fund with 190 EXECUTORS AND ADMINISTRATORS, IV. a, 6. the payment of debts does not exempt the primar fund, or postpone Its application, unless the inten- tion of the testator to exonerate it for the benefit of the residuary legatee, or some other person, is manifest. And where an Intention is manifested by the testator to exonerate the primary fund for the benefit of the residuary legatee, a lapse of the residuary bequest restores the residuary fund to its primary liability for the payment of debts. Ibid. 262. If the personal estate of a deceased debtor is not sufficient to pay his debts and legacies, and his executor exhausts the personal estate in the pay- ment of creditors whose debts are chargeable both on the real and personal estate, a lepratee, as be- tween himecif and the heir at law of the decedent, is entitled to stand in the place of such creditors pro tanto, and to recover the amount of his legacy, or so much thereof as the personal estate would have paid,out of the real estate descended to the heir. Mollan V. GrifflOi, 3 Paige Ch. 403, 3: 206 263. But if the testator constitutes his personal es- tate a fund for the payment of his debts and directs tuac the leuauies sbuii aoace if the fund is not sulli- cient for the payment of all his debts and legacies, it wems that the heir at law will be entitled to have a debt of the testator, which is either a specific or a general lien upon the real estate descended to him, paid out of the personal estate. lhU%. 264. Where the personal estate has been exhaust- ed by the executor in the payment of debts charged upon the real estate descended to the heir at law, the legatee, and not the executor, is the proper person to file a bill for marshaling the as- sets, and to obtain payment of the legacy out of the real estate. Ibid. 265. Where a testator directed his executors to sell his real estate to pay debts and legacies in case ot a deficiency of the personal estate, and a bill filed by the executors of a legatee and creditor prayed a sale of the real estate, the executors of the testator having admitted that the personal estate was insuf- ficient, the court directed a master first to ascertain end report whether the executors had duly admin- istered all the assets, before recourse could be had to the land, or determining whether the devisees in remainder were to be brought in. Arden v. Arden, 1 Johns. Ch. 313, 1:153 266. Where, after devising certain personal prop- ertv,testator devises a farm subject to the payment of certain debts, the farm is primarily liable for such debts to the exclusion of the personal estate devised. Smtth v. WyOmff, 11 Paige. Ch. 49, 5: 53 267. The personal property of a testator must be first exhausted in the payment of his debts, before his real estate can be resorted to for that purpose. But where there is a specific lien on the land de- vised, as in case of a mortgage : or where the land is devised upon the condition of paying the debts ; or where the debts are directed to be paid out of the estate devised,— in these cases the real estate wiU be first resorted to, to discharge the debts. So, where it is apparent from the will that the testator's intention was that the legacies should be paid en- tire, and the debts discharged out of Other funds, the court will carry such intention into effect. Pritchard v. Hicks, 1 Paige Ch. 270, a : 643 268. Where the wiU of the testator contains no di- rections as to the payment of debts, chattels spe- cifically bequeathed must be applied to the payment of a judgment against the testator, before resort is had to the real estate devised. Ibid. 269. Debts due by the testator are equitable liens upon his estate in the possession of his heirs or dev- isees, prior in time to judgments recovered against them for their individual debts. Morris v. Mowatt, 2 Paige Ch. 586, 2: 1041 270. But the judgment creditors of the heirs or devisees have a rignt to ask for the application of the ;per8onal estate, in the first place, fo the satis- faction of the debts due by the testator, or that they be substituted in the place of the creditors of the testator as to such personal estate. Ibid. 271. The Revised Statutes have prescribed a new mode, by a bill in equity, of proceeding against heirs and devisees to obtain satisfaction of the debts due from the estate. Ibid, ZIZ. And a final decree In siich suit has a prefer- ence, as a lien on the estate aesceuded or devised, over any judgment or decree obtained against the heir or devisee for his personal debt. Ibid. 587, 2: 1048 273. And a sale under an execution issued upo such decree will overreach, not only all judgments and decrees which may have been recovered against such heir or devisees, but also all mortgages and alienations of the estate, made subsequent to the commencement of the suit. Ibid. 274. Whether a sale under an execution issued ou the decree is necessary to give the purchaser a legal title sufficient to protect him at law against a sale under a previous judgment against the heir or devisee,— QtaBre. ibid. 275. Wli^e a testator charged his personal estate with the payment of his debts, but, it being insuf- ficient for that purpose, his executors applied to the surrogate for, and obtained, an order for the sale of his real estate in the possession of his dev- isees, which was sold accordingly, and the pro- ceeds applied to the payment of the debts of the testator, the amount realized from a claim which their testator had against the French government belonged to those who were the devisees or the owners of the land thus sold at the time of tha Graham v. Dickinson, 3 Barb. Ch. 169, 5: 861 276. Such devisees or owners were exclusively en- titled to the spes recuperandi from the French gov- ernment, for the claim against it, the moment meir property was sold imder the order of the surro- gate. IbUl^ 277. The court cannot interfere with the law of de- scent ot real property, or the established order of distribution of personal property, for the purpose of shifting the burden of paying the debts of the in- testate from the personal to the real estate, or to correct any alleged hardship or inequality produced bv thp law. 'Thompson v. Happen, 5 Johns. Ch. 518, 1: 1161 278. An executor or administrator cannot bind the personal assets for a debt not chargeable upon them before. Dulce of Cumberland v. Codrinirton, 3 Johns. Ch. 273, 1: 616 t. Payment of Land Contracts and Mortgages. 279. Unpaid purchase money upon a land contract is primarily chargeable upon a decedeut's personal^ estate, and is to be paid by the executors or admin- istrators for the benefit of the beii-s. Johnson v. Corbett, 11 Paige Ch. 265, 5: 12» 280. An equitable interest in laud, founded on articles of agreement for the purchase, will pass Dy a subsequent devise : and if there be no devise, it win descend to the heir, and the executor must pay the purchase money for the benefit of the heir. lAvingston v. Newkirk, 3 Johns. Ch. 312, 1: 630 281. But if the personal assets prove insufficient, and the executor has paid debts, out of his own money, to the value of the land, he may, if the land is ordered to be sold, retain the proceeds for his own indemnity. Ibid. 283. Under the provisions of the Revised Statutes, as between the heirs or devisees and the perboiial representatives of a deceased mortgagor, the mort- gaged premises are primarily chargeable with the payment of the mortgage, unless the decedent has by his will made a different provision for the pay- ment of the mortgage debt. Halsey v. Beed, 9 Paige Ch. 446, 4: 76» S. C. 2 Ch. Sent. 9, 5: 1081 283. Where debts of the testator are secured by mortgage upon his real estate, the Revised Statutes maae such real estate, in the hands of his heirs or devisees, the primary fund for the payment of sucb debts. Johrutm v. Corbett, 11 Paige Ch. 265, 5: 120- 284. In such a case, if the mortgagee has received any part of his debt from the personal representa- tlTCS, out of the proceeds of the personal estate, and the latter is insufficient to pay all the debts, the amount thus paid to him must oe charged to him as- a part of the distributive share of the personal es- tate due him after deducting the value of the mortgage security, in the distribution thereof among the creditors of the decedent. IZ>id> 385. If the mortgagee, to accommodate heirs or devisees upon whose lainds the mortgage debt id charged, uelays the foreclosure of his mortgage until the lands fall in value and become insufficient for that purpose, and the peisonal representativeB of the decedent, in the mean time, pay out the whole personal property, the mortgagee cannot EXECUTORS AND ADMINISTRATORS, IV. b. 191. call on them to pay the deficiency of the proceeds ' of the mortgaged premises to satisfy the balance due upon the mortgage. iMd. 286. For the purpose of ascertaining the pro rata diviaeuUB ot the ureaitors upon ine uual settlement of the accounts of the executors or administrators of the decedent, all the debts due to creditors of the estate, which were not secured by mortgage upon real property or entitled to a preference in pay- ment, should be added together, including therein the balances of debts not fully secured by mort- gage; and the percentage which the personal property will pay of that amount should bo com- puted, although some of those debts may have been previously paid by the personal representatives of the decedent out of the personal estate. From the mo rata dividend for each debt when thus ascer- tained, there should be deducted the sum or sums already paid thereon by the executors or adminis- trators; and the balances of such pro rata div- idends should alone be charged to the personal representatives, on account of the estate of the decedent which came to their hands. Ibid. 287. The provision of the Revised Statutes malting the mortgaged premises the primary fund for the payment of the debt secured by the mortgage ap- plies to cases of absolute intestacy as well as to cases where the mortgagor has disposed of the whole or a nart of his estate by will. House V. House, 10 Paige Ch. 158, 4: 956 288. Where a devisee of an Insolvent had a mort- gage which was a prior lien on the premises devised, and she entered upon the premises as devisee, and received the rents and profits thereof .—Held, that as between her and the creditors of the testator she was bound to account for the rents and profits, and to nll'^^ them in port pav"iprit of tl'*^ mortf^^""'^ Chaldtyre v. Cortelyou,2 Paige Ch. 605, 2: 1049 289. Where a person takes a conveyance of land subject to a mortgage, covenanting to indemnify the grantor against the mortgage, and, having paid off part of the incumbrance, dies intestate, the land is the primary fund to be resorted to for payment of the residue ; and the heir cannot throw the charge upon the personal representatives. Duke of Oumberland v. Codrington, 3 Johns. Ch. 229, 1: 601 290. If the purchaser has ever rendered himself liable at law to the mortgagee or creditor, for the payment of the debt, this circumstance will not be sufficient to change the natural course of assets ; there must also be proof of strong and decided in- tention to subject the personal estate to the charge. IMd. 291. By an express direction in his will, or by dis- positions, or language equivalent to an express di- rection, the purchaser may throw the charge upon his personal assets. Ibid. 292. If the purchaser, having subjected his personal estate to the charge, dies, and the land descends to his heir, who is also his personal representative, al- though the personal funds of the ancestor, in the hands of the heir, were liable for the debt, yet, on the death of the heir, his personal assets are not the primary fund for payment. TMd. 293. If a purchaser assumes a mortgage as part of the pure-base price of the property, tils personal representatives will be liable to the mortgagee for the payment of any deficiency in case the proceeds of the land should be insufficient to satisfy tn*" oinrtgage debt. Balsei; V. Beed, 9 Paige Ch. 446, 4: 769 S.C.2Ch. Sent.9, 6: 1081 294. Where the husband mortgages property after his wife has acquired an inchoate right of dower therein, and she does not joinin such mortgage, the heirs at law or devisees of her deceased husband iriist pay off the whole of the incumbraace them- selves. House V. House, 10 Paige Ch.l58, 4: 986 b. Distribution ; Overpayment ; Recovery Back. 295. Where a testator directed his executors to pay to one of his sons annually $209, and also one fifth of his estate, in case of his reformation from vicious habits,— it was held that the executors acted cor- rectly In not paying over the one fifth of the estate until they were satisfied of the son's complete re- formation. DuManv. Dusfam, 1 Paige Ch. 509, «: TSt 296. And where a suit to compel such payment bad been pending some time, and the executors In their answer expressed a desire and willingness to pay o^r the money under the direction of the court, ft was referred to a master to inauire and report whether a permanent reformaT;ion had taken. place. Jfitd.- 297. And where the executors, cot being satisfied. .i ouoi] retormatiou, uad relused to pay over tue me fifth of the estate, they were allowed their oosts of defending the suit commenced to compel such payment. Ibid^ 298. Where it is necessary for the surrogate to make- distribution of a decedent's personal ebCate bui, ire the deficiency which will remain after applying tiio fund primarily liable to the payment of a particu- lar debt can be ascertained, he should direct a por- tion of the personal estate to be retained to meet the contingent claim of such deficiency. HaUey v. Beed, 9 Paige Ch. 446, 4: 769' 299. A bin in chancery may be filed by the distribu- tees, to compel the executor or administrator to- distribute the estate of the decedent according to the sentence or decree of the surrogate made up- on a final accounting before him. Stiles V. Burch, 5 Paige Ch. 132, 3: 657 300. As a general rule, where there is a bequest of the whole of the testators personal estate, or of the residue thereof after payment of debts and legacies, to one person for life, with a remainder to others after the termination of such life es- tate therein, the whole must be converted into money and invested in permanent securities by the executor, and the income paid over to the person entitled to the life estate. Specw V. TinKham, 2 Barb. Ch. 211, 5: 61* 301. The rule is the same where the residuary be- quest for life or for a limited term embraces arti- cles not necessarily consumed in the using, and also- property which must bo so consumed, unless the will indicates an intention on the part of the testa- tor that the legatee for life shall enjoy the property, or some particular part thereof, in its then state, a&. a specific bequest. Ibid, 302. Whenever specific articles not necessarily con- sumed in using are oequeathed to a legatee for life,, with a limitation over, and without any direction to- the executor to hold them in trust for the remain- derman, the executor is authorized to deliver the same to the person entitled to a life estate therein, taking from such person an inventory and receipt, specifying that such articles only belong to the first taker for lite, and that afterwards they are to be delivered to the legatee who is entitled to them in remainder. Jbid* 303. As to legacies payable out of personal estate- when legatees arrive at age, the court may permit die executor to use a part of the capital thereof for the support of the legatees during minority, wlif^n it is necessary. Be Boston's Petition, 2 Ch. Sent. 23, 5: 1086 304. An executor who is not before the court as a. party to some suit will not be compelled, upon pe- tition of the guardian, to pay money for the sup- port and maintenance of the legatee. Ibid. 305. Where, aftera decree of the judge of probate ot Louisiana declaring a resident o( this State to be the sole heir of an intestate domiciled there at the lime of his death, the administrator appointed in this State received the proceeds of the intestate's personal estate situated in Louisiana, and iuveoto- i-ied them as part ot the estate which had come to riim as administrator, the surrogate by whom his- letters of administration were granted had jurisdio- Dion to decree payment of the share ot anotlier heir of intestate, who subsequently appeared and claimed the same. Sherwood v. Woogter, 11 Paige Ch. 441, 5: 193 306. If an executor pays one legatee, and there is- tifterwards a deficiency of assets to pay the others, i,he legatee so paid must refund a proportionable- part. Lupton V. Lv/pton, 2 Johns. Ch. 614, 1:513 307. But if the deficiency of assets has been )Ooasioned by the waste of the executor, the lega- ;ee who is paid may retain the advantage he has- rained by his legal diligence, as against his coleg- itees, but not against a creditor. loio. 308. A legatee may compel an executor to bring nto court money in his hands, or to give security, vhere the legacy is payable at a future day. Ibid. 309. In a suit by five executors to recover a furd' 1192 EXECUTORS AND ADMINISTRATORS. IV. c, 1, 3. distributed under pretense of its being a donalin mortis causa, a decree was made against two of the complainants, who had received a portion of the af- Jeged gift; and the fund was ordered to be paid to :two of the executors only, the other three having .participated in the distribution, which was set aside. Thorp V. Amos, 1 Sandf. Ch. 26, 7: 8i85 310. There is no lien in favor of the executors, upon life interests in real estate devised to the ■respective wrongdoers by the testator. Ibid. 311. A devise of all the testator's estate, real and j)ersonal, in trust to pay debts, and then to dis- tribute the residue, places the assets under the jurisdiction of this court. Bemon v. Le Boy, i Johns. Ch. 651, 1: 969 0. AecounUng. 1. Jurisdiction; Bijht to Demand. 813. Where executors hold a fund, not in their -character of executors, but as trustees, they can- not be called to account before the surrogate in relation to the execution of the trust. Be Van Wyck. 1 Barb. Ch. 565, 5: 496 313. The surrogate, upon the settlement of the ac- counts of executors and administrators, and lue distribution of an insolvent estate among the cred- itors, is competent to adjust equitable as well as legal demands against such estate. Payne v. Matthews, 6 Paige Ch.l9, 3: 881 314. The surrogate in whose ofiBce a will is proved has junsdictiuu lu call au executor to account tor the proceeds of real estate sold by such executor under a power contained in the will, and for the rents and profits of such real estate received by him, previous to the sale thereof, under and by virtue of a power in the will of the testator. Staggy. Jaehson, Z Barb. Ch. 86, 5: 567 315. A surrogate has no Jurisdiction to cite the personal representatives of a deceased executor to account oefore him as the representatives of the first testator, when none of the effects of such testator came to their hands in that character. jDaWn V. Demmincf, 6 Paige Ch. 95, 3: 913 316. But upon the application of a person who as a legatee or distributee of the first testator is a creditor of the deceased executor, the surrogate has authority to cite the representatives of the latter to account for the estate of their own testa- tor or intestate; and upon such accounting the surrogate is authorized to liquidate and determine the amount of the claim against the estate of such testator or intestate, as the representative of the first testator. Ibid. 317. It is not only in the power of the Legislature to establish a summary remedy for the settlement ol the estates of deceased persons, but it has author- ized the surrogate to examine and decide as to the validity of all claims against the personal estate of the decedent, upon an application for the final set- tlement of the accounts of an executor or adminis- -trator. Ktdd V. Chapman, 2 Barb. Ch. 414, 6: 696 318. Where the debts and funeral expenses of a de- cedent have been paid, the legatees alone have an interest in compelling the personal representative of the last surviving executor to account for and pay over the moneys belonging to the estate, and which were received by such executor in his life- time. Goodyear v. Bloodgood, 1 Barb. Ch. 617, 5: 518 319. As a general rule, if a creditor swears positive- ly to a debt due to him from the decedent, he will be entitled to an order for an inventory and an ac- count of the estate. Grataeap v. Phyfe, 1 Barb. Ch. 485, 5: 466 320. Even a contingent interest in the estate is suflEL- cient to entitle the party having such interest, to an order that the executor or administrator render an account. Ibid. 321. Where a will directs real and personal estate to ibe sold by the executors, and makes but one f un< of the real and personal property of the testator, for the purposes of the will, neither the executors -.nor the estate should be subjected to the expense of taking two accounts of the same fund, or of differ- ent parts thereof, one before the surrogate, and the •other in the court of chancery. Stagg v, Jackson, 2 Barb. Ch. 86, 5: 567 322. Where a testator makes but one fund of his real and personal estate for the purposes of the will, the provisions of the Ue vised Statutes are suffi- ciently broad to authorize the surrogate to take jurisdiction of the whole matter, and to compel an account by the executors, both as to the personal estate and the rents and proceeds of the sale of the real estate of the testator, and to decree the pay ment, to the residuary legatees, of their respective shares. jfijd. 323. A contingent limitation over, to other persons, of the capital of euares giveu to minor clitldreu uu their arriving respectively at the age of twenty- one, in case the minors presumptively entitled to the same shall die under age without leaving issue, forms no objection to the jurisdiction of the surro- gate to decree an account and settlement of the es- tate, upon the application of alegatee, and to direct the immediate payment of the share of such legatee, who has become absolutely entitled to the same. Ibid. 324. The fact that the shares of minors are held by the executors in trust until they shall respectively become of age only suspends the power of the sur- rogate to decree a distribution and payment of those shares of the estate to the legatees until such minors shall respectively arrive at the age of twenty-one, or die. Ibid. 325. An order requiring an executor or administra- tor to render an account of his proceedings may be made after the expiration of eighteen months, upon application of a person having a claim upon the es- tate of the decedent, either as creditor, legatee, or next of kin, or of any person in behalf of aminorhav- ing such claim ; or it may be made by the surrogate by virtue of his office, and without any application on the part of those who are interested in the estate, Westervelt v. Gregg, 1 Barb. Oh. 469, 5: 459 Grataeap V. Phyfe, 1 Barb. Ch. 485, 5: 466 S. C. 6 Ch. Sent. 18, 5: 1198 326. Where the administrator of an executor, in his answer to a bill filed by the representatives and leg- atees of the testator, for an account, etc., sets forth an account, and avers that he had fuUy adminis- tered, etc., and had distributed the surplus, being a trifling svim, the court refused to order a refer- ence to a master for a further account, especially after a lapse of twelve years. Bayner V. Pearsall, 3 Johns. Cb. SIS, l! 733 8. Procedure. 327. The rendering of an account to the surrogate by an executor or administrator, and the settlement of that account af terit has been rendered, are not one proceeding, though the latter frequently is a mere continuation of theformer proceeding. The Revised Statutes authorize the surrogate, after the expira- tion of eighteen months, to make an order requiring the executor or administrator to render an account of his proceedings. Westervelt v. Gregg, 1 Barb. Ch. 469, 5: 459 328. Where the order is made by the surrogate ex offlcio, the proceedings are different from what they are when it is made upon the application of some person interested. In the first case it may some- times be proper for the surrogate to make an abso- lute order in the first instance ; as it is a matter resting in his discretion whether he will require aa account of the administration of the estate, al- though no peraon interested thinks proper to insti- tute a suit for that purpose. It is a proper exercise of such discretion for the surrogate ex ojflcio to re- quire an account from the executor or administra- tor whenever, in his opinion, the rights of minorj who are interested in the estate as legatees or next of kin render such an account advisable. Grataeap v. Phyfe, 1 Barb. Ch. 485, 6: 466 329. On the rendering of an account. If it appears that the executor or administrator has money in his hands belonging to minors, the surrogate should notify the guardians or relatives of the minors of the fact, so that the fund may be received and properly invested for the benefit of those to whorr. it belongs. Ihin. 330. In the case of an application by or on behalf of a person claiming to he interested in the estate as a creditor, legatee, or next of kin, an absolute order to account should not be made in the first instance and without notice of the appUcation to the executor or administrator. Ibid. 331. The surrogate, upon the presenting of the peti- tion for an account, should direct the' executor or administrator to be cited to appear and show cause, EXECUTORS AND ADMINISTRATORS, IV. c, 3. 193 at a specified time, why an order that he render an account of his proceedings should not be granted, BO as to give him an opportunity to object that the affidavit as to the debt claimed to be due to the ap- plicant Is Insufficient, or that he is not interested in the estate as a legatee, or as next of kin, etc. The party cited may show, in answer to such applica- tion, that the right of the applicant to an account is barred by a release or otherwise. IMd. 333. Where the executor has not already rendered his account to the surrogate, a creditor or legatee who seeks for payment of his debt or legacy may, in his petition, ask for an account, and also for the payment of such debt or legacy. And after the ac- count has been rendered, if its correctness Is dis- puted, the surrogate may proceed to settle the same, «o far as concerns the rights of those parties, and may make his decree, as to the payment, accord- ingly. Westervelt v. Oregg, 1 Barb. Ch. 469, 5: 459 333. Where a petition was presented to a surrogate iby persons interested in the estate of a decedent, praying that the executors might be required to render an account of the administration of such -estate, without asking for a setttlement of the ac- count, or for the payment of any balance which might be found due to the petitioners, or for any ^)ther relief; and the executors rendered an account -accordingly, and the same was finally closed before the surrogate,— this terminated the proceedings be- fore the surrogate; and he had no authority to pro- make a new or further application to the surrogate -Stating the nature and extent of his own claim up- on the fund, and his objections, if any^ to the ac- count rendered by the executor or administrator, and asking that the account may be settled and ad- justed, and that he may be paid the amount of his claim or so much thereof as he may be entitled to, out of the fund in the hands of such executor or administrator. Westervelt v. Oregg, 1 Barb. Ch. 469, 5: 4S9 335. Where a distributive share of the estate of a decedent belongs to a married woman, the petition to the surrogate, asking for the payment of such distributive share, must be presented in the joint names of such married woman and her husband. Ibid. 336. Where an executor or administrator applies for a final settlement, the surrogate, after the ac- count has been rendered, is authorized to adjust and ■settle the same. And for this purpose, any person interested in l^e estate may surcharge or falsify the account, and witnesses may then be examined in relation to the matters in dispute between the parties. In such cases, the surrogate may refer the accounts to an auditor or auditors, to examine and report thereon. ibid. 237. Although the executor or administrator does not ask for a final settlement, by any proceeding on bis part, the surrogate has power to decree the pay- ment of debts, legacies, and distributive shares out ofthefundsof the estate in the hands of the exeou- iior or administrator. Ibid. 338. Where an application is made to the surrogate -oy a creditor or by a legatee who is entitled to a legacy of a specified amount, if the executor or ad- ministrator denies that the fund in his hands Is sufficient to pay that and all other claims which are entitled to a preference or to an equality in pay- ment, the surrogate is authorized to adjust or settle the account of the executor or administrator for the purpose of ascertaining whether the claimant is entitled to a decree for the payment of the whole of his debt or legacy, or only of a part thereof. IMd. 339. Upon proceedings before the surrogate against an executor, to compel the rendering of an account by him, the executor should be permitted to verify his account by his oath. And for the protecl l.n of the rights of others, the surrogate should in alfcases require such account to be rendered on oath. ibid. 340. An executor or administrator may be ezam- iued on oath, upon the mere rendering of an ac- count by him ; but such exammation must be be- fore the surrogate himself. ioia. Oh. Dig. i 841. The statute directs the manner of rendering the account. ibid. 342. Where one of the next of kin cites the adminis- trator to account before the surrogate, for the pur- pose of obtaining his share of the estate, the admin- istrator must cause the other distributees to be cited, if he wishes a final settlement and distribu- tion of the whole estate. BcaUtt v. Hm-e, 6 Paige Ch. 315, 3: 733 348. To authorize the surrogate, upon the settle- ment and distribution of the estate m the hands of an administrator, to retain a portion of the estate for the payment of outstanding claims, there must be a representation and proof, on the part of the administrator, that such claims probably exist against the estate. Ibid. 344. Where the parties interested in the taking of the account of an executor or administrator neg- lect to appear before the surrogate, after having been duly cited, the executor or administrator will be entitled to proceed ex parte. KeUett V. Batlibun, 4 Paige Ch. 103, 3:361 345. Where an executor or administrator Is called on to account before a surrogate, he must verify his account by his oath or affidavit; and in such oatn or affidavit he must state that such account con- tains, according to the best of his knowledge and belief, a full and true account of all his receipts and disbursements on account of the estate of the de- cedent, and of all the sums and property belonging to such estate which have come to his hands, or which have been received by any other person by his order or authority for his use ; and that he does not know of any error or omission In the account to the prejudice of any of the parties interested in the decedent's estate. Williams v. Purdy, 6 PalgeCh. 166, 3: 941 346. Where an executor or administrator wishes to be allowed for payments and disbursements of $30 and under, for which he is unable to produce prop- er vouchers or other evidence, he must specify in the account the times when, the persons to whom, and the purposes for which, such several disburse- ments or payments were made, and must also, as to the sums thus charged, swear jpositively that they have been actually paid or disbursed by him as charged in the account. ibid. 347. Where an executor or administrator renders an account to the surrogate, upon the application of either creditor or legatee, or with a view to a final settlement of the account, he must swear to the correctness of the account.both as to the debits and credits ; and all charges for payments or dis- bursements of sums exceeding $30 must, if dis- puted, be established by the production of vouchers or other proper evidence. KelUtt v. Bathbim, 4 Paige Ch. 102, 3: 361 348. An executor or administrator who is cited to account before the surrogaie must bring in a full account of his receipts and disbursements, on oath. Including all sums properly chargeable to him on account of the estate, whether mentioned in the In- ventory or not. Gardner v. Gm-dner, 7 Paige Ch. 112, 4: 86 349. Where the rights of infants or of absentees are to be affected by the accounting, it is the duty of the surrogate to require the executor or administrator to verify his account by oath, in the usual form, al- though other parties who appear consent to waive such verification. Ibid. 350. Where the executor or administrator verifies his account in the usual manner, he must also sup- port the credits claimed by him in the account by proper vouchers or other evidence of the payment. 4nd if he wishes to be allowed for payments or dis- bursements of $30 or under, for which he has no vouchers or other evidence, the times when, the persons to whom, and the purposes for which such payments were made, must be particularly stated; and in addition to the usual verification of the ac- count, he must swear positively that the sums thus charged have actually been paid. ibid. 351. Proper course of proceeding upon the ac- counting of an executor or administrator before the surrogate. ibid. 8. Charges and Credits. 353. The executor or administrator must account for all sums due from him to the estate, either in law or in equity. . „, ,,„ , „„ Gardner v. Gardner, 7 Paige Ch. 112, 4: 86 194 EXECUTORS AND ADMINISTRATORS, IV. c, 4, 5. 353. The surrogate has jurisdiction, upon the tak- ing of the account before him, to examine and de- cide upon the validity of a claim against the ex- ecutor or administrator in favor of the estate ; especially where the party accounting is entitled to a distributive share of the estate. Ibid. 35i. The surrogate, upon the settlement of the ac- count of an executor or administrator before him, has jurisdiction to examine and decide upon all claims between such executor or administrator and the estate of the decedent, whether such claims are legal or equitable, so as to make a final settlement and distribution of the estate according to the rights of the several parties interested therein. Jumel V. Jumel, 7 Paige Ch. 591, 4: 889 355. A surrogate, upon the accounting of an admin- istrator before him, has jurisdiction to declare the sale of a chattel interest in land, which baa been bid in by the admlDlBtrator for bis own benefit, void; and to charge him with the full value of the premises at the time of such sale, with interest, or with the present value and the net income of the property from the time of the sale. StUes V. Burch, 5 Paige Ch. 133, 3:657 356. Where landS subject to a mortgage were con- veyed to a trustee for the separate use of mortga- gor's wife, and after his death she administeredupon his estate, she could not in the settlement of her ac- counts as administratrix be allowed for the princi- pal and interest which she had paid to the mortga- gee subsequent to the death of the mortgagor. Jumel V. Jumel, 1 Paige Ch. 591, 4: 389 357. An executrix sutEered land of which the testa- tor died seised, subject to a mortgage, to be sold under it, and became thepurohaser thereof in her own right, and sold it. Held., that she was liable to account to the heirs for the proceeds of the sale, but, as widow of the testator, sne was entitled to her dower out of the proceeds, subject to her ratable contribution towards the extinguishment of the amount of the mortgage debt. Evertson v. Tappen, 5 Johns. Ch. 497, 1: 1154 358. Where a testator devised to his wife the use and possession of all his estate, real and personal, during her natural life or widowhood, and made her executrix,— Held, that she was accountable to the heirs for the use only of such part of the real estate as the testator had acquired after the date of the will; and that she was to be allowed, in her ac- count, for so much of the rents and profits of such after-acquired lands as were applied by her to- wards the payment of the testator's debts after the personal estate had been applied for that purpose and exhausted. Ibid_ 359. Where the mother, as executrix, charges her children, being infant heirs, with board, clothing, etc., they are entitled to be allowed in account for the value of their labor and services. Ibid. 860. Where a part of an intestate's estate consisted of stock, and the administrator, in 1819, had it trans- ferred into his own name, received the dividends for years and mingled them with his own moneys without being enabled to separate them,— Held, that he was a trustee of the stock for the next of kin, must account for the dividends pro tanto, and be charged with interest upon the dividends, from the time they were respectively received. The accounts of the stock were to be stated from 1819; and if the administrator had since sold out and invested the avails elsewhere, they were to be followed and what- ever dividends or income he had received from re- investments were also to be accounted for with In- terest. Garniss v. Oardiner, 1 Edw. Ch. 128, 6: 85 361. The principal trusts of the wiU of a decedent having been declared void by a vice-chancellor, some years after his death, the payments made un- der it being sanctioned by the decree, and the widow being directed to elect between her dower and certain valid provisions made for her by the will, appeals were taken from the decree, which protracted the suit; pending the appeals, the exec- utors continued to pay and keep their accounts as before; and the widow neglected to make her elec- tion, and died before the decision, which was an af- firmance of the decree. In a suit between the ex- ecutors and the assignees of one of the next of kin, —Held, (1) that the latter could not object to pay- ments made under the will, prior to the de- cree ; (2) that the payments according to the will, subsequent to the vice-chancellor's decree, were not valid, and must be disallowed. Howland v. Heclcscher, 3 Sandf. Ch. 519, 7: 94a i. Expenses. 362. An administratrix who filed a bill of foreclos- ure and had to take a Journey to be examined in the- suit, was allowed a fair charge in her accounts' against the estate, for loss of time and traveling ex- penses. Elliott V. Lewis, 3 Edw. Ch. 40, 6: 66»- 363. A widow had articles of personalty bequeathed' her; and took possession of them, with the knowl- edge and assent of the executor. He afterwards sued her for the same; but submitted to a nonsuit. In making up his accounts, he charged the fees and; expenses paid for the suit, which were allowed by a^ niitster, but disallowed by the court. Isenhart v. Brmim, 2 Edw. Ch. 341, 6: 42S 364. An executor is not entitled to charge the estate- with a counsel fee paid by him upon the final set- tlement of his account before the surrogate, or foK drawing up his accounts in a proper and legal form on such final settlement. Bwtis V. Dodge, 1 Barb. Ch. 77, 5: 306 365. An executor is entitled, in the settlement of u>3 accounts, to be allowed i,oe reasonable charges- paid by him to an agent employed in the manage- ment of the estate of which he is executor, it the circumstances of the estate rendered the employ- ment of such agent proper and justifiable; and that.- whether the employment of an ageitt is au- t.-prr'-'^ri by the will Or not. McWTwrter v. Benson, Hopk. Ch. 28, 8: 331 Van DerTieyden v. Van Derheyden, 2 Paige Ch. 287' 8:91» 366. Upon the settlement of the accounts of exec- utors or administrators before a surrogate, he is not authorized to make an arbitrary allowance for services and counsel fees to be paid by one party to the other, or to be paid out of the estate, without reference to the taxable costs allowed for similar services in other courts. But in the taxation of the costs of the proctors and advocates, upon the set- tlement of such accounts before the surrogate, the- taxable charges must not exceed those which are allowed by law to solicitors and counselors in the court of chancery in similar cases. Halsey v. Van Amringe, 6 Paige Ch. 12, 3: 878- 367. A direction to the executors to erect a monu- ment at the testator's own grave is not a legacy, but is to be considered as a part of the decedent's fune- ral expenses, where the rights of creditors are not affected. Wood V. Vandenburgh, 6Paige Ch. 277, 3: 985- 5. Compensation. 368. So, an executor is not entitled to compensa- tion, unless given by the will. Manningy.Manning,lJohn3.Cb.S2!l, 1:834 369. Whether an agreement with the cestui gue trust, subsequent to the creation of the trust or death of the testator,- for the allowance of a com- mission, be valid,— Qucere. » Ibid. K2, • 1: 83fr 370. Before Act April 15, 1817, an executor was not euutlea to any compensation tor his services. That Act authorizes this court to make an allowance to- executors for their services, according to a fixed, rate, and to fix that rate ; but does not authorize the court to make special allowances without regard to f> fixed rule or rate. McWhorter v. Benson, Hopk. Ch. 28, 8: 331 371. The Revised Statutes, which require an exec- utor to elect between a legacy given for services and compensation allowedlby statute, do not act ret- rospectively; and an executor under a will proved before 1830 is entitled to both. Aspinwall v. Pimie, 4 Edw. Ch. 410, 6: 988 372. The statute allowing to executors, etc., upon the settlement of their accounts, a compensation for their services, applies to all settlements made after the passing of the original Act, although the services had been performed before. And in cases coming within the statute, the surrogate has no dis- cretion to refuse to allow to the executor or admin- istrator the commission established for such ser- vices. Dakin v. Demming, 6 Paige Ch. 95, 3: 913- 373. The surrogate, upon the settlement of the ac- counts of executors or administrators before him, is bound to allow them their legal commission for receiving and paying out moneys of the estate; arid the amount of the estate of l^e decedent in their hands, which they are to account for and pay over EXECUTORS AND ADMINISTRATORS, IV. c, 6. 195> to the creditors and distributees, Is the balance which remains after deducting such commissions. Halsey v. Tan AmiHnQe, 6 Paige Ch. 12, 3: 878 374. The surrogate is not authorized to decree the payment ojE costs out of the estate of the decedent m the hands of his personal representatives, to the exclusion of their commissions for receiving and paying out moneys. If the amount in their hands is not sufficient to pay both. But if it is a proper case to charge them with the costs of the adverse party upon the proceedings before the surrogate, there should be a decree against them directly and person- ally for the payment of such costs. Ityid. 375. For his own services, the executor orguardian must be confined to the allowance by way of com- missions as fixed bylaw. Tan Derheyden v. Tan Derheyden, 2 Paige Ch. 287, »: 910 376. In stating the account of an executor or guardian, if tbe court maizes annual rests for the purpose of charging him with interest on the an- nual balances remaining in his bands, his commis- sions on the amount received and actually dis- bursed during each year may be deducted at each annual rest. Ibid. 377. So far as the receipts and disbursements are actually offset against euch other, it is an annual settlement of the account, so as to authorize the de- duction of the commissions at the time of such set- tlement. J&id. 378. A surrogate is not authorized to make an ar- bitrary allowance to an executor in lieu ot the com- pensation directed by the statute to be paid to ad- vocates and proctors in surrogates' courts, where the same is to be paid as costs in the suit, either by the adverse party or out of the fund in litigation. Bitrtis V. Dodge, 1 Barb. Ch. 77, S: 306 379. An executor is not entitled to commission on xbe share of a legatee, which share the will directs to be deducted from the valuation of a farm speci- fically devised to the legatee, upon bis paying to the executors the residue of the appraised value of such farm. Jbid. 380. It seems, where an executor is left a bequest for care and pains, he must be prompt to act, and any unnecessary delay may be laid hold of by the court to deprive him entirely of the legacy. Morris v. ^ent, 2 Edw. Ch. 175, 6: 358 381. Without an authority contained in the will for that purpose, the executors are not authorized to employ one of their number to perform extra services as clerk, in keeping the accounts of the es- tate, and to allow him a salary for his services ou 6 of the property, in addition to the commissions a) lowed by law. CUnOi V. EcTcford, 8 Paige Ch. 412, 4: 483 382. Where the testator appointed his confidential clerk and bookkeeper one of his executors, and di- rected the coexecutors to allow him such yearly compensation for his special services as they, or a majority of them, should deem proper,— fle!fround that the sale was unauthorized, and that the legal title remains in the heirs at law; and where the equities of the parties are equal, they will be left to their legal rights. Ibid. 461. The court has no power to rectify any other irregularities in a surrogate's sale than those spe- cified in 2 Eev. Stat. 110, 1 61. Be Hemiup, 2 Paige Ch. 316, 2; 926 462. The remedy of the purchaser in other cases is EXECUTORS AND ADMINISTRATORS, VI. 199 •either at law against the executor or administrator upon the covenants in his deed, or by bill against the heirs, upon the ground that they have been benefitted by the proceeds of the sale. Ibid. 463. Where the widow's d ower in the real estate ot /her deceased husband has been assigned to her pre- vious to tiie appiicatiou to the surrogate tor a sale of the estate of the decedent for the payment of his ilebts, the part assigned to the widow for dower should be sold subject to her life estate therein as •tenant in dower. Maples V. Howe, 3 Barb. Ch. 611, 5: 1089 464. Where the estate of the decedent consists of ail entire taim which the surrogate's order directs to be sold together as one farm, the administrator should sell the whole farm, including the part as- signed to the widow for dower, subject to her life estate in that part as tenant In dower. Ibid, 465. Where the surrogate's order does not direct a sale upon credit, the administrator should sell for cash, unless all the creditors consent to a sale upon credit. Ibid. VI. FOBEIGN EXECUTOBS AND ADMINISTRATORS. 466. A foreign executor or administrator cannot maintain a suit in this State by virtue of letters tes- itamentary or of administration granted abroad. McNainara v. Dwuer, 1 Paige Ch. 239, 4: 139 467. A foreign executor is not entitled to sue in .our courts wiLuout naviug proved tUe will and taken out letters testamentary thereon, in the proper pro- bate court of this State. Lawremx v. ioiorence, 3 Barb. Ch. 71, 6:831 483. This rule, however, is only applicable to suits brought by executors lor ueous uuo lu luu tL-SLuLui*, .or where the foundation of the suit is based upon .lome transaction with the testator in his lifetime. Ibid. 469. The executor with whom a contract is made .nay sue upon it, in his own name, without proving that letters testamentary were granted to him any- where. Ibid. 470. Where two executors are named in a will, and one of them has taken out letters testamentary in this State and the other has not, the one who has obtained letters here may sue in his own name ^alone, without naming the other as a party. Ibid. 471. Courts, in this State, do not take notice of letters testamentary or letters of administration .granted abroad or out of the State. Morrell v. Dickey, IJohns. Ch. 153, 1:96 472. An administrator appointed in another State has no authority here. Williams v. Storrs, 6 Johna Ch. 353, 8: 148 Doolittle V. Lewis, 7 Johns. Ch. 45, 8: 815 J'roomv. Fan Bbrjie, 10 Paige Ch. 549, 4:1086 .S. C.4Ch.Sent. 11, 5:1137 473. But it seems an executor or administrator of ■a creditor residing in another State, having to his possession a bond or mortgage on lands in this State, though he cannot sue to this State, may law- fully receive payment of the debt and give an ac- quittance, without having obtained letters of ad- ministration in this State ; and a voluntary pay- ment to him. and an acquittance by him, are valid. Dooliftle V. I/eiois, 7 Johns. Ch. 45, 8:815 474. A power of sale contatoed in a mortgage of lands in this State, given to a person residing in an- other State, may be lawfully executed in tms State by the administrator appointed in another State, where the mortgagee died, the power and the exer- cise of it being a matter of private contract between ihe parties, and not of jurisdiction. Ibid. 475. It seems that executors duly appointed in an- other State have a right to take charge ot and con- trol personal property of the testator situated here, where there is no conflicting grant of letters testa- .mpntary in this State. Brown v. Brovm, 1 Barb. Ch. 189, 5:349 476. In cases of tatestacy the right of the adminis- trator, where he is not entitled to the succession, depends upon the grant of power to administer the decedent's property by the proper tribunal. And rsuch grant of power cannot extend, as a matter of ■right, beyond the territory of the government mak- ing the grant', even where the grantis by the proper tribunal of the place where the intestate was domi- olled at the time of his death. Vroom V. Tan Borne, 10 Paige Ch. 549, 4: 1086 & C. 4 Ch. Sent. 11, 5: 1137 477. The right of an administrator to recover the property, or to recover tiie debts due to the de- cedent, out of the territorial jurisdiction of the gov- ernment where the grant of administration is ob- tained, and which property or debts cannot be reached through the medium of its courts, depends upon the comity of the State or country where the property is situated, or where the debtor of the in- testate resides, or where the estate upon which such debt is a lien is found. ihui. 478. As a general rule an executor or administrator who has been duly authorized to administer the de- cedent's estate by the proper tribunal of the place where the decedent wasdomicUed, to enable him to bring a suit in relation to the decedent's property in another State or country than that in which the de- cedent was domiciled, must obtain ancillary letters testamentary or of administration to such State or country. Jibid. 479. But it seerm that the probate of the will of the decedent, or the grant of letters testamentary or of administration, by the proper tribunal of his domi- oil, issuiHcieut to authorize his executor or admin- istrator to take charge of the property of the de- cedent and to receive debts due to him in this State, where no suit is necessary, if there is no conflicting grant of letters testamentary or of administration here. Ibid. 480. Where a resident of New Jersey filed a bill in the Court of Chancery of the State of New York.as the junior mortgagee of lands in this State, to re- deem such lands from a prior mortgage, and the complainant died pending the suit ; and his widow, who had taken out letters of administration upon his estate in the State of New Jersey, afterwards compromised the suit with the defendants and gave them a release of the decedent's mortgage and of the right to redeem b.v virtue of the same; and after such release the widow of the decedent took out letters of administration in this State, and then filed a bill of revivor and supplement, as such ad- ministratrix, to revive the suit and to set aside such compromise, — Held, that the grant of the letters of administration in this State related back to the time of the death of the intestate, and estopped the ad- ministratrix from alleging that she had no right to compromise the claim and to release the defend- ants. Ibid. 481. And it seems that if a third person had taken out letters of admmistration to this State, after the release and compromise by the administratrix ap- pointed in New Jersey, where the decedent was domiciled, the court of chancery here would not have interfered to declare the compromise and re- lease void, if there were no creditors here who had claims against the estaiie of the decedent. Ibid. 483. A foreign executor or administrator may be couipelled to account, by a court ot ouaucery, for trust funds which he received abroad and brought with him into this State, although he does not take out letters of administration upon the estate of th» decedent here McNamara v. Dwyer, 7 Paige Ch. 239, 4; 139 483. Where there are real assets belonging to a for- eign decedent the court will not hesitate to admin- ister them, although no personal representative has been appointed here ; and the foreign executors may, in such a case,be made parties in that capacity. Siatfer v. Carroll, Z Sandf. Ch. 573, 7: 708 484. Itis no objection toentertainlng the jurisdic- tion, that the creditor instituting the suit resides at the place of the grantor's domloU. l&W 485. The court will direct the fund to be remitted, pursuant to tlie deed of trust executed by the dece- dent before his death to the person therein designat- ed, for distribution; or will retain it and distribute it here, according to the circumstances of the case, in reference to the convenience of creditors and of the accounting parties. Ibid. 486. Administration extends only to assets of the intestate within the State or j urisdiction where it is granted. Doolittle V. Lemis, 7 Johna. Ch. 45, 8:815 487. Equity can control foreign executors and ad- ministrators where failure of justice or a hopeless remedy might otherwise occur; but it will not ordi- narily sustain suits against them, where they have not taken out letters in this State. Brown v. Bn/wn, 4 Edw. Ch. 343, 6: 899 488. Chancery toterf eres, to special cases, to pro- tect the rights of creditors or legatees of a testator who was domiciled abroad, as to the personal prop- 200 EXECUTORS AND ADMINISTRATORS, VI. erty which is found in this State, and which prop- erty is in danger of being lost or squandered before a proper representatiye can be appointed here to protect it. Brown v. Brawn, 1 Barb. Ch. 189, 6: 349 S. C. 5 Ch. Sent. 44, 5: 1181 489. Where the personal property of an intestate consisted of stages and stage horses belonging to a daily line running from one State into another, it seems that the rights of the administrators ap- pointed in the respective States do not depend upon the fact of the property being in the one State or the other at the moment of the death of the dece- dent. Orcutf V. Oi-me, 3 Paige Ch. 459, 3:831 490. Even if the court of chancery has general ju- isdictionto call upon executors or admmistrators appointed in another State or country, to account I md to pay over the proceeds of the property of the decedent to those who are entitled to it by the law of Ids domicile, the fact that a single item of the per- ' onal property is situated within one of the chan- ' 'ery circuits of this State will not give to the vice- 'hancellor of that circuit jurisdiction of the cause. Brcmm v. Brown, 1 Barb. Ch. 189, 5: 349 491. The bfll, in such a case, must be filed before the chancellor, or before the vice-chancellor of the circuit where the defendants reside or where the cause of action arose. jbid. 492. Whether, upon a bill filed before the chancel- lor himself, the court will entertain a suit to call foreign executors or administrators to account, where the executor or administrator is within the jurisdiction of the courts of the State where he was iippointed, and where there is nothing in the bill to I how that the complainant has not a full and per- : ect remedy in those courts,— gtwere. Jfiid. 493. Jt seems that persons having claims upon a > lecedent's estate should be compelled to resort to vhe courts of the country where the decedent was domiciled and where the personal representatives ut such estate were appointed, especially where the claimants are not creditors, but stand in the cha- ; acters of legatees or distributees. ItAd. 494. The statute gives to the executor, or the ad- :ainistrator witti tbe will annexed who may be ap- iJOinted in this State, and to him only, the right to uaU the foreign executor to account for the wrong 'lone to the estate. Ibid, 495. Where stocks are held in this State, by a citi- zen of another State at the time of his death, and ae dies in that State leaving a will executed tUere, ,.he remedy of bis residuary legatee, if he wishes to ibtain the proceeds of such stocks and the dividends which have accrued thereon, after the debts and general legacies of the testator have been paid, is to cite the executors to prove the will and to take out letters testamentary thereon in this State, and, if they neglect to do so, to have himself or some other person appointed administrator with the will mnexed here. ibid. 496. A decree against the primary administrators of an intestate, in a suit relative to the suuuession of movable property, conducted in due form and between proper parties, at the place of his domioil in a foreign country, is conclusive upon a subsidiary administrator appointed here, in respect of the rights of the parties which were therein adjudicated. Svarez v. New York, Z Sandf. Ch. 173, 7: 554 497. This was held of a decree in the Superior Court of Justice for the District of Carthagena, in the Re- public of New Granada, establishing the right of a party as next of kin of an intestate: the question arising in a suit by such party to recover assets ob- tained by an administrator appointed here. Ibid. 498. Where the principal administrator at an in- testate's domicilin a foreign country allots to a party as his next of kin divers things in action ex- isting here, and makes a transfer and delivery of the same so far as is practicable, such party is enti- tled to receive the tmngs in action from the admin- istrator here, in the absence of creditors claiming the fund. Ibid. 499. On such an administration here, it appearing that the claimant would be entitled, at the domioil of the intestate, to receive the entire fund, all other claimants having been ascertained and paid by the principal administrator there, the fund will be paid directly to such claimant, without remitting it to the intestate's domioil. ibid. 500. Letters testamentary were granted hem, to the executrix named in the will of a testator whose domioil was here, but who died during atemporarj' residence at Carthagena in South America. H who had consigned goods to him at that place, prO' ceeded thither and obtained from the United State» consul such property as, by the marks, he was sat- isfied belonged to the consignor. H thereupon, suppressing the fact of the existence of a will in New York, obtained a grant of administration to himself from the court at Carthagena, and under that grant possessed himself of the test.ator's elf ect» in that country. In a suit by the executrix against H,—Held, (1) that H was not accountable for the goods delivered to him by the consul, there being no reasonable doubt but that they were his own; &) that the administration at Carthagena was en- tirely ancillary and subordinate to that instituted in New York; and that the foreign administrator, on being served with process here, must account to the primary legal representative for the assets which he has received abroad ; (3) that this court will not interfere with the course of administration which the foreign tribunal has directed, or which the laws there prescribe; and the accounting here will be limited to the assets remaining after the pay- ment of expenses and of debts \p the foreign state, discharged in due course. Ordronaia> v. Helie, 3 Sandf. Ch. 512, 7: 939 Editorial Notbb. Executors and administrators; jurisdiction over 1 ; 937 as legal representative 2: 64S as trustee under will 2: 955 Appointment of executrix 4: 450 Interest of executor derived from will 4: 108T Order of right to administration 5: 293 of wife's estate 5 : 66- Letters of administration, effect of granting 1: 1101 grant of, pending suit 1 : 933 relate back to death of testator 4: 1082 principle of exclusion of applicant for 5: 293 revocation of 6: 307 of authority of arbitrators 6:464 What amounts to an election to act 7: 172 Executor cannot retract renunciation 5: 264 Authority of 1:574, 3; 207 Authority under power by will 2: 870i Distinction between trustee and; person deal- ing with 2:874 Territorial restriction of authority; author- ity of domiciliary executor or administra- tor 2: 215. Can alone represent personalty 3: 33ft Authority of, over real estate 4: 610 Exercise of powers conferred by will 3: 213, 6: 556 Duty to save estate from loss 4: 3801 Purchase by executrix of estate property 1:38a Rights as to trust property 1 : 82 Payment of purchase price; reimbursement for payment of debt; marshaling of assets 1: 631 Rights of purchasers from, in good faith 1:723: Bequest of entire estate; conversion and in- vestment 5: 618- Power of sale given to 1: 365, 3: 845 Sales by, under statutory provision 2:924, 4:116. under direction in will 1; 870, 6: 186 on credit; liability 3: 231 Conversion of real estate into money 1: 22ft into personalty by contracts of sale 2: 16S Cannot buy up claims for purposes of set-off 2-963 EXECUTORS AND ADMINISTRATORS, VI. 20]i Liable for misapplication of funds 5: 130 Liable for devastavit by mingling funds 5:518 Liability of executor of trustee 6: 1096 Liability of executor 2: 207, 851 Responsible for rents and profits 7: 275 Limitations as to proceedings against; may plead statute in bar of debt but not of legacy 1: 589 Responsibility of, for wrongful acts 4: 380 Primary liability to pay firm debts 7: 708 Responsibility of 5:618 as trustee 1:958,5:703,824 Preference on claim against estate 2 : 851 Claims against estate 4:880,5:215 Debts due estate to be first collected 5: 743 Security, statute requiring 3: 445, 5: 701 when required to give 4:509 application to compel 5: 128 bond of nonresident 5: 822 as trustee; liable as; bond required 4: 880, 949, 436 bond of 6: 807 action on administrator's bond 6: 307 Ancillary letters of administration 4: 1087 extent of 5: 900 Administrator tfojoms more 5:518 seeking exoneration for Improper payment 5: 392 Administrator with the will annexed; rights and powers 4: 436 Foreign administrator 2: 1086 authority of 2: 218, 148. 5: 349 loreign letters; effect of; not authorized to sue; allowance of costs 1: 96 next of kin may call to account 5 : 850 suits against 5: 350 cannot sue in this State 4: 140,5: 831 equity can control 6: 899, 7: 708 Coexecutors or coadministrators in law but one person 4: 605, 607, 5: 595 cauuouelease each other from responsi- bility 4; 380, 5: 822, 7: 785 cannot sue each other in court of law to recover debt due to the estate 5: 109 not responsible ioi devastavit of each other 2:207 jurisdiction over controversies between 2: 851 Rights and remedies against executor, given by statute 6: 1036 Suits by, to construe will 4: 940 Suit for account 4: 140 Suits against 5; 978 Suit by executor without probate 1 : 276 Suit to compel ratable distribution of assets 1: 542 to recover legacies and distributive shares of estates 5 : 454 to bring proceeds of real estate into court 5: 702 Where parties neglect to appear, may pro- ceed eai parte 3: 361 Cannot be witnesses for themselves 3: 941 Settlement and distribution 8: 914, 4: 1065 Statute of Distribution 8: 733 Partition arrested if personalty insufficient to pay debts; when estate discharged from lien 6: 248 Liability of personalty of deceased mort- gagor 6: 1214 Personal property primarily liable for debts and legacies 3: 206, 4: 806, 5: 155 Distribution of estate; when legatee is debtor to the estate 5i 743' directed to be converted 4: 335 of equitable assets; rule of equality 4; 730' Adjusting claims to income 4: 649 Secured creditor entitled to dividend 4; 771 Widow may choose place of residence to be supported 7 : 521 Charge on estate for clerk's services 4: 650' Claim of executor against estate 3: 941 Cannot retain property of estate to satisfy his own debt 3: 941 Retaining funds in his hands 3: 1044^ When chargeable with interest 1:234,2: 473, 910 Chargeable with assets of the estate 4: 379- Allowance for expenditure restricted 3: 361 Charges for services 6: 423 Accounting by 1: 1154, 3: 657, 918. 4: 86, 290,379,617,5: 109,466,618,720, 6: 1115, 1031,778 parties to 2: 603^ decree of surrogate on 3: 111 Account; rendering and settlement of, are distinct proceedings 5: 459 cited in proceedings for 3: 361 objections to account; practice and pro- cedure 4: 86- surrogate cannot cite representatives of executor to account 3: 913 to require account sworn to 3: 361,941 to be verified 5 : 459 Commissions; allowance of 1: 234, 2: 910, 3: 878,4: 650, 5: 704, 6:880, 7: 374,1190, 1229> statutory rule 8: 913, 7: 1190 not allowed compensation beyond that fixed by law 4:483 not entitled to double commissions 5: 704 allowance on accounting 2: 331,910,4: 776' cannot make periodical rests to entitle to full commission 4: 776- under old rule, cannot make rests to en- title to interest then due 4: 776 subsequent commissions; how com- pounded 4: 77& Title of heir devested only in manner pro- vided by statute 5: 867 Right and liabilities of heirs and devisees 5: 733, 6: 243 Application of real estate to payment of debts 5: 58- Real estate primarily liable for mortgage debts 4: 771, 927, 5: 45, 129 Chargine estate with payment of debts and llga^cies 4:214,4:597- Sale of real estate to pay debts 2: 151, 5: 861 application for 2: 151,4: 1013 all executors or administrators should join in application for 5: 597 direction for 7: 358 rectifying ermrs in 2: 924 conclusiveness of judgment in probate;, right of heirs to plead Statute of Limi- tations against creditor of estate 2: 151 Acknowledgment by executor or adminis- trator to bind real estate 2: 151 Presentation of claim by creditor of estate 5: 129' Bill to obtain debts out of decedent's estate 3: 708 Action to recover claim out of real estate 4: 597- 202 EXECUTOEY DEVISE— FACTOR. EXECUTORY DEVISE. See REAi Pbopertt, 1. 1 ; Wills, II. k. EXHIBIT. See PtBADiNO, I. m. EX PARTE KATERNA. See Descent and Distribution, 8, 9, 13, 11 EXPECTANCY. ■See also Ckeditors' Bill, IV. b. EXPENSES. 1. By the provisions of the Ee vised Statutes, a mere possibility coupled with an interest is capable ot oe- ing conveyed or assigned at law, as well as in equity, iu the same manner as an estate in Interest in pos- Laiorence v. Bayard, 7 Paige Ch. 70, 4: 64 , 2. The interest of a wife in a postnuptial settlement -whereby her husband conveys to trustees all his in- terest in her real and personal estate in trust to ap- ply the income to her separate use for life is not a •future or expectant estate, and docs not fall within . the provision of the Kevised Statutes which makes ■ihe interest of the beneficiary in a trust inalienable. Orout V. Van Hohoonhoven, 1 Sandf. Ch. 336, 7:360 3. An interest in the personal estate of the testa- tor, given by his will to a legatee who is in esse, al- though it is not to vest in possession until after the •^leath of another person, is capable of being released by such legatee at any time. Hoes V. Van Hoesen, 1 Barb. Ch. 379, 5: 42 4 S. G. 6 Ch. Sent. 5, 6: 1193 4. The sale of the expectation of an heir is not void In this court, but, if made bona fide and for a •fair consideration, will be supported. Tarlck v. Edwards, HotE. Ch. 383, 6: 1180 Editorial Note. Expectancy; alienation of See Costs. EXTINGUISHKENT. Of Mortgage, see Mortgage, VL EXTRADITION. 4:65 1. It is the law of nations to deliver up offendeis charged with felonies and other high crimes, and who have fled from the country where such crimes were committed, into a foreign and friendly juris- diction. Be WasKtmm, 4 Johns. Ch. 106, 1: 780 3. It is the duty of the civil magistrate to commit such fugitives from justice, to the end that a reason- able time may be afforded tor the go venunent here to deliver them up, or for the foreign government to make application to the proper autfiorities here for their surrender. Ibid. 3. But if such application is not made in a reason- able time, the party ought to be discharged. Ibid, i. The evidence to detain a fugitive from justice for the purpose of his being surrendered ought to be such as would be sufBcient to commit him for trial iJF the offense was committed here. ibid. 5. The iflth article of the treaty of 1795, between the United States and Great Uritain, was merely declaratory of the law of nations on this subject : and since the expiration of that treaty the general principles of the law of nations remain obligatory on the two nations. Ibid. 6. Therefore the chancellor, or a judge in vaca- tion, has jurisdiction to examineaprisoner brought before him on habeas cnrpus,a,nd who bad been taken in custody on acharge of theft orleiuuy committed in Canada, or a foreign State, from which he had lied; and, if sufllcient evidence appears against him. to remand him ; otLerwise, to discharge hitn. Ibid. Editosial Notes. Arrest of fugitive 1 : 347 Of foreign criminals: fugitives from justice 1:780 F. FACTOR. ■See also Partnership, Agent. 65 ; Principal and 1. The complainants and a firm of H. B. & Co., -separately employed K. as their factor in New York to sell flour consigned to him. B. employed S. as his agent, and the whole business was done by the lat- ter. K. died, and his administrator settled with S. and received from him the balance as stated. This sum with other moneys belonging to one of the Urms, was deposited iu the Farmer's Loan Compa- ny. As it appeared that upon the death of K. there was not a cent of money in L's hands belonging to him, and the fund was traced to have arisen from the sales of the flour, it belonged specifically to the two firms, and did not go Into the peneral assets. "The fact that the funds of the factor had once been mingled with those of the owners of the flour in the ■agent's hands was immaterial, it being capable ol clear proof that all the money belonging to the f ao tor had been paid away prior to his death. Hutchinson v. Reed, Hoff. Ch. 316, 6: 1157 Z. A distinction exists between the cases of money in a fucto.'s Hands, and a debt due him from a stranger upon a purchase of the goods. In the lat- ter the right of the owner is undeniable. The debt, being due from a subagent, stands upon the same principle. Ibid. 3. A commission of 3 1-3 per cent may be charged on advances made in expectation of receiving mer- chandise to sell. Bulloek V. Bnud, Hoff. Ch. 294, 6: 1148 4. Where a consignor lives in Canada, and his con- signee iu New York, the business is to be considered foreign; and the latter may charge 5 per cent com- mission. In cases not considered foreign the rate would be ihi. Ibtd. 5. Where A in New York, being indebted to B and V FAILURE OF CONSIDERATION— FOREIGN ADMINISTRATION. 203 ■* that the franchise granted to the railroad company was not the samn as that conferred on M. nor so similar as to be deemed an interference with tlm latter, in the sense in which a new bridge or ferry interferes with one previously established at the same point; (4) that if it were a direct intertereucu, the railroad company were authorized to erect and maintain a bridge for the use of their railway, adja- cent to M's bridge, and the Act granting them the power was valid. Ibid, 3. Where a franchise has become vested in the do- nee or grantee, it iEl*yio defense to a suit brought by him to assert or maintain the franuhise, that he has forfeited it by any subsequent acts of commission or omission. Ibid. i. There must be a Judicial forfeiture of the fran- chise, at the suit of the State, before individuals can avail themselves of such acts. It cannot be im- peached collaterally. UHd, 5. Where an Act conferring a franchise to build a bridge and to take tolls provided that the owner of any unauthorized bridge or vessel used to transport passengers at the same point should pay treble tolls, to be recovered by the donee in an action of debt before a justice, in a suit in equity by the owner of the bridge against a corporation for a violation of his franchise through a new bridge alleged to be unauthorized,— Helo, (1) that the remedy given by the Act was cumulative, and did not preclude the donee from resorting to other actions; (2) if the Act were otherwise, the necessity of the case would warrant another remedy, as the .corporation could not be sued before a justice. ibid. 6. There Is no implication of an exclusive right to a franchise, where the charter or Act conferring it is silent on the subject. Ihifh 7. The Legislature, making a grant to some, may afterwards make a similar grant to others; but,, without such latter grant, the former have exclus- ive right and no express prohibition or restraining law is necessary to prevent rivalry. The grant im- plies a prohibition. Tyaekv. Bromley, i Edw. Ch. 258, 6: 871 8. It would seem that a statutory grant of fees or perquisites carries with it an exclusive right to perform the services that earn them. Ibid Editorial Notes. Distinction between franchise and mere monopoly 7: 980 Ferry, bridge, and other franchises; legis- lative grant construed 1:797,2:837,7:980 Forfeiture of 7: 980 by nonuser 5: 77 Legislative grant of, does not convey ex- clusive rights 5: 489, 7: 980 Title acquired by 5:913 Exclusive power may be granted by Legis- lature 1 : 797 Grant of exclusive privileges; authority nf future legislatures 3: 1099' Protection of 1: 797 What not an infringement of charter rights 3: llOO FRAUD. See also Contracts, V. b, 4 ; Debtob and Ceedi- TOE, 9 ; Equity, I. g ; Estoppel, III. ; Evi- dence, II. e, VI. b; Fraudulent Convey- ances; Husband and Wife, 161 : Limitation OF Actions, IV. d ; Pleading, III. e, 2 ; Spe- cific Peefobmanoe, I. b. 1. The court of chancery will not permit the ex* FEAUDULENT CONVEYANCES, I. 205 eroise of mere technical legal rights to be perverted 4o the purposes of fraud. Enai^ V. CoUmm, 11 Paige Ch. 503, 5: ai3 2. If one person represents to another going to deal in a matter of iuLerest on the laith of the rep- resentation, the former, if he knew that represen- tation to be false, shall make it good. Bacon v. Branson, 7 Johns. Ch. 194, »: 865 3. A party is responsible in equity for damages ^resulting from his willfully false assertion. Ibid. i. Fraud and damage coupled together entitle the party injured to relief in any court of justice, ibid. 5. Although a simple suppression of the truth by ■one of the parties to a concract may not be sum- ■cient to authorize acourt to set it aside, yet, if any- thing is said or done to mislead or deceive the other party to the same, the court will grant relief against ■■the contract. lAvingstmt v. Peru Iron Co. 2 Paige Ch. 390, 8: 966 6. The fraud which will entitle a grantee or lessee to relief is a fraud at the time of the execution of the deed or lease,— not a fraud in a subsequent and distinct transaction. Chesterman v. Gardner, 5 Johns. Ch. 29, 1: 997 7. An action on the case for a deceit lies against a person selling land, knowing that he had no valid •Uue, although the deed contams no covenants. Boberts v. Anderson, 3 Johns. Ch. 376, 1: 654 8. Where the vendee applied to the vendor to -purchase a lot of wild lana, and represented to him that it was worth nothing except for the purposes of a sheep pasture, when he knew there was a val- uable mine on the lot, of the existence of which the vendor was ignorant,— Held, that this was such a fraud as would avoid the purchase. lAvingston v. Peru Iron Co. 2 Paige Ch. 390, S: 956 9. A false assertion by the vendor as to the mere value of the property he is about to sell, without .any misrepresentation or deception as to any other matter of fact, is not a sufficient ground for relief to the purchaser, either at law or in equity. The Jaw presumes that each party to a contract of sale relies upon his own Judgmentas to the value of the property sold, where the facts on which the value •of such property depends are equally known to >botfa. Speiglemyer v. Crawford, 6 Paige Ch. 254, 3: 975 10. False representations by the vendor as to the actual income or receipts from the property which is the subject-matter of the sale may be taken as ■tvidence of fraud. Hutchinson v. Brovm, Clarke Ch. 408, 7: 156 11. Application was made by the plaintiff, who re- sided out of the State, to K, an attorney here, to draw a bond and mortgage from B to the plaintiff. The attorney lived near the premises, and was well acquainted with the property and the circumstances of B, and, being asked atthe time it he knew of any incumbrances, answered that he did not know of any except of a Judgment in favor of A, though he knew there was a prior mortgage to the loan offi- cers, under which the property was afterwards sold, unknown to the plaintiff, and K purchased it for one third of its value. Held, that, the represen- tation made by R to the plaintiff being false, and the purchase by him under the prior mortgage to the loan officers fraudulent, he was responsible to the plaintiff for all the loss and damage sustained by him in consequence of such fraud. Bacon v. Bromon, 7 Johns. Ch. 194, 8:365 12. Neither a hona fide debt nor an actual advance of money will sustain a security infected with fraud. Goodhue v. Berrien, 2 Sandf . Ch. 630, 7: 734 13. Where the defrauded party, with full know- ledge of the fraud, settles the matter in relation to which such fraud has been committed, and re- leases the person who defrauded him, he has no -claim to relief, either at law or in equity, on account of such fraud. Parsons v. Hughes, 9 Paige Ch. 591, 4: 828 14. If a partnership is defrauded by a third per- son, with the consent and connivance of one of the copartners, it seems that a settlement and dis- ■«harge of such copartner, by the other members ■of the firm, from all claim on account of such *aud, is a bar to any relief against the other party to the fraud. Ibid. 15. B borrowed money of the complainant and ■secured it by the transfer of stocks. He was then the cashier of a bank, and so continued till after itf failure. On its failure, it turned out that he had plundered the bank of a large sum and was Insol- vent. While this was known to the bank commis- sioners only, he obtained the stock from the com- plainants without consideration, and on a repre- sentation that he wanted it for a particular purpose and would replace the security. He withheld from them information of his defalcation, and the pur- pose for which he wanted the stock, which was to transfer it to the bank and prevent a public dis- closure. Held, that B's concealment of his situa- tion and his object in the proceeding was a fraud upon the complainants; and that the bank could not retain the stock upon its demand against him Bawdon v. Blatchford, 1 Sandf. Ch. 344, 7: 353 16. P, for several years a client of W and visiting his office very frequently, broughtto W a mortgage of 81,000 for foreclosure. A bill was filed, but the suit was stopped on the interest being paid up, and the mortgage returned to P. M, for several years the managing clerk of W, had become familiar and intimate with P and knew of these proceedings. In a short time thereafter M offered to P $1,600 for bis mortgage, in worthless post-notes of a country bank. The notes were then of doubtful legality and the bank of doubtful solvency; but P accepted them and transferred the mortgage to M. w, on being asked by P as to the goodness of the post- notes, made an indefinite answer. Within a few days W bought the mortgage of M for $900, and pro- cured P to cancel the previous transfer and assign it to B for W's benefit. After this J bought the mortgage of W in good faith, for value paid, with- out notice, and received an assignment from B. Held, that M's purchase was unduly obtained and cannot be permitted to stand. PoUlnn V. Martin, 1 Sandf. Ch. 569, 7: 437 17. That in regard to J the legal title being in P, as well as the prior equity, P was entitled to have the mortgage restored to him. Ibid. Editorial Notes. Fraudulent sale of land 5:334 Fraudulent grantor cannot impeach his own grant 5: 950 What renders contract voidable 1; 469 What will make a conveyance void 1 : 469 Goods obtained by fraudulent misrepre- sentations 3: 551 Fraudulent representations; what constitutes 5:228 of husband 5 : 588 Fraudulent statements as ground for equi- table.relief 2:265,4:92 Fraudulent purchase on credit 3:727 Property obtained by, does not change title 2: 655,859 Fraudulent concealment of material fact 3: 756 in vendee or purchaser 3:956 Dismissal of suit for fraud or oppression 3:911 Bill to avoid release for 3: 151 Effect of settlement 4: 838 Fraud and deception in trade not tolerated in law 7: 713 FRADULENT CONVEYANCES. I. In General : Instances. II. Voluntary Conveyances; Consideration. III. Preeekences. IV. Transactions between Relatives. V. Relief ; Rights of Transferees. Editorial Notes. See also Dower, 55 ; Execution, 53. I. In General ; Instances. 1. That one purchases goods and places them in FRAUDULENT CONVEYANCES, I. the hands of an insolvent as his agent, to he sold, and allows him to use a portion thereof for the support of his family, is not alone sufficient to raise the inference of fraud. Howard v. Sheldon, 11 Paige Ch. 558, 5: 833 2. A deed brought forward as founded on a valuable consideration cannot be set up as a gift or voluntary conveyance, but the party is boimd by the consideration alleged. HUOreth v. Sands, 2 Johns. Ch. 35, 1: 886 3. A deed not fraudulent at first may become so afterwards by being concealed or not pursued, by which means creditors have been drawn in to lend their money. Ihid. i. A purchaser at a sheriff's sale under the judg- ment of a creditor is entitled to the benefit of the Statute of Frauds equally as the creditor him- self. Ibid. 6. Possession of land and taking the profits after an absolute conveyance is evidence of fraud within the Statute of Frauds, unless such possession be con- sistent with the terms and object of the deed, or the character of it be openly and explicitly understood. Ibid. 46, 1: 390 6. The possession of real estate assigned, con- tinuing in the assignor, is evidence of fraud. Jackson v. Comdl, 1 Sandf. Ch. 348, 8: 354 7. But the fraud of the grantor must be clearly established by proof; the mere fact that the gran- tor has suffered the bill to be taken, as against him, pro confesso, is not sufficient. Hildreth v. Sands, 2 Johns. Ch. 35, 1: 886 8. The nonremoval of articles, the subject of an assignment, is not decisive evidence of fraud. The control of the assignee may be as absolute on the premises, and the exclusion of the assignor as per- fect, as in case of a removal. iee V. Huntoon, Hoff. Ch. 447, 6: 1 303 9. Under the Act of 1833, chap. 279, if a mortgage of personal property is duly recorded, a change of possession need not be made. IMd. 10. Store of goods mortgaged and no possession taken for nineteen days, or reason assigned for nondelivery,— HisiiJ, to be fraudulent as against creditors. Walker v. Snediker, Hofl. Ch. 145, 6: 1094 11. AbiUof sale of furniture in satisfaction of an existing debt is void as against subsequent judg- ment creditors, where the furniture Is left in posses- sion of the assignor upon his agreement to pay rent which cannot be enforced because of his insolvency, and the transfer is given no publicity whatever. Bitchcoek v. St. John, Hoff. Ch. 511, 6: 1836 12. Where two instruments are impeached in a bill on distinct grounds, and as against distinct parties ,Bo objection being taken by demurrer), the court, on decreeing both void, will permit the complain- ant to proceed against either fund, or both simul- taneously, until he has obtained satisfaction, when he will be arrested. U>id. 13. Where, on a sale of real estate, no security other than the personal responsibility of the pur- chaser was taken for the consideration, this was held a circumstance from whence to infer fraud. Hendriclis v. Robinson, 2 Johns. Ch. 300, t: 388 14. Subsequent transactions.— as tTipr"^<'i'-"Tnpr,*-f-f debts by the grantor to the grantee to secure money advanced by the latter to the former after the sale, or the sale of personal property, to a great amount, by the grantor to the grantee, and taking his per- sonal security on!y,— are also circumstances to lead to the conclusion of fraud. Ibid. 30;J, 1: 388 15. Under § 1 of the statute (Sess. 10, chap. 44; 13 Bliz. chap. 5) which was made to protect ereaitors, n fraudulent conveyance by a debtor is utterly void as to creditors, unless made for a valuable consid- eration to a bona Ude purchaser without not'ce ol the fraudulent intent. Roberts v. Anderson, 3 Johns. Ch. 371, 653 16. But a bona fide purchaser from a fraudulent grantee acquires no title by the conveyance, against the creditors of the fraudulent grantor. Ibid. 17. The mere intention of the defendant, after verdict and before judgment, to sell his property and convert it into money, does not subject the case to the laws concerning fraudulent convey- ances. Moran v. Dawes, Hopk. Ch. 365, 3: 453 18. Where a judgment was confessed for a debt which had not become due and payable, and whicb- was also fully secured by mortgag;e upon real es- tate, to enable the plaintiff in that judgment to sell the defendant's personal estate on an execution, and thus to place such property beyond the reach, of other creditors who were about to obtain execu- tions against the same,— Held, that such judgment and the proceedings thereon were fraudulent and void as against the other creditors. Bums V. Morse, 6 Paige Ch. 108, 3: 91» IB. Where the consideration of a conveyance is- >aid by one person, ana cue conveyance is taken in the name of another, for the purpose of defrauding the creditors of the person advancing the money, although such conveyance is valid as between the parties, and vests the whole legal and equitable title in the grantee, it is fraudulent as to creditors. And ■i creditor having a judgment against the person advancing the money may file his bill against the fraudulent grantee, to set the deed aside so far a» to have his judgment satisfied out of the land. Jackson v. .Ftorresf, 2 Barb. Ch. 576, 5: 760 20.The debtor attached to the instrument a sched- lUe of debts owing Dy him for which one of lUs ..=.- 3ignees was liable as Indorser. The assignee denied such liability, and there was no proof that the assignor owed more than one of those debts. He also inventoried, as assets due to him, a larg» amount of notes which were wholly fictitious. Held, that these circumstances strongly corroborated th» inference of fraud derived from the provision for ripving the oosts and expenses of defending suits. ' Mead v. Phillips, 1 Sandf. Ch. 83, 7: 34» 21. When a substantial portion of the assigned property, consisting principally of promissory notes and household furniture, was suffered to remain in the assignor's possession for three months after the execution of the assignment,— field, indispen»l nble, in order to rebut the presumption of fraudt that the assignee should prove the existence of the indebtedness in consideration of which the assign-) tuent was ostensibly made. Joid! 22. An insolvent debtor, on the eve of making a. general assigumeut, ti-auur'eri*cd a bond and mort- gage in trust for the benefit of certain of his credi- tors. The bond and mortgage were not payable until about four years thereafter. The transfer contained a proviso that the assignee should retaia the bond and mortgage until the expiration of the period it had to mature, and should not part with it^ or attempt to collect the principal, until that time. Held, that the transfer was fraudulent as against crpfiitors. Storm V. Davenport, 1 Sandf. Ch. 135, 7: 26* 23. D, owning a parcel of land which was mort- gaged to R for its value, executed a power oi at- torney to R authorizing him to sell the land, and, after retaining the amount due on the mortgage, to pay the surplus to D's wife. R soon after con- veyed the land, under the power, to H without con- sideration, and H immediately reconveyed it to K, The wife of D Joined in the deed to H, for whicli she received 8100 from R. On a bill filed by the- heir of D,— Heid, that the sale could not be main- tained, and that the heir was entitled to redeem th» land from R. „„,.„„„ ,. «»«. Dobson V. Racey, 3 Sandf. Ch. 60, 7: 770>. )H. A merchant who was sued for his debts and vas insolvent sold his enure stock in iruue lo ...d !onfidential clerk, on a credit of from three lo eighteen months. It was a part of the arrangement that the clerk should continue the business with the merchant's sister, who was to be allowed to draw out of the concern an annual sum, and was to pay the same to the merchant, for his assistance in the business. Held, that the sale was fraudulent and void as against creditors. Coolce v. Smith, 3 Sandf. Ch. 333, 7: 87S- 25. MW died intestate, leaving real estate mort gaged, and also a widow and two children. The widow administered; and under a claim of her own for maintenance and the mortgage debt of her hus- band, and through the interference of her brother, she got a surrogate's order to sell the real estate, which was bought in by her father and he, soon after, conveyed it back to her, apparently for about double consideration. No money passed. Under a^ fi. fta. against the widow individually, her right to- the real estate was sold by a sheriff, and bought and. conveyed to C., who devised it to his wife, and died.. Upon a bill filed by one of the children of M. W.,— Held, that the deeds between the widow of M. W. and her father were fraudulent; and that, as notice- of fraud or trust was not averred, C's deed wa» void; also, that the children were entitled to the ex- FRAUDULENT CONVEYANCES, II.— IV. tent of their ori^nal rlghtr tbatthe parties defsDd- ants, according to the times of possession, were to acooiint for rents and profits: that the dower right of M. W'B widow passed to C. under the sheriff's deed; and that as C's widow had paid off the mort- gage, which had been given by M. W., she was to be allowed it in account. WooOruff V. Cook, 2 Bdw. Ch. 259, 6: 393 26. Where B B & I B, partners, confessed a Judg- ment to W, their brother-in-law,,for $25,000, under which the household furniture of B B, together with other property, was sold: and W at the sale purchased the furniture and left it with B B, and It appeared that the judgment was given to W to secure a debt due him of $2,850, and to apply the residue of the said judgment when collected, in pay- ing such of the creditors of B E & I E as B K should designate; and the property of the firm which could not be reached by execution was assigned by E B to I B in trust to pay himself the costs of executing the trust, the expenses of obtaining B B's insol- vent's discharge, and the expenses of all suits at law or in equity, and to apply the residue in pay- ment of the debts of the firm in the order pre- scribed in a schedule annexed; S, acreditor of B E & I E,prosecuted his debt to judgment against them, and issued an execution thereon, wMoh was re- turned unsatisfied,— it was held that the judgment to W was given to defraud creditors; and that the assignment from B B to I E was also fraudulent and void as against the creditors of B E & I E; and that S was entitled to receive out of the property so assigned the amount of his judgment, with interest and nis costs of suit. Sewall V. Bussell, 2 Paige Ch. 175, a: 868 II. VOLUNTABT CONVETANOBS : CONSIDEBATION. 27. Where a debtor, with an intention of defraud- ing his creditors, executes a conveyance of his prop- erty without any valuable consideration being paid by the grantee, the conveyance is void as against such creditors, althou - . i the voluntairy grantee was not privy to the fraud. Mohawk Bank v. Atwater, 2 Paige Ch. 54, 8: 810 28. Whether a deed, voluntary, or founded only on the ties of blood, is void against subsequent creditors, where the party is indebted at the time, and the debt is not secured, or the debtor is unaole topay,— ffucere. Hildretn v. Sands, 2 Johns. Ch. 48, 1: 891 29. Whether a voluntary settlement is not void against a subsequent creditor, though the party is not indebted at the time of settlement,— qucbtc. Ibid. 49, 1: 891 30. A voluntary settlement, either of lands or chattels, by a person indebted at the time, is void as against creditors. Bayard v. Hoffman, 4 Johns. Ch. 450, 1: 898 31. Whether the Statute of frauds (1 N. B. L. 75; Sess. 10, cnap. 44; 13 Eiiz. chap. 5) applies to a settle- ment of that kind of property which could not be reached by legal process if no settlement had been mjide, RiT^n as ohoses in action, money in the funds, etc.,— quwre. Ibid- 32. An assignment, by a debtor, of "all his estate, real and personal, and of all books, vouchers, and securities relative thereto," in trust for the benefit of all his creditors, passes.al I his estate and interest, equitable and legal, ana uis rights of action or as cestui que trust, and therefore mcludes stock of the United States before voluntarily assigned by the debtor, when 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 general assign- ment. Ibid. 33. The mere fact of an existing indebtedness does not render a voluntary conveyance absolutely fraudulent, or void in law, as against the creditors whose debts were previously contracted, if there was no intention on the part of the grantor to delay or defraud his creditors. Tan Wyck v. Seward, 6 Paige Ch. 62, 3: 899 34. A voluntary conveyance is not per se fraudu- lent, even as against creditors to whom the grantor was indebted at the date thereof. And where there is no evidence of fraud in fact in the giving of the deed, nor any subsequent acts of the parties from which fraud can be legally interred, subsequent creditors of the grantor cannot avoid the deed by 207 showing that the consideration expressed tbereim was not the true consideration. Bank of United States v. Housraare, 6 Paige Ch- S26, 3: 108» 85. A voluntary deed not delivered to the gran- tee, and kept concealed from the public for near eighteen years, during which time the grantor re- mained in possession of the premises as owner, can- not be set up against a third person dealing with the grantor as owner, although he may have heard of the existence of the deed, at the time he took hi» mortgage. Perinev. JDunn, SJohns. Ch. 508, 1: GOei 36. But the grantee, being the heir at law ot the grantor, has a right to redeem. Ibid. 37. Where, after the commencement of a suit for the recovery of a debt, tlie debtor assigned prop- erty valued at about $1,300 in payment of a debt of $700, and was left in possession of the property, to sell it and collect the proceeds thereof upon com- mission, the assignment was fraudulent and void. Butler V. Stoddard, 7 Paige Ch. 163, 4: 10» 38. Where S, being indebted to several persons, was,, in September, 18J.7, sued for a default in paying over moneys received as a commissioner of loans, and judgment was recovered against him Jan. 31, 1818; and Jan. 1, 1818, S conveyed to L his farm and. all his personal property for the nominai consider- ation of $8,501.25, $4,000 of which was paid in Vir- ginia lands which had been purchased by L twenty- years bef orev but which he had never seen or pos- sessed; and there was no proof of the payment of the residue of the consideration; and S continued in Eossession of the property so conveyed to ly,— it was eld that this conveyance was fraudulent and void as against the creditors of S. Lee V. Hunter, 1 Paige Ch. 519, 8: 73r III. Preferences. 39. A debtor in failing circumstances,or insolvent, may bona fide, prefer one creditor to another. M'Menomy v. Boose^elt, 3 Johns. Ch. 446, 1: 679' WMenomy v. Murray, 3 Johns. Ch. 414, 1 : 678- 40. It is not a badge of fraud in a mortgage, that it was taken after the creditor learned of the debt- or's intention to secure another creditor by a mort- gage on the same land. Oraig v. Tappin, 2 Sandf. Ch. 78, 7: 515- 41. Assignments of personal property by a debtor In insolvent circumstances, and who has stopped fiayment, to secure a particular creditor for exist- ng claims and engagements, as well as for future advances and responsibilities, if made bona fide an^ under circumstances which leave no dotibt of the honesty and fairness of the transaction, will be deemed valid. Hendricks v. Robinson, 2 Johns. Ch. 306, 1: 389 43. A creditor to whom his debtor has assigned property as security for advances and responsibil- ities, with an agreement that if the property was not redeemed within a certain time, the assignee might sell to pay and indemnify himself, may, after the expiration of the time limited, sell the property for bis indemnity, and may, with the assent of the debtor, become the purchaser thereof, and of all the equitable or residuary interest of the debtor, at a fair and adequate valuation; and such purchase, if made bona fide, and without intent to injure or defraud other creditors, will be valid, not only against the debtor or cestui que trust, but against all other persons. IlM.m, 1:391 IV. Transactions between Bblatives. 43. If the husband's furniture is sold upon execu- tion against hira, and Is purchased in by the trustee of the wife, with funds held by him as her separate estate, and the furniture is left with the wife f of the purpose of enabling her to have the use of the same as her separate estate, such possession does not render the sale fraudulent as against the hus- band's creditors. Danfmth v. mioiJs, 11 Paige Ch. 9, 5: 37 44. Where a father whose debts both as pnncipaJ and surety were less than his property, and wl.o had no expectation of being charged with the debts for which he was surety, conveyed his farm to his son, and for the price received a note and mortgage on the farm for its full value, payable in twenty- six equal annual installments,— Held, that the cir- 208 FRAUDULENT CONVEYANCES. V. «um8tances did not establish a fraud as against the creditors of the father. Starr r. Strong, 2 Sandf. Ch. 139, 7: 640 45. Where the grantor, after the execution of a vol- untary conveyance to his sons, is permitted to re- tain possession of the premises as the ostensible owner, and the conveyance is not recorded, such continued possession is prima fade evidence of fraud as a^gainst subsequent creditors who have .given credit to the grantor upon the faith of his supposed ownership of the property. Sank of United States v. Hmixman, 6 Paige Ch. £36, 3: 1088 4fi. Where a parent makes an advancement to his child, and honestly and fairly retains in his hands ■suffloient property to pay all his debts, such child will not be bound to retuud the advancement, for "the benefit of the creditors, although it should afterwards happen that the parent does not pay his debts which existed at the time of the mal^ng -of such advancement. But wnere the debtor makes a voluntary conveyance of his property, without any valuable consideration, and for the purpose of defrauding creditors, it seems that a court of equity may follow the property into the hands of the vol- untary donee, for the benefit of such creditors, .although the donee was not privy to the intended fraud. Van Wyek v. Seward, 6 Paige Ch. 63, 3: 899 47. A voluntary settlement upon a wife, by a hus- band, can only be impeached by a judgment creditor. Lawton v. Levy, Z Edw. Ch. 197, 6: 366 48. If a creditor desires to impeach a voluntary settlement upon a wife, made by the husband, such creditor must be one by judgment. ifiid. 49. Where a husband settles his own property upon his own family while he is in debt, there will be the most rigid scrutiny, and the fairness of the transaction must clearly appear. The case is dif- ferent where it is the wife's property. Her equity entitles her to a settlement of it, and the court will uphold it in favor of wife and children against the husband, his assignees and creditors; so that a set- tlement or ner property (coming before or aivCi marriage) made on his insolvency or inability, and when there has been no previous settlement, and especially if he has before received a part of her fortune, will be deemed to be made on good con- sideration and be valid as against the husbandV creditors. Wielies V.Clarke, 3 Bdw.Ch.SS, 6:670 50. When a biU seeks to set aside a voluntary set- tlement, solely on the ground of its being voluntary and therefore fraudulent, the court will not look to the point of the secured income being excessive. If such a charge had been made in the pleading,— (t would seem that a reference could be had. Ibid. 51. Though a settlement after marriage recites a parol agreement entered into before marriage, it seems that it is not therefore valid against creditors. JBeade V. iimnflston, 3 Johns. Ch. 481, 1:690 52. A voluntary settlement after marriage, by a person Indebted at the time, is fraudulent and void against all such antecedent creditors; and that without regard to the amount of the existing debts, or the extent of the property settled, or the circum- stances of the party. ibid. 53. But with regard to debts arising subsequent to the settlement, it seems that the presumption of fraud arising in law from the party's being in- debted at the time may be repelled by circum- stances; as, that the antecedent debts were secured by mortgage or were provided for in the settle- ment. Ibid. 54. And if the presumption of fraud is not so re- pelled, it seems that subsequent creditors may im- peach the settlement by showing antecedent debts sufficient in amount to afford reasonable e viden ce of a fraudulent intent: for as, on the one hand, show- ing an antecedent debt, however small or trifling, is not sufficient to make the settlement fraudulent and void, so, on the other, the subsequent creditor, to Impeach it, is not obliged to prove that the party was absolutely insolvent at the time. Ibid, 55. When a voluntary settlement is set aside as against antecedent creditors, subsequent creditors will be allowed to come in for satisfaction of their debts. IMa.i9Z, 1:694 56. Under 13 Ellz. chap. 5 (Sess. 10, chap. 44, i 3), there is a distinction between prior and subsequent creditors, in regard to voluntary settlements. Ibid. 602, 1: 697 57. A settlement is not void as of course against the latter, when there were no prior debts at the time. Ibid. 58. A debt was contracted in November, 1837. In March of that year directions were left wita an at- torney to prepare a voluntary settlement upon a wife. It was then prepared, but not executed until September, 1837. At that time the settler owed about S40,000,and was largely indebted when he con- tracted the debt to the complainant. All the debts owing by him, when he made the settlement were paid off, but it did not appear that they were paid in the period between making the settlement and con- tracting the debt in question. They were paid chiefly by incurring other debts. And though the creditors changed, little variation as to the amount of debts took place. The complainant obtained judgment in February, 1838. Held, that the settle- ment was fraudulent and void : and also that, al- though the interest in the property was contingent under a devise, it might be sold, all proper parties to join in the conveyance. Mills V. MoiTis, Hofl. Ch. 419, 6: 1193 59. For the court to interfere and set aside a vol- untary settlement on a wife, where debts of the husband existed, fraud must appear; the indebted- ness is but a presumption of it and may be ex- plained. Widkes v. Clarke, 3 Edw. Ch. 58, 6: 670 V. RELiEr ; Rights op TBANsrEBEBS. 60. A deed fraudulent on the part of the grantor may be set aside, though the grantee is bona fide purchaser and ignorant of the fraud. Bildreth v. Sands, 2 Johns. Ch. 35, 1: 886 See Peek v. Ellis, 2 Johns. Ch. 135, 1 : 381 61. Where a deed is set aside as constructively fraudulent, it is usual to direct a release and re- conveyance by the party claiming under the deed, with a covenant against his own acts. Dey V. Dunham. 2 Johns. Ch. 194, 1: 346 62. In practice, Itisusualtodirectareleaseof the right of a party under a deed, which is set aside as constructively fraudulent. But it will not be nec- essary to direct a release or reconveyance where a deed is declared an absolute nullity from fraud or imposition in the manner of obtaining it, except under special circumstances and ex abundanti cautela. Benriques v. Hone, 2 Edw. Ch. 120, 6: 333 63. Deeds or instruments brought within the statute against fraudulent conveyances are void- able only as to creditors or purchasers who impeach them and are not absolutely void. And when this is done in equity, the decree of court is interposed, and, by force of the statute, such decree declares the instrument void ab initio as respects those who impeach it and giving to them their legal diligence. But the court does not declare it vpid as to other persons, nor will it set the same aside as a nullity between the oarties to the Instrument. Ibid. 64. Where premises are conveyed for the purpose of defrauding creditors, to one who pays and takes up certain mortgages thereon and also makes im- provements, in taking an account of the rents and profits to be set off against the amount due on the mortgagee, he cannot be charged with the rents and profits resulting exclusively from the improve- ments. j^ing V. Wilcox, 11 Paige Ch. 589, 5: 843 S. 0. 5 Ch. Sent. 13, 6:1170 65. Where a deed is sought to be set aside as volun- tary and fraudulent against creditors, and there is not sufficient evidence of fraud to Induce the court to avoid it absolutely, but there are suspicious cir- cumstances as to the adequacy of the consideration and fairness of the transaction, the court will not set aside the conveyance altogether, but will per- mit it to stand as security for the sum actually paid. Boyd V. Dunlap, 1 Johns. Ch. 478, 1: 815 66. And where the plaintiff was a purchaser at a sheriff's sale under a judgment, the court gave the defendant his election to pay the amount of the judgment, interest, and costs, and take a convey- ance from the plaintiff ; or, in default, to deliver up the deed to be canceled, on receiving from the plain tin the sum actually advanced by the defend- ant, jjjid. FREE MASONS-GIFT. 209 87. There is a difference between an interference actively to compel a party to recon vey or siirrenaer -a deed, and a refusal to aid a party who seeks n specific performance of a contract. If actual fraud be not proved, the court will not set aside the title, but will either make it subservient to the equity of the case, or leave the party complaining to his rem- «dy at law. ibid. 482, 1:817 68. A court of law can only decide on the validity ■of the deed, and cannot modify its relief according to the equity of the case. ibid. 69. A deed fraudulent In fact is absolutely void, and Is not permitted to stand as a secmiiy lor any purpose of reimbursement or inflcmni'v ; but it is otherwise with a deed obtained under susijicious or inequitable circumstances, or which is only cou- ■etruotively fraudulent. Tbld. 70. Where a party who had become insolvent and who was sued for a debt conveyed his iuteresi in ii farm to his brother, for the purpose of placini; it beyond the reach of his creditors; and the brother iigreed to pay the fair value of such interest in the farm, but deducted from the purchase money cer- jun sums which were not equitably due to liim I'rom the jfrantor,— the purchaser was not entitled to hold the sums thus deducted as against the credi- tors of the grantor. McArthur v. Hoysradt, 11 Paige Ch. 495, 6: aio 71. Although a deed or assignment is set aside by •a decree obtained in a judgment creditor's snt, •still it should be limited to the rights of such Judg- ment creditor and, therefore, another .iudsrmfit «reditor does not necessarily get abenefltthereby. DoDis V. Perrine, 4 Edw. Ch. 62, 6: 798 Editorial 1Tote3. Setting aside 1: 386, 380, 898, 5: 363, 6: 158, 366, 404 Knowledge on the part of the purchaser 7:734 To impeach, creditor must have a lien 5:959 Remedy at law must be exhausted 5:959 llqujtable relief 2; 956, 5: 334 "Subsequent creditors may set aside 5: 243 Slights of creditors 7: 1177 Fraudulent disposition of property by di- rectors of corporation 6:633 Protection of bona fide purchaser 2: 338 Assignment by debtor, wilh fraudulent intent to delay creditors 3: 810 Removal of obstacles interposed by debtor 3: 803 Holding fraudulent grantee as trustee 1:380 In trust for creditors 1 : 1099 Badges of fraud 1: 6U9 Necessity of reconveyance 1 : 470 Valid as to parties 1: 159, 3: 719, 4: 948 Voluntary conveyance void as to existing creditors 3:900, 1088,5:343,356, 7:368 Validity; consideration 1: 126, 133, 159 In fraud of creditors; su.spicious circum- stances ; purchaser from fraudulent vendor 1: 215 Voluntary settlementon wife 6: 315 Title taken in wife's name 6: 1193 FREE MASONS. See Chakitable Uses, 16; Deed, 18. FUGITIVES FKOM JUSTICE. See Extradition. FUNERAL EXPENSES. See Executors and Adminisibaiors, 367, FUTURE ESTATE. See Expectancy. G GARNISHMENT. See Creditors' Bill, 15. GENERAL AVERAGE. Editobial Note. Freight as general average GENESEE RIVER. The Act declaring the Genesee Elver a highway ■-applies to that river only above the ra|}ids, and was for the purpose of preserving its navigation free, 4uid is not applicable to the rapids, where the river ds not navigable. Rochester v. Ourtiss, Qarke Ch. 336, 7: 135 <3h. Dig. GIFT. See also Evidence, 59. 1. A promissory note or a bond is a proper sub- ject of a gift causa mortis ; and the delivery may be to a third person for the use of the intended donee. Coufant V. Schuyler, 1 Paige Ch. 316, 2 : 668 2. But claims of this ki nd are admitted with great caution ; and where some doubt was thrown on the 1 : 820 transaction, a feigned issue was awarded. Ibid. 3. An absolute delivery and a continued change of possession are essential requisites of a good do- naUo mortis causa. Craig v. Oraig, 3 Barb. Ch. 76, 5: 834 4. The promissory note of the donor is not a valid gift mortis causa. Ibid. 5. The promissory note of the donor is not a good gift inter vivos ; and the donor or his representatives may impeach such a note for want of considera- tion. Ibid, 14 210 GOODWILL-GRANT. 6. But « seems that the draft of the donor in favor I of another may operate as an appointment or ap- propriation of the fund upon which it is drawn, to the use of the donee. Ibid. \ I. Where an alleged donotio cavsa mortis was not sustained, the donee and a colluding executor were held liable for the whole sum, although they had distributed it among themselves and the others ; but they were permitted to be subrogated to the complainants' remedy against the latter. Thorp V. Amos, 1 Sandl. Ch. 26, 7:885 8. G asserted claims against two brothers who were partners, as well in their own i-iglit as execu- tors of his father's estate, and a legal controversy was likely to ensue. D, his mother, who was the assignee of two bonds given by G to the two broth- ers, two years before her death attached to tjie bonas a writing signed by her, expressing her desire to prevent such a controversy after her death, and directing the bonds to be canceled on G's executing a discharge of all demands to his father's executors and to each of his brothers and sisters; and if he «hould refuse, then the bonds were to be made a set-off against any such demands, but they were never to be put in suit against him. The bonds and writing were In D's possession at her death, and there was no evidence of their having ever been out of her possession, or of any formal deliver.v of the writing by her. Held, in a suit against her ad- ministrator, that the bond should be delivered up to G on his executing the discharges specified in the writing signed by D. Brinckerhoff v. Lawrence, 2 Sandf. Ch. 400, 7: 640 9. Also, that the instrument could not be sustained as a doiiatio rm^rtis causa, or on the ground ut an appointment, or as a direction to her legal repre- sentatives; but that it was rather the discharge or forgiveness of a debt. llikl. 10. It seeww there is a distinction between dona- tions unaccompanied by delivery, where the object is to forgive a debt, and those in which the donor's apparent intent is to transfer property, either in his possession or by means of his own note or bond. Ibid. II. The strong expressions in the books of the com- mon law, against sustaining donations, cither mor- tis causa or inter uimw, without tradition or actual delivery, are owing to suci- gifts being usually claimed on parol evidence. ibid. 13. Where the intent of the donor is proved under his own hand, a delivery will be presumed from slight circumstances. Ibid. 13. As to a gift, there must be an intention to give ; but this intention is to be executed and carried into effect by actual delivery. Taylor v. Fire Department of N. T, 1 Bdw. Ch. 294, 6: 144 14. J. B. T. (not a fireman) was killed at a flre, and the firemen raised a subscription for the relief of his family, which was received by their respective foremen. By resolutions of the engineers and fore- men, the money was invested by a committee in bank stock in the name of the "Fire Department Fund," and the dividends were paid to the widow and children for a limited period. Held, to be no consummated gift vesting in the family. Ibid. 16. Mrs. T. directed ber son-in-law. M., to sell her bouse and lot, which he did. She came to reside with him and his family (wife and children). M. put Sie avails in his business, and took a partner, but afterwards sold out to him and took his notes. In the mean time Mrs. T. repeatedly declared that the avails of the house and lot were to go to M's child- ren and expressed a solicitude as to the same. M. bad been heard to admit the same, and when he dissolved partnership he left his partner's notes (for which he had sold out) in the hands of a friend, acknowledging that they were for the children, and went to the South and there died. His adminis- trator got possession of them; but the court de- creed tnem to belong to the children. Costs to all parties out of the fund. Minchin v. Merrin, 2 Edw. Ch. 333, 6: 420 16. Where confidential relationship exists, and one party is exposed to the designs of another, and a voluntary settlement or deed of gift is made, the law requires the party benefited to show, affirma- tively, free will and knowledge and the interven- ti"n of a disinterested third person. Siem/>n v. W'Oson, 8 Edw. C!h. 36, 6: 562 17. A gift to » married woman, whether by her husband or other person, and with or without the intervention of a trustee, will, in equity, be pro- tected when made in good faith and where the rights of creditors are not affected. mufvUle V. Thomson, 3 Bdw. Ch. 92, 6: 583 18. To make a gift inter vivos valid from husband, to wife, there must be a devesting of the title; and the act of giving must be clearly proved and be Ir- revocable. IZiid. 19. Where bank notes are in the possession of an mtestate at the time of death, a party claiming them as a gift will have to prove the gift bv clear and indisputable evidence. ScovUle V. Post, 3 Edw. Ch. 203, 6: 627 20. Case where an alien adopted an infant about ♦Ive years of age, and had a lot conveyed in her name. The conveyance remained in the infant's family, and, although he assumed acts of owner- ship, yet as there was evidence to show be called it the infant's property, the court, under all the cir- cumstances, decreed U a gift and not a case of trust. Astreen v. Flanagan, 3 Edw. Ch. 279, 6: 65e 21. A gift for life of a chattel is a gift of the usu- fruct only, except as to such articles the use of which consists in the consumption. Gillespie v. Miller, 5 Johns. Ch. 21, 1: 994 Editorial Notes. Gift defined 6:144 Inter vivos, what constitutes 6: 42 1 From husband to wife, upheld 5: 825, 6: CJ t To survivors, preceded by a life estate 6; 040 By wife to husband, not confusion of prop erly; grantnotvotd for undue influence; rights of survivor- 6; 930 To attorney by client, void 6: 1194 Causa mortis 5: 825 note not subject of gift causa mortis; note of third person delivered 2 : 662 Deed of, validity of 7: 640 Executed, may be enforced 7: 256 May be subject to open and let in after-born children 7: 692 To charitable uses, valid 7: 537 To corporations; who may question 7: 1235 GOODWIIili. See also Covenant, 19 ; Landlord and Tenant, 27; Partnership, 149; Public Lands, B, 6. 1. The goodwill of a business built up by a co- partnership is an important and valuable interest which the law recognizes and will protect. Williams v. TTilson, 4 Sandf. Ch. 379, 7: 1141 2. The goodwill for the continuance of a lease, arising from the ownership of the old lease, con- stitutes a recognized and valuable interest, although the corporation granting such lease is not bound to continue it or grant a renewal. (Jibbes V. Jenhim, 3 Sandf. Ch. 130, 7: 79» Editorial NoT:rfs. Goodwill of business is property protested by law 4: 850, 7: 1141 What is; how far property 6: 1066 Sale of 3: 524, 6: 1066 Use of person's name in business 6: S24 GRANDCHILDREN. See WujJB, n. 0, 3. GRANT. See Deed. GUARANTY-GUARDIAN AND WARD, I. 311 GUARANTY. See also Contbibution, 10. Where an assignment was made to secure among otbers, auu oy way ot preterenoe, a party who had promised to guaranty the debt of the as- fisrnor, but the promise was void, beinsr by parol and without consideration,— Held, that the creditor c"!'! not avail himself of such guaranty. Morton V. Hudson, Hoff. Ch. 812, 6; 1156 Bditokial Notes. Contlnaing guaranty 7:231 liability of guarantor; when finally fixed 7:675 GUARDIAN AD LITEM. See also HABiruAL Drttnkards, 10 ; Incompetent Persons, 99-102; Infants, IV. d,10a. GUARDIAN AND WARD. I. Appointment of Gtjakdian; Who Enti- tled; AeMOVAIi. II. Bights, Duties, and Liabilities of Gdar- DIAN. a. In Oeneral. b. Accounting; Compensation. III. Eights and Remedies of Ward ; Eblease OF Guardian. rv. Bonds. V. Foreign Guardians. Editorial Notes. See also Interest, I. e ; Surrogate, 17. I. Appointment of Guakdian ; Who Enti- tled; Removal. 1. The surrogate, upon an application to him to ap- point a general guaidian or au infant, does not summon the relatives of the infant to attend before aim as parties, but only to enable them to attend and give him the necessary information as to the infant's property, and as to who is a proper per- son to be the general guardian, etc. KelUnger v. Boe, 7 Paige Ch. 363, 4: 189 2. Where an application is made to a surrogate tor the appointment of a guardian of an infant under fourteen years of age, he should assign a day tor the hearing ot the appliration; and. after ascer- taining who are the near rel ati ves of the infant resid- ing in the county, he should direct notice to be-given to such of them as be may deem reasonable, for the vurpose of having the richts nf the infant properlv attended to upon the application. Underhm v. Dennis, 9 Paige Ch. 202, 4: 668 S. C. 1 Ch. Sent. 43, 5:1064 3. And where the application to the surrogate to appoint a guardian is not made by one who is near- ly related to the infant by aiUnity or consanguinity, it is the duty of the surrogate to Inquire and ascer- tain whether the infant has any such relatives in the county, who are of sufHclent age and capacity to protect his rights and interests in the selection of a proper guardian, and in obtaining sufScient secur- ity from such guardian with reference to the na- ture and value of the infant's property. Ibid. 4. Where the nearest relatives of the Infant neither join in the application to the surrogate nor give thel r consent to the application, the surrogate should di- rect notice to be given to such and so many of them who are residing in the county as he shall deem ne- cessary to protect the infant's rights and interests on the appointment of the guardian. And he should enter his decision on that subject in the minutes of his proceedings, and require the applicant to furnish evidence of the service of the notices previous to makinc <^e appointment. Ibid. 5. So, where a relative of an infant applies lo be appointed his guardian, the surrogate should make the requisite inquiries, and ascertain whether there are any other relatives of the same degree, or who are more nearly related to the infant, and should direct the requisite notices of hearing of the appli- cation to be given accordingly. Ibid. 6. Incase iiie surrogate urrs either in neg]e<;iiiig to make the proper inquiries upon an application to appoint a guardian, or in omitting to direct prop- er notices to be given to such of the relatives as in the exercise of a sound discretion he ought to have directed to be nolifled of the application, the appel- late court may reverse his decision and set aside the appointment of the guardian. Ibid. 7. The fact that the real estate of an infant came to him by descent from his father, and not from his mother, affords no sufficient ground for giving a preference to the paternal relatives of the infant, over the maternal relatives of the same degree of alBnity or consanguinity in the appointment of (tuardian. 114,1, 8. The declared wishes of the deceased' parents of an infant, in relation to the manner in which he should be brought up, and as to whose care he should be committed during his infancy, are entitled to much weight in deciding upon the claim of the dif- ferent relatives to the guardianship of the infant. Ihld. 9. Where infants took lands by descent, two thirds of which were held by their father in free and common socage, and the other third in allo- dium,— Held, that the mother was entitled to the cus- tody of the children, and to the care of the lands as their guardian in soca^re. Putnam v. iJitchie, 6 Paige Ch. 390, 3: 1033 10. The statute authorizing surrogates to appoint guardians lor infants does not require notice of the application. But in certain cases, such notice is proper to be given. As between an uncle and a stranger, other things being equal, the uncle is to be preferred as guardian. The common-law rule of guardianship in soccage never prevailed in chan- ce»*v. MbreTicmse V. CooTce, Hopk. Ch. 236, »: 403 11. The probability, if a particular person should be appointed guardian of an infant, that the estate will be subjected to the expense of a change of guardianship, is a circumstance entitled to some weight in favor of the appointment of another per- son by the surrogate. Bennett v. Byrne, 2 Barb. Ch. 216, 5: 630 12. Where a person applying to be appointed guar- dian of an infant is already the trustee of such in- fant for the purpose of expending the income of an estate for his support and education, it is a cir- cumstance in favor of his appointment as such guardian. Ibid, 13. It is not the usual practice of the court to ap- point a guardian to an infant who is a feme covert ; nor can the husband be guardian for his wife, in such case, as to the sale of her lands. Be PTTiitater, 4 Johns. Ch. 378, 1:875 14. It seems that a female ward ot this court is not of course discharged from its protection by marriage, or without an order of the court for that purpose. Ibid. 15. An adult husband is entitled to the guardian- ship of the person of bis wife during her minority. KetOetas v. Gardner, 1 Paige Ch. 488, 3: 735 16. The court will not appoint any of its officers, as such, to act as guardian, or appoint any person without his written consent. itfcFlcar V. Constable, Hopk. Ch. 102, 3:357 17. In making an appointment of a guardian for an infant, the true interest of the infant is to be consulted. Bennett v. Byrne, 2 Barb. Ch. 216, 5: 630 18. The fact that the mother of an infant upon her deathbed exprcssea the wish that a particular rela- tive should adopt such infant and bring it up as his own, and should see that its property was not wast- ed, should haveapreponderatingiullueace with the surrogate, other things being equal, in favor of the appointment of such person as guardian of the in- fant. Ibid. 19. A father only can appoint a testamentary guardian of his children. Hoyt V. Hilton, 2 Bdw. Ch. Z02, 6: 369 20. Agrandfatherhasnoright,under the statute, by his will to appoint a guardian to his grandchild. Fullerton v. Jackson, 5 Johns. Ch. 278, 1: lORa 212 GUARDIAN AND WAKD, n. a, b. 21. A surrogate has power to appoint a eruardian, t»ut has no jurisdiction over him as a trustee. Be. Andrews, 1 Johns. Ch. 99, 1: 74 23. Chancery has the same superintendence and control over guardians by statute or testamentary guardians, as it has over guardians in socage. Ibid. 23. Every guardian, however appointed, is respon- sible to the court of chancery for liis conduct, and may be removed for misbehavior. Ihid. 24. A guardian appointed by the court of chan- 4;ciy uui-iiif^ iuiuoi'uy couliuuu^uli,.ii lue iniani; ar- rives at twenty-one, unless changed by order of the court on good cause shown. An infant is not entitled, as of course, on arriving at the age of fourteen, to change the guardian appointed by this court. Be NicoU, 1 Johns. Ch. 25, 1: 46 25. The court may discharge or change a guar- dian appointed by a surrogate ; but it is not done unless on special cause shown. Ex. parte Orumh, 2 Johns. Ch. 439, 1:439 26. !Flxed hitbits of intemperance constitute a suf- ficient reason for the removal of a guardian. KetUetas v. Gardner, 1 Paige Oh. 488, 2: 725 27. And it is improper that the wife of a husband addicted to such nabits should be the guardian, she feeing subject to his control. ITnd. 28. Where the guardian entered into a speculation ■with the husband of his ward, who was also an in- lant, in relation to her estate, and obtained a mort- gage thereon from both, the court removed the guardian from his trust, and ordered the mortgage to be delivered up and canceled. Be Cooper, 2 Paige Ch. 34, 2: 802 29. It seems that the insolvency of the guardian and of one of his sureties is also a sufficient reason for the removal of the guardian. Ibid. 30. A guardian of an infant who is under fourteen, appointed by the court of chancery, continues such guardian until the infant is twenty-one years of age, unless sooner removed by the court appointing him ; and the infant, upon arriving at the age of fourteen, cannot have a new guardian appointed as of course. Be Dyer, 5 Paige Ch. 534, 3:818 31. Where the guardian of Infants has been ap- pointed by a vice-chancellor, an application to re- move such guardian, or to compel him to account by a summary proceeding, should be made to the Tice-chancellor by whom lie was appointed, or to his successor, and not to the chancellor. Be Kennedy, 5 Paige Ch. 244, 3:703 33. The court of chanceiy has concurrent juris- diction with a surrogate in removing a guardian appointed by the latter, for tne causes specified in the Revised Statutes on that subject ; but the surro- gate has no jurisdiction to remove or discharge a guardian appointed by the court of chancery, or to compel such guardian to account either before or after his removal by the court appointing him. Be Dj/cr, 5 Paige Ch. 534, 3:818 33. A surrogate has no authority to remove a guardian, or to accept the resignation of a guardian appointed by himself and appoint another in his place, or to compel a guardian to account, except m the particular cases specified in the statute on this subject. ibid. 34. Where the surrogate appointed a new guardian in the place of the guardian appointed by the court of chancery, and proceeded to settle the ac- count of the old guardian,— Held, that the whole proceedings were void for want of jurisdiction. Ibid. II. Eights, Duties, and Liabilities or Guar- dian. a. In Oeneral. 35. A father who has been appointed guardian to his infant caildren by the court, and has given competent security to the executor or administra- tor, under the Act (Sess. 36, chap. 75, § 18; 1 N. K. L. 8141, and approved security to account to his chil dien on their coming of age, is entitled to receive lei'sicies and nigtributive sbprcp belonging to thenu Genet v. Tallmadge, 1 Johns. Ch. 3, 1:37 Same v. Same, 1 Johns. Ch. 561, 1: 246 36. But payment by an executor or administrator, to the father as guardian by nature merely, is at the peril of the executor or administrator, who may, on the infant's attaining to full age, be com- pelled to pay the same over again. Oenet v. TaVimadge, 1 Johns. Ch. 3, 1:37 See Jlforrell v. Dickey, 1 Johns. Ch. 153, 1: 96 37. The general guardian of infants cannot file a bill in his own name to obtain possession of the property of his wards ; but he must file it in the name of the infants, as their next friend. Bradley v. Amidon, 10 Paige Ch. 235, 4: 958 38. Where a testamentary guardian holds a fund for the sole benefit of his wards, in his character of guardian, to be invested for their use, the court of chancery may change the investment from that which is directed by the testator, where it is for the benefit of the infants that such change should be made, even without the consent of such guar- dian. Wood V. FTood, 5 Paige Ch. 596, 3: 844 39. A guardian in socage has no right to surrender a lease in fee belonging to her wards; neither can she lease their freehold estate for a longer period than during the probable continuance of such guardianship. Pvinam v. Bitchie, 6 Paige Ch. 390, 3: 1033 40. A guardian has no power or control over the real estate of his ward, further than concerns the rents and profits. Genet v. Tallmadge, 1 Johns. Ch. 561, 1: 246 41. Where certain commissioners appointed to make partition of the real estate of an Intestate, pursuant to an Act of the legislature, sold parts of the estate and paid the proceeds into this court, Pursuant to an order for that purpose, and which ad been invested in public stocJiS by the assistant register, the court refused, on the petition of the guardian, to order the money paid over or the stocks transferred to him. Ibid. 4SS. Where there are several guardians of an in- fants' estate, they may act eitner separately or in conjunction. They are Jointly responsible for joint acts, and each is separately answerable for his sep- arate acts and defaults. Kirby v. Turner, Hopk. Ch. 309, 8: 432 b. Accounting; Compensation, 43. A strict compliance with the 154th Eule requir- ing guardians, receivers, and committees to file inventories and accounts, will be rigidly enforced. BeSeornan, 2PaigeCh. 409, 2:966 44. In ordinary cases, where a guardian, etc., ne- giectHtououipi> wibiiLue rule, auui-ufcr will be made requiring him, within twenty days after service of a copy of such order on him personally, or at his resi- dence in case of 1 is iibsence, to file the inventory iind accouni,, and lu iiay the expenses of the order and proceedings thereon, or that an attachment is- sue against him. IbiA. 45. And the order must also contain a provision reuuiriug tue register ur atsbistant register to cause •T copy of tbe same to be served and to certify the Jetault of. the. delinquent to the court, if he fails to comply vith the order. ' ibid, 46. A guardian exhibited his books of account to his waiil tiom year to year, and also when she be- came of ago, and at that time made a statement showing the balance due to her. A similar paper was made showing the balance the next year. No formal account was delivered to her, nor did she examine the particulars of the accounts in the books. Meld, that she was entitled to an account of the whole trust. Bapalje v. Hall, 1 Sandf. Ch. 399, 7: 374 47. Upon the removal of a guardian of an infant by a surrogate, it is a matter of course to require him to account and pay over the balance, if any, which shall be found remaining in his hands upon such accounting. An ex parte order to that effect, and appointing a time for the removed guardian to attend before the surrogate and render his account, is not irregular. Sliidmore v. Davies, 10 Paige Ch. 316, 4: 991 48. If the father of an infant child, without au- thority, receives or takes possession of the property of the infant, he will, in equity, be considered as the guardian of the infant, and may be compelled to account as such; and the rule is the same where a mere stranger or wrongdoer takes possession of the property of an infant, and receives the rents and profits thereof. Van Epps v. Van Deusen, 4 Paige Ch. 64, 3: 344 &UAROIAN AND WAKD. III. 31$ 49. The investment, or reinvestment of the fund In the hands of a guardian or trustee or receiver, upon new securities from time to time, for the pur- pose of producing an income therefrom, is not such a paying out of the trust moneys by him as to en- title him to commissions for paying out the money; neither can he charge new commissions for collect- ing or receiving baclc the principal of the fund which he has thus invested. But be is entitled to commissions upon the Interest or income produced by such investments received and paid out by him. Be Kellogg, 7 Paige Ch. 265, 4: X49 50. One half of the commissions specified in the statute are allowed for receiving and one half for paying out the trust moneys; and where the guardian or other trustee performs one service, and not the other, he is only entitled to half commissions. Itrid. 51. Upon passing the accounts of a guardian, re- ceiver, or committee, periodically, during the con- tinuance of his trust, he should be allowed one half commissions at the rate specified in the statute upon all moneys received by him as trustee, other than the principal moneys received from mvest- ments made by nim on account of the trust estate, and one half commissions on all moneys paid out by him, other than moneys invested or reinvested by him, leaving the residue of his half commissions for paying out the fund for future adjustment, when the fund shall have been disbursed by bim, or when he makes a final settlement of his account upon the termination of the trust. ibid. 52. Where a guardian had neglected to charge commissions because he did not expect to pay in- terest, but was compelled by the court to pay in- terest, he was allowed his commissions. Bapalje v. Ball, 1 Sandf . Ch. 399, 7:374 53. The father and guardian of two daughters, one thirteen and the otber eleven, was unable to keep house with his own means with the addition of a board charge for his children Their joint income was nearly $4,000 a year ; the fortune of the one at full age would be nearly $60,000, and of the other (30,000. Their necessary annual expenses, being at board, would not exceed $1,000 to $1,200 a year. The court, with a view to provide them a home with their father, allowed to .nim $3,500 a year out of their income, for the support and education of both, including compensation for his charges as guardian. BeBurhe, 4 Sandf. Ch. 617, 7: 1330 54. It is a violation of duty on the part of a guar- dian to permit his infant ward to live m idleness, and to support him out of his estate, when he is capable of supporting himself by his industry. And where the guardian permits him to be brought up in idleness, the infant will not be liable to the guardian for the support furnished him in the mean time. But the means of support furnished to an in- fant, by his guardian, while he is being educated and prepared for future usefulness, will be allowed to the guardian as necessaries. ClarTt V. Clark, 8 Paige Ch. 152, 4: 379 in. Eights ajjd Kemedibs or Ward ; Keleasb OF Guardian. 55. A party who has obtained his majority can- not, by petition, caU upon the person who had acted as guardian to account. It must be done by a bill. Be H(WSon, I Bdw. Ch. 8, 6: 40 56. Where a bill was filed against a guardian and the administrator of another to account, eleven years after one of the wards came of age, and eigiit years as to the other,— It was held, that the complaint must be dismissed with costs. BerUne v. Varian, 1 Edw. Ch. 843, 6: 165 57 The sureties of a guardian may be joined with him as defendants in a biU in chancery, charging htm with a breach of trust and with having wasted the property entrusted to his care, and praying for an account and satisfaction of what may be found due ; and it is not necessary that a decree should have been first obtained against the guardian alone, bef oi-e proceeding against him and his sureties ■""tMcbocfe V. Kent, 5 Paige Ch. 92, 3: 640 58. The Act of 1815 relative to the sale of infants' estates does not confine the remedy of the infant to a common-law action on the bond, agamst the guardian or his sureties, for a breach of the trust. Ibid. 39. It is no defense to a suit upon the bond of a £uardian, that such suit has been instituted without an order of the court in which the bond was taken, directing it to be put in suit ; but where such bond has been taken in a proceeding before the chancel- lor, he may by order restrain the proceedings there- on, if It had been prosecuted improperly and with- out autnority. Ibid, 60. The court of chancery has original jurisdictioo- in the case of an infant against the guardian anA his sureties, where the condition of the bond had been broken, to decree an account against the guar- dian and to make a decree over against the sureties, to the extent of their liability, if the amount found due to the infant cannot be collected from such guardian. Ibid. 61. Where the guardian of an infant invests the property of his ward in real estate in the name of such ward.without autliority,or conveys to the ward real estate in payment of a debt due from himself, without the sanction of the court of chancery, the infant, upon arriving at the age of twenty-one, has the right to elect to keep the property thus conveyed in lieu of the debt, or may repudiate the conveyance and claim the money and interest. Eckford v. JDe Kay, 8 Paige Ch. 89, 4: 356 62. In this suit against the guardian, he was not compelled to produce before the master his book* of account containing entries of his private con- cerns. Clarkson v. De Peyster, Hopk. Ch. 424, »: 47 » 63. When profits are earned by the guardian from the trust fund, they belong to the ward ; and in this case, an inquiry was directed to ascertain whether the guardian had made profits. Ibid 64. Where a guardian invested money belonging to the complainants, who were his wards, upon a bond and mortgage in his own name, and after- wards assigned such bond and mortgage as a col- lateral security for an antecedent debt due from himself, and subsequently died insolvent,— JTe!d, that the assignee of the bond and mortgage was not entitled to hold them as against the complainants, although he had no notice of their equitable right to the bond and mortgage at the time of the assign- ment ; and that a payment to the assignee, by the mortgagor, after notice of the equitable rights of the complainants, would not protect him against their prior equity. Evertaon v. Evertson, 5 Paige Ch. 644, 3: 866 65. Where a guardian held a bond and mortgage in his own right, and had in his hands money of his wards to the same amount to be investtd for their benefit, and it was agreed between him and the mortgagor that the money of the infants should be substituted for that which was due to himself upon the bond and mortgage, and that those securities should remain to secure the payment of the money belonging to them,— Heid, that this was an equitable investment of the money of the infants upon the security of the bond and mortgage. Ibtd. 66. An infant is allowed one year after he arrives of age to investigate the accounts of his guardian, and to surcharge or falsify the same if they are found to be erroneous. The guardian, therefore, is not entitled to an absolute discharge, or to an order to deliver up his bond to be canceled, before the ex- piration of the year, although he has settled with his ward after he became of full age. Be Van Borne, 7 Paige Ch. 46, 4: 54 67. A release oljtained from a ward just arrived at age casts upon the guardian proof of everything to make it valid, especially a full, entire, and minute account. Fish V. Miller, 1 Hoff. Ch. 267, 6: 1138 68. A discharge to a guardian is not to be precipi- tated; there must be time for consultation, a full exposition of the estate and of its adminiatratiou; and a guardian who has settled his accounts in se- cret must prove all this, unless there has been a positive ratification; an intelligent, voluntary ac- quiescence; or lapse of time sufficient to induce the court to refuse its aid. Ibid. 69. The principles upon which a gift by a ward la impeached apply as strongly to a release precipi- tately obtained by the guardian. Jbid. 70. Although acquiescence by award with a guar- dian's accounts can be Inferred from lapse of time, omission to complain, and other circumstances- while confirmation is to be established by evidence: yet they both depend upon a perfect knowledge of rights, facts, and of the ability to procure relief. Ibid. 71. If seems that a release given by a ward six 214 GUARDIAN AND WARD, IV.; V. months after ne comes ot age, to nis guardian, freely and fairly, without any fraud, misrepreeen- tation, or undue means to obtain It, is valid. Klrby v. Taylor, 6 Johns. Ch. 242, 8: 113 T2. Suoa a release given by a ward without the knowledge or consent of the surety, who had exe- cuted a hond with the guardian by order of the sur- rogate, is a discharge of the surety from the bond, and may be pleaded by him in bar to a suit brought by the ward against such guardian and the saiety, for an account, etc. - ItM. 73. In this case, the ward, after full age, gave a separate release to T, one ot the guardians, who had not her property in poeeession, reserving her right against A T, another guardian, who wasted it. Iletd, that the release is a discharge in favor of T, &vfi of the Rurety so far as T is concerned- Kirhy v. Turner, Hopk. Ch. 309, »: 43a 74. But the release is not available in favor of A T; and the surety stUl remains liable for A T's de- faults. Ibid. 75. The release has the same construction in re- gard to sureties as in regard to principals. Ibid. 76. In this case, the suit was dismissed with costs against the KuarUian T, who was released, and also against the representatives of D, another guardian who had never acted. Both A T and the surety were declared to be liable for the amount of property re- ceived and wasted by A T, and an account was di- rected. Ibid. IV. Bonds. 77. A general guardian appointed in a surrogate's court cannot receive funds out of chancery with- out giving security in the latter court. Ferris v. Brush, 1 Edw. Ch. 573, 6: 85 78. Where a bond given by a surety for the guar- dian of an infant was taken by the surrogate in the name of the People, instead of the infant, the court corrected the mistake, and considered the bond as of equal validity as if taken in the name of the in- fant. TFiser v.BIaoMi/,lJohns. Ch. 607, 1:863 79. The court can exercise a sound discretion in re- lation to the amount of security required from gen- eral guardians under the 148th Rule; and therefore may, in cases where the property of infants is very extensive, allow the security to be given in a fair sum only. But, in such cases, the order permitting the same must contain sufficient provisions, as to the periods and mode of accounting, etc., as will protect the estate and the income of the property. Be Hedges, 1 Edw. Ch. 57, 6: 58 80. Where one of the sureties before given by the guardian had become insolvent, the court refused to order moneys belonging to the infants, and which had been paid into court by the administra- tor, to be paid over to the guardian, untU other and further security had been given by him. Genet v. TalVmadge, 1 Johns. Ch. 561, 1: 846 81. Several guardians having, with a surety,given a Joint and several bond for faithful performance, their rights and duties as guardians are not thereby varied. Kirby v. Turner, Hopk. Ch. 309, 2: 438 82. They are not, by such bond, made sureties for each other. ibid. 83. But the surety is liable for their joint defaults and for the separate defaults of each. Ityid. 84. In oonatruing such bond, the penalty and con- dition are to be taken together; and the words "Jointly and severally," though in the penalty only, will operate throughout ; and they are to bo taken distributively, according to the nature of the oases 1 n which defaults may occur. ibid. 85. Where there are several guardians, the statute requmng the surrogate, upon the appointment of ■ guardians, to take from every guardian a bond with surety, etc., is complied with by taking one Jomt and several bond from all the guardians, with fiurety. uj^a. 86. The statute did not intend to place Joint guardians in the relation of sureties for each other Ibid. 87. Upon the appointment of a general guardian for an infant by a surrogate, the surrogate should ascertain, by the examination of witnesses, the probable amount lof the personal estate and of the income of the realty during the minority of i.ue infant; and he should direct the fuardisn «a give a bond, with sureties, in double that amount and should require the sureties to Justify in at leaMt tne amount of the penalty of such bond. Bennett v. Byrne, 2 Barb. Ch. 216, 6: 680 88. A person who had been appointed general guardian of a minor was after wards appointed special guardian of the same minor, in a suit for the partition of lands of which the minor was a part owner. The usual bonds, with sureties, were given, upon both appointmenta. The lands were sold, and the share of the moneys belonging to the minor was paid to the guardian. The ordinary bond of the general guardian does not embrace the receipt and disposition of the moneys arising from the sale of the lands. MMr V, Wilson, Hopk. Ch. 612, a- 506 v. Foreign Guardians. 89. A guardian to an infant, appointed In another State, is not entitled to receive from the administra- tor here the letracy or portion of the infant. MorreB V. Dtcftej/, 1 Johns. Ch. 153, 1:96 90. The guardian must be appointed here, and give competent security, to be approved of by this oonrt. before the payment of the Infant's money will be ordered. Ibid. 91. A father of an infant residing in another State, is not entitled to demand money belonging to the infant ; but a guardian should be appointed here, in order to make a valid demand of the money. WUliams V. Storrs, 6 Johns. Ch. 353, 8: 148 Editorial Notes. Guardianship of infant 4: 340, S: 620 Qualification for 2: 402 Party interested may act 6: 330 Appointment ot guardian for infant; assign- ing a day for hearing 4: 668 on appeal from surrogate 4: 669 Discretion of su'rroeate 4: 669 Notice to be given to relatives 4: 668 Paternal kin not entitled to preference 4:668 Interests of infant to be consulted 4: 669 Expressed wishes of parents entitled to great weight 4: 669 Right of ward to elect 4: 357 Grandfather cannot appoint by will 1: 1082 Power of removal 1 : 440 Foreign, rights of 1 : 96 Responsibility for loss of money loaned 1:840 Security to be given; power over estate of WBird 1: 246 Management of estate vested in minor heirs 4:118 Power of guardian over property 4: 356 Authority to sell or lease 2: 251 Support and maintenance of ward by 4: 281 Fees 4: 258 Accounting between 4: 54 upon removal 4: 992 No decree against infant on admissions of guardian 3: 367 Party in possession of infant's property charged as guardian and held accounta- ble as such 3:344 Equitable right of ward to investment made by guardian 8: 866 Guardian, settlement by; allowance of in- terest 7: 374 conversion by 7: 599 special proceedings against 2: 966 Concurrent jurisdiction over 2: 949 Jurisdiction over 1; 74 Supervision of court of chancery 8: 818 Protection of ward in chancery 6; 1138 HABEAS CORPUS; HABITUAL DRUNKARDS. SIS H. HABEAS CORPUS. flee also Husband and Wife, 435 ; Infants, 42. 1. A supreme court commissioner has no Jurisdic- tion orauthui'ity to dlsulmi'gb u parti upon liuot^as ■corpus, who is in custody upon a commitment for a contempt, by a court of competent Jurisdiction, plainly and specially charged in such commitment, and wnere the time for which the prisoner mlitht lawfully be detained has not expired. People V. SpaXding, 10 Palgo Ch. 384, 4: 978 i. The statute relative to the proceedings upon habeas corpus gives no authority to the Judge or commissioner to permit the prisoner to go at large, until the decision of the case upon the habeas cor- >pus. People V. Stone, 10 Paige Ch. 608, 4: 1110 3. In the case of a habeas corptts ad tesUficandwn the prisoner Is to be taken by the most direct and convenient route, and at the proper time, to the court or place where the prisoner is to give his evi- dence, and after that purpose is accomplished the -cherlff must return with him directly to prison. Ibid. 4. A habeas corpus directing the sheriff to take his prisoner before his assignee in bankruptcy gave "the assignee no right to the custody of the prisoner nor any right to direct the shcrifl in the discharge of Ills duty, nor power to discharge the prisoner or to keep him out of prison tor an Indefinite period, ma. B. Where a child, in consequence of its tender years, is incapable of exercising any volition as to Its future residence, the court before whom It is brought upon a habeas corpus will decide that ques- tion for such child, and will in that decision have regard not only to the immediate safety, but also to tlip future welfare, of the child. People V. Merceln, 8 Paige Ch. 47, 4: 339 I). It fcems that the power of the chancellor to issue a habeas corpus to inquire into the cause of -detention does not depend solely upon the Kevised Statutes, but is an inherent power in the court of chancery derived from the common law, but which power is to be exerclsfd in conformity to the pro- visions of the Kevised Statutes on the subject. Ibid. 7. The right to the guardianship of an infant can- not be tried upon a habeas corpus; and the court of chancery, upon such writ, will exercise its discre- tion, in dlBposing of the custody of the Infant, upon tlie same principles which regulate the exercise of a similar discretion by other courts and olfloers who are authorized to allow the writ in similar cases. Ibid. 8. Under the Habeas Corpus Act, the chancellor "Will not discharge a prisoner who uad been com- mitted by a Justice of the peace under the Act tor apprehending and punishing disorderly persons, the warrant of commitment stating that the pris- oner had been duly convicted, etc., and the convic- tion being prima faci-e le'rnl and roq-ular. People V. Goodhue, 2 Johns. Ch. 198, 1:347 9. Qucere, whether the court of chancery, Inde- loendently of the statute, has any common-law jurisdiotfon In such case. Ibid Editorial Notes. Habeas corpus to subject Infant to the jurisdiction 4:838 To relieve infant from custody of guardian 1:770 HABITUAL DRUNKARDS. See also Drunkard, Habitual; Incompetent Persons. 1. The court of chancery has the custody and control of the person as well as of the estate of an habitual drunkard, and can exercise that control by means of a committee, as In the case of a luna- tic. ' Be Lynch, 5 Paige Ch. 120, 3: 65)S 2. The committee of an habitual drunkard has the right, subject only to the superintending con- trol or the court, to decide as to the proper resi- dence of the drunkard; and he is responsible lor the consequences of his neglect to take proper care of the person of such drunkard. And ft is the du- ty of the court to aid and protect the committee In the proper exercise of this right, and to give him directions on the subject, when necessary. jMfl. 8. Where a third person, without the consent and against the wishes of the committee, has the custo- dy of or harbors the habitual drunkard, the com- mittee should apply to the court, ex parte, for an order that such person deliver the drunkard up to the committee, or cease from harboring him; and If such order is disobeyed, the party will be pun- ished lor a contempt of court. Ibid. 4. Where a party has been found to be incapable of inanagl iig his uuairs by reuson of habitual drunk- enness, the court will not discharge his committee and restore his property to him upon mere proof ol' the tact that he is competent to manage his al- f airs, without evidence ol a permanent reformation. And as a general rule the court requires, as evi- dence ot a permanent reformation, satisfactory prool that the habitual drunkard has voluntarily retrained from the use of intoxicating liquors for at least one year immediately preceding the applica- tlim for the restoration of his property. Be Hoag, 7 Paige Ch. 313, 4: 169 6. Where vendors ot Intoxicating liquors contin- ued to furnish ttie same to an batiitual drunkard against the wishes othis committee.the court made an order prohibiting them from doing so upon pain ot being held liable for a criminal contempt, and directed the committee, in case of disobedience of the order, to apply to the court to punish the of- fenders, or to lay the case before the grand Jury that they might be proceeded against by Indiot- ibid. 6. The court of chancery Is not authorized to or- der a sale of the estate of an habitual drunkard, except where a sale is necessary tor the support or himself or ol his family, or lor the payment ol his debts. But it necessary lor the reformation of an habitual drunkard, the court will dii'eot him to be confined In a lunatic asylum, and may order his real estate to be sold to pay the expenses of his support there. Ibid. 7. The committee ot an habitual drunkard should apply to the court tor protection against any person who furnishes the drunkard with the means ot intoxication. Be HeJler, 3 Paige Oh. 200, 3:115 8. Where the vloe-ohanoellor before whom the ijioceudings were pending, upon the application of the creditor ol an habitual drunkard, settled the amount due, and directed the committee to pay the same, together with the costs of the application, out ol the estate of the drunkard; and authorlzea the committee, if necessary, to soil the real estate tor the purpose ol raising funds to pay the debt, and also authorized the creditor to file a bill against tlie committee to recover his debt and costs, if the (irder wasnot complied with,— ZTeid, that the part ot the order authorizing the filing of a hill, after the ilubt had been liquidated and settled and decreed 316 HARBORS-HIGHWAYS. to te paid, by the previous part of the order, was erroneous, as subjecting the estate to the costs of a useless litigation; and that the propc;- course to be pursued la such a case was to compel the committee ^0 comply with the order to pay the debt and costs out of the estate, by summary proceedings against bim. Beach V. Brodlej/, 8 Paige Ch. 146, 4:377 9. Where it is necessary for the creditor of a luna- tic or habitual drunliavu to tile a bill aguiust me committee, to establish a debt and to obtain satis- faction thereof out of the estate of the lunatic or drunkard, it seems the lunatic or drunkard may also be made a party defendant in the suit, so as to make the proceedings binding upon him in case he should be restored to the possession and control of his estate before the termination of the suit. Ibid. 10. Where a bill is filed against a lunatic or an habitual drunkard and his committee jointly, it is a matter of course to appoint the committee guar- dian ad litem to appear and answer the bill for the lunatic or drunkard, if the committee has no inter- est in the controversy adverse to that of the per- son for whom he is committee. And an order for that purpose, made upon the ee parte application of the committee, is regular. New V. New, 6 Paige Ch. 237, * 3: 969 11. Whether the complainant can in any caiO have the benefit of a discovery, by a personal answer on oath, from a drunkard or an mf ant,— gutBre. Ibid. 12. Where the court designates a master to take an account between a committee of au nabitual drunk- ard and the estate, it is irregular and improper for the parties to change the master, for the discharge of this duty, without the sanction of the court. Be CarUr, 3 Paige Ch. 146, 3 : 93 13. If the committee of an habitual drunkard ne- glects to file an inventory of the estate, or tx) reudui Bis accounts regularly under oath, as required by the 151th Rule, in the settlements of his accounts every presumption will be taken most strongly against him. Ibid. 14. The committee of an habitual drunkard, who holds a mortgage against tue estate, uuuuui, wiiu out the sanction of the court, enforce it by pro- ceedings of foreclosure under statute. Ibid. 15. Where the committee has been ffuilty of gross negligence, he will be decreed to pay the costs Oi the proceedings against him to obtain his removal and the settlement of his accounts. Ibid. 16. When a suit has been commenced against an habitual druukard and otaurs before commission found, and judgment rendered by the confession of the attorneys of the habitual drunkard after commission found, it rests in the discretion of the court of chancery whether it will set aside si.> jrudgment upon the application of the committee This discretion will not be exercised by the court oi chancery unless it is Informea of all the nircum stances in /elation to the judgment, as to the habit ual drunkard— whether it was against him as a part ner, principal or surety, or indorsor; upon contract or for tort— and particularly when the supreme court, in which it was rendered, has, upon applica- tion, refused to set the judgment aside. Unless the whole circumstances are before the court in rela- tion to such judgment, the application by the com- mittee to set aside will be denied, with costs. Be Mctaiighlin, Clarke Ch. 113, 7: 6^ HEIRS AND DEVISEES. Liability for Decedents' Debts, see Executor* AND Administrators, IV. d, 2. See also Assessment, 1 : Creditors' Bill, 84 ;. Deceased Persons ; Descent and Distribu- tion ; Dower ; Wills, II. I, 1, 186. Editorial Kotb. Evidence necessary to prove reformation of drunkard 4: 169 HARBORS. See also Master and Wardens op thb Port oi New York ; Nuisances, 9. HEARING. See Practice. HEARSAY. See Evidence, IX. HEMPSTEAD. TOWN OP. 1. The undivided lands, plains, marshes, and- beaches, situate in the town of Hempstead, ami in- cluded m the tract of land granted in 1644 by the Dutch governor, Kieft, and afterwards, in 1685, by the EngUsh governor, Dongan, belonged to the town, In its collective or corporate capacity, as common property, and not to individuals, or to th& heir of the surviving patentee, or those deriving title from the patentees or associates ; and those lands remained common, undivided property be- longing to the freeholders and inhabitants of Hempstead, at the time the town was divided, in 1874, into North and South Hempstead. Denton v. Jackson, 2 Johns. Ch. 320, 1: 394- 2. Whether the freeholders and inhabitants of North Hempstead, in their new corporate capacity are entitled to any share in those plains, etc — guwre. jj^ 3. Private individuals, freeholders and inhabi- tants of that town, cannot file a bill in behalf of themselves and all others who may come in and! contribute to the expense of the suit, or in behalf of the town, to try or establish the rights of the town in regard to Its common property. Ibid. 4. The Dutch patent for the town of Hempstead, in 1644, conferred a qualified corporate capacity on-, the inhabitants. ifiid. 324, 1:396 5. The English patent in 1685, to Hempstead, is- a confirmation of the former Dutch patent, and was intended for the same corporate purposes. ibid. 326, 1:397 6. And the freeholders and inhabitants, in their town meetings, acted in their collective capacity, in regard to their common lands as well as in the choice of town officers, etc. Ibid. 327, 1: 397 7. John Jackson, the last surviving nnt-ent<« named in the English patent, could not, by his deed' of the 17th of April, 1722, enlarge or abridge the r.srhta of the town to its c«n*iraon property under the patent ; nor could he limit or designate the as- B''"'ntcs of the patentees. lb (J.329, 1: 398- 8. The plains, marshes, and beaches included, within the original patent to the town of Hemp- stead continue the common property of the town, except such parts of the plains as have been griiited by regular town meetings to individuals. Ibid. 333, 1:399' 9. The assessment of 1685, of the sums which the freeholders and inhabitants were respectively to contribute towards the expenses of obtaining the patent from the English governor, furnishes no ground for a partition of the common property of the town among individuals, especially after the liipse of more than a century. Ibid. 334, 1: 39» 10. The plains, etc., remained common, undivided, property of the town of Hempstead, at the time of its division into two towns, in 1784. Ibid HIGHWAYS. See also Assessment, 4 ; Equity, 30; Injunction^ Ig. l.The laying out of a public highway across a man's J aid does not devest tne title of the owner, but the ( itle remains in him, subject to the public right of M ay over the same; and whenever the road ceases, llie land will revert to the original owner or to his assignees. Dumond v. Sharts, 2 Paige Ch. 183, 2: 86& 2. The corporation of New York had a grant by HIGHWAYS. 2ir charter of ground and soil under water which in- cluded a slip or dock, with a right to flU up and build upon it. They did fill it up and assessed ad- joining owners for benefit; and then oommenoed the erection of a market-house on the site. Held, that the corporation had not, from these acts, made the space a public street; and they had still a right to prescribe the uses to which it should be applied. Schermertwm v. Mayor etc. of New York, 3 E. 119, 6: 5»4 3. it would seem that if the corporation were to recognize and regulate the space as and for a public street, they would be bound thereafter to let it re- main so. Ibid, i. Where only a part of the lands which are di- rected to oe taKCn lor tne opeiiii];- ol a street in the city of Brooklyn have been included in the report of the commissioners of estimate and assessment, the confirmation of their report is irregular, as there cannot be an absolute confirmation of the re- port of the commissioners, so as to vest any rights under the same, until the damages for all the lands taken for the proposed improvement have been as- certained and settled, and properly assessed upon the owners of the lands to be benefited by such im- provement. JKesseroIe v. Brodklyn, 8 Paige Ch. 198, 4: 398 5. Under the Act of April, 1835, authorizing the appointment of commissioners to lay out the streets, avenues, and squares in the city of Brooklyn, the mayor and common council were not authorized to lay out and open any street or avenue in the new wards of that city, after that Act took effect, until the same had been authorized by such commis- sioners. Ibid. 6. Where an Act of the Legislature authorized the trustees of Brooklyn to make out and file a per- manent plan of the contemplated streets, etc.. of that place, which was done accordingly: and the trustees afterwards, under another Act authorizing them to open streets, laid out and opened a narrow- er street through the centre of one of the streets laid down upon the permanent plan, and assessed the land on each side thereof, within the bounds of the old street, for the benefit that the owners of such land would receive by the opening of such new street,— IfeW, that the trustees had waived the right, if they ever possessed it, to take the lands thus as- sessed for the opening of the street, according to the original plan, withoutpayingfor buildings and im- provements which had subsequently been erected and made upon the lands thus assessed. Seaman v. Hichs, 8 Paige Ch. 655, 4: 380 7. It seems a private road or way laid out through the lands of an individual cannot be opened and used until after the damages of the owner of the land have not only been assessed, but actually paid, by the person for whose benefit the road or way is laid out and opened. Mohawk & H. B. K. Co. v. Artcher, 6 Paige Ch. 83, 3: 907 8. Neither a public nor a private road or way can, under the provisions of the Revised Statutes, be laid out across the fixtures and erections upon the in- clined plane of a railroad which are used for the drawing up or letting down of oars,for the convey- ance of merchandise or passengers. Ibwl. 9. The owner of land through which a private road or way is proposed to be laid out is entitled to a written notice of the time and place of meeting of thejury of freeholders to determine the question as to the necessity of such road or way. But where such owner, upon a verbal notice uurely, appears and contests the matter before the jury, without making any objection on the ground of a want of sufficient notice, he will be deemed to have waived the objection to the regularity of the proceeding. Jbid. 10. Whether the appearing before the jury of the owner of a yard or enclosure through which a roai is laid out, and litlgating,his claim for damages, and subsequently appealing to the board of supervisors for an increased allowance for damages, does not amount to a legal consent to the laying out of such road, within the meaning of the statute,— qtuere. Lansiny v. Uaswdl, 5 Paige Ch. 519, 3: 543 11. Where a law. passed previous to the Revised Statutes, gave the trustees of an incorporated vil- lage the powers of commissioners of highways with- in the limits of the corporation, such powers must now be exercised in conformity to the provisions of the Revised Statutes. And from the decision of the trustees in laying out, altering, or discontinuiug a road or highway, an appeal lies to the judges ol Um county court. jhW. 12. If a regular appeal is made from the deoisiOQ of commissioners of highways to the county judg- es, the commissioners cannot proceed and open the highway until the appeal is determined, although the judges refuse to proceed and decide upon the- same, under the supposition that they have not ju- risdiction of the case. Ibid, 13. But where the appellants, after such refusal of the judges, appeared before the jury impaneled to assess their damages incurred by the laying out of the road, and litigated the question as to the amount of such damages; and subsequently applied to the board of supervisors to increase the amount of damages allowed by the jury,— it was held, that they had thereby waived their appeal. Ibid.. U. The provision of the Revised Statutes.pronlbit- mg the coiuuiissioners of highways Horn laying out a road through yards or enclosures, extends only to- such yards and enclosures as are necessary to the use and enjoyment of the dwelling-house or manu- facturing establishment to which they are appur- tenant; and the statute must be construed in refer- ence to the situation and nature of the property with which the yard or enclosure is connected. Ibid 15. Chancery will not interfere with a city coro poration in the ordinary cases of grading or laying out of streets. Where corporations do so and keep within their charter, the supreme court alone can take cognizance of error and hardship. It isonly where they proceed illegally, fraudulently and beyond their corporate powers that equity in- terferes. Merrill v. Mayor, etc. of Brooklyn, 3 Edw. Ch. 421, 6: 711 16. Errors of the commissioners of estimate and< assessment, upon the opening of streets in tlio city of New York, cannot be corrected by a collateral suit in chancery, except in cases where no adequate relief could be had in the mode pointed out and proscribed by the statute. Murray v. Graham, 6 Paige Ch. 622, 3: 1136- 17. The court of chancery has no power to review upon the merits the proceedings of the commis- sioners of estimate and assessment of damages in- opening streets in the city of New York. Patterson v. Mayor of New York, 1 Paige Ch. 114, 18. Where the commissioners, after they had de- posited a copy of their report in the clerk's office, pursuant to Act April 9, 1813, § 182 (2 R. L. 41T ), al- tered their assessment of damages, it was held not to be necessary to deposit a new copy of their re- port in the clerk'^ office, or to publish a new notice- to propose objections to the assessment. Ibid. 19. But if it was necessary to file a new copy of the report and publish a new notice, the omission- to do so would only render the proceedings void- able ; in which case the remedy would be by cer- tiorari. Ibid. 20. The court of chancery has no jurisdiction in such cases, unless the proceedings are wholly void, ibid. 21. The purchaser of lots in the city of New York, bounded upon one of the public streets,as laid down upon the commissioners' map and plan of the oity,i8- not liable to be assessed for the purpose of compen- sating the vendor for the lands afterwards taken by the corporation for the purpose of opening such street. But he must insist upon his right of exemp- tion from assessment for that purpose before the commissioners of estimate and assessment, and if they improperly decide against him he must oppose the confirmation of their report by the supreme Murray v. Graham, 6 Paige Ch. 622, 3:1 136 22. In estimating and awarding the damages to the owners of lands required for oijeningauu , v.. . -.. -i streets in the city of New York, the oommissioiie-s of estimate and assessment should consider sep- arately the distinct existing interests in each portion of such lands,— 6. ff., those of landlord and tenant, - and make a separate award of the damages *"'"•_'_ Cmtant v. Oatlin, 2 Sandf. Ch. 485, 7-. 673 23 Wtere their report sl-ows such a separate award, neither party, after its confirmation, can impeach its accuracy or have it modified by show- ing any error or omission. -""<•• 24. But where the report awar Js all the damages lo- il8 HOTCHPOT— HUSBAND AND WIFE, I. a. one of several parties interested, and there is no award to either of the others, it Is competent for the latter to prove their interest, and recover from the former taeir proportion of the award. Ibid. 25. Held, accordingly, between a landlord and a leuant wlio was eutuied to remove his buildinfrs at the end of his term, where the improvement re- quired the buildinirs to be demolished, and a single award for the whole damages was made to the land- lord, it appearing conclusively that a specific part of the damages was assessed by the commissioners for the buildings. Ibid. 28. Where the chartered limits of the ' city of Uocbester inciuded a street wmoh beiore the mcor- poration of the city had been regularly laid out and -appropriated to the public use as a common high- way,— Held, that the city corporation had, by its charter, power and authority to improve, level, and grade such highway as one of the streets of the city, without making compensation to the owner of the adjacent land for damages sustained by him In flU-^iing the grade of and leveling such street. Pish V. Mayor, etc. of Rochester, 6 Paige Ch. 268, 3: 981 27. Whether the earth necessarily removed in alter- ing the grade of a street in the city of Bochester, and which is not wanted for the Improvement of the same street, belongs to the corporation or to the owner of the land over which the original highway was laid out, — qitwre. Ibid. 28. The trustees of the village of WilUamsburgh are not authorized by the village charter to alter the grade of a street, after the grade thereof ha:; been regulated and established by them as directed in the Act of incorporation. And where such trustees were proceeding to dig down and alter the grade of a street, which had been regularly graded and regu- lated, -if eld, that the owner of adjoining lands, whose property would be seriously injured by an alteration of the grade, was entitled to an injunc- tion to restrain such illegal proceedings of the trus- t-"0 OakUvv. Tmsteea of Will(amsburgli,6'Pa.ige Ch. 562, 3: 978 29. No person has a right to appropriate any part of a public street to his own exclusive use perma- nently, although such occupation may be conve- ment for the transaction of the particular business in which he is engaged. Hart V. Mayor, etc. of AUicmy, 3 Paige Ch. 213, 3: 1»1 Editorial Notes. Highway : appropriation of land for 3: 865 Laying out ; appearance waives irregu- larities in proceedings 3: 907 Street improvement ; authority of munici- palities 3: 986, 4: 591 Authority of supervisors 4: 398 Commissioners 3: 543 General road law; estimate and assessment by commissioners 4: 398 Statutory requirements Imperative 4: 592 HOTCHPOT. See Advancements. HOUSEHOLDER. See Definitions, 10. HUDSON, CITY OP. flee MtiNiciPAii Corporations, 12. HUSBAND AND WIFE. I. Mabriaoe; Vauditt: Annulment. a. WhatComtitutea; Validity. b. Annulment. II. Husband's Liabilities. in. Wife's Disabilities and Liabilitibb. IV. Property; Transactions Between. a. Tenancy in Common or Entireties. b. Community Property. 0. Husband's Property. d. Wife''s PersonaUy. 1. Husband''s HigMs in Oeneral. 2. Proirision for TFi/e's Support tfter» from. e. Husband's Rights in Wife's Real Propertu, f. Separate Estate. g. Trusts; Powers. b. Conveyances from or to Third Persons. i. Mortgages to or from Third Persona, j. Conveyances to Each Other. K. Rights of Husband's Creditors, 1. Settlements. 1. AntenwpUal. 2. Postnuptial. v. Actions. VI. Divorce ; Separation. a. In Oeneral ; Jurisdiction. b. Grounds of Divorce. c. Defenses; Condonation. d. Pleading: Joinder of Causes, etc. 6. Proof; Admissions. 1. Reference. g. Wiff'e Appearance ; Next Friend. . AVinony. 1. Temporary. a. Right to. b. Extent of; Agreeement; Restora- tion, 2. Permanent or Mnal AUovxmce, 3. Procedure; Payment. 1. Property Rights. i. Order as to Children. k. Procedure OeneraUy ; Decree; Opening. 1. Tolunta/ry Serparation. Editorial Notes. See also Contempt, 5 ; Costs, I. e : Curtesy ; De- scent and Distribution, 34, 25 ; Estoppel, 19; Evidence, 19, 23, 212, 276, 277, 289, 326, II. d, 3, V., XI. b ; Execution, 48 ; Executors and Ad- ministrators, 239; Infants, 64, 76: Injunc- tion, 28 ; Insurance, 27 ; Judgment, II. d, 3, 16; Limitation of Actions, I. f ; Parties, 178, 179 ; Partition, 41, 96 ; Pleading, 364 ; Prac- tice, 99 ; Beference, 38 ; Specific Perform- ance, 14, 72; Supplicavit; Wills, 19-24, 359, in. d. I. Marriage ; Validity ; Annulment. a. What Constitutes ; Validity. 1. Any mutual agreement between a man and woman to be huabaud aud wife in prassenli. espe- cially if followed by cohabitation, constitutes a valid and binding marriage, where there is no le- gal disability on the part of either to contract matrimony. Bose V. ClarTt, 8 Paige Ch. 574, 4: 548 2. Where a gentleman introduced a female who was previously xivlng with him as a bouseKeeper, to his friends as bis wife, and from that time for the period of eleven years continued to cohabit with her as his wife, holding her out to the world as sus- taining that relation to him, aud had several chil- dren by her who were called by his name,— Held, that these facts were sufSclent to authorize a court or jury to presume an actual marriage between the parties, by a contract in prcesenti, at the commence- ment of such matrimonial cohabitation. Re Taylor, 9 Paige Ch. all, 4: 836 3. In a bill alleging parties to be husband and wife, proof of a formal solemnization or contract of marriage is not necessary. Cohabitation, acknowl- edgment by the parties, reception as man and wife and common repute, are sulficient to raise a pre- si»»nptJon of marriage. Jenkins v. Bisbee, 1 Edw. Ch. 377, 6: 178 4. Parties were recognized by the court as man and wife, although no marriage ceremony had takeii place, from their having cohabited together for years, and being considered as such by their ac- quaintances, and also from having both executed a fieed in which the woman was described as wife. Hichs V. Cochran, 4 Edw. Ch. 107, 6: 814 5. Though an absence of five years, of one of the HUSBAND AND WIFE, I. b, II. 219 married parties, may exempt the other, -wlio mar- ries again, from the penal consequences of bigamy, under the provisions of the Act (1 N. K. L. 113), yet the second marriage is null and void; for nothmj; but the death of one of the parties, or the judicial decree of a competent c»urt, can dissolve the mar- riage tie. JTintomson v. Parisim, 1 Johns. Ch. 889, 1: 188 b. Annulment. ■See also infra, VL b. 6. A marriage merely voidable is valid for all civil purposes, until its nullity has been pro- nounced by the proper tribunal ; but by the oom- tnon law, the sentence of nullity .when pronounced, xenders the marriage void from the beginning. Perry v. Perry, 2 Paige C!h. 501, a : 1006 7. That part of the common law of England ■which renders a marriage contract absolutely void in certain cases forms a part of the law of this State, and may be enforced by the appropriate tri- 4bunals, independent of any statutory provisions. Ibid. 8. A marriage procured by abduction, terror,and fraud, will be annulled by this court. Ferlat v. Gojon, Hopk. Ch. 478, 8: 493 9. A court of equity will not annul a marriage ^■ontract as having been fraudulent, upon the mere Amission, by the defendant, of the facts charged in the bUl. Montgomery v. yiontgomery, 3 Barb. Ch. 132, 6 : 845 10. Where the parties were white persons, and the -complainant was charged by the oath of the de- fendant as the putative father of her bastard child ; .and the complainant thereupon, believing the child to be his, married her to obtain his discharge from the proceedings against him under the Bastardy Act, and he subsequently ascertained that the ■child was a mulatto, and that the defendant knew that fact at the time she swore it to be his, she then having been delivered, and having seen the child,— Held, that the complainant was entitled to a decree declaring the marriage contract void,on the ground that his consent was obtained by fraud. iScott V. ShufeWt, 5 Paige Ch. 43, 3: 620 11. If a party, knowing that he cannot be the father of a bastard child, is induced to marry the Tnother to avoid a prosecution, it is no ground for imnuUing the marriage contract on the ground of fraud, although he should afterwards be able to es- tablish the fact that the child was not his. Ibt'd, 12. Although it is impossible that a white man -Should have a mulatto child by a white woman, yet Jf the former, before the birth of a child, believing it to be his child, marries the mother on the ground of such belief, it seems be cannot have a decree an- nulling the marriage, notwithstanding her conceal- ment of the fact from him that she had received the embraces of a negro about the time she was re- ceiving his. ibid. 13. In a suit for a nuUity of marriage on account of another wife living, the affidavit of regularity of the proceedings is the only affidavit necessary; the ■ expUination as to cohhbitation, connivance or time mentioned in the 165th Rule, does not apply. BorradaiU v. BorradaUe, 1 Edw. Ch. 40, 6: 63 14. Where a man was married to an infant under ■ twelve years of age, who immediately declared her ignorance of the nature and consequences of the marriage, and her dissent to it, the court, on a bill filed by her next friend, ordered her to be placed -under its protection as a ward of the court, and forbade all intercourse or correspondence with her ■by the defendant, under pain of contempt. Avmarv. Boff,3 3ohDS.Ch.i3, 1:538 15. This court, possessing an exclusive jurisdic- tion over cases of lunacy and matrimonial causes, will sustain a suit instituted to pronounce the nul- ' iity of a marriage with a lunatic. TTifliTitmon V. TFlehtman, 4 Johns. Ch. 343, 1:861 16. So, where a marriage is unlawful and void db initio, being contrary to the law of nature, as .between persons — ascendants or descendants— in the lineal line of consanguity, or between brothers and sisters in the collateral line, this court, in a suit instituted for that purpose, will declare the marriage mill and void. ibid. 17. Whether the court, there being no statute ^regulating marriages or defining the prohibited degrees which render them unlawful, will go fur- ther, and declare marriages between persons in other degrees of collateral.cousanguinity orafflnity void,—quwre. Ibid. 18. Though a marriage with a lunatic is absolutely void, yet, as weu tor i,he sake oi 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 compet'^ntiurisdiction. Wightman v. Wightman, 4 Johns. Ch. 343, 1: 861 19.And this court possessing an exclusive jurisdic- tion over cases of luuacy uua mauiuiuuial caused, is the proper, and, indeed, since there are no eccle- siastical courts having cognizance of such causes, the only, tribunal to afford relief in such a case, and Fiiatain a suit instituted to pronounce the nullity of the marriage. Ibid. 20. Therefore, where a person, insane at the time Oi her mari'iage, after her return to a lucid inter- val, refused to ratify or consummate it, and filed her bill to annul it, this court decreed the marriage null and void, and the parties absolved from its ob- ligations. Ibid- 21. This court cannot dissolve a marriage or decree a divorce for the cause of corporal impotence. Burtis V. Bmtis, Hopk. Ch. 557, 8: 683 22. A sentence of nullity, declaring a marriage in- valid on the ground of the physical incapacity of the defendant, cannot be pronounced upon a bill taken as confessed for want of an appearance or answer, without examining the defendant on oath before the master to whom it is referred to take the proofs of the fact and circumstances stated in the complainant's bill. Devaribagh v. Devanbagh, 5 Paige Ch. o54, 3: 837 23. To authorize a sentence of nuUlty, the physi- cal incapacity of the defendant must nave existed at the time of the marriage, and must be incur- able; and both these facts must be established by the most satisfactory evidence, although they are admitted by the defendant. Ibid. 24. The court of chancery will not decree a mar- riage void on the ground of the impotence of the defendant, until a surgical examination has been had for the purpose of ascertaining whether the alleged incapacity is incurable, if the defendant is within the jurisdiction of the court. ibid. 25. The court will not annul a marriage on the ground of impotence where there is a probability of capacity, and where from the testimony in the case there is trood reason to believe that the disa- bility of the defendant may be removed by a slight surgical operation, without any danger whatever to the subject of such operation, DevanJMgh v. Devanbagh, 6 Paige Ch. 175, 3: 945 26. A mere doubt as to what would be the result of a surgical operation upon an uncommonly dense and tenacious hsTnenial membrane, where there does not appear to be any other incapacity or mal- formation, IS not sufficient to justify a decree of nullity, as cases of that kind belong to the class of temporary and curable incapacities. Ibid. 27. The court has no power to annul a marriane contract, on the ground of physical incapacity, ex- cept in a case of incurable impotence. The fact that the defendant is unwilUng to cohabit with the complainant, and therefore refuses to submit to a sUght surgical operation for the purpose of remov- ing a temporary disability, is not a ground for a decree of nullity. ibid. n. Husband's Liabilities. 28. The superintendents of the poor cannot file a bill in chancery against the husband to obtain sat- istaction of the expenses inuuiTed uy the county for the support of his wife, as a lunatic or a pau- per, until they have exhausted their remedy at law against him by judgment and the return of an ex- ecution unsatisfied. Pomeroy v. Wells, 8 Paige Ch. 406, 4: 481 29. Where the separation of the wife from her husband is involuntary, and without fault on her part, any 'person who furnishes her with necessa- ries, although against the directions of the hus- band, may recover therefor in a common-law action against him. But if for any cause the hus- band is not Ipgallyliablefor the support of his wife, the court of chancery has no general jurisdiction to compel him to support her. Ibid. 30. Whereafter the decease of the wife, the hus- 220 HUSBAND AND WIFE, UI.— IV. c. band inttrmeddles with her property without tak- ing: out letters of administration on her estate, he is uable for the payment of her del>t8. Lockrwood v. Stockholm, 11 Paige Ch. 87, 5: 66 iii. Upon the death of the husband, debts con- traucetl by the wife before the mai-da^e, and whicti have not been recovered of her and tier husband durint; her coverture, survive airainst her; and the estate of her husband is not liable tliorefor. MoBory v. Vanderlietiden, 3 Barb. Cli. 9, 6: 795 32. Where a /erne sole takes out letters testamen- tary as an executrix, and afterwards marries, it is not necessary for her husband to file a written con- sent with the 8urro£:ate to render him liable for her acts as such executrix. The provision of the Re- vised Statutes which requires the written consent of the husband to render him jointly liable with hlupon his wife or children by disposing? of it after •bia death in any manner he may think proper. Holme)! V. Holme*, 3 Paige Ch. 383, 3: 189 60. Where a husband, for the purpose of depriv- ints his wife of auy share ot liis peisoiial property after bis death, purchased real estate from his son at a price far beyond its value, and srave his bond «nd mortgagre for the purchase money, the collec- tion of which was not to be enforced during the life of the husband.— Held, that the transaction was valid, and that the widow could not have the bond -aa^ mcrtKage set aside as fraudulent as against her. Ibid. d. Wife's Personalty. 1. irusba?i(i's Bights in OenerdL 51. Where the husband receives a debt which was ■Aue to.the wife at the time of her marriage, or no- vates the debt by mking a new security for the came in his own name, his wife's riglit of survivor- ship is at an end, and the new security taken by the husband belouji's to his personal representa- tives. Searitig v. Searing, 9 Paige Ch. 283, 4: 708 S. C. 1 Ch. Sent. 87, 5: 1 071 52. Where the consideration of a bond or other security taken in the name of the wife has pro- ceeded from her or her estate, or where it was the gift of a third person, if the husband does not dis- pose of such security, or collect the money due -thereon, or proceed to judgment thereon in his own name, during his lifetime, it seems the debt will be- long to her by survivorship, if she outlives him. Moehring v. Mitchell, 1 Barb. Ch. 284, 5: 379 S. C. 5 Ch. Sent. 80, 5: 1186 53. Where stocks are conveyed to the husband -and his wife jointly, and she outlives her husband, who dies without having disposed of the stocks, the wife takes the whole by survivorship. Craig v. Cratg, 3 Barb. Ch. 76, 5: 834 54. Where the husband applies to a court of -equity for the control of his wife's pioperty, the •court will protect her interests, and make such a decree as is most for her benefit. Fabre v. Colden, 1 Paige Ch. 166, 2: 608 55. The husband can collect demands due to his ■deceased wife only in the character of her admin- istrator: and by the Revised Statutes he is required to give the like bond and security as other adminis- 'trators. Jenkins v. Freyer, 4 Paige Ch. 47, 3: 336 56.. Where &feme covert dies intestate, either as to ber separate estate or as to choseslin action which -as a married woman she had no right to dispose of by wUl, and the husband afterwards dies leaving her assets unadmiiiistered, it is not necessary for his personal representatives to take out letters of ad- ministration on ber estate, to enable them to insti- tute suits for the recovery of such assets; but they may Institute such suits in their characters of per- •sonal representatives of the husband, avening the fact that he survived his wift;. Roosevelt v. Bmithorp, 10 Paige Ch. 415, 4: 1033 57. If a feme covert who has a separate estate pur- chases articles of furniture with the rentsand prof- its of such estate, and puts them into the possession of her husband, without any agreement or under- standing with him that he shall hold them as her ■trustee, or that the title shall be vested in any other person for her separate use, the articles thus pur- chased become the property of her -husband, and are liable to be sold for his debts. Shirley v. Shirley, 9 Paige Ch. 363, *; 738 68. If a husband appoints an attorne/ tn recover a debt, legacy, etc., due to hie wife, and the attor- ney receives the money ; or if the husband mort- gages his wife's interest, or assigns it absolutely, for a valuable consideration ; or if he recovers it by a suit at law, in his own name, or releases the debt, —the survivorship of the wife, in these cases, ceases. Sehuyler v. Hoyle, 5 Johns. Ch. 196, 1: 1055 69. Where the husband and wife, and other heirs ot T, who died intestate in Bnglan d,made a joint power ot attorney to V, authorizing him to take out letters of administration there on the estate of F, to collect the property, etc., and pay (Over to the parties their distributive shares respectively, etc.; and after V had taken out administration, but before he had received the property, or paid over the entire share, the husband died,— field, that the wife was entitled, in her right as survivor, to that portion of her dis- tributive share which had not been actually paid over to her husband. ibid. 60. Athough a husband holds a bond and mort- gage maae uut in lavorof his wife, and receives the interest, yet this is not a reduction into possession. And if she dies, he cannot sue upon tt without tak- ing out letters of administration, even though he mHV be exclusively entitled. Hunter v. Hallett, 1 Edw. Ch. 388, 6: 188 61. If a husband dies without having administered to his wife's cht)ses in acLiiin, ana uumiiiistrution is granted to another, the latter becomes a trustee for tlin husband's repri st^ntativcs. Ibid. Stewart V. Stewart, 7 Johns. Ch. 229, 8:877 62. The husband may be considered as next of kin to his wife, by relation of marriage, and as taking her personal property, in case of her death, as next of kin; but whether so considered or not, her personal property remaining after her death goes to her husband, either jure mariti or as next of kin. Stewart v. Stewart, 7 Johns. Ch. 229, 8: 877 63. Under the provisions of the Revised Statutes, if the husband survives his wife and afterwards dies leaving a debt uncollected which belonged to her at the time of her death, his personal represen- tatives are authorized to sue for the debt without taking out letters of administration upon her es- tate. Lnekwood v. Stockholm, 11 Paige Ch. 87, 5: 66 S. C. 4 Ch. Sent. 15, 6:1139 64. Where the husband survives his wife, her per- sonal estate of every description, except such sep- arate estate as she has made a valid disposition of by will, under a power for that purpose, belongs to him, under the Statute of Distributions. Ibid. 65. Where the husband permitted his wife to re- ceive moneys due to her before coverture, and to rcloan them upon securities in her own name: and also agreed, upon her joining in a conveyance of his real estate so as to release ber inchoate right of dower therein, that a certain portion of the proceeds of the sale might be received and loaned by her upon securities in her own name, which was done accord- ingly,— ileW, that the securities thus taken belonged to the wife, who survived him; and that she was not bound to account for them as the administratrix of her deceased husband. Searing v. Searing, 9 Paige Ch. 283, 4: 703 S. 0. 1 Ch. Sent. 67, 5: 1071 68. And it seems that where the husband takes a new security in the name of his wife tor a debt due to her at the time of the marriage, it is not such a reducing of the debt into possession by him as to deprive his wife of the right to such new security by survivorship. Ibid. 87. Where debts are due to the wife at the time of her marriage, they belong to her, in case she sur- vives her husband, although he may have brought a suit for such debts in their joint names, and re- covered a Judgment therefor, if the money has not been actually collected by him in his lifetime. Ibid. 88. If the wife is entitled to the income of prop- erty bequeathed to her separate use during cover- ture, and the husband obtains possession of it for the purposes of the trust, he will be decreed to pay to her the income. Collins V. Collins, 2 Paige Ch. 9, 8: 791 2. Provisions for Wife's Support therefrom. 69. The wife's equity to a suitable provision for the maintenance of herself and children out of her sep- arate estate descended or devised to her during cov- erture will prevail and be protected, not only against the husband, but against his assignee, and against any sale made or lien created by him for a valuable consideration or in payment of a just debt: and on a bill filed by the wife against a creditor of the husband, an injunction was granted to prevent him from selling her property so descended, under an execution issued on a judgment confessed by the husband for a bona fide debt. BaBiland V. Afi/ers, 6 Johns. Ch. 25, 8:43 HavUandv. Bloom, 6 Johns. Ch. 178, 8: 93 70. And this equity may be extended to the whole of the real and personal estate devised or descended to the wife. Haviland v. Bloom, 6 Johns. Ch. 178, 8; 93 71. The wife's equity to a support for herself and children out of her estate, which has not been re- 222 HUSBAND AND WIFE, IV. e, f. duced into possession by the husband, is paramount to the rishfe of the assignee of the husband under the Insolvent Act. Mumfm-a V. Murray, 1 Paige Ch. 620, 9: T74 72. Where the property of the wife is in the hands of an officer of the court of chancery, she may ap- ply by petition for a reasonable allowance out of such estate. Ibid. 73. But if she has appropriated to her own use property which belonged to the assigiiee, the amount thereof must be refunded to him out of ner estate. IJHd. 74. The equitable right of the wife to personal property in the hands of her trustees cannot be disposeu of by the husband without making a suit- able provision for her support. Kenny v. Uclall, 5 Johns. Ch. «i,. 1: 1143 75. The wife's equity, as it is called, attachesupon her personal property whenever it is subject to the jurisdiction of the court and is the object of a suit, into whosesoever hands it may have come, or in whatever manner it may have been transferred. IMd- 76. And it makes no difference whether the appli- cation to the court be made by the husband or his representatives or assignees, in order to obtain pos- session of the property; or whether it be by the wife or her trustee, seeking a provision for her out of the property. Ibid. 77. This equity of the wife is equally binding, whether the transfer of the property be by ope- ration of law or by the act of the party, to general assignees or to an individual, or whether the par- ticular transfer was voluntary, or made upon a good and valuable consideration. Ibid, 78. The court may, in its discretion, give the whole, or a part only, of the property to the wife, according to the circumstances of the case. Ibid. 79. When the husband lives mth his wife, and maintains her, and has not misbehaved, the coui-se is to allow him to receive the interest and dividends on her property. Tbid, 80. As, where bank stock settled by a father on his infant daughter, placed in the hands of the as- sistant register of the court, as trustee to execute the trusts declared in her favor by the deed of set- tlement, was, within one year after her marriage, and while she was an infant, sold and transferred by her husband and her for a valuable consideration, the assignee knowing, at the same time, of the deed of settlement and the infancy of the wife, the as- signment, on a bill filed by the wife agamst her husband and his assignee, was declared to be null and void, so far as respected the wife's equity; and, the husband having misbehaved himself, the divi- dends on the stock were directed to be paid to the wife herself, until she came of age, with liberty f of her to apply for such suitable provision out of the property as might be determined on the usual ref- erence to a master. Ibid. 81. This equity of the wife stands upon the pe- culiar doctrine and practice of the court, rather than on any general reasoning. Ibid. 83. Where a husband asks the aid of the court to enable him to get possession of his wife's property, he must do what is equitable, by making a reasona- ble provision out of it for the maintenance of her and her children, • Hbtoard V. ilfof att, 3 Johns. Ch. 206, 1:350 83. And whether the husband applies himself, or a suit for the wife's debt, legacy, portion, etc., is brought by the legal representatives of her hus- band, the rule Is the same. Ibid. Bi. The extent of the provision will depend on the circumstances of the case. ibid. 85. The practice is for the husband, on a reference, to make proposals of a settlement before the mas- ter, and, on the coming in of his report, the court judges of its sufBciency. Ibid. 86. But if the husband can lay hold of the prop- erty of the wife without the aid of the court, he may do it, this court not having power to enforce a settlement by interfering with his remedies at law. Ibid. 87. Where the husband and wife sue for the wife's legacy, the court will direct a suitable provision to be made out of it for the maintenance of the wife and her children, before decreeing payment of the legacy to the husband. Olen V. Fisher, 6 Johns. Ch. 33, «: 45 88. Upon a bill filed by the wife, chancery will interpose to restrain the husband or his asslgmeeg from proceeding at law to possess themselves of her property in action, and will compel them tO' allow her a suitable provision out of the same for her support. Van Epps v. VanDeuien, i Paige Ch. 64, 3: 344 89. The court of chancery, upon the application of the wife, may restrain the husband trom pro- ceeding at law to obtain the possession of a legacy, or a portion in personal estate which came to her by will or inheritance, until he makes a proper provi- sion for her support. But the court will not allow a maintenance to the wife out of property which at law belongs to the husband by virtue of his marital rights, although she has an equity therein, while she is living separate and apart from her husband,, against his consent and without any justifiable C&US6 " Fry'y. 'Pry, 1 Paige Ch. 461, 4: 231 90. It is now the settled rule of the court that it will interfere and restrain a busband from recover- ing the wife's property at law until he makes a pro- vision for her. But not where she lives apart from him without cause, or has a sufficient provision from other sources. Jiforttn v.JHortin, Hoff. Ch. 463, 6: 120» 91. Where a husband had allowed a sum belong- ing to his wife to go in discharge of a mortgage on trust property, of which they were in the united enjoyment, and she afterwards enforced the settle- ment so as to exclude him, he was allowed a pro- portion of the rents. ibid. 92. Whether a court of equity can protect the sur- plus moneys arising on a sale of the real estate of a feme covert upon a judgment and execution against her and her husband, so as to prevent its go- ing into the hands of the husband for his own use without any provision for her support out of the same,— flu(Kre. Wood V. Genet, 8 Paige Ch. 137, 4: 374 93. Where the estate of a feme covert is sold on a Judgment recovered against her as an heir or a dev- isee,j her busband, at law, is entitled to receive from the sherifC the surplus moneys raised on the sale' beyond the amount of the debt and costs; and she cannot be made personally liable for such surplus moneys, slthough the sale should afterwards be found to be invalid and inoperative to convey the legal title of the land to the purchaser. Nor can her separate estate be made liable for such moneys,^ except so far as they have been applied for the benefit of such estate. ibid. 94. Where a debt due to the wife before marriage has never been reduced into possession by the husband, it is considered the property of the wife, so as to be subject to her equity for the support of herself and chUdren. SmUh V. Kane, 2 Paige Ch. 303, 3: 918 e. Husband's Bights in Wife's Real Property. 95. Where lands of a wife who is an infant are- sold under a decree in partition, the husband is not entitled to the proceeds, but the court wiU secure- the fund for her use until she becomes of age and. consents to his receiving the same. Sears v. Eyer, 1 Paige Ch. 483, 2: 724 96. This court will not decree a specific perform- ance of an agreement made by a husband in rela- tion to the reai estate of his wife, to which she was not a party. Squire v. Harder, 1 Paige Ch. 494, 3: T2S 97. He can make no agreement which will affect her rights, without her consent. ibid t. Separate Estate. 98. In a judgment creditor's suit the defendant showed that years before he had received a sum irum his wife's father, in her right, and placed it to her credit upon his books, with the understanding that it was to be her separate property, and all furniture purchased with it was to be carried to the account of the fund as her sole property. On an attempt^ by the judgment creditor, to reach the f urniture^ the wife petitioned to have her equitable rights in. it preserved. Held, that she was entitled to have it protected as her separate property. Taggard v. TaZcott, 2 Edw. Ch. 628, 6: saff 99. Where the wife was entitled to an equitable allowance out of the separate estate of her husband, who was a lunatic, but of whose person and estate DO committee had been appointed, the court or- HUSBAND AND WIFE, IV. f. 233. dered her separate property to be transferred to the assistant register, and that the income thereof be Said to her upon her separate receipt, until the f ur- ler order of the court. Carter v. Carter, 1 Paige Ch. 463, 8: 716 100. A feme covert is as to her separate estate con- sidered as a feme sole, and she may, either in per- son or by her legally authorized agent, bind such separate estate with the payment of debts contract- ed for the benefit of the estate, or contracted for her own benefit upon the credit of the separate es- tate. And the assent or concurrence of her trustee is not necessary for that purpose, where no restric- tion upon her power over the trust fund is contained in the deed or instrument under which such sepa- rate estate is held. North American Coal Co. v. Duett, 7 Paige Ch. 9, 4:37 101. The separate estate of a feme coveBt is in equi- ty chargeable with her debts contracted upon the credit of that estate, to the same extent that the es- tate of a /erne sole is chargeable with the debts of such feme sole by the common Jaw. IMd. 102. The separate estate of a, feme cowertis charge- able in equity with debts which she contracts on the credit of, or for the benefit of, such estate ; as to which estate she is regarded as a, feme sole. And where she has borrowed money from her hus- band on the credit of and for the benefit of such es- tate, if she IS afterwards appointed bis administra- trix it is her duty to proceed against the separate estate to obtain a repayment of the money, for the benefit of his estate, or to pay the same out of her own funds. But she is not personally liable for the payment of a debt contracted by her during her coverture on account of such separate estate. Gardner v. Oardner, 7 Paige Ch. 112, 4: 86 103. The principle upon which the court of chan- cery enforces a charge made by a, feme covert upon her separate estate, in the hands of her trustee, is that as to such separate estate she is to be consid- ered and treated as a feme sale; and that the charge upon such separate estate is in the nature of an ap- pointment of her eqitable interest in the trust es- tate. ' Krurwles V. McCamly, 10 Paige Ch. 342, 4:1003 104. Where the legal estate is in a, feme covert, who is a resident of the State, her deed or contract con- veying or agreeing to convey such estate, if not ac- knowledged by her according to the statute, is void in equity as well as at law. -IWd. 105. A contract to convey lands which is signed by the husband and wif e,but is not duly acknowledged by the wife,is the contract of the husband only,and is neither binding upon the wife, nor upon her heirs after her death. IbM. 106. Where the husband survives the wife, al- though he is no longer liable for debts contracted by her while sole, however much he may have re- ceived by the marriage, her separate estate In the hands ol her personal representatives Is liable, for those debts. „, „ , „„. MaOory v. Vanderheyden, 3 Barb. Ch. 9, 5: 795 107. A husband is accountable for the personal es- tate ol his wife secured u> her separaiAS use by a deed of marriage settlement, and which has come into his hands during the coverture; but not , i' intm-nxt nn moneys he may have received for deuUj due to her. _ , •, r. Methodist Eviscopal Church v. Jagues, 1 Johns. Ch. 460, 1= ^''^ 108. The husband is al so accountable for the rents and profits of the wife's real estate received by him; and lands purchased by him with the moneys of the wife are deemed to be held in trust for her, though purchased in his own name ; and a third person to whom the husoand had conveyed an estate so pur- chased, with notice of the manner of his acquu-ing it, was held to be chargeable with the trust ; but the trustee is to be allowed for any beneficial and permanent improvements made by him on the e - fete. J^^^'J- 109 Where, by a marriage settlement, the whole real and personal estate of the wife is secured to her separate use, the husband is, notwithstanding, bound to maintain his wife and family during the coverture, and cannot make the expenses a charge on her separate estate ; and the consent or agree- ment of the wife during coverture, that the expens- es should be borne by her separate estate, is null and void. ^o". 110. But the husband is entitled to an allowance for moneys expended in necessary reparations ot the wife's separate estate, and for any specific appro- priation of her property, with her assent or direc- tion, for her benefit, not being for the ordinary maintenance ol her or his family. IhicL HI. Where the husband is permitted by the wife ttt. have the management of her separate property se- cured to her by a marriage settlement, to receive rents, etc., vSry strict proof ol his having paid to and settled with her, during her lifetime, tor thp sums received, is not required; but, from the con- fidential nature of the connection, the most favor- able presumptions are indulged towards him. Methodist Episcopal Chwch v. Jaques, 3 J. C. 77, 1: 64»> 112. He cannot, however, claim money received by him for a judgment debt due to the wife, on the- ground of the mere parol declaration of the wife, contrary to the terms of settlement. Ibid. US. A fem^ covert, with respect to her separate- property , is to be considered as a feme sole to the ex- tent only of the power given to her by the mar- riage settlement. Ibid. 114. Her power of disposition is not absolute, but mb modo, to be exercised according to the mode prescribed in the deed or will under which she be- comes entitled to the property. Therefore, if she has a power of appointment by will, she cannot ap- point by deed ; or when she is empowered to ap- point by deed, the giving a bond or not« or parol promise without reference to the property, or mak- ing a parol gift of it, is not such an appointment. Ibid.. 115. So, when it is said in the' settlement that she Is to receive from her trustee the income of her property as it may from time to time become due, she has no power, by anticipation, to dispose at once 01 all tuat mcome. Ibid. 116. The question as to the power of a /erne covert over her separate property settled to her separate use, and the manner or its execution,— examined. Ibid.SS, l!53» 117. If a feme covert, having a separate estate se- cured by settlement, provides by will for the pay- ment of her funeral expenses, the husband is not to be changed with them ; otherwise, if no such pro- vision had been made. IWd.115, 1:56» 118. To make the separate estate ol a married wo- man liable tor her uebt, where it is not charged upon the estate pursuant to the deed of settlement, it must be shown that the debt was contracted either for the benefit of her separate estate or for her own benefit upon the credit of the same. Owtis V. JEngel,^ Sandf . Ch. 287, 7: 596 119. A general debt incurred by a married woman is not a charge upon her separate estate ; nor is such estate chargeable upon any implied undertaking ol hers. Ibid^ 120. A milliner on the eve of her marriage trans- ferred her furniture, stock in trade, and things in action to a trustee for her sole and separate use,, without providing for conducting the business in future. After her marriage the stock was disposed of and she went to Europe. It was, after an inter- val, resumed by her in her own name, her husbands aiding in its management, but the trustee having no concern with it. Held, that the business was not conducted for the benefit of her separate estate, and the latter was not chargeable with the debts^ contracted therein. The business was in point of law the husband's, and the profits belonged to him. Ibid. 121. And upon the evidence, —Held, that the goods - furnished to her and her husband in the millinery business were not sold upon the credit of her sepa- rate estate. Ibid. 122. Where a wife's property (settled upon her) is the subject of a deed, equity looks upon her as a feme sole. Incident to the ownership in her is the power of disposition, without the assent or ooncur- reneo of herhusband. Such adeed may, therefore, he valid where she has had the benefit of it, even though the husband is made a party and has not signed. She cannot, on this ground, take advantage otit. PoweZZ V. Murray, 2 Bdw. Ch. 636, 6: 538 123. Where real estate was conveyed to a ferns cov- ert by her mother, previous to her marriage, and a judgment was afterwards recovered against the- grantee and her husband as heirs at law of th8- mother, upon the ground that the deed was fraudu- lent, which Judgment was subsequently reverseo-" ■224 HUSBAND AND WIPE, IV. g— i. by the court for the correction of errors; and before >Buch reversal the land was sold under thejudgment, and the husband receives a considerable sum for thi surplus money on such sale,— Held, that the wife, who had recovered back her land from the purchaser subsequent to the death of her husband, was not li- -ablo to such purchaser for the surplus moneys re- ceived by her husband on the sale, nor for the value of the improvements made upon the premises while they were held adversely to her and her husband under theaheriff's sale, but that the value of per- manent improvements might be offset against her it by a mortgage which his wife executes with him, on her lands, and he lays out the money in perma- V ent buildings and improvements on such lands, she •is not a surety for him in respect of the mortgage • debt. Dickinson v. Codiofee, 1 Sandf. Ch. 214, H: 304 i. Conveyances to Each Other, 156. The technical common-law rule, that a feme covert cannot make a conveyance to her husband, does not apply to a conveyance made by the wife to her husband through the medium of a third per- Meriam v. Harsen, 2 Barb. Ch. 232, 5: 626 157. In that manner a/eme covert may exercise the ceame control over her real estate, for the beneflt of her husband, as she could if it was held by a trustee, with a power in her to appoint it to whom she pleased. All that the court of chancery will do in -such cases is to see that the wife has not been im- posed upon by herhusband, by his taking an uncon- . scientious advantage of her situation. ibid. 158. The rule of the English common law, which -disabled a feme covert from conveymg ner real es- tate in any other manner than by a fine or a com- mon recovery, has never been in existence here since the Colonial Act of May 6, 1691, was rejected by the Crown, in 1B97. Ibid. 159. The Act of Feb. 16, 1771, to confirm certain ancient conveyances and prescribing the mode of proving deeds lo be recorded, and all the subse- •Quent statutes on the subject, are merely restrictive of the right which a feme couert possessed by the ■common or customary law of the Colony, to convey -her estate by deed, with the concurrence of her hus- band. ^tJid. 160. A wife may, without the intervention of a court, convey away her estate to a stranger or to her husband by circuity: but chancery will scrutin- ize the act closely, to see that she has not been cir- cumvented, coerced, defrauded or unduly Influ- - enced. Meriam v. Harsen. i Edw. Ch. 70, 6: 801 161. Where a husband has obtained a conveyance -to himself of his wile's estate, through the iui;uium -of a third person, by taking an undue and uncon- .iScientious advantage of her ignorance of her legal and equitable rights, and of her imbecihty of mind, and of her confidence in his representations, the eonveyanoe will be set aside by the court of chan- cery, upon abill filed forthat purpose. Fry V. Fry, 7 Paige Ch. 461, 4:831 Ch. Dig. provision for the wife,— as, giving her a deed for certain lands, parcel of his estate.durlng her widow- hood,— equity will lend Its aid to enforce the pro- vision : especially where the wife had, by an ante- nuptial agreement, released all right of dower to arise under the marriage, on the express engage- ment of the husband that she should be endowedof all lands acquired by them during their cohabita- tion. Shepard v. Shepard, 7 Johns. Oh. 57, 2: 219 163. Where ahusbandconveyedlandtoasonfora nominal sum, on his covenanting to pay an annuity to his mother during her widowhood,— HeM, that the wife was entitled to an action on the covenant so made for her benefit ; and that a release of the covenant by the son to the husband, in his Uf etime, was fraudulent and void. IbM. 164. A wife, having a power of appointment over personalty in a maniage settlement, may make a deed in favor of her husband, and the court will carry it into effect, provided there has been no com- pulsion. But, in decreeing, the court will refer it to a master to examine the wife privately, explain her rights to her, and ascertain whether she voluntarily consented and still consento to the deed. WTntall V. Clorfc, 2 Edw. Ch. 149, 6: 345 165. A husband and wife may contract, for a bona ^deand valuable consideration, for a trans ler of property from him to her. Uvingston v. lAvingston, 2 Johns. Ch. 537, 1: 479 163. Where husband and wife agreed, by parol, that he should purchase a lot in her name, ana Duild a house thereon, and that he should be reim- bursed the cost thereof out of the proceeds of an- other house and lot of which she was seised, which should be sold for that purpose; and, the husband having executed the agreement on his part, the- contract tailed by the sudden death of the wile, who left infant onildren to whom the legal estate in both lots descended,— the agreement was decreed to be carried into effect, and the lot was ordered to be sold, and a conveyance executed by the infant trustees, by their guardian ad litem; and their lather (the plaintiff) and the master were directed to join the conveyance, and the plaintiff to be re- imbursed his advances out of the moneys arising from the sale. Ibid. 167. Though such conveyance by the husband to the wife is presumed, In the first instance, to be in- tended as an advancement and provision for her, yet that presumption may be rebutted by paro! proof. Ibid. 168. A deed of a married woman to a guardian of her infant husband is looked upon with jealousy, and the court wiU require a personal examination of the wife to know if it is done without coercion. Ferris v. Brush, 1 Edw. Ch. 572, 6: 261 169. Husband and wife make a deed to a partv, who reconveys it, " the one equal half part to each, but it was 00 i%iled with conditions: for Instance that while the wife was to take the rents for life, she had not "power to sell or incumber her half, and could dispose of It only by will;" and the husband was, also, only to do so as to his moiety, save by her con- sent. The wife died first, having made a will; but the husband assumed the ownership of the whole and devised it to his second wife and to his son by her. Ueid, that the restrictions grafted on the fee were not void, that the husband had bound himself thereby and so relinquished his right to the wife's moiety; and also, that the will made by her would be looked upon in the nature of a valid appointment which her heir could not set aside and in relation to which the second wife and the son had, certainly, noright or claim. Hicks V. Cochran, 4 Edw. Ch. 107, 6: 814 k. Rights of Husband's Creditors. 170. If a creditor asks the aid of a court of chau eery to reach property of the husband which is no' subject to an execution at law, he must take such property subject to the wife's equity, it she has any therein. Smith V. Kane, 2 Paige Ch. 2: 918 171. Where personal chattels are bequeathed to a feme covert for her separate use, or to a single woman free ttoix the control of her future hus- band, the court of shancery will protect her inter- est therein, against the creditors of her husband, 15 226 HUSBAND AND WIFE, IV. 1, 1. although no trustee Is named In the will of the tes- tator to hold them for her separate use. Shirley v Shirley, 9 Fai^ Ch. 363, 4: 738 172. But where chattels are bequeathed to a, feme covert generally, or without any restriction, and have been reduced to possession by the husband, with her consent, they become his property in equi- ty as well as at law, and may be taken In ezecuUon for his debts. ibid. 173. "Where the wife holds the proceeds of a legacy as her separate estate, under an agreement with her husband which is valid, and she afterwards invests It in the purchase of real estate, in the names and for the benefit of her children, the creditors of the husband are not entitled to an interest in the land by virtue of any resulting trust in their favor. Partridge v. Havens, 10 Paige C!h. 618, 4: 1116 174. Where a trustee, in pursuance of the trust in an antenuptial agreement by which real estate of the intended wife was conveyed to him for her sep- arate use, sold the estate and loaned the proceeds to a firm of which the husband was a partner, and toolt the firm's note therefor, payable to himself as trus- tee; and by his direction a portion of such funds was subsequently invested by the firm in furniture for the separate use of the wife,— creditors of the husband could not reach the furniture for the sat- isfaction of his debts. Danforth v. Woods. 11 Paige Ch. 9, 6: 37 175. The general Hens of Judgment creditors of thehusbana upon tbe intercsL ui tue laLim- lu tne real estate of his wife, wbicb liens have not been converted into an interest in the land itself at the time of the filing of a bill by the wife against her husband for a separation, are subservient to the paramount right of the wife to the immediate use of the land, upon her substantiating her right to a decree of separation for the misconduct of the hus- band. Sadkett v. Qaes, 3 Barb. Ch. 204, 5: 874 176. The equity of a married woman for a settle- ment does not survive to her children ; and where i^nere is no contract for a settlement, nor any pro- ceeding by the wife to enforce one during her life, the creditors of the husband are entitled to a leg- acy bequeathed to her, and her children have no equity to prevent its ravment to them. Barker v. Woods, 1 Sandf . Ch. 129, 7: 265 1. Settlements. L Antenuptial. See also supra, 46-48 ; Contbaots, 17-20. 177. Marriage is a good, valuable, and meritorious consideration for an antenuptial contract. Bradish v. Gibbs, 3 Johns. Ch. 550, 1: 713 178. A parol antenuptial agreement cannot be en- forced. Be Wmoughby, 11 Paige Ch. 257, 6: 186 179. The Bevised Statutes relative to uses and trusts do not apply to a marriage settlement of personal property creating no future interests. Hanley v. Carroll, 3 Sandf. Ch. 301, 7: 860 180. Courts will give effect to stipulations In mar- riage settlements, and in other contracts of a sim- ilar nature, in favor of third persons for whose ipecial use and benefit such stipulations were in- tended, although such third persons were not par- ties to the contracts. But in all sucb cases the decision of the court is placed upon the ground that the person who obtained the stipulation, and from whom the consideration of the stipulation or prom- ise of the other party to the contract proceeded, intended it as a gift or gratuity to the person in whose favor the stipulation was to be performed, and who was particularly named or referred to in the agreement as the person intended to be benefited by such stinulation. King v. WhiUly, 10 Paige Oh. 465, 4: 1058 181. Where a marriage settlement giving to the wife the control of hei separate property during cover- ture, and the power of appointment, with the assent of her husband, contains no express provision for the disposition of such property in the event of her death and in default of her appointment, and she dies without making any appointment,— the prop- erty goes to the husband, as survivor, aa if no set- tlement had been made. Stewart v. Stewart, t Johns. Ch. 229, 8: 877 182. As where, after such settlement, money com- ing to the wife from her father was paid to the hus- band, there being no acting trustee for the wife at the time, and the husband invested the money \a stock in the wife's name, but received the dividends- to his own use, and after her death administered oa her estate, and received the dividends on the stock, until his death,— Held, that the executrix of the- husband was entitled to the stock; and that the ad- ministratrix de bonis rum of the wife was account- able for it, as trustee, to the legal representatives of the husband. ibid. 183. Where, in a deed of settlement, the husband, after covenanting to allow his wife to enjoy tier separate property to her own use during the cov- erture, and that she might convey the same, etc., and that she should enjoy the rents and profits of the real estate as if she were a/eme sole, etc., the husband thereby releasing all his marital rights ii* and over the same, etc.,— fleW. that the release was- te be construed in connection with the words im- mediately preceding, and operated only as to hi» rights durmg coverture, and did not affect his- rights as survivor of his wife. laid. 184. A settlement made by a female upon the eve of marriage, while she is under twenty-one years of age, will not bind her real estate, so but that she may disafiSrm it. It is voidable, but it passes the es^ tate and is valid until she avoids it. i Temple v. Bawley, 1 Sandf. Ch. 153, 7: 877 185. She may afOrm it during her co verture.and she maj; disaflirm it alter she attains her majority, if she IS then sole. It is a vexed question whether she can avoid it at all during her coverture. Ihii. 186. Previous to the marriage of EET to CMJ, a marriage settlement was executed, which vested her real and personal estate In a trustee, in trust as -;o two thirds of the real and all the personal estate, for the separate use of the wife, with a general pow- er of appointment to her ; and as to one third of the real estate, for the use of the husband for life, to- gether with a power of appointment to their issue, C M J was only eighteen years of age, and the deed was executed m pursuance of an order of the court of chancery appointing her mother to be her spe- cial guardian, for the purpose of assenting to tha marriage, approvinglof the settlement, designating I trustee, and joining in the deed of settlement This order contemplated an execution by C M J. rhe deed was in the name of C M J ^ her special if uardian, as party of the first part, B E T of the second part, and the trustee of the third part ; and it purported to be the grant and conveyance of C M J. It was executed by her mother as special guar- dian, and by E B T and the trustee; but it was nev- er executed by C M J, and after she became of age she refused to ratify or confirm it, and dissented from its provisions. Held, that as to C M J the deed was absolutely void, and did not affect her title to the real estate. ItM. 187. Held, also, that EET ought not to be boundas- to his interest which he would otherwise have ac- quired in the real estate by the marriage; because (1) the consideration for his relinquishing that in- terest was a voidable conveyance of the wife's real estate, and no such conveyance had been made ; (3) on the ground of mistHke, the deed not being in conformity to the order of this court, as it purport- ed to be, and as R E T had a right to suppose ; and (3) the deed was a representation to R B T on which he had a right to rely, that it was made pursuant to the order and direction of the court of chancery. VM. 188. The settlement is valid as to the personal es- tate thereby transferred to the trustee. IWd. 189. A grantor gave a leasehold house to a trustee, to receive rents and apply them towards the sup- port of H. C. "And after the death of H. C, I give, grant and convey the aforesaid house to my natural daug'aterM. B. M., her heirs and assigns." Herethe daughter got a vested remainder assignable and de- scendible, and on her making a marriage settlement (her future husband joining) whereby the property was secured to the survivor of them and the hus- band survived, — Held, that he was entitled under the settlement and was not left to his marital rights. Be Leefe, 4 Ed w. Ch. 395, 6:917 190. The general personal estate of a female infant IS bound by a settlement made upon her marriage, where the property is of such a character that the husband would.become entitled to it immediately upon the marriage were it not for such settlement. Strong v. WiTkin, 1 Barb. Ch. 9, 5: 877 HUSBAND AND WIFE. TV. 1. 2, V. 227 191. Where,by deed of settlement,in anticipation of marriage, the property of the wife was conveyed to a trustee, in trust for her use until the marriage, and after the marriage for her separate use, not- withstanding such coverture, and after her death for the use of such person or persons as she should by will, and notwithstanding such coverture, ap- point, and, in default of such appointment, to the use of her heirs, and to the exclusion of the intend- ed hushand.either as tenant by the curtesy or other- wise; so that the wife should not at any time there- after, either by herself or in conjunction with others, have the power of exonerating. releaslng,or discharginic the property from the operation ofber settlement, or of receiving any portion thereof ex- cept the annual income thereof ,—HeM, that by the operation of the rule in SheUey'a Case, the husband having died before the wife, the limitation of the equitable estate to the wife for life, with an unlim- ited power of appointing the inheritance by will, united itself with the equitable estate in remainder to her heirs generally, so as to create an equii»ble estate in fee in the whole property in the event that had happened; and that, having united this equi- table fee with the legal estate, by a conveyance from the trustee, she was able to give a perfect title to the property to a subsequent purchaser thereof. MeWharter v. Agnew, 6 Paige Ch. HI, 3: 919 192. Where a woman, before marriage, executed a deed to which her intended husband was a p>irty, by which she conveyed aU her estate, real and per- sonal, to C, In trust to her use until her marriage, and then to such persons and uses as she, with the consent of her Intended husband, should appoint by deed or by her last will, without his consent, and the wife retained the deed diiring life, and executed a deed to the husband's brother,and also made a will disposing of her estate, etc.,— Jt seems that this deed, though it might not be legally valid on ac- count of some technical objection to its due deliv- ery, would be good evidence of the agreement, and binding on the husband. Metlwdist Episcopal Chwch v. Jaquei, 1 Johns. Ch. 65. 1: 61 2. Postnuptial. 193. A wife, by property of her own, may become a purchaser from the husband so as to support a postnuptial settlement. WUkes V. Clarke, 3 Edw. Ch. 58, 6: 5 70 194.Prior advances to a husband, out of the wife's property, will not be taken as part consideration for a settlement (where not mentioned therein) unless there was an agreement at the time they were made to secure her a settlement. There must be an inten- tional connection between the previous advances and the subsequent deed. Ibid. 195. A postnuptial contract between husband and wife, by which property is set apart for her sepa- rate use, although void at law,will be sustained in equity. Garlick v. Strong, 3 Paige Ch. 440, 3: 883 196. Where the husband, who was about to sell his ^'dtate, agreed with his wife, and with the know- ledge of the purchaser, that it she would join in a deed of the premises so as to release her dower, she should receive a certain portion of the purchase money as her separate property, free from the con- trol of the husband: and the purchaser gave a note to the wife for her share of the purchase money; and the agent for the wife, in whose bands the note had been placed for her use, loaned a part of the money received on the note, and took a bond and mortgage directly to the wife; and the husband af- terwardsassignedthe mortgage to the original pur- chaser of the estate, without the assent of the wife or her agent,— Held, that in equity the bond and mortgage belonged to the wife, and that she was entitled to the money due thereon, for her separate use. Ibid. 197. Where the wife is entitled to an equitable pro- vision for the support of herself and her children oiit of a legacy given to her by a deceased relative, which legacy the husband has not reduced to pos- session, that equity is a sufScient consideration for a postnuptial agreement, of the husband, that a part of the legacy shall be secured for the use and support of the wife and her children. ParbriOge v. Havens, 10 Paige Ch. 618, 4:1115 198. Where both real and personal estate came to a feme covert by descent from her uncle, and her hus- band, who was embarrassed, made a settlement of the whole upon her, by a conveyance thereof to a trustee for her separate use,— Held, that the settle- ment was valid as to l;he personal property, it being not more than a reasonable provision for the wife and her children ; but that the wife's equity did not extend to her husband's legal title for life in her real estate, as tenant by the curtesy Initiate, and that the conveyance of iiis interest in the real estate to the trustee was invalid. Wiohes V. Clork, 8 Paige Ch. 161, 4: 384 199. Where the husband voluntarily settles on his wife personal estate which came to her by descent from her relatives, to no greater extent than the court of chancery would have directed him to do upon a bill filed against him by the wife to protect her equitable claim to a support for herself and her children out of the same, such voluntary settlement will be sustained as against the creditors of the hus- band, although it is void as to other property con- tained in the same conveyance to the trustee. Ibid. 200.1n cases where the husband takes the legal title to his wife's personal estate by virtue of the mar- riage, charged with her equity, such a settlement made by him, even after the marriage, with power to her to dispose of the property by will, would be binding upon the wife's equitable interest in the property, the husband being entitled to the imme- diate possession and absolute control of such prop- erty, upon making a reasonable provision for the wife and her children. Strong v. Wilkin,! Barb. Ch. 9, 5:877 201. Where the husband takes the legal title to his wife's personal estate by virtue of the marriage, charged with her equity, a settlement made by him, even after the marriage, with power to her to dispose of the property by will, would at law be binding upon him in the event of his surviving lier. Ibid. 202. The wife, who by a postnuptial settlement of real and persoiiiil estaLe, was entitled to the income for ber life, the settlement being invalid as to the residue of the personal estate, on a private exam- ination in due form declared her desire and exe- cuted an appointment to have tlO.UOO of the per- sonal estate paid over to her husband absolutely, and that he might be restored to his marital rights in the real estate. The latter was held to be impos- sible, bopniise of the inalienability of trust interests In the real estate. As to the personalty, it was held that with her consent and by her appointment, which operated on her life interest in the income, the court might order such payment; and an order was made accordingly, on the husband executing a ■jcw settlement of the residue. Grout V. Van Schoonhoven, 1 Sandf. Ch. 336, 7: 350 203. On a similar bill the court decreed a pay ment to the husband, pursuaiit to a valid at'^niiitiii^ii. wt the wife, out of personal estate of wliich she was entitled to the income, on the husband's executing a valid settlement of the residue of the personal estate, so as to secure the capital to the children of the marriage. Uiiti. 204. By a postnuptial settlement the husband con- veyed to trustees all his interest in the real and puisonal estate of the wlte in trust to receive the income and apply it to the separate use of the wife for life, and after her death to apply the same to the support, etc., of her issue until they should attain the age of twenty-one years, and then to di- vide the estate among the issue. The trust was held valid as to the real estate, and as to the per- sonalty so far as the wife's trust interest was con- cerned. Ibid. V. Actions. 205. Upon the discharge of the husband under the bankrupt Act, the remedy at law for the recovery of the debt of the wife is suspended during the coverture. Mallory v. Vanderheyden, 3 Barb, Ch. 9, 5: 795 206. Where it is necessary to bring a suit for the re- juvery ot money in the name of the husband and wife jointly during coverture, the cause of action survives to the wife for her own benefit, it the hus- Imnd dies first. Searing v. Searing, 9 Paige Ch. 283, 4; 708 207. Where a bill is filed by husband and wife for a demand in right of the wife, and the husband dies, the suit does not abate, but the action survives to the wife. M'Dowl V. Charles, 6 Johns. Ch. 132, 8:77 208. Where a biU is filed by the husband, in the 238 HUSBAND AND WIFE, V. name of himself and wife, for the recovery of her property, it is his suit; and it he releases to the de- fendant the demand for which the suit was brought, the suit cannot be continued in the ^ame of the husband and wife, but must be dismissed. And if the execution of such release was a fraud upon the rights of the wife, she must commence a new suit. *iy her next friend. „. ,„, „ „_. Devxia V. CtmenTioven, 5 Paige Ch. 581, 3: 857 a09. A bill filed by the hvisband,in the name of him- self and wife, although for a claim in right of his wife, is considered as the bUl of the husband. If he dies before a decree in the cause, the widow may proceed in the suit, or not, at her election ; and if she refnses to proceed she is not liable for costs. Ibid. 210. In a suit by the husband for the wife's dls- tributiye share, the wife must be made a party. Schuyler v. Hoyle, 5 Johns. Ch. 196, 1: 1055 211, The wife should be made a defendant to a suit by the husband to set aside a will which secures to the wife and her issue a share of testator's property for her separate use during coverture. Alston V. Jmea, 3 Barb. Ch. 397, 5: 947 213. Where the husband, in right of his wife, is entitled to an interest in the personal estate of a decedent, proceedings to call the executor or ad- ministrator to account before the surrogate should be instituted in the joint names of the husband and bis wife. Guild V. Peck, 11 Paige Ch. 475. 6: a03 213. Where a legacy is given to a feme eovert for her separate use, the proceedings before the surro- gate against the executor, to compel the payment of the legacy, should be Instituted in the name of the /eme coveti only, by her next friend. Ibii. 214. Where a distributive share of the estate of a decedent belongs to a married woman, the petition to the surrogate asking for the payment of such share must he presented in the joint names of such married woman and her husband, and not in the name of the husband alone. WesUrvelt v. Qregg, 1 Barb. Ch. 469, 5: 459 215. Where a wife's property is involved in a suit she must join m a petition for mamtenance pendente lite ; and it must not only appear to be done with her consent, but also clearly snow that the money is wanted for maintenance. Where a petition for maintenance pendente lite out of the wife's property was signed by the solicitor of the husband and wife, and sworn to by the husband only, and merely stated " necessary occasion " for the aUowiince, the same was deemed insufficient. MovxM V. Graham, 1 Edw. Ch. 575, 6: 253 216. Where a suit at law is brought against the nusband and wife for the purpose of affecting her Interest, she is a necessary party to a bill in chan- cery by the husband for an injunction to restrain proceedings in the suit at law. Booth V. Albertson, 2 Barb. Ch. 313, 5 : 656 217. Where the husband files a bill in relation to his own rights, if his wife is a necessary party by rea- son of a judgment or decree in favor of the husband and wife, which is a lien upon the property of the defendant, and in a ease where all the incumbranc- ers must be before the court, the wife may be joined with her husband as a complainant. C! adultery. Dodge v. Dodge, 1 Paige Ch. 589, 4: %»»■ g. TFt/e's Appearance ; Next Friend. 333. In a suit brought by either husband or wife- for a divorce, on the ground of adultery, the wife prosecutes and defendis without a guardian or next friend, as a feme sole ; and her affidavit is admis- sible against the husband, as to any matter or pro- ceprling in t>ie cause. ITirbyv. ETirbi;,! Paige Ch. 261, 2:639- 334. Afeme covert cannot file abill against her hus- band in her own name, except in the single case of" a Dill to obtain a divorce on the ground of adul- wiod V. TFood, 2 Paige Ch. 454, 2: 986- 335. A bUl to obtain a separation merely must be filed in the name of the next friend of the wifej and if it is not so filed, the defendant may demur. Ibid. 336. On a bill for a divorce, if the wife is an infant- she must prosecute or defend by her next friend or guardian. Wood V. Wood, 2 Paige Ch. 108, 8: 83S 337. Where an infant defendant put in an answer to a bUl of divorce, by her solicitor, the proceedings were, on her application, set aside for irregularity, and she was permitted to put in a new answer by her guardian. Ibid. 338.The next friend of a wife in a suit against her husband for a separation should be worth at least 8250 over and above his debts. Robertson v. Robertson, 3 Paige Ch. 38?, 3: aoo- 339. Although the next friend of the complainant is irresponsible, the defendant is not entitled to have the biU dismissed, in the first instance; but the proceedings on the part of the complainant will be stayed until sufficient security for costs is given, or a responsible person is substituted as the next friend. Ibid. h. Alimony. 1. Temporary. a. Right to. 340. A husband, by committing adultery, subjects himself aiiu Uis property to the jurisdiction of the court of chancery, so far as to enable the court to order his property to be apphed to the support of his family, both during the litigation for divorce and afterwards. Kirtyy v. Kirby, 1 Paige Ch. 261, 2: 63» 341. And the power of the court extends to com- pelling the husband to apply a portion of his aau> earnings to the same object, during the pendency of the suit. IbM. 342. Alimony will not be allowed to a wife for her support during the progress of the suit, when it appears that she has left her husband and gone to her father's, and that the father agreed with the husband that he would make no claim for the wife's support, if the husband would make no clainy for the wife's services. _ . „ BartleU v. Bartlett, Clarke Ch. 460, 1: l'?* 343.1n a suit for nullity of marriage, the Legislature have not authorized this court to make an order against the husband tor the support of the wife pendente lite, or to provide funds to defray the ex- penses of the suit. The authority conferred ap- plies onlv to cases of suits for divorce or for si-pa- ration. Ibid. 344. Alimony is allowed to the wife pendente lite in a controversy with her husband, almost as a mat- ter of course, whether the wile be plaintiff or de- fendant,— the amount always to be governed by the circumstuncea of each case, and may be settled by HUSBAND AND WIPE. VI. h, 1. 23S- the court without reference, where the facts are gulBeientJy before it. Hammond v. Hammond, Clarice Gh. 151, 7: 77 Wriaht V. WrighU 1 Edw. Ch. 62, 6: 80 345. It is not a matter of course to allow a tempo- rarr alimony and an advance to a wife's counsel on a bin filed hy her for a divorce a menaa et flwro. Injury and meritorious cause of action must ap- pear. Worden v. Warden, 3 Edw. Ch. 387, 6: 699 346. It is not a matter of right, under all circum- stauoes, for a wixu wtio has commenced a suit for a divorce orfor a separation, to require the court to direct an allowance to be paid to her by the de- fendant for the purpose of defraying the expenses of the suit, nor is it a matter of right that she should be allowed her ad interim alimony in all cases, but the Legislature has left the allowance of both to the sound discretion of the court. Jones V. Jones, 2 Barb. Ch. 146, 5: 591 S. C.'6 Ch. Sent. 60, 6: 1313 347. Where it is probable that the wife may suc- ceed when she is allowed to prosecute in her own name, and where it appears that she is entirely destitute of the means of carrying on her suit, it is almost a matter of course to require the husband to make her a reasonable allowance, according to his abUity, for the necessary expenses of the suit. IMd. 348.It is also a matter of course, in such a case, to Inquire the husband to furnish her with the neces- sary clothing and sustenance during the pendency of the suit, if he is able to do so. Ibid. 349. The same general principles are applicable to juits brought by the wife against the husband for a separation from bed and board, on the ground of cruel treatment or of abandoument. But in this class of cases the wife cannot institute a suit against her husband without the assistance of a re- sponsible person as her next friend, who is to be answerable to the defendant for the costs of the litigation if the complainant fails in the suit. Aua thC'Oourt, in cases of this nature, wiU not direct an advance to be made to the wife or to the next friend, for the purpose of carrying on the suit or for alimony pendente lite, where there is no prob- ability that the complainant will be able to su cceed in her suit Thid. 350. Pending a bill for a divorce by a wife against her husband, and before answer, the court will al- low a monthly sum to the wife as alimony, and also a sum to be paid to her, by her husband, towards defraying the expenses of her suit. Denton V. Denton, IJohns. Ch. 364, 1:173 351. No allowance for costs or alimony can be made to the wife, if it appears upon the face of her biU that it is improperly filed, and that she can ob- tain no decree thereon. Wood V. Wood, 2 Paige Ch. 454, 2: 986 352. On a bill by a husband for a divorce, the wife will not be allowed aJimo^, nor wiil the court, on her motion, order the hu^and to advance money to enable her to defend the suit, until she has, by her answer, disclosed the nature of her defense, Lewis V. Lewis, 3 Johns. Ch. 519, 1 : 703 353. Where the wife is the defendant in a suit for a divorce, if she denies on oath the charge of adul- tery, or shows a valid defense by reason of condo- nation or otherwise, she is entitled to a reasonable allowance for her support pending the litigation, and to enable her to defend the suit. Wood V. Wood, Z Paige Ch. 109, 8: 833 354. The application of the wife for an allow- ance to enable her to make her defense and for alimony will be denied unless she denies, in her petition, on oath, the truth of the charge of adul- tery, or shows therein some valid defense to the hus- band's suit. Paff V. Paff, Hopk. Ch. 584, 8: 532 355. A wife is entitled to temporary alimony up to a final decree, notwithstanding a jury upon a feigned issue has given a verdict of adultery against her. SUmfard v. Stanford, 1 Edw. Ch. 317, 6: 154 356. If a husband comes for divorce, he must sup- ply money for temporary support and to help tue wife make a defense. His poverty will not pro- tect him. He must conform to this general rule or abandon his suit. Pwrcea V. PurcelU 3 Edw. Ch. 194, 6: 623 357. Temporary alimony and money to carry on I a suit will be allowed, notwithstanding the opposite- party puts in a plea denying the marriage. Smith V. Smith, 1 Edw. Ch. 255. 6: 129- 358. In suits for divorce, the allowance for ad in' tertm alimony and for the expeua^ of defending the suit is not confined to oases in which both par- ties admit the original marriage to have been legal. North V. North, 1 Barb. Ch. 241, 5 :370' S. C. B Ch. Sent. 51, 6: lisa 359. Where the wile files a bill against her reputedi husuaud to unuul luc iuarnusc. lur uuy cuuoo which goes to the legality of the marriage original- ly, it seems the allegations in her bill will be taken to be true as against herseU when she appUes lor an allowance for alimony or for expenses. Ibid. 360. Where the husband files a bill against his re- puted Wife, admituug tuut he was in fact married to the defendant, but alleging such marriage to have been illegal or void, if the facts stated in the bill, on Tyhlch the supposed illegality or invaUdity of the marriage depends, are denied by the defend- ant on oath, she is entitled to ad interim alimony, and to an allowance for the expenses of the suit. Ihid. 361. The allowance for ad interim alimony doeS' not depenu wuuiiy upuu Lue suitULe, out upon tuc practice of the court as it existed before the stat- ute, liiid, 362. Upon a bill filed by the husband against the wife for a divorce, upon the ground of adultery, the husband, upon the application of the wife, will be ordered to pay her a gross sum to defray the ex- penses of her defense, and also a reasonable sum for alimony during the pendency of the litigation, although atfida vlts are presented on the part of the husband, showing the guilt of the wife. Osgood V. Osgood, 2 Paige Ch. 621, 3: 1056 363. Where the wife who is the defendant in a suit for a divorce applies for an allowance for ad inter- im alimonj^ and for the expenses of her defense, upon a positive affidavit that she is innocent of the- adultery charged, proof that the husband has re- covered a verdict in an action of crim. con. against the alleged paramour .of the wife is no defense to- the application. Williams v. Williams, 3 Barb. Ch. 628, 5: 1036 364. Although a husband files a bUl for an abso- lute divorce after a wife has filed one for separa- tion, still she is entitled to temporary alimony and money to litigate. Monroy v. Monroy, 1 Edw. Ch. 382, 6: 180- 365. Where the husband, after the alleged adul- tery, secured one uaii ux iiis propercy to iim wiie, oy a voluntary arrangement between them, for the use of herself and two ol his children, reserving the other half tor the use of himself and five other children, the wife was not entitled to an allowance lor alimony or for the purpose of carrying on the suit against her husband, unless she and her trus- tee either surrendered, or offered to surrender, the voluntary settlement made upon her by the hus- band. Ease V. Base, 11 Paige Ch. 166, 5: 93- 366. Although there was an appeal to the chancel- lor from an order allowing the sufficiency of a. next friend, still it did not stay the vice-chancellor from granting temporary alimony. Robertson v. Robertson, 1 Edw. Ch. 360, 6: 173 b. Extent of; Agreement; Restoration. 367. There is no fixed rule as to the extent of tem- porary alimony in suits for a divorce prosecui. . by the husband against the wife. He is bound to support her reasonably during the litigation, hav- ing regard both to bis own means and her necessi- ties. Liinde v. Lynde, 4 Sandf. Oh. 373, 7: 1138 - 368. Where, pending a suit for a divorce by the - husband against the wife, on the ground of adul- tery, which was at issue on her sworn answer, it appeared that the state of her health was such as to make it necessary, for the preservation of her health, that she should pass the winter in a tropical climate, the court ordered the husband to i3ay her a sufficient sum to enable her to proceed to such climate, and pass the winter accordingly. Ibid. 369. Where a wife denies on oath the adultery charged, the court has the power to direct the hus- band to pay her a specified sum for her traveling expenses and board, if it is shown that her health is such as to render it apparently necessary, for the- 334 HUSBAND AND WIFE, VI. h, 3. 3. preservation of ber life, that she should spend the winter in a milder climate. Oerard v. Oerard, Z Barb. Ch. 73, 6: 561 370. Pending a bill by a wife for a divorce, to which ' the defendant bad demurred, and before a hearing on the demurrer, on the petition of the plaintiff, setting forth that she was abandoned by the de- fendant, and wholly destitute of all means of sup- port and for carrying on the suit, the court, under the circumstances of the case, ordered an allow- ance of $aj a month, to be paid by the defendant to the plaintitt monthly, or to the register, tor her use, until the further order of the court. Mix V. Mix, 1 Johns. Ch. 108, 1: 78 371. Pending a suit commenced by the wife against her husband for a separation on account of cruel "treatment, the allowance for temporary alimony will be estimated according to the expense of board and clothing at the place where her connections reside, if she selects that as the place of her resi- dence after her separation from her husband, un- less the expense of living there is disproportioned to the property of her husband. Germond V. Germond, 4 Paige Ch. 643, 3:693 372. The allowance lor temporary alimony pend- ing the suit of the wife for a separation will be limited to her actual wants, until the result of the suit in her favor establishes her right to a more liberal allowance. Ibid. 373. In a suit brought by the wife for a divorce, -shecannot, previous to the decree dissolving the marriage, make any valid agreement as to her allowance for alimony. And the court will not -sanction any such agreement made by her, unless it satisfactorily appears that the allowance made in her favor for alimony is as much as she is fairly • entitled to, under the circumstances of the case and from her husband's situation as to property. Duggettv. Diggett. 5 Paige Ch. 509, 3: 808 374. Where a bill was filed by a husband against his wife for a divorce, and a monthly allowance was ordered to be made to the wife by the husband, for alimony during the pendency of the suit,— it was held that she was entitled to this allowance up to the termination of the suit by a final decree, -and not merely to the time of the trial, which re- sulted in her favor. Oermond v. aermond, 1 Paige Ch. 83, 2: 570 375. Where the decree is in favor of the wife, she will be allowed against her husband her costs and allthereasonal disbursements and expenses made in her defense. Ibid. 376. Where the money is advanced by the defend- ant to the next friend of the wife, under an order of the court, to enable such next friend to carry on her suit for a separation, if she fails in obtaining a decree of separation the next friend may be compelled to refund the money so advanced to the defendant, with interest; and the order for such al- lowance should contain a provision to the effect that the moneys so advanced are to be restored to the defendant by the next friend, with interest, if the court shall thereafter direct it to be done. Laurie v. Laurie, 9 Paige Oh. 334, 4: 681 2. Permanent or Final Allowance. 377. The wife is entitled to alimony where the 'bin is taken as confessed in her favor, if her cir- 'Cumstances render such an allowance either necessary or proper. Graves v. Oraves, 2 Paige Ch. 62, %: 813 378. In granting a decree for a separation, under the Act of 1824, in favor of the husband against the wife, the court has no power to direct the husband to pay to his wife an allowance for her support. Perry v. Perry, 2 Barb. Ch. 311, 6: 655 379. Licentious conduct and misbehavior of the wife, if existing before the alleged acts of cruel 'treatment by the husband, will destroy her claim for maintenance. Bedell V. Bedell, IJohns. Ch. 604. 1:263 380. If the bill is filed by the husband for a divorce a mensa et fhoro, and he obtains a decree, the wife will not be entitled to a maintenance out of his ■(property. Palmer v. Palmer, 1 Paige Ch. 276, 3: 645 381. The proportion of the husband's estate or 4noome to be assigned to the wife for alimony, ■either pending the litigation or on a final decree rfor a divorce or separation, is in the discretion of •the court. Lawrence v. Lotwence, 3 Paige Ch. 267, 3: 148 382. In fixing the amount of alimony, the court must take into consideration the nature and amount of the husband's means, the claims his children and others have upon him for sustenance and education, and his ability to support himself by his own exertions. Ibid. 383. The abmouy allowed to the wife for her support pending the ligitation is always much smaller in proportion than that which is assigned to her as a permanent provision after she has established her right to a divorce or separa- tion. Ibid. 384. The court of chancery, upon a decree for a di- vorce or separation, may aiiow aiiraony to the wife to continue during her life although she should out- live her husband, and may decree that the allow- ance for her aUmony shall belong to her as her sep- arate estate, with the right to appoint or dispose of such part thereof as may not be used by her in her lifetime, in case her husband should survive her, bv an instrument in the nature of a will, Renwielt v. Benwich, 10 Paige Ch . 430, 4: 1035 385. Whether the court, upon a decree for a divorce or for a separation, can award a gross sum to the wife for her alimony, instead of an annual or peri- odical allowance,— aucBre. Ibid. 386. Where the husband was admitted to.be worth more than half a million of dollars in productive property, and had but one relative who had any claim to a provision from his bounty, and where the defendant had treated his wife with great cruel- ty for many years, she was allowed an annuity of $10,000, to be paid to her quarterly during her life, for permanent alimony, on a decree of separation from bed and board. Ibid. 387. On a bill by a wife for a divorce for adultery, a decree of divorce a vinculo matrimonii having been pronounced, the master reported the value of the defendant's real estate to be 83,750, and his per- sonal estate $300, and the whole annual value to be $325, and the court allowed the plaintiff for her alimony $100, payable half-yearly. Miller v. MUler, 6 Johns. Ch. 91, 8: 64 388. The general rule, in such cases, seems to be to allow the wife a third, or at least a fourth, part of the annual income of the husband's real estate: but it is in the power and discretion of the court to vary the allowance from time to time, accord- ing to the circumstances of the parties. Ibid. 389. Where a divorce was decreed In a suit brought by the wife against her husband for adultery, an annuity equal to the annual value of one third of the husband's property, at 6 per cent, was allowed to the wife during her natural life, for her alimony. Peckfnrd v. Peehford, 1 Paige Ch. 274, 8: 644 390. If her conduct had been discreet, prudent, and submissive to her husband, the allowance to her would have been greater. Ibid. 3. Procedure; Payment. 391. When, In a suit for divorce or separation, the defendant has entered an appearance, an ap- plication for alimony and expenses should be made upon petition after due notice to the opposite party. Longfellow v. LongfeUow, Clarke Ch. 344, 7: 138 392. The amount of temporary alimony may be fixed upon by the court without a reference. Mnnroy v. Monroy, 1 Edw. Oh. 38 i. 6: 180 393. An allowance to a wife for alimony and money to carry on a suit, instituted for a divorce, is al- most a matter of course. Affidavits in opposition are admitted for the purpose of fixing the amount to be allowed. Wright v. Wright, 1 Edw. Ch. 62, 6: 60 394. A wife filed a bill for divorce a mensa et fhoro and applied for frnporary aumony and money to carry on suit. It was opposed, on the ground of her habitual drunkenness and having $3 a week al- lowed her by the husband. Reference ordered to ascertain whether $2 a week was enough and whether she could be entrusted with money. Saunders v. Saunders, 2 Edw. Ch. 491, 6: 478 895. Where a bill for divorce or separation is so de- fective, either in form or substance, as to be bad upon demurrer. It will not support an application for alimony, or for an allowance for the expenses of carrying on the suit. Bo86 V. Rose, 11 Paige Ch. 166, 5: 93 HUSBAMD AND WIFE, VI. i, ]. 23a 396. After a bill filed by a husband against his wife «Lor a separai/iou has been taken as eonfesseOl, ttie 'Charges therein are to be taken as true, for the pur- poses of the suit, so far as relates to alimony or to an allowance for the expenses of the defense. Perry v. Perry, 2 Barb. Ch. 285, 5: 645 397. The order directing a reference to a master to linquire and report as lu ad interim alimoay, dur- ing the pendency of a suit for a divorce, should dl- •reot that, upon the coming in and confirmation of the master's report, the husband pay to the wife the sum allowed by the master for alimony, and ;payable as directed by the report. Gerard v. Oerard, 2 Barb. Ch. 73, 5; S61 398. Without a previous order of the court direct- ing a husband to pay the amount to be allowed fur alimony, he cannot be brought into contempt, toi not paying the alimony fixed by the master. Ibid. 399. The husband ordered to pay alimony is bound to pay all becoming due before determina- tion of suit, but that not then payable falls with the suit. Cleveland v. Cleveland, 1 Ch. Sent. 33, 5: 1061 i. Property Rights. 400. Where an absolute divorce is granted against ■the huGburid fur his adultery, the wile is entitled to retain for her own use and for the education and support of the children of the marriage, if any there are, all the real and personal estate which belonged to her at the time of her marriage, or whicii has come to her by gift, devise, or descent from any of her rel- atives durlngthe coverture, which the husband had not recoverod and reduced to his actual possess'op. previous to the commission of the offense for wh'ch the divorce is granted. Bewioicft V. Henwicfc, 10 Paige Ch. 430, 4: 1035 S. 0. 3 Ch. Sent. 81, 5: 1186 401. Under the provisions of the Eevised Statutes the divorced wife is entitled to her real estate, «.*• charged of the husband's life interest therein as toi- ant by the curtesy initiate, and to her badding, and other goods left with her by her husband, and also to all such choses in action, legacies, and distributive rights, not collected or reduced to possession by the husband, as would have belonged to her by sur- vivorship, in case the marriage had been dissolved by his death at the time of making the decree for the divorce. Ibid. 402. Where a bill was filed by a wife against her husband, charging him with ill usage and neglect to Srovlde for her maintenance, and that he was en- eavoring to get possession of a legacy left her by her father, the court, under the lOtn section of the Act (Sess. 36, chap. 103), ordered the legacy to be paid into court, and the money to be put out at in- terest, by the register in her name, and the interest to be paid to her separate order, from time to time, etc.. until the further order of the court. Twrrel v. Turrel, 2 Johns. Ch. 391, 1: 481 403. Where the husband has violated the marriage contract, or has been guilty of an act which enti- tles the wife to a decree for divorce or a reparation, and tor alimony, she is in equity entitled to a res- toration of the property which the husband holds by virtue of his marital rights. And the court of chancery, upon the bill of the wife filed for the purpose of obtaining a divorce or separation, will not only protect her right to such property as against the husband himself, but also as against judgment creditors, and others who do not stand in the situation of bona fide purchasers without no- ' tice of her equitable rights and of her intention to enforce them by a suit for a divorce or separation- Van Duzer v. Van Duzer,a Paige Ch. 366, 3: 1083 404. So. where the husband has married a wardin chancery without the consent of the court or of her legal guardian, the court, upon the ground of the husband's contempt, has jurisdiction to Interfere, upon the application of the friends of the Infant wife, even without her consent, to restrain the hus band and his creditors from intermeddling with her estate until a proper settlement is made for the sup- port of the wife and of the issue of the marriage. lb HI. 405. But where the husband has neither bppnguii*'- of a contempt in acquiring the legal title to his wife's property, nor of such misconduct as entitles her to a divorce or a decree for a separation from' toed and board, the court of chancery cannot, upon the application of the wife, interfere with the hus- band's legal title as tenant by the curtesy initiate In his wife's property, so as to place it beyond his reach or the reach of his creditors, and secure it for the support of the wife and her children. Ibid. 406. The court of chancery will protect the wife's equity in the property whji-.. uie nuauaud acquues by the marriage, whenever the husband comes into that court as a party for the purpose of enforcing his claim to such property. And It seems the court may also protect her equity in personal properly to which she is entitled by bequest or under the Stiitute of Distributions, or in her choses in action which the husband has not reduced to actual pos- session, even where the husband has a remedy at law to recover the property, and therefore docs not ask the aid of the court of chancery to enforce his marital riglits. Ibid. 407. Where a receiver was appointed of the rents and profits ot real estate, a part of which was not in controversy in the suit in which the receiver was appointed, but belonged to a tliird person, not a party to the suit, in right of his wife; and upon the application ot the husband for the piymcnt of that part of the fund to him, the wife came in and claimed it on the ground that her husband had violated the marriage contract, and that she had filed a bill against him for a divorce and for a restoration of her property acquired by the marriage, — the court refused to decide the question between the husband and the wife upon that application; but the share of the rents and profits belonging to them was di- rected to be paid into court, by the receiver, to the credit of the suit between the husband and wife, to abide such order or decree as should be made in that suit respecting the same. Vincent v. Parher, 7 Paige Ch. 65, 4: 68 408. This court will lay hold of the property of a wife, which may be within its power, for the pur- pose or providing a maintenance for her when she IS aban ■ Toned by her husband, or prevented by his ill treatment from cohabiting with him. Dumond v. Magee, 4 Johns. Ch. 318, 1: 853 409. Where a husband abandoned his wife and married another woman, witli wiiom lie coutlnucd to live for twenty years, fee was held to have for- feited all just claim to his wife's distributive share of personal estate inherited by her. Ibid, 410. And the court directed the principal of the wife's share to be brought into court ana placed at interest; and, after her death, the principal to ^o to her children by her lawful husband, or to their representatives ; she having, after being aban- doned by her husbHnd. upon report and belief of his death, married another. Ibid, j. Order as to Children. As to Custody, see Infants, II. 411. The court of chancery, upon dissolving the marriage contract for tne adultery ot the wife, is not authorized to declare one ot her children ille- gitimate, who must have been begotten before the commission of the adultery charged in the com- plainant's bill. Van Aemam v. Van Aernam, 1 Barb. Ch. 375, 5: 482 S. C. 6 Ch. Sent. 1, 5: 1198 412. Where a decree divorcing husband and wife directs an allowance for the maintenance of chil- dren, until the further order of the court, a new bill for the purpose of varying the allowance can- not be filed without leave of the court. Paff V. Paff, Hopk. Ch. 584, 8: 838 413. Applications to vary such allowances are made by motion or petition. Ibid. 414. On a bill by the wife as-ainst the husband for a divorce from bed and board,on the ground of cruel usage, and for maintenance, the court, under the circumstances of the case, having a due regard to the age and expectations of the parties, decreed a divorce for five years; that the plaintiff, in the mean time, should have the custody and care of the child, a daughter ; and that the defendant should pay 8100 a year, in half-yearly payments, one halt to be applied to the maintenance of the plaintiff, and the other half to the maintenance and educa- tion of the child, it appearing from the masteT's re- port that the defendant was worth about $3,500, the fheUanuual income of which was about $100; and the defendant was directed to pay the costs of the ^Bedeil V. Bedeil, 1 Johns. Ch. 604, 1:803 HUSBAND AND WIFE, VI. k, 1. k. Procedure ; Generally ; Decree ; Opening. 415. Where a wife ffles a bill for a limited divorce, and the husband then files one against her for an absolute divorce on account of adultery, he cannot stay the wife's suit in order to have ms own first heard. Monroy v. Mtmroy, 1 Edw. Ch. 383, 6: 180 416. A wife may compromise a suit brought against her husband for a divorce ; and the court will only interfere so far as to see that she is not overreached or imposed upon in the settlement. Kirby v. Kirby, 1 Paige Ch. 565, »: 754 417. The solicitor for the wife cannot insist upon proceeding with the suit against her consent, upon the ground that his costs are not paid. Ibid. 418. Where a bill was filed by the wife against her husband for a separation, from bed and board, on account of alleged cruel treatment, and the assign- ees of the husband's interest in the complainant's real estate were made defendants, and the husband died before a decree, but the wife had failed to make out a case which would have entitled her to a decree of separation if the husband had lived un- tU the hearing,— He!nr"OM. ^»tc. Be lAvingstcm, 9 Paige Ch. 440, 4: 767 55. The court of chancery has the power, out of the surplus income of the estate of a lunatic, to provide for the support of persons, not his next of \'.n, and whom the lunatic is under no legal obliga- tion to Tsupport, where it satisfactorily appears to the chancellor that the lunatic himself would have provided for the support of such persons had be ucen of sound mind. Be Heeney, 2 Barb. Ch. 326, 6: 661 56. The court may also make an allowance, out of INCOMPETENT PERSONS, V. the income of a lunatic's estate, for the education •of persons whom he had adopted as children while ne was in a sound state of mind. Ibid. 57. The committee of the lunatic may be author- ized to provide for the keepintr up of the lunatic's tamily establishment, with the same number of •domestics as had been customary previous to the lunacy, and to expend for that purpose annually an amount not exceeding that which had been annually -expended by the lunatic himself before his lunacy. ibid. 58. The committee may also be authorized by the court to place at the lunatic's disposal, so long as he is competent to judge of the claims of applicants, ■ small sums of money for puposes of charity. Ibid. 59. And the court may also authorize the commit- tee to pay ror the support of the institutions of re- ligion in the church where the lunatic and his f ami- ,ly have been accustomed to worship, such sums from time to time as the lunatic may desire him to pay for that purpose, not exceeding the amount which the lunatic had been in the habit of paying annually before hia faculties became impaired. Ibid. 60. But the committee will not be allowed per- sonally to expend any pai •, of tne estate of toe luna- tic for general charity, or objects of benevolence or piety for which the lunatic himself had not been in the habit of contributing specifically and regularly while he was competent to manage his own affairs. Ibid. 6L Where the income of the estate of a lunatic is more than sufficient for the support of himself and ior the support of those members of bis family tor whom he is legally bound to provide, the court of •chancery may make an allowance, out of such in- come, to his near relatives who are in need of as- ■eistance. Re WiU'mghby, 11 Paige Ch. 257, 5: 136 62. It is a matter of course to make such allow- ance in favor of the children or other desceudants of the lunatic who will inherit his estate in case of bis death, and where there is but little or no hope •of his recovery. Jhid. 63. But it seejjis that,ln case of such an allowance, adult cuildren in whose favor it is made, and who are competent to support themselves, will be re- quired to stipulate that the amounts advanced to them respectively, under the order of the court, shall be brought into hotchpot, in the distribution of the lunatic's estate upon his death, if any part of -such estate shall come to them under the Statute of Distributions. IMd. 64. The court in all cases acts for the lunatic, in ■reference to his estate, as it supposes the lunatic Umself would have acted If he had been of sound 101. A female defendant, unmarried, above sixty years of age, and who had been deaf and dumb- from her infancy, was admitted to appear and de- fend by guardian. MarTde v. Markle, 4 Johns. Ch. 168, 1 : 80a 102. If the defendant in a suit by the husband to annul a marriage on the ground of fraud is an idiot, the complainant must procure the appoint- ment of a guardian ad litem to appear and defend the suit for the wife. Montgomery v. Montgomery, 3 Barb. Ch. 132, 5: 845 103. Where a lunatic is not made a party to a bilt filed for his benefit, It is a good case of demurrer. Oorham v. Oorham, 3 Barb. Ch. 24, 5: 801 104. The objection that the lunatic himself is not made a party complainant in a suit brought by his- committee in relation to personal estate may be waived by the defendant's neglecting to set it up by demurrer or answer. Ibid^ 105. A lunatic himself need not be made a party to a suit, by a creditor, against his committee, to- obtain payment of a debt out of his estate. Brasher v. Cortlandt, 2 Johns. Ch. 401, 1: 424 106. The question of necessary pai'ties is a matter of discretion, depending on convenience. Ibid. 247, 1: 364- 107. Where bill is filed by the committee of a lunatic to set aside an act done by such lunatic, upon the ground of hisincompetency,iti6not necessarythat the lunatic himself should be made a party; but b& may be joined as a party with his committee. Oorham v. Oorham, 3 Barb. Ch. 24, 5: 801 108. In all other cases, the settled practice in Eng- land has always been, either to join the committee with the lunatic in bringing suits in chancery for his benefit, or to file tbe bill in the name of the luna- tic by his committee. JWd. 109. A lunatic is not a necessary party plaintiff with his committee, on a bill to set aside an act done- by the lunatic, under mental imbecility ; though It is the general practice to join them, it is only mat- ter of form. Ortley v. Meniere, 7 Johns. Ch. 139, 2: 247 HO. A bill filed by a committee of a limatic alone^ praying for a partition ot lauds and for an account and payment of rents and profits ot the share of the land belonging to the lunatic, la defective in form. iMdlcm V. MaddocJt, 1 Ch. Sent. 20, 6: 105? VI. Eestobation; Discharge. 111. Where, after a person has been found a lunatic by the jury summoued by virtue of a com mission of lunacy, a feigned issue is applied for and obtained' to try the question as to the unsoundness of his. mind, and, upon the trial of such issue, the jury find that the alleged lunatic Is not of unsound mind,, the proceedings upon the commission will be dis- charged, and he will be restored to the full control of his property. _ „_.^ Be Giles, U Paige Ch. 638, 5:26s 112. On the petition of a lunatic for the discharge of his committee, on the ground of returned sanity^ it is in the sound discretion of the court to allow him to traverse the inquisition, or to try the ques- tion bv « feigned iHSue. _,_ Be WCleati, 6 Johns. Ch. 440, 2:178 113. This court has a right to discharge an inquisi- INCONSISTENCY— INFANTS. 243 Hon of lunacy, upon a mere examination of the al- leged lunatic, in connection with the evidence pro- duced before the Jury, without subjecting him to the expense of an issue or a traverse, where, upon such an examination and evidence, it is evident that the jury erred. Be Bvisell, 1 Barb. Ch. 38, S: 290 Hi. But where no change has taken place in the siiuuuou ot the luniitiu since Che exeoiiiiun o( the commission, it must be a very clear case of mistake or of undue prejudice on the part of the jury, to au- thorize the court to do so. Ibid. 115. The court will not discharge an inquisition upon ex ijarle affidavits cuiiLiuaiutlu^ thu Unuiii|r of the jury, without any excuse being given for neglecting to produce the deponents as witnesses before the commissioners. IbUi. 116. On the petition of a lunatic to supersede thp commission and to be restored to his estate, on his recovery, the court will either order It to be re- ferred to a master, to take proof as to the allega- tions in the bill, and to examine the lunatic, if he thinks fit, and to report the jproof and his opinion thereon, or direct the lunatic himself to attend in court, to be examined by the chancellor. Be Hanks, 3 Johns. Ch. 5B7, 1: 719 117. Application of lunatic to be restored to his es- tate denied (1) because the petition was detective in being sworn to before the solicitor of the petitioner; (2) because the jurat did not state that the officer who swore the petitioner examined him as to the state of his mind, and that he believed him to be sane; (3) because the petitioner had been found a lunatic, and it did not appear that there bad been any change for the better. Be Cross, 2 Ch. Sent. 3, 5: 1079 118. Where the chancellor becomes satisfied that a Eerson who has been found to be a lunatic uijun an iquisitlon Issued out of the court for that purpose has so far recovered his reason as to be capable of disposing of his estate byw'llwith sense and .iudg- ment, he has the power to suspend the proceedings against such lunatic partially, ao as to enable him to make a will. _ „. „ Be Burr, 2 Barb. Ch. 208, 6: 616 S. 0. 6 Ch. Sent. 70, 5:1811 119. But the chancellor will direct such will to be made under the superintendence of some proper of- ficer of the court, in order to guard such a testator against the immediate exercise of any undue or Improperinfluenoe. lota. 120. Where the lunaf-y is satisfactorily established m the first mstance, and the opinion ot the court, after repeated applications for a discharge of the commit^e, remained unchanged, the trial of the question was directed to beattheexpense of the lu- natic or his friends, and not at the charge of his estate, which consisted of personal property onl5^ acquired by the industry and skill of his wife, and barely sufficient for the maintenance of herself and children and her husband. „ , „„ Be M'Clean, 6 Johns. Ch. «0, »: 178 Editorial Notes. Who are incompetent 1 : 895 Lunacy defined 1 : 358 Custody of lunatic 1 : 200 Jurisdiction over 1: 643, 3: 973, 3; 652, 800 over estates of 1:358, 424, 3: 115, 653, 800 management of estates of 5: 126, 666, 801 sale of real estate 1 : 358, 3: 1045 Contracts of persons of unsound mind 2: 972, 5: 206 when equity will not interfere 1:358, 2:853, 5:206 Inquisition as evidence of incapacity 2: 973 Enforcement of legal liability of 3: 969 notice of proceedings 1:358,3:760, 861, 5: 390 Inquisition; out of State 1:317, 4:756, 836 finding of jury 4:138,6:696 discretion of court 3; 760 Chancery may suspend operation of com- mission 5: 616 Feigned issue to try question 5:123 Committee; appointment of 4: 138, 886 power of 1 : 358 compensation of 1 ; 538 allowance of expenses to 4:767 Proceedings at law, after appointment of the committee, a contempt of court 2:972, 3:115, 799 Bill by committee to set aside act of lunatic 5:801 Suits at law against 1:424 lunatic as a party 1:434 INCONSISTENCY. See FiiEADnro, I. b. INCUMBRANCE. See Mortgage ; Specific PEBroRMAHCB, I. o. INDEPENDENT STATE. See INTEBNATIONAI, LAW. INDIANS. See also Ejectment, 1. 1. The Indians in this State have a right to the use, i)oB,fiji,ttaiou, uiju ucuuptiucy ot the lands of their re- spective ri servatious, which they have not volun- tarily ceded to the State, or granted to indivlduala by its permission. Stroiin v. Waterman, 11 Paige Oh. 607, 5: 850 S. 0. 5 Ch. Sent. 13, 5: 1168 2. The right of the Seneca Nation of Indians to the use and possession of the Cattaraugus Reserva- tion is in all the individuals composing the nation, residing on such reservation, in their collective ca- pacity. Ibid. 3. A bill ma V be filed by one or more of the Sen- eca Nation of Indians on behalf of themselves and other Indians interested, to protect their rights and to obtain compensation for the damages sus- tained by the numerous persons composing the na- tion by reason of the intrusion upon their lands b.: persons without authority. Jftiri 4. The Seneca Nation of Indians cannot sustain an action at law in the name of their tribe to recover the damages sustained by them by reason of tres- passes committed upon their reservation. Ibid. 5. The ultimate fee in the land embraced within Indian reservations is vested in the State or in its grantees, subject to the right of use and occupancy y the Indians untU they shall voluntarily relin- quish the same. Ibid. Editorial Notes. Indians ; reservation ; tenure of lands 5: 250 Protection of 5: 250 Nations or tribes are distinct communities 5:250 IN ESSE. See Child ; Wills, II. c, 2. INFANTS. I. Control oe Court; Disabilities II. CtrSTODT. III. Estate. , . _ . a. SaLe and Management of Property, b. Use for Support. 1344 INFANTS, I. rv. Actions. a. How Br(yught ; Effect of, b. Guardian ad Litem. 1. AppcylntmenU 2. Dutiex. Editobial Notes. See also Costs, I. d; Deed, 8; Evidb?jce, 119 ; Executors and Administrators, 3, 4, 57, 76 ; Habeas Corpus, 5-7 ; Husband and Wife, 14, 34, 136, 137 ; Injunction, 8 ; Judgment, II. d, 3: Mobtoaqe, 76 ; Partition, 17, 37. 108, 109, 117, 1Z2 ; Eevtvor, 20 ; Trusts, 281-283, 296 ; Writ akd Process, 28. I. Control of Court;; Disabilities. 1. Where the general guardian of an infant set- tles with the executors or personal representatives of the decedent for a legacy or distrioutive share of the estate due to his ward, the settlement is so far conclusive upon the infant when he arrives at full age as to throw upon him the burthen of show- ing that there was error in the account upon which such settlement was made. Dakin v. Demming, 6 Paige Ch. 95, 3: 913 2. Where a conveyance is directed to he made by infants in performance of an agreement entered into by their ancestor in his lifetime, who had stip- ulated to give a deed with full covenants to the purchaser, the court will not order the infants to «nter into personal covenants, but only to release and convey aU the title whereof their ancestors -died 86is6d Re Ellison, 5 Johns. Ch. 261, 1: 1076 3. The principal of the purchase money. In such uncanv.X>o5d,2PalgeCh.99, 2:839 b. Use for Support. 83. Application for an allowance out of the cap- ital of an infant's estate, for his maintenance, may be by petition without bill. Be Bostv)ich, i Johns. Ch. 100. 1: 778 84. Chancery will not allow maintenance on behalf ■of Infants out of their property, where they have any other sufttcient provision for their mainte- nance, or a right which can be enforced, to demand 4t from other sources. Be Kane, 2 Barb. Ch. 375, 6: 681 85. The court will not direct an allowance to the father of Infants, out of their estate, where he is of sufBcient ability to maintain and bring them up without it, in reference to their situation and pros- pects in life, having a due regard to the claims of others upon his bounty. Ibid. 86. The amount of the fortunes of the children, aa well as the situation, ability, and circumstances of the father, should be taken into consideration, by the court, in determining the question whether he shall have an allowance out of their property for their support during their minorities. Ibid. 87. It seems the proper rule is for the court to di- rect an inquiry as to the propriety ot allowing for past maintenance, where a special case is made, but not to direct such an inquiry as a matter of course, upon a mere petition snowing the inability ot the father to support his children, at the time such support was furnished them. Ibid. 88. Maintenance will be allowed out of the capi- tal of an Infant's estate, where the principal is small ; otherwise it must be out of the interest. Be Bostwlch, 4 Johns. Ch. 100, 1: 778 89. A parent may be allowed to be reimbursed out of the infant's estate, for past maintenance. Ibid. 90. Where a testator bequeathed an annuity to his widow duriug lUu uiiuority of his children, together with a distributive share of his estate after that period, in lieu ot dower, and for the further pur- pose and upon the express trust that she should take care of. educate, and maintain the children during their minorities,— Held, that the court was not au- thorized to order a further allowance to be made out of the infants' estates to the widow, for their support, until the fund bequeathed to her for that purpose was exhausted. Se Davisim, 6 Paige Ch. 136, 3: 929 91. Maintenance for infante cannot be allowed by the court of chancery out of a fund which, upon the happening of the event contemplated by the testator in the bequest of such fund, will not be- long to the infants, but to some other person. But where a fund is given absolutely to several infants as a class, with the benefit of survivorship if either of them dies before the time appointed for the distri- bution of the fund, as the chance of survivorship is equal, the court may allow maintenance out of the fund, for the benefit of the infants equally, while all who are interested therein continue to be minors. Ibid. 93. The court of chancery on a petition wiU giant maintenance to an infant out of his estate subject to the control of the court; but if a receiver be nec- essary to effect the object, it will not be directed except upon a bill filed. Bice V. Tonnele, 4 Sandf. Ch. 568, 7: 1212 93. An infant entitled under the will of her grand- father to an annuity, and, if th3 will were invalid, , entitled as his heir to one fourth of a very large es- tate; the probate and validity of the will being con- tested, and an active litigation pending thereon ; and she, in the mean time, requiring maintenance, filed a bill, praying that the same might be furnished out of the estate, and for a receiver to that end,— Held, that the bill was properly tiled, and that main- tenance should be allowed to her, not exceeding the annuity. Ibid. 94. The court of chancery, in applying the income of infants, endeavors to promote their permanent interest, welfare, and happiness, rather than to ac- cumulate a surplus. Be Burke, 4 Sandf. Ch. 617, 7: 1230 95. When their income is beyond their absolute wants, and their fortunes large, provision should be made for their having a home with their father, instead of their living at boarding-schools, although a much greater expense be incurred for the former. Ibid. 96. Where the fund was clear and the rights of the respective parties ascertained, the court directed, pending the account, a part of the moneys to be paid to the solicitor of infant plaintiffs, towards further defraying the past and future expenses of the suit; and the interest on the residue of the por- tion coming to such infants to be paid to their mother, for their necessary maintenance and edu- Metliodist Episcopal Church v. Jaques, 3 Johns. Ch. 1^ 1: 523 97. If the grandfather devises land to his grand- child, and directs the rents and jiroUts thereof to be applied by his executors to the education of such grandchild, the executors— not the guardian ap- 348 INFANTS. IV. a. pointed by the surrogate— are entitled to apply the rents and profits according to the direction of the will. FuXlerton v. Jaeltson, 5 Johns. Ch. 276, 1 : 1083 98. And the court will not, on a bill filed by the infant and his guardian, direct the executors to pay over the rents and profits to such guardian, but will leave them in the hands of the executors until the infant comes of age. ibid, 99. Where there is a fund in court belonging to in- fants, the chancellor, as the guaidiun and protector of their rights, may, in his discretion, upon a sum- mary application, order it to be applied for the Sayment of any just claim against the infants, r, it the claim is contested or is doubtful, he may require the claimant to establish his right by suit ecainst the infants or upon a reference to a master. Cassidy v. Vassidy, 1 Barb. Ch. 467, 6: 468 IV. Actions. 0. Haw Brought ; Efei)t of. 100. Infants must file their bills by prochein ami, and not by guardian^ Eoyt V. Hitton, 2 Bdw. Ch. 202, 6: 369 101. Where a suit is instituted in behalf of an infant by a prochein ami, the court, on a suggestion of itb being improperly instituted, will referit toamaster to inquire into the circumstances.and report wheth- er the suit is for the benefit of the infant. Garr v. Drake, 2 Johns. Ch. 542, 1: 488 102. Infants cannot, by their solicitor or counsel, petition the court to be relieved from the necessity of depositing the sum required by the rules of the court, on entering their appeal from a decree ; but must, as in all other cases, appear by their guardian or next fnend. Bradwdl v. Weeks, 1 Johns. Ch. 325, 1: 158 103. The Kevised Statutes have not devested the court of chancery of any of its powers as the gen- eral guardian of the persons and estates of infants ; neither do they prevent the chancellor, in court, from making an order for the appointment of a guardian or next friend, according to the former practice of the court. But where it can be done consistently with the forms of the court, and with- out great mconvenience and expense, the court will, in the exercise of its powers, conform to the spirit of the statutory provisions. Be Frits, 2 Paige Ch. 374, 8: 949 104. The Be vised Statutes do not, in terms, require a next friend to be appointed for an infant plain- tiff who joins with an adult, but it is as necessary in that case to have a next friend appointed as in the case of a sole plaintiff. Ibid. • 105. The provision which directs the oflBcer mak- ing appointment of a next friend to take security to the Infant in certain cases extends to cases where the infant sues jointly with others. Ibid. 106. Where a great number of infant legatees had a common Interest in the prosecution of a suit, the court, on the application of the guardians of some of the infants, in behalf of all the rest, appointed a next f liend to prosecute the suit in the names and for the benefit of all the infant legatees. Ibid, 107. An infant defendant, without regard to his answer, may make at the hearing any objection to the relief which the case discloses, whether it was apparent on the bill itself or comes out in tne testi- mony. Jones V. Weed, 4 Sandf. Ch. 208, 7: 1078- 108. An infant defendant does not lose his right to object to tliejurisaiciion of the court, at the hear- ing, upon the ground that the remedy is at law, al- though his guardian ad litem has omitted to raise sn^'h obieotinn in his Answer. Sowers v. Smith, 10 Paige Ch. 193, 4: 940 109. Infants cannot be made parties to a bill for the sake of discovery merely, as they do not answer on their oaths. Leggettv. Sellon, 3 VaigeCh. Si, 3:67 110. The answer of an infant, by his guardian, cannot be excepted to for InsufBciency. IStd_ HI. The answer of an infant defendant by his guardian ad lit em is not binding on him, and no de- cree can be made on Its admission of facts. Wright v. MilUr, 1 Sandf. Ch. 103, 7: 856 112. No decree can be made against infants upon the admissions of their guardian ad litem in the an- swer. Jomes V. James, i Paige Ch. 115, 3: 367" 113. The court will protect the rights of infant»- where they are mamfestly entitled to something, although their guardian ad litem neglects to claims it in their behalf. Stephens v. Tan Bwren, 1 Paige Ch. 479, 8: 782: 114. There can be no valid decree against an infant by default, or on his answer by his guuruiaii: Out the plaintiff must prove his demand in court or bo- fore a master; and the infant will have a day in court, after he comes of age, to show error in the- decree. Mm v. Dennis, 3 Johns. Ch. 367, 1 : 651 115. But if, instead of seeking a foreclosure of the - mortgage against tlie infant heir of the mortgagor, there is a decree for the sale of the mortgaged premises, the decree will bind the infant. ibid. 116. A sale is the most usual course, as being the- most beneficial to both parties. IIM... 117. But before a decree for the sale there must b6- a special report of a mastor, of the proof of the debt before him, of the amount due, and of what part, if less than the whole, of the mortgaged premises a sale will besufflclent to raise the amount of debt, and at the same time be most beneficial to the infants. IMd. 118. A complainant cannot, by any form of plead- ing, compel an infant to become a witness against himself. Bulkley v. Tarn. Wyck, 6 Paige Ch. 536, 3: 819- 119. Where an infant defendant was examined as a- witness against his own interest, by an adult code- fendant, his brother, under a common order and against the objection of the guardian ad litem, his deposition was suppressed. Moore v. Moore, 4 Sandf. Ch. 37, 7: 1014- 120. Such an examination should not be had with- out the special order of the court, made upon a f uIIj understanding of all the circumstances. ibid. 121. The coming of age of an infant party does not- abate the suit, nor dut.'tf it ruuaer a bUppimueuLUl bill necessary, unless bis interest in the subject of the suit is changed by thatcvent. Campbell v. Borwne, 5 Paige Ch. 34, 3: 615- 122. Where an infant defendant upon coming of. age neglects to appear by a suhcitor in the placu of his guardian, the complainant must apply for an order that he appoint a solicitor, as in cases of the death or removstl of the solicitor of a party. Ibid. 123. The citation of an infant should be served in the presence of his legal guardian, or of the person who has properly the actual care and custody of hisperson. Kellett V. Bathbun, 4 Paige Ch. 102, 3: 361 124. The citation should direct the infant to ap- pear according to law ; that is, by his guardian duly constituted. ibid. 125. A bUl against an infant, while he remains a- minor, is a bill for relief merely. And if the infant after he becomes of age applies and obtams leave to put in a new answer in person, it is proper to al- low the complainant to amend his bill so as to waive an answer on oath as to him. Stephemo7iv. SUphenson, 6 Paige Ch. 353, 3: 1017. 126. Where a bUl has been filed against an infant dL'teudant, and a general answer thereto has been put in by the guardian ad litem, the infant upon his arriving at full age,and before decree, is entitled. US a matter of right, to an order for leave to put in • a new answer, upon his showing to the satisfaction of the court that a new or further answer is neces- sary to protect his rights. ibid.^. 127. A decree against Infants, setting aside a con- veyance made lu trust for them, without giving them a day to show cause after they become of age, is erroneous; and the infants, on an original bill, may be relieved against such decree. Wright V. MUler, 1 Sandf. Ch. 103, 7: 856- 128. The answer of an infant defendant by his- guardlan ad litem is not binding upon him, and no decree can be made on its admission of facts. Where relief is sought against infants, the facts upon which it is to be founded must be proved. They cannot be taken by admission. ibid. 129. Where, in a decree against an infant defendant, permission is given to him to show cause against the decree within six months after he becomes of' INFANTS, IV. b, 1. 24»' age, he cannot at that period assail the decree in any mode he may choose. He must apply to the court tor its leave and direction as to the manner and the terms of showing cause: and if he file a bill of re- view without leave and without security, it will be p^eld V. TTiBiamiOTC, 4 Sandf . Ch. 613, 7:1838 130.It is the general rule of the court that an in- fant def endaot is to have six months, after coming of age, to show cause against a decree. And this must be done whenever his inheritance is bound, whether he is ^decreed to execute a conveyance or not, except in certain cases provided for by statute. Harris v. Touman, Hoff. Ch. 178, 6:1107 131. Where a deed was ordered to be canceled as fraudulent and void, on a bill for that purpose filed against the representatives of the grantee, and a Serpetual injunction granted against using the eea or record of it in evidence, the decree was de- clared binding on such of the defendants as were infants, unless, within six montiis after coming of age, they should show cause to the contrary, on be - ing served withprocess for that purpose. Biishnell v. Hhrford, 4 Johns. Ch. 300, 1: 848 132. Bill of foreclosure on cei-tain mortgages made by W E. Cross-bill, by C C, charging that W B, as her guardian od litem during her minority, insti- tuted a suit in the supreme court for the partition of these lands, of which slie was heiress, and obtained a judgment for a sale, and became himself the purchaser; and impeaching the judgment in partition as void for irregulai:ity ; and charging aU the proceedings of W E to be fraudulent, and that the other defendants claiming under him bad notice. Held, that whether this court can or can- not treat the judgment in partition as void for ir- regularity, still, as the proceedings of W E appear upon the whole case to oe a tissue of actual traud, his title is bad. Oalatian v. Erwin, Hopk. Ch. 48, 8: 338 13a W E mortgaged part of the lauds to K W and C W, and they assigned to the complainants in tlie original suit. W E also mortgaged to G, one of those complainants. Held, that if either the complain- ants, or B W and C W, the assignors to the com- plainants, were purchasers without notice and for valuable consideration, the complainant may be protected by that fact. Ibtd. 134. The right of the parol to demur is abolished, in our State by statute, in all cases of descent or de- vise. The debt of the ancestor may be levied by execution,with a respite, in case of infancy, for one year. Harris v. rouman, Hoff. Ch. 178, 6: 1107 135. Distinction between the demurring of the parol, and the giving a day to an infant to show cause. Ibid. 136. A suit may be commenced in the name of an infant without his linowledge or consent. The court, however, on a proper application, will refer it to a master to ascertain whetner such suit is for the benefit of the infant, and, if the master report that it is not for his benefit, will stay the proceed- ings. Fulton V. Bosevelt, 1 Paige Ch. 178, 2: 607 137. Where the defendant, aninnlceeper, persisted in harboring an infant, and furnishing him with supplies against the will, and contrary to the ex- press directions, of his guardian, who was endeavor- ing to reform his dissipated habits, the court of chancery would not permit the defendant to retain the fruits ot his improper conduct. And the de- fendant having obtained a judgment bond from the infant during his minority, and another a few days after he became of age, but which was overreached by an inquisition finding him incompetent to con- tract on account of habitual drunkenness, both judgments were decreed to be set aside and can- celed. L^Amourevx v. Crosby, 2 Paige Ch. 432, 2: 978 b. Ovxirdian ad lAtem. 1. Appointment. 138.1f an infant who is cited before asurrogate has no general guardian, or if the general guardian has an interest adverse to the rights of the infant, a guardian ad litem must be appointed by the sur- rogate. KeUett v. Bathbim, 4 Paige Ch. 103, 3: 361 139. No proceedings can be had against an infant after service of the subpoena, until a guardian has been appointed and has filed the requisite security, Larkin v. Marm, Z Paige Ch. 27, »: 79» 140. A guardian ot poor infants must be first ap- pointed to defend a suit, before any application can. be made to the court for the purpose of their suing as paupers. Be Byrne, 1 Edw. Ch. 41, 6: 68- 141. Where creditors apply for payment of their debts out of a tund, and ouudren arc interested iu it, a guardian ad litem will be appointed for them to appear before the master to scrutinize the credi- tors' claims and protect their rights. Be Howe, 2 Edw. Ch. 484, 6: 475 142.Upon application to appoint a general guardian lOr an infant, the surrogate may appomta guardian ad (item to prevent Inproper uppuiutmeut or tlie taking of insufficient security. Kellinger v. Boe, 7 Paige Ch. 362, 4: 189' 143. Upon appeal from a decision of the surrogate refusing to appoint appellant general guardian of an infant, the chancellor will appoint a guardian ad litem. jbid 144. Upon appeal from the surrogate to the circui t judge iu reJation to the probate of a will of personal estate, if either of the respoudents is an infant, the circuit judge should appoint a guardian ad idem to prn+nrt. his rip-hts on tnf* appeal. Chaffee v. Baptist Missionary Conv. 10 Paige Ch.. 85, 4: 896 145. Where, before fllingthe petition of appeal, re- spondent assigns his interest, and dies, if the assign- ees are infants, a guardian ad litem must be ap- pointed before proceedings upon the appeal can be continued. BenvAck v. Cooper, 10 Paige Ch. 303, 4: 98 7 146. Under the provisions of the Act of 1883 au- thoHzing the appointment of the registers and clerlis guardians ad litem of infant defendants in partition suits, the court of chancery may apppoint the register or clerk guardian ad litem of an infant defendant who is an absentee, without security,, and without any notice of the application to the infant, except the general notice for the absentee to appear and answer. Minor v. Belts, 7 Paige Ch. 596, 4: 89!^ 147. No one but a register or clerk can be appointed the guardian of an infant defendant, in a partition suit, without giving security for the faithful per- formance of his trust. Ibid. 148. In the appointment of a guardian od Kfcm. for an infant delendant, the perstjn should be se- lected who will be most likely to protect the rights of the infant. And where the father or other nat- ural guardian of the infant defendant is complain- ant in the suit, the next nearest relative of the in- fant is entitled to be heard on the selection of a proper gunrdian lul litem to defnnd the suit. Grant v.Van Sclioonhoven, 9 Paige Ch. 255, 4: 690- S. C. 1 Ch. Sent. 59, 5: 1068 149. To authorize the entry of an order for the ap- poiiiEment of a guardian ou /.(t*//! ot an infant ue- fendant, upon the certificate of a vice-chancellor or special master, under the provisions of the 146th Kule. the petition must distinctly show that tlie in- fant has been served with process, or that he has been proceeded against as an absentee, and that an order for his appearance has been obtained and served or published. Ihid. 150. The court will not appoint a guardian od litem- for an infant defendant, upon the nomination of the complainant. Knickerbaeher v. De Freest, 2 Paige Ch. 304, Z: 918 151. When the complainant applies for the ap- pointment of a guardian for an infant defendant, under the last clause of the 144th Kule, he will be entitled to an order appointing such person guar- dian as shall then be designated by the court.unless the infant, within ten days after service of a copy of such order, shall himself procure a guardian to- be appointed. Ibid. 152. A copy of such order may be served person- ally upon the infant if he is of the age of four- teen years or upwards, und if he is under that age,, then upon his general guardian, or his relative, friend, or other person with whom he resides. Ibid., 153. Upon the expiration of the ten days, upon filing an afSdavit of the service of the order, audi that no notice has been received of the appoint- ment of a guardian ad Ktem by the infant, the com- :250 INFANTS, IV. b, 2. plainant will be entitled to an order of course that 'ihel has adequate rtinedy Stevens v. Beekman, 1 Johns. Ch. »1S, i: 155 58. Though it seems an injunction may be allowed in a case of trespass under very special circum- stances. Ibid. 59. The court does not interfere to pre vent a mere tnsimss, unless the complainant has been in the prijvioiis undisturbed enjoyment of the property, under claim of right, or where, from the irresponsi- bility of the defendants, or otherwise, the complain- ant could not obtain relief at law. Hart V. Mayor, etc. of Albany, 3 Paige Ch. 313' 3: 121 60. An injunction will lie to restrain trespasses in order to quiet the possession, or where there is dan- ger of irreparable mischief, or the value of the in- eritance is put in jeopardy. N. F. Printing & Dyeing Establishment v. Fitch. 1 Paige Ch. 97, 2: 574 61. Injunctions'are granted to prevent trespasses, as well as to stay waste, where tne mischief would be irreparable, and to prevent a multiplicity of suits. Livingston v. lAvingston, 6 Johns. Ch. 497, 2: 196 63. As, where there was a claim by the defendant to estovers in the land of the plaintiff, and there had been an action at law decided in favor of the plaintiff, and another suit was pending on the same question. lbid_ 63. An injunction is not granted to restrain a mere trespass, where the injury is not irreparable and destructive to the plaintiff's estate, but is sus- ceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfac- tion in the ordinary course of law. Jerome v. Boss, 7 Johns. Ch. 315, 2: 306 64. It must be a strong and peculiar case of tres- rinos going to the destruction of the inheritance, or irhere the mischief is remediless, to entitle the p.ni,y to the interference of chancery by injunc- tion. Ibid. 65. The canal commissioners being authorized by the Act (Sess. 44, chap. 78) to complete the look and dam cominenced in the Hudson Biver between Wa- terlord and Troy, " in order to connect the Cham- plain Canal with sloop navigation," the lock and dam became connected with, and part of, the canal; tmd the commissioners therefore, under the Act (Sess. 40, chap. 3C2), may lawfully enter on land neap the Hudson Biver, lor the purpose of breaking up and taking away stones from a ledge of rocks in the side of a hilli60 rods from the river, and which stones were necessary for filling up and completing the dam in the river, by which the Champlain Canal was to be completed, etc.; and this court refused to grant an injunction to restrain the commissioners and their agents from entering on the land, break- ing up and currying away stones, etc., for the dam, there being no unnecessary damage to the party. Ibid. e. Eminent Domain; Construction and Operation of Bailroads. 66. An injunction should not be granted ex parte 254 INJUNCTION, I. f, g. to stay public improvements, but an order to show cause should be first entered. * Vandervoart v. Astoria, 1 Ch. Sent. 50, 5: 1066 67. Where a railroad corporation is authorized by statute to construct its road upon a particular route, a mere temporary injury to a canal which has been previously authorized and constructed, which can be compensated in damages, is not sufacient to justify the granting of an injunction to stop the progress of the work. Hudson £ D. Canal Co. v. New York & E. B. Co. 9 Paige Ch. 383, 4: 718 68. But if the railroad corporation is constructing its railway upon such route without authority, and such construction will probably injure the works of the canal company, an injunction wUl be granted to restrain the construction of the railway upon the route of the canal. iStd. 69. It is no objection to the construction of a rail- road on the route of a canal that the road cannot be traversed by steam engines, after it is completed, without frightening the horses upon the towing- path of the canal, so as to destroy the navigation of such canal; but if the railroad company at- tempts to use steam engines upon the road, instead of horses, after the road is completed, the remedy of the canal company is to apply for an injunction to restrain the use of such engines. ibid, 70. If a railroad corporation which is authorized by statute to select a route for the road, and to construct the road thereon, cannot construct its road without eminent danger to the works of a canal company previously constructed under a similar authority from the Legislature, the railroad company will be restrained by injunction from constructing its road upon that route. Ibid. t. Nuisance; Purpresture; Water Bights. 71. The court of chancery will restrain by injunc- tion the further continuance of a pri vate nuisance, in behalf of one whose adjacent tenement or trade Is injured In its enjoyment or impaired in its advan- tages by such nuisance, where there Is no adequate remedy at law. CHlbeH V. Mickle, 4 Sandf. Ch. 357, 7: 1132 72. The occupati-n of a building in a city as * slaughter-house may be restrained by injunction. Catlinv. Valentine, 9 Paige Ch. 575, 4: 881 73. The court of chancery has jurisdiction to inter- fere by Injunction to prevent the erection ot a nuisance which will produce serious or Irreparable damage. And if the thing sought to be prohibited is clearly a nuisance, and the complainant's right is not doubted, the court will grant an injunction without waiting the result of a trial at law. Mnhawh Bruige Co. v. Utiea & S. B. Co. 6 Paige Ch. 551, 3: 1099 li. But where the thing sought to be restrained is not in itself a nuisance, but only somethins: which may, according to circumstances, prove to be so, the court will not interfere until the matter has been tried at law. Ibid, 75. Where the magnitude of the injury to be areaded from the noAioud erection is gTeal, and the risit so imminent that no prudent man would think of incurring it, the court will not refuse its aid for the protection of the complainant's riehts, by in- junction, on the ground of a bare possibility that the anticipated injury from such erection may not happen. Ihii. 76. Chancery has jurisdiction to restrain any pur- presture, or unauthorized appropriation of the public properly lu private use6, which may amount to a public nuisance, or may injuriously affect or endanger the public interest; and, where public offi- cers who have charge of public works believe that a contemplated encroachment will prove injurious to such woi'ks, private persons should not be per- mitted to maise such encroachment contrary to law. upon a mere opinion, although supported by nntli tliHt- the encroachment would not be injurious to the public. Attomey-Qenerdl v. Cohoes Company, 6 Paige Ch. 133, 3; 988 77. Where lands are dedicated to the use of the Inhabitants of a city or incorporated village for a public SQuare, a bill may be Bled in the name of the corporation to restrain the erection of a nuisance thereon, or to protect the equitable right of the corporators to the use of the public square as such Trustees of Watertovm v. Cowen, i Paige Ch. 510, 3:636 78. This court has a concurrent jurisdiction with courts of law, in a caee of private nuisance, hj diverting or obstructing an ancient watercourse, and may issue an injunction to prevent the inter- ruption, though the plaintiff has not established hi» Gardner v. TruMees of Newhurgh, 2 Johns. Ch, 162. 1: 332 79. Where the complainants were the several owners of diBereut mills situated upon the same stream, which mills depended upon a particular use of the waters of a pond at the head of the stream for their running, and such millowners had been in the uninterrupted use and enjoyment of the water in a particular manner for more than twenty years,— Held, that the court of chancery had jurisdiction to establish their rightto such use of the waters of the pond, and to restrain the defendant from disturbing thorn in such enjovment. BeVcnap v. Trimble, 3 Paige Ch. 577, 3: 281 80. Where different millowners have a common right to an artificial use of water for their respec- tive mills, the court of chancery has jurisdiction go to regulate the common use of the water as to pre- serve the rights of each. fyid. 81. And where hydraulic works are errected on both banks, the owners of the works are each enti- tled to an equal share of the water. If the owner of the mills on either side attempts to deprive the other of the use of his share of the water, of which he has been in the quiet enjoyment, and thuato de- stroy his mills, a preliminai'y injunction will be gr.Tnted, as the injury miirht be irreparable. Arthur v. Case, 1 Paige Ch. 447, 2: 710 82. An injunction will not be granted to restrain the defendant from diverting the water from the plaintiff's mill, by means of a tunnel dug five years ago, until the plaintiff has first established his right at law Beid V. CHgord, 6 Johns. Ch. 19, 2: 40 g. Streets and Highways. 83. An injunction to restrain thp oorporation of the city of New York from opening a street wlU not be granted, unless it is shown by the complain- ant's bill that the proceedings are void; or that there is some particular act of fraud, or prima facie evl- ilence of corruption on the part of the corporation, 'listinctly stated in the bill and positively sworn to • I'hc complainant. Champlin v. Mayor, etc. of N w York, 3 Paige Ch 573, 8: 279 84. Where land has been tal en by the coi-poratioo of the Pity of New York for the purpose of opening a street, and the report of the commissioners of es- timate and assessment has been confirmed by the supreme court, the court of chancery has no juris- diction to restrain the corporation from opening I lie street, unless the proceedings are void, or there I'ns been fraud or corruption on the part of the cor- 'lation. Ibid. 85. Where the proceedings of the common coun- cil of New York in relation to the openini; ot a street are void in law, and such nullity appears upon the face of the proceedings themselves, a sale of the complainant's property under such proceed- ings wiU not cast such a cloud upon his title as to authorize the court of chancery to interfere by in- junction to stay the sale. Wiggln v. New York, 9 Paige Ch. 16, 4: 591 86. It is no ground for an injunction to restrain the street commissioner from making an improve- ment, ordered to be made in his ward, that his con- tracts for labor and materials have not been ratified by the trustees. For if the contracts are invalid for that reason, the inhabitants of the village will not be liable for the pxpenpe of the improvement. Seneca Falls v. Matthews, 9 Paige 504, 4: 793 87. Injunction granted to restrain commissioner^ from proceeding to sell lands to pay the sums as- sessed, under the Act to Amend the Act Entitled " An 'Act to Incorporate the Ulster and Orange Branch Turnpike Company " (Sess. 40, chap. 213), for making the road, so as to give the owners of the lands an opportunity to complete the road them- selves through their own lands, within S 2 of the Act, according to its true construction. Couch V. Utster & Orange Tump. Co. 4 Johns. Ch. 26, 1-, 752 88. Where no commissioners of estimate and assess- ment have been appointed, under the Act relative to opening, altering, ete., the streets In the city of INJUNCTION, I. h— 1, 3. 255> New York' (Seas. 36, chap. 86, S 178), no rights be- come vested, either iu the corporation of the city or. in the owners of the property to be affected by the proposed improvemenfs, in consequence of the proceedings under the Act, so as to prevent the corporation, on the one band, from abandoning their proposed plan of improvement, or the owners of the property, on the other hand, from using and improving it in any manner they may think fit. An injunction, therefore, will not be granted, at the instance of the corporation, to restrain the owners of the property from erecting buildings on the ground, or using it, at their discretion. New York v. Maves, 6 Johns. Ch. 46, 9: 50 89. An injimction will be granted to restrain a de- fendant from obstructing a street in the city of New York by building a house thereon, it being not only a public nuisance, but producing a special injury to the plaintiffs, by affecting the enjoyment of their property in the vicinity, and the value of it. Coming v. Lowerre, 6 Johns. Ch. 439, «: 1 78 h. Corporations ; Municipal Corporations ; Officers. 90. Jt seems that chancery will not restrain per- sons claiming to be theriglitful trustees of a cor- poration from acting as such, upon the ground that they have not been duly elected. Mickles v. Rochester City Bank, 11 Paige Ch. 118, 5: 77 9L In a proceeding to compel the dissolution of a corporation, on the ground of the suspeusioii of its ordinary business, the court has power to grant an injunction and a receiver. Be Jackson Marine Ins. Co. 4 Sandf . Ch. 559, 7: 1808 92. On filing a bill against an incorporated bank- ing company,charging the defendants with a fraud- ulent abuse of their trust, in the election of direc- tors,an injunction will not be granted in limine,be- fore answer, to restrain the new directors, whose election was colorable in law, from the exercise of their powers; nor will commissioners or receivers be appointed to take charge of the affairs of the bank, there being no impending mischief, irrepara- ble in case of delay. Ogden v. Kip, 6 Johns. Ch. 160, 8:86 93. Where commissioners appointed under the authority of an Act of the Legislature, to drain a swamp, exceed their authority, to the injury of the plaintiff, a perpetual injunction will be granted, al- tboueh there has been no trial at law ; the plaintiff's light to the land bemg undisnuted. Belfcnap V. Bcltoiap, 2 Johns. Ch. 463, 1:453 94. Injunction to stay suit at law against an of- ficer of this court must be applied for promptly. Mackay v. Blackelt, 9 Paige Ch. 437, 4: 765 8. C. 2 Ch. Sent. 2, 6: 1079 t Concerning Legal Proceedings, 1. Qeneral Bules. See also Bill of Pbace. 95. Proceedings in chancery will not be restrained by injunction issuing out of chancery upon a new bill, whether filed by a party, privy, or stranger to the original suit. Lane v. Clark, Clarke Ch. 309, 7: 188 96. It is not usual for this court to grant an in- junction to re6Lrain actions In the federal courts. but leave a party to apply there to stay them until the equitable relief is granted here— confirming the case of Schuyler v. Peliseier, 3 E. 191. Coster V. Oriswold, i Edw. Ch. 364, 6: 90 7 97. The court of chancery will not grant an in- junction to protect a party against a multiplicity of suits, until his right to such protection has been established by a successful defense at law in some of the suits. West V. New York, 10 Paige Ch. 539, *: 1081 98. To entitle complainant to a preliminary in- junction to stay the proceedings in a court u£ law, where he comes into chancery for relief upon the final hearing of his cause instead of making his de- fense in the suit commenced against him at law, he must show by his bill that some injustice would be done him, or that he would be deprived of some le- ral or equitable right if the suit at law was contin- "%IitcJien V. OakUy, 7 Paige Ch. 68, 4: 63 99. Where a complainant has a perfect defense at law to a suit commenced against him there, he 1» not entitled to the special interference of the court of chancery, by injunction, to restrain the proceed- ings at law previous to a decree in the suit instituted, in chancery. New York Dry Dock Co. v. American L. Ins. & T.. Co. 11 Paige Ch. 384, 5: 171 100. The mere neglect of the defendant in the suit . in chancery to oujeet lo the jurlbUiction of the court will not entitle the complainant to a prelim- inary injunction to restrain the proceedings at law,, and thus make it the duty of the court of chancery to assume the exclusive jurisdiction of the subject- matter of the suit. • Ibid. 101. When a final decree Is made in the suit \a> chancery, the court by injunction may restrain any proceedings at law which are inconsistent with the rights of the parties as established by such decree,, and may Insert a clause in the decree to that effect. Jfjid. 102. The court of chancery will not, in a case of concurrent jurisdiction, grant an Injunction for the mere purpose of transferring the jurisdiction from a court of law, where no discovery is necessary, or after the defendant has fully answered the oom- nlainant's bill. . Orane v. Bunnell, 10 Paige Ch. 333, 4: 99»- 103. Where a defendant in an action at law has not used due diligence in making hisdelense,oiiu apply- ing to this court for a discovery to assist his defense at law, if necessary, he cannot, after a verdict against him, obtain the aid of this court to stay the proceeainire at law. or to have a new trial. Barker v. Elkins, 1 Johns. Ch. 465, 1 : 810- 104. Upon a bill of discovery inaidof theprosecu- Ilon of a suit at law, an ex parte injunction ought not to be granted where no fact is positively sworn to as being within the knowledge of the defendant, which, if proved, would defeat the defense in tha suit at law, and enable the plaintiff to recover in Burgess v. Smith, 2 Barb. Ch. 276, 5: 64* 105. An inj unction will not be granted to restrain ■ a party from instituting proceedings in equity f u:- an account, etc., where the complainant has an equitable defense to such proceedings, which ho can set up in his answer. Hall V. Fisher, 1 Barb. Ch. 53, S: 896- 106. An original bill cannot be sustained either by the parties or privies to a former suit for an in- junction to restrain proceedings under a decree in Dyckmam v. Kemocham, 2 Paige Ch. 26, 8: 798 2. Suits by Creditors. 107. After a creditor has come in under a decree for the distribution of the effects of an insolvent corpo- ration he may be restrained from proceeding at law for the recovery of his claim. BeCitl/Bonfto/Bii/aZo,10PaigeCh.378, 4: 1019 108. An injunction may be granted to restrain a suit at law tor the purpose of gaining a prefer- ence, where the property has been devised in trust to pay debts and distribute the residue. Bemom V. ie Boa, 4 Johns. Ch. 651, 1:969 109.Upon a bill flUed to declare the dissolution of a corporation, the complainant may apply for an In- junction to restrain creditors from proceeding at law to obtain satisfaction of their debts, and to al- low them to come in and make themselves parties to his suit. Mickles v. Rochester City Bank, 11 Paige Ch. 118. 5: 77 110. The mere fact that the whole amount due from any particular stockholder for his stock may not ultimately be wanted for the purpose of paying the debts of an insolvent corporation, if all the- other solvent stockholders should pay their rata- ble proportions according to the amount of their stock, will not authorize the particular stockholder to enjoin the receiver from proceeding to enforce tha payment of the balance due from such stock- holder, in the first instance. Pentz V. Hawley, 1 Barb. Ch. 122, 5: 383 111. After a final decree had been made for the ad- [ninisLratiou of a fund in the hands of executors, etc., for tlie benefit of all creditors who have a claim upon such fund, the court may restrain the credi- tors from proceeding, at law. Be City Bank of Buffalo, 10 Paige Ch. 378, 4: 10 J »■ 3. Defense of Uswry. 112. On a bill for discovery on a charge of usury :256 INJUNCTION, I. i. 4. 5. jon Injunction will not be granted to stay proceed- ings at law on tbe noteoi usurious contract, unless the plaintiff tenders or brings into court the money sactuahy lent and the lawf ulinterest thereon. Rogers v. Bathbun , 1 Johns. Ch. 367, 1 : 1 74 Tupper V. Powell, 1 Johns. Ch. 439, 1: 808 113. Where an injunction bill is flUed to stay the collection of a judgment upon the ground that it is usurious, the court will not allow to the com- plainant the favor of substituting a bond with sure- ties, instead of bringing tbe money into court, upon granting the injunction, unless he offers in his bill to pay the amount due for principal and legal in- terest, and waive the forfeiture. Oee V. Huuinviorth, 10 Paige Ch. 297, 4: 984 114. Although there may be a defense to an action at law in a matter ot usury, yet a bill will hold to - compel the giving up of securities left as collateral ■security for the usurious debt and an injunction will be a consequence to stay the action, Peters v. Mortimer, i Edw. Ch. 279, 6: 878 115. That a mortgage Is usurious and is a cloud ■ upon the title of tlie moi i^f agor will not entitle him to an injunction to prevent the mortgagee from trying the question of usury before a jury in a suit ■ at law upon the bond, unless a discovery is neces- ■ sary, or some other obstacle exists to the making • of the defense at law. Hartgon v. Davenport, 2 Barb. Ch. 77, 6: 563 S. 0. 6 Ch. Sent. K, 3: 1311 4. Suit on Award ; AUachment ; IHstress. 116. A party is not entitled to an injunction to stay proceedings in a suit at law upon an award, on the ground that the award was obtained by the fraud and corruption of the arbitrators, or that there never was any submission to them as arbi- trators. Snediker v. Pearson, 2 Barb. Ch. 107, 6: 675 117. The defendant in such a case has a perfect de- fense at law to the suit upon the alleged award. llyld. llS.This court will not grant an injunction to stay ..an action at law on an award, on tue ground th.,' the plaintiff was surprised by tbe principal witness for the defendants swearing falsely before the ar- bitrators, and that he could have proved tbe false- hood of the testimony if the arbitrators would have - adjourned the h ^aring fur chat purpose, which they refused to do, hough requested by the plaintiff, who ottered to emarge the time of making the Woodworth v. Tan Buskerk, 1 Johns. Ch. 432, 1:199 119. A court of chancery cannot enjoin the trus- tees of the property of an abscouding,concea]ed, or nonresident debtor from proceeding under an at- tachment against such property. Suyler v. Westervelt, 7 Paige Ch. 155, 4: 104 120. The court of chancery has jurisdiction to re- -straln an illegal distress, and will award a perpetual injunction on payment of the rent due to the lessor, in a case where such rent has been tendered before - any distress warrant issued, and the demised prem- ises are underlet to numerous tenants whose pos- session wiU be disturbed and their goods subjected to a levy by such wrongful distresa Coit V. Ham, 1 Sandf. Ch. 1, 7: 815 131. Where a lessee was evicted upon a title par- amount to that of the lessor, and the lessor after the eviction of the tenant sued him at law for the recovery of the rent reserved in the lease,— BeW, that the mere fact of the removal of tbe lessor to . another State, without any allegation that he was insolvent or irresponsible, was not of itself suffi- cient to authorize the tenant to file a bill in this court for an injunction to restrain the proceeding at law to collect the rent, and to obtain an offset ox unliquidated damages arising from a breach of covenant of warranty contained in the lease. Tone v. Brace, 8 Paige Ch. 597, 4: 557 6. mscettanectis Cages. 122.it seems that this court wUl not sustain a bill of • discovery and an injunction, merely to procun- -«uch admissions by the party as might be used in mitigation of damages in an action of trespass a< Jaw, unless, perhatw. in verv special cases. Gelston V. Bbj/t, 1 Johns. Ch. 543, 1:840 123. In injunction causes, where the title at taw is admitted, or no discovery is sought for to aid a defense at law, an injunction will be granted upon terms only so as to leave tbe party to proceed to trial and judgment at law. Ham V. Schuyler, 2 Johii8.Ch. 140, 1: 323 124. If a nominal plaintiff In an action at law. hut wno baa no real interest in tbe suit. Is the only wit' ness by whom the defendant can establish bis de- fense, the defendant may file a bill in chancery against the real plaintiff, to restrain the proceeding at law, and to have tbe controversy settled In thit court, where such nominal plaintiff may be ez> amined as a witness. Norton v. Woods, 5 Paige Ch. 249, 3: 705 125. Where, on a sale of land, mills, etc., in the pos- session of the defendants, under an execuuon against them, the deed executed by the sheriff, by mistake, did not include the whole premises ad- vertised and sold, the sheriff having taken the de- scription from an original title deed for seventy-two acres, without adverting to subsequent convey- ances of some small parcels adjoining the original premises, the defendants and all parties supposing the sheriff 'a deed included the whole, and the pur- chaser haying bid and paid a price accordingly,— De- creed, that the defendants be perpetually 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 purchaser : and that they execute to the purchaser a release of all their right and title to the same. De Beimer v. CcmUllon, 4 Johns. Ch. 85, 1: 778 128. Where purchasers at auction of a title repre- sented to be good executed their mortgages there- for, and subsequently found tbe title to be defective and filed a bill to enjoin tbe collection of the mort- gages, the court would grant them no relief there- on, inasmuch as they had not been evicted or dis- turbed in their possession, but left them to their remedy on the covenants in their deeds. QrifflOi V. KempsluM, Clarke Ch. 571, 7: 803 127. Xo injunction should be granted, in case of a mistake iu cumputaliou made by the partyredeem- iug from an execution sale, in consequence of which a short payment is made, to restrain a suit at law to compel the redeeming party to account for and pay over to the purchaser the rents and profits of the premises sold, without an allegation in the bill showing that the defense of the complainant at law is imperfect or doubtful. HaU V. Fisher, 1 Barb. Ch. 53, 6: 896 128. Where a hill was filed against the committee of a lunatic, to correct an alleged error in the amount of a mortgage taken by the committee upon the sale, of the lunatic's estate under an order of a vice-chancellor, and such bill was dismissed upon the merits; and where the mortgagor had ap- pealed from the decision, which app^ was still pending,— the chancellor refused to grant an injunc- tion to restrain the committee from proceeding to foreclose the mortgage, under the statute. Outtrin V. agaves, 1 Barb. Ch. 49, 5: 895 129. After the court of chancery has decreed an ac- count by the executors for the benefit of all per- sons interested in a decedent's estate, upon a proper application it will grant an injunction as a matfter of course to stay all persons from proceeding for an account before the surrogate, and to compel them to come in and establish their claims under the dpcree. Bogers v. King, 8 Paige Ch. 210, 4: 408 130. Where a deed was ordered to be canceled aa fraudulent and void, the defendants and all persons claiming under it were perpetually enjoined from using the record of it as evidence of title. Bushnell v. Harford, 4 Johns. Ch. 301, 1 : 848 131. Where a number of persons claiming to have a title to property which was in litigation entered into an agreement and severally advanced money to carry on tbe litigation, and some of them after- wards brought suits at law to recover back the moneys so paid, the court refused to sustain an in- junction to stay the pronpnrlinQW Ht law. Teller v. Van Dewsen, 3 Paige Ch. 33, 3; 46 132. An Injunction ought not to be granted to stay a party from making a summary application to tbe supreme court to compel an attorney of that court to pay over moneys which the applicant alleges to have been received by the compuinant for Ms use in the character of an attorney Saxton V. Wyckof, 6 Paige Ch. 182, 3: 947 133. Where the holder of a note has, without the INJUNCTION, I. i, 6. consent ol the surety, and for a valuable oonsidera- 'tion, extended the time of payment of the note, he will be perpetually enjoined from oolleotingr the mote from the surety. MiOer V. McCan, 7 Falge Ch. 451, 4: !Sa7 1^- Where P was induced, by the representation 'Of R that he had discovered a valuable coal mine on the bank of the Ohio River, to enter into a con- tract for the purchase of a tract of land, stated by .R to embrace the mine; and, besides paying to iR $4,400, F covenanted to pay liim *i,ouO an- nually, for twenty years; but which annuity ■was to cense if, after the mine was faithfully worked by F, it should not produce at least 12,000 ■ chaldrons, etc., and the land w^ accordingly con- veyed by K to F,— it appearing that there was, in tact, no ccal mine within the bouuclarles of tho land convey c;!, though there was coal adjoining it Tin the bed of the river, which was navigable, deep, -and rapid ; but the working of the mine, tf prac- 'ticable, would be hazardous, expensive, and un- profitable,— the contract on the part of F was held to be founded In mistake and misrepresentation; iand R was perpetually enjoined from bringing any suit against i' to recover the annuity so agreed to ■bp Tinid h^ra. DcOe v. Roosevelt, 5 Johns. Ch. 174, 1: 1047 6. Enforcement of Judgment. 135. An injunction will not be issued to stay pro- -ceedings under a bill or decree of this court, wheth- er the application is made by parties, privies, or a stranger to the original suit. d?he proper mode is to apply by petition in the original suit, for such an -order as the case of the applicant will entitle him to. Smith V. American L. Ins. & T. Co. Clarke Ch. 307, 7: 187 136. Chancery will not relieve against a judgment at law, unless the defendant was ignorant of the fact in question pending the suit, or it could not be re- •5eived as a defense. Simpson v. Hart, 1 Johns. Ch. 98, 1: 73 Larmng v. 'Eddy, 1 Johns. Ch. 49, 1: 55 137. Relief will not be granted for the purpose of -a new trial at law, where the party lost nis oppor- tunity of defense by his own negligence. Dodge v. Sbrong, Z Johns. Ch. 228, 1:357 138. Where a rule for a new trial was granted by the supreme court, on conditions which the party failed to perform within the time prescribed by the rule, this court refused its aid, it not appearir j that the failure arose Irom the act of the opposite party, or from unavoidable necessity. Ibid. 139. After the judgment creditor has voluntarily -discharged the acceptors ot the dratt upun whtoii the judgment was recovered, the indorser will be entitled to a perpetual injunction restrn ling the assignee of the Judgment from collecting the same -against him. Dovglass V. White, 3 Barb. Ch. 621, 5: 1033 140. An agreement on the part of a creditor to collect the money ratably of the several parties to a note, on their giving a bond and Judgment for the amount, was enforced by enjoining ml further proceeding on the Judgment against the plaintiff. -on his paying into court his ratable proportion, etc. Briggs v. Lajw, 4 Johns. Ch. 22, 1: 750 141. Where a court of common law, after a full consideration of all the circumstances of the case, refused to allow two Judgments to be set oft, this court refused to sustain a biU filed for an injunction and a set-off. Simpson v. Hart. 1 Johns. Ch. 91, 1: 70 142. An in junction will not be granted to stay pro- fh them. IMd. 181. Chancery assumes jurisdiction to restrain the publication of private letters on no other principle and upon no broader ground than that of copy- right or literary production or of a property in the paper on which they are written. It will not exer- cise the power to prevent the publication of private letters of business on the ground of oopy-right or of literary property when they possess no attribute of literary composition; nor because they were wri'*en in confidence and the publication might wound the writer's feelings. Wetmore v. Scmell, 3 Edw. Ch. 515, 6:745 n. Franchise; Abuse or Intringement of. 182. An injunction will not be granted to prevent B party from using a franchise which he claims uc b^onging to him, until the one disputing his right has established his own oxclusive right thereto. MeadB v. Wandea, i Ch. Sent. 14, 5: 1139 183. Where a party is in the actual possession of an exclusive privilege under color and claim of title, an injuncfion will not be granted to restrain him from the exercise of his privilege, or the use of the means provided by law for its protection; especial- ly in favor of a party who seta up no particular right of his own, but merely denies the privilege of the other party. Lansing v. North River Steamboat Co. 7 Johns. Ch. 162, a: »5S 184. An injunction will be granted to secure to a party the enjoyment of a privilege conferred by statute, of which he is in the actual possession, and when his legal title is not nut in rlou nt. Groton Tump. Co. v. Byder, 1 Johns. Ch. 611, 1: ans 185. As, where a turnpike company, incorporated wiDh the exclusive pnsrllege of erecting toUgates and receiving toll, had duly opened and established the road, with gates, etc.; and certain persons, with a view to avoid the payment of toll, opened a by- road near the turnpike, and kept it open at their own expense, for the use of the public, by which travelei-8 were enabled to avoid passifag through the gate and paying toil to the plaintiffs,— the court granted a perpetual injunction to prevent the defendants from using, or allowing others to use, such road, and ordered the same to be shut iiri. Itdd. 186. This court will grant and continue an injunc- tion to enforce the statutes of this State giving an exclusive right to certain persons to naiagate the waters of this State with steamboats. North Biver Steamboat Co. v. Hoffman, 5 Johns. Ch.SCO, 1:1090 Ogden v. Gibbons, 4 Johns Ch. 150, 1: 797 lAvmgsUm v. OOden, 4 Johns. Ch. 48, 1: 759 187. Where one has a grant of a ferry, bridge, or road, with the exclusive right of taking toll, and another ferry, bridge, or road is erected so near it as to create a competition injurious to such fran^ chise, it is, in that respect, a nuisance ; and this court wUl grant a perpetual injunction to secure the enjoyment of the statute franchise, and pre- vent the use of the rival estnblishment. Newbwrgh Tump. Co. v. Miller, 5 Johns. Ch. 101, 188i Chancery has jurisdiction at the suit of the owner of a bridge franchise to enjoin the unlawful use of a bridge erected by another person at the same point, where the Act conferring the franchise provides that the owner of any unauthorized bridge shall pay treble tolls to the owner of the franchise, to be recovered by the donee in an action before a Justice. Thompson v. New York & H. B. Co. 3 Sandf . Cb, 625, 7: 980 189. Carrying on banking operations contrary to the BtaLULti la not sucu a imsciiief or puDlio nui- sance that this court would grant an injunction to restrain the party, even if it had jurisdiction over public nuisnnces. which, itseems, it has not- Attorney-General v. Utica Ins. Co. 2 Johns. Ch. 379, 1: 417 o. Preliminary Iniunetions. 190. An injunction is not to be granted on filing a bill where it is not essential to secure rights, and where the filing of a notice of lig pendens wUl an- swer. WaddeU v. Bruen, 4 Edw. Ch. 871, 6: 101* 191. In a case of imminent danger of Injury to the complainant, the court may, atier appearance, al- low a temporary injunction to issue upon proposed amendments to the bill, granting at the same time an order toshow cause why the bill should not bo 80 amended and the injunction continued. Hayes v. Heyer, 4 S. 485, 7: 1 180 192. If a temporary injunction is necessary to pre- vent irreparuuie injury before regular notice of the application can be given for a general injunc- tion, the court will grant an order to show cause^ and allow such temporary injunction in the mean time; but the temporary injunction falls of course- if the order to show cause is not made absolute. Bloomfield v. Snnwden, Z Paige Ch. 355, 8: 941 193. A preUminary injunction before answer rests in the discretion of the court, and ought not to be granted unless the injury is pressing and the delay dangerous. N. T. Printing & Dyeing Estab. v. Fitch, 1 Paige Ch,97, 8:57* 194. It will not be granted to restrain a party from running a steamboat, and landing their passengers at the dock of another. Ibid. 195. Whether a court of equity has any jurisdic- tion in such a case,— gucere. B)id. 196. There are many cases in which a complainant would be entitled to a perpetual injunction upon the hearing, where it would be improper to grant him a preliminary injunction. Ibid. 197. Where the complainant has a perfect defense at law, to a suit commenced against him there, if the allegations in his bill are true, the court of chancery, although it has concurrent jurisdiction with the court of law in relation to the subject of the suit, will not grant a preliminary injunction lor the mere purpose of obtaining exclusive jurisdic- tion of the case. MiMheU v. Oakley, 7 Paige Ch. 68, 4: 63 198. The court wlU not grant a preliminary injunc- tion to stay the defendant from selling the uum- f)lainant*8 farm upon execution, where the bill al- eges that the judgment is not a legal lien on the premises, as a notice of the pendency of the suit, filed in the clerk's office, is all that is necessary to make any decree which may be obtained in the cause binding upon the purchaser under the execu- tion. Osbom V. Taylor, 5 Paige Ch. 515, 3: 810 199. A preliminary injunction will not be granted, before answer.unless such iujunction is nect'Bsmy to protect some interest or right of the complainant which might be Injuriously affected by the proceed- ings of the defendant in the mean time. Ibiil. 200. A preliminary injunction will be allowed to prevent a nuisance where the right is clear, tL consequent danger immediate, and the misehjof irreparable : but not when the right is doubtful- and the danger remote nrti\ onntiii"-ent. Boehester v. Cwrtiss, Clarke Ch. 336, 7: 135 201. Preliminary injunctions are allowed to pre- vent immediate injury, and not remote and contin- gent damage. Ibid. 203. The city of Rochester was the official guar- dian of the bridge over the Genesee Kiver, the east abutment of which projects so far into the river as to narrow the channel of the river. They filed a bill to prevent the owner of land next up stream <260 INJUNCTION, n. a. from rebuilding a wall projectin? only so far into the riTor as the east abutment of the brldgre, and eloping landward so as to give a favorable passage of tlie water of the river under the arch of the bridge, and asked for an injunction restraining the erection of such wall. Held, that the danger from the erection of the wail was nothing, so long as the abutment of the bridge was continued ; and that no injunction should be allowed as long as the city continued its own obstruction of the abutment; that there was no immediate additional danger from the erection of the wall, which would justify a pre- liminary injunction. Ibid, 203. Where there Is a doubt as to whether the com- plainant's trademark has been actually pirated in such a manner as to be likely to deceive and im- pose upon his customers or patrons, the court will not grant or retain an Injunction until the cause is heard upon pleadings ana proofs, or until the coih- plainant has established his right by an action at Partridge V. JlfencTc, 2 Barb. Ch. 101, 5:572 S. C. 6 (Si. Sent. 57, 5: 1818 204. Otherwise, where the court sees that the com- plainant's trademarks are simulated in such a man- ner as probably to deceive his customers or patrons. Ibid. 205. Preliminary injunction was refused, to stop a railroad company from completing a tunnel through a city, authorized by the civil authorities of the place, on an allegation of nuisance, by an owner of adjoining property on the same line. HodgMiKon v. Long Island B. Co. 4 Edw. Ch. 411, 206. It is not proper to grant a preliminary Injunc- tion to compel the construction of a viaduct under a railway. Kyle V. Aulmm, & B. B. Co. 1 Ch. Sent. 86, 6: 1077 2OT. Where the complainant gives notice to the ad- Terse party of an application to the court for a pre- liminary injunction, or where the defendant is required to show cause why such injunction should not be granted, whether a temporary injunction is or is not allowed in the mean time, the defendant may introduce affidavits in opposition to the appli- cation for the injunction. Seneca FaUs v. Matthews, 9 Paige Ch. 601, 4: 793 208. An application by a party or privy to a suit or proceeding in chancery, for an order to stay the proceedings against him, on the ground that it is inequitable to proceed therein, must be made di- rectly to the court iteelf in that suit or matter; and he is not authorized to obtain a stay of such pro- ceedings by a preliminary injunction allowed by an ofBcer out of court, upon a bUl filed for that pur- pose ElTsworth V. Cooh, 8 Paige Ch. 643, 4; 575 n. PROCEDtTRE. a. In Oeneral ; Pleading; Parties. 209. An injunction should not be granted upon a bill which is bad upon demurrer, even in point of form merely. Rose v. JBose, 11 Paige Ch. 166, 5:93 210. Upon application for an injunction against a bank, under Act April 21, 1823, concerning fraud- ulent bankruptcies by incorporated companies, the proof nxay be summary. Attorney-General v. Bank of Chenango, Hopk. Ch. 596, 2: 536 211. An affidavit of the complainant, that he be- lieves his statement of the acts or defaults of the bank to be true, is not sufficient proof. Ibid. ZIZ. A defendant cannot object that another per- son, not a party to the suit, is also enjoined. IV-odesTwan's Bamk v. Merritt, 1 Paige Ch. 302, 2: 655 213. If such a person makes a proper application, the court will discharge the injunction, so far as it affects his interest. ibid. 214. Wherever the court of chancery has power to maxe an oraer in consequence 01 poasessmg juris- diction over the subject-matter of the suit or pro- ceeding, and which a person is bound to obey in consequence of his bemg either actually or con- structively a party to the suit, it may enforce obedi- ence to such order by the process of injunction founded upon a petition merely, although no bin has been flied against such person. Be Hemiup, 2 Paige Ch. 317, 2: 925 215. The filing of the petition in such cases is a sub- stitute for a bill, and is a substantial compliance with the statute,— 2 Kev. Stat. 179, S 71. Ibid. 216. The provision of the statute prohibiting; the issuing of an injunction until the bill is filed relates only to those cases where the court obtains its juris- diction of the cause in no other way than by a pro- ceeding by biU. Ibid. 217. If all the defendants are implicated in the same charge, the answer of all will, in general, be required ; but if the defendant on wnom the grava- men of the charge rests has fully answered, that may be sufficient. Depeyster v. Graves, 2 Johns. Ch. 148, 1: 327 218. On a bill oC discovery for matters material to the defense of the party in a suit at law, the uaLure of the defense at law must be stated; otherwise this court will not grant an iniunction. M'Intyre v. Mancius, 3 Johns. Ch. 45, 1: 637 Teller v. Van Deusen, 3 Paige Ch. 33, 3: 46 219. If the complainant in a bill of discovery wishes to obtain an injunctiuu to stay tlie at:ieiidHiit's pro- ceedings at law until the putting in of an answer to such bill, he must aver that the discovery sought for is necessary to his defense, and such averment must be verified by his oath. March v. Davison, 9 Paige Ch. 580, 4: 823 220. Substantive allegations in an injunctive bUl, stated to be on information and belief, without an affidavit to sustain the allegations, will not sustain the injunction. WUliams v. Lockioood, Clarke Ch. 172, 7: 83 221. Injunction dissolved where the allegations em- bracing the equity are on information and belief. WaddeU v. Bruen, 4 Edw. Ch. 671, 6: 1014 232. In a creditors' bill against the judgment debt- or only, it is sufficient to sustain an application for an injunction, if the bill is sworn to by the com- plainant, although he does not swear positively to the recovery of the judgment and the return of the execution unsatisfied, but merely swears to his be- lief of those facts, founded upon the information of his attorney. Hamersley v. Wyckoff, 8 Paige Ch. 72, 4: 349 223. An Injunction bill which is filed by a corpora- tion may be verifled by tiit; solicitor or euuust;J. or other agent, without the oath of any of the regular officers of the corporation, where the person veri- fying the bill is better acquainted with the facts, than anv of such regnlnr officfra. Bank of Orleans v. Skinner, 9 Paige Ch. 305, 4; 711 224. Where an assignment is not fraudulent upon Its face, a charge in the bill that the complainant is informed and believes that the assignment was made for the purpose of defrauding the creditors of the assignor, which charge is not verified by the oath of any person who has any personal know- ledge of the alleged fraud, is not sufficient to entitle the complainant to an injunction against the as- signees. Bogert v. Batght, 9 Paige Ch. 297, 4: 708 225. The complainant is not entitled to an injunc- tion ex porteupou a. bill verintU by Ins own oath only, where the facts upon which the injunction rests are not within his own knowledge. In such a case he should state the facts in his hill as upon his Information and belief, and annex the affidavit of the person from whom he obtained the informa- tion, or of some other person who can swear posi- tively to the truth of the material allegations of the bi". Campbell v. Morrison, 7 Paige Ch. 157, 4: 105 226. Where such affidavits cannot be procured, the complainant, upon showing a sufficient excuse in the DiU, will be entitled to an order to show cause why an Injunction should not be granted. And upon a bUl thus framed and verified by the com- plainant's oath as to his information and belief, the m junction master may allow a temporary injunc- tion, when necessary, until the time for showing cause arrives. IwS 227. An averment of facts in a bill upon informa- tion and belief, if the bill afterwards avers that such information is derived from the defendant, or the testator of the defendant, is a sufficient aver- ment of knowledge to sustain an injunction. Cole V. Savage, Clarke Ch. 361, tt 143 228. Upon an ex parte application for the allownace INJUNCTION, II. b, 0, 1. 261 of an injunctioii. If tbere is any material allegration upon which the right to the injunction rests which Is not within the personal knowledge of the com- plainant, or of the agent or attorney who verifies the bill, the ofBcer to whom the application is made should require, to be annexed to the hill, the addi- tional affidavit of the person from whom the in- formation is derived, verifying the truth of the information thus given. Bank of Orleans v. Skinner, 9 Paige Ch. 305, 229. The case of a creditors' bill is an exception to the general rule, which requires tliat all the mate- rial facts upon which an application for an ex parte injunction is founded shou Id be sworn to positively. Sizer v. Miller, 9 Paige Ch. 605, 4: 834 230. If a complainant wishes to obtain a preliminary injunction to stay the pi-eceedingsof the defendant during the pendency of the suit, he should insert a formal prayer for such process in his bill. Walker v. Devereaux, 4 Paige Ch. 229, 3: 41S 231. Where a supplemental bill becomes necessary In respect of the case of one of two parties who have commenced a suit against a nuisance common to both, an injunction may be granted on such sup- plemental hill, on application of the party present- mg the new matter, although it in no respect adds to or sustains the case of .the other party com- plainant. Blunt V. Hay, 4 Sandf . Ch. 362, 7: 1 134 232. It is erroneous to decree a perpetual injunc- tion to stay proceedings in a suit against third per- sons, not parties or privies to the suit in which the decree is made. Waller v. Harris, 7 Paige Ch. 167, 4: 109 233. An injunction is not necessary against new trustees appointed since the commencement of the cause. There is a sufficient notice of lis pendens. N. A. Coal Co. V. IhjeU, 2 Edw. Ch. 115, 6: 331 b. Service ; Notice ; Decree. 234. Although it is irregular to serve an injunction upon a party without serving him also with the subpoena to appear and answer the bill, it is too late to give notice of an application to dissolve the in- junction, on that ground, after a subpcena has been served on him, SeeiKW V. Hess, 5 Paige Ch. 85, 3: 637 235. The neglect of the complainant to serve the subpoena and injunction on some of the defendants named in the bill is not a ground for dissolving the injunction as to the defendants on whom the lervice has been made. Ibid. 236. Where a blU is filed against several joint plaintiffs in a suit at law, to stay the proceedings there, it will be sufficient to stay the proceedings if the injunction is served on the attorney and on one of the joint plaintiffs, although it is not served on all ; but the subpcena must be served on each de- fendant, unless ne elects to appear voluntarily. Ibid. 237. Whereaninjunction is granted eKparfe, upon the flMng of the bill, it is irregular for the com- plainant to serve the injunction upon the defendant without serving him with a subpoena to appear and answer. But such irregularity is waived by the de- fendant's voluntarily appearing and answering the bUl. Parker v. Williams, 4 Paige Ch. 439, 3: 505 238. An injunction which is to deprive the officers of a corporation of loe control of tiie whole ot Ltie corporate property cannot be allowed ex parte, upon the certificate of a vice-chancellor or injunc- tion master, out of court. Morgan v. New York &A. R. Co. 10 Paige Ch. 290, 4: 981 239. After a bill has been taken as confessed against the defendant for want of appearance, an applica- tion for an injunction against the defendant may be made ex parte and without any notice thereof to him. Austin V. FHgueira, 7 Paige Ch. 56, 4: 58 240. It is irregular to issue a general injunction exvarte upon a supplemental bill, which injunction is to affect the rights of a defendant who has ap- peared in the original suit by a solicitor. SnediTcer V. Pearson, 2 Barb. Ch. 107, 5:575 241. The solicitor of the defendant, who has ap- peared in the suit, is entitled to notice of the appli- cation for an injunction upon a supplemental bill filed in such suit. Ibid. 242. Where an Injunction is asked for on a supple- mental bill, a copy of the bill is usually served on the party, if he has appeared in the cause, together with a notice of the application ; and if the court makes an order for the injunction, leave to file the bill is necessarily implied in such order. Eager v. Price, 2 Paige Ch. 333, 8: 938 243. After appearance to an injunction bill, a copy is to be served on the defendant without de- lay ; and, if not done, the defendant may move to dissolve the injunction. Pwrgison v. Bobinson, Hopk. Ch. 8, !8: 324 244. A motion for an injunction, after appearance and upon notice, may be made and resisted upon such affidavits as either party may be able to pro- duce. The injunction can be granted only on tlie case made by the bill, but that case may be estal>- lished by affidavits. Blunt V. Hay, 4 Sandf. Ch. 362, 7: 1134 245. A writ of injunction ought to be sufficiently explicit upon Its face„ by defining the property or matter enjoined, so that a party may be thereby clearly advertised of what he is not to do. Afoot V. Holbein, 2 Edw. Ch. 188, 6: 363 246. An injunction should, upon its face, contain sufficient to apprise the party upon whom it is served what he is restrained from doing, without the necessity of his resorting to the complainant's bill to ascertain what the injunction means. Sullivan v. JvOah, 4 Paige Ch. 444, 3: 508 247. An injunction should be clear and explict in its terms, and should not deprive the defendant of any right which the case made by the bill does not require he should be restrained from exercising. Laurie v. Laurie, 9 Paige Ch. 234, 4: 681 248. Where the complainant's bill prays relief as well as discovery, the injunction master must di- rect the insertion of a provision, in an injunction allowed by him to stay proceedings at law, author- izing the plaintiff to proceed to trial and judgment notwithstanding such injunction, except where the only relief asked for by the complainant is such re- lief as will be necessary to aid the complainant in his defense to the suit in the court of law. Meliek v. Drake, 6 Paige Ch. 470, 3: 1065 249. Where an injunction is allowed by the vice- chancellor before whom the cause is pending, the certificate or flat for the entry of an order for the issuing of the injunction should be drawn in such a manner as to enable the clerk to ascertain whether the order is to be entered as a special order made by the court, or as an order made upon the certificate of the vice-chancellor in the character of injunction master. Ibid. 250. After a decree by a vice-chancellor awarding a perpetual injunction against a suit at law, the chancellor will not, pending an appeal from that decree, modify the injunction so as to permit the appellant to proceed to trial and judgment without prejudice to the rights of the complainant. Fulton Bank v. New York & S. ConoJ Co. 3 Paige Ch. 31, 3: 45 251. Where the bill was dismissed by a vice-chan- cellor, and an appeal was entered from that decree, but the subject-matter of the suit was sold inter- mediate the entering of the decree and the appeal, the chancellor refused to grant an injunction against the purchaser, who was not a party to the suit, on petition; but permission was given to file a supplemental bill before the chancellor, and to move for an injunction thereon against the pur- chaser. Bloomfield v. Snowden, 2 Paige Ch. 355, 8: 941 252. It is not the practice to allow an injunction affecting the rights of a party who has appeared, on an ex parte application to the court upon a sup- plementsu bill; but regular notice of the application should be given to such party. IIM. 0. Continv/ince and ZHssoZution. L In General ; Irregularities. 253. An injunction is'not dissolved, neither does it become iuo perative, by the abatement of the suit in which it is issued. Hawley v. Benrwtt, 4 Paige Ch. 163, 3: 387 254. If the suit abates by the death of the complain- ant or defendant, the party against whom the in- junction issued, or his representatives, may have an order requiring the complainant, or his repre- sentatives, to revive the suit within a hmited tune, or that the injunction be dissolved. Ibid. S63 INJUNCTION, II. c, 2. 255. Although a bill relating to the separate estate of a married woman is not filed by her next friend, this objection cannot be urged as a ground for dis- solving an injunction. iMdlow y. Maddock, 1 Ch. Sent. 20, 5: 1057 5B6. An injunction antedated set aside, with costs. Brodie v. Cronly, 3 Edw. Ch. 355, 6: 687 257. Where an injunction is issued without the re- quisite security being given, the court will set aside such injunction for irregularity, with costs. Lovelandv. Bumham, 1 Barb. Ch. 65, 5: 302 258. Where an injunction to stay proceedings in a suit at law, betore issue joined, is granted ex parte, by an injunction master or by a vice-chancellor out of court, it must contain a provision that the de- fendant shall be at liberty to proceed to judgment; and if the otficer upon whose certificate the order for the injunction is entered does not direct such a provision to be inserted, the injunction will be set aside for irregularity. Carroll v. Sana. 10 Paige Ch. 298, 4: 985 259. If the party obtaining an injunction to stay proceedings at law neglects to deposit $100 at the lime, pursuant to the 43d Rule of the court, the ir- regularity will be cured by his depositing that sum before a motion is made to dissolve the injunction: but he must pay the costs of the motion. Skinner v. bayUm, 2 Johns. Ch. 226, 1: 366 260. So, if he omits to enter the order for the in- junction with the register at the time,a subsequent «ntry of it before motion will cure the neglect Lbut he will have to pay costs. Ibid. 281. Although the answer of all the defendants can and ought to come In, yet If the plaintiff does Dot take the requisite steps, with all reasonable diligence, to expedite his cause, the injunction may be aissolvea. Depet/ster V. GratJM, 2 Johns. Ch. 148, 1:387 263. As,, where an injunction had been granted to stay a suit at law, and some of the defendants had answered, but the plaintiff had neglected for nine months to take any steps to compel the other de- fendants to appear and answer, or to have the bill taken pro confesso against them, the injunction was, on motion, dissolved. Ibid. 263. When an injunction is allowed by the chan- cellor, the defendant, before he puta in an answer, may move to dissolve the in junction, on the ground of a want of equity in the bill. Mintum v. Seymour, 4 Johns. Ch. 173, 1 : 805 264. If an ex pa/rte injunction is granted upon a bill which is not duly veritted so as to autliurizu iik' issuing of such injunction, it is a matter of course to dissolve the injunction upon the matter of the bill only, according to the provisions of the 34tb Eule. Canvpbell v. Morrison, 7 Paige Ch. 157, 4: 105 265. Where aninjunctionhasbeengrantedupona bill of discovery in aid ol a defense at Jaw, it is a matter of course to dissolve the injunction as soon as the answer of the defendant is perfected, wheth- er the facts charged in the bill are admitted or de- nied. King v. Clarlc, 3 Paige Ch. 76, 3: 64 286. If there is a fair and reasonable question for the court to decide, namely, whether a contract may not be speoiflcally executed, an injunction granted in the ca'?se will be retained until the hearing. Brush V. Tandenbergn, 1 Edw. Ch. 21, 6: 45 267. On a bill filed to restrain the defendant from fielling a work alleged to be a trauduleut imitacio>. of the complainant's publication,— Held, it not being entirely clear that the complainant had a legal right, and the defendant undertaking to keep an account, that the injunction ought not to be retained. Spottiswoode v. Clark, 2 Sandf . Ch. 628, 7: 733 268. A creditor filed a bill to set aside, or to obtain relief against, a judgment confessed by his debtor in the supreme court, on the ground of fraud, and obtained an injunction to stay all proceedings on the judgment; and while the suit was pending in this court he proceeded at law and recovered Judg- ment against his debtor, and issued execution thereon, under which the property of the debtor was advertised for sale. The court refused to dis- miss the bill on the petition of the defendants, but ordered the plaintiff to make his election either to •tay his execution at law during the continuance of the injunction, or consent to have the injimetiou dissolved ; and, the plaintiff refusing to make ac election, the injunction was forthwith dissolved. Livinuston v. Kane, 3 Johns. Ch. 224, 1: 600 269. Where an injunction had been granted to stay a sale under a power contained in a mortgage, a few days before the expiration of the six months' notice, it was dissolved after answer, on terms; viz., giving six weeks' furthernotlceof the timeand place of sale, and a reference, in the mean time, to a master to ascertain the balance due, etc. Nichols v. Wilson, 4 Johns. Ch. 115, 1: 783 270. An injunction to stay proceedings under a power to sell contained in a mortgage was retained, though it appeared that the mortgage had been discharged, until an action at law, brought by the plaintiff against the defendant on the covenant of seisin in his deed to the plaintiff, was decided. Tillou V. Sharpsteen, 5 Johns. Ch. 260, 1: 1076 271. An injunption was allowed upon a creditors' bill as against the judgment debtor and his assignee for the benefit of creditors. Upon a motion to dis- solve the injunction as to the assignee, it appeared that the first preference provided tor in the assign- ment was for a contitigent liability of a doubtful character, and as to which it would take a long time to ascertain the amount ; and inasmuch as a re- ceiver had been appointed who had given bonds, the motion to dissolve the injunction was denied. Monroe Bank v. Schermerhorn, Clarke Ch. 303, 7:1S3 272. An Injunction to restrain proceedings at law upon a note of an infant indursed by his father, given for the purchase of lands by the infant, is- sued upon a bill filed by the infant to disaffirm the sale, will be dissolved as to the father. Parker V. Baker, Clarke Ch. 136, 7: 73 273. Although equity may have a right to decree the delivery up of a promissory note, yet, where an action has been brought upon it and a bill is filed to aid the discovery, and such discovery is given and the case appears to be such that the party complain- ant has a defense at law and evidence to support it, an injunction which restrained such action will be dissolved, although the bill prays relief as well as discovery. Geery.Kigsam, 3 Edw. Ch. 129, 6: 598 274. Where an injunction bill is amended on leave, the injunction continues in force although the or- der granting leave is sUent on the subject Selden v. Vermilya, i Sandf. Ch. 673, 7: 1814 275. Although,in a judgment creditors' bill, the fi. fa. appears to have been issued three years after the judgment was docketed, yet this is not sufficient, of itself, to dissolve an injunction; for a scire facias can be presumed, and the defendant should make his application in the court of law, if the latter writ had not been issued to revive the judgment. Gary v. Clark, 3 Edw. Ch. 274, 6: 655 276. Injunction to stay waste will not be continued where the complainant's title is denied, especially if there has been delay and negligence in trying the title at law. Biggins v. Woodward, Hopk. Ch. 342, S: 444 2. On Denial in Anawers. 277. Notwithstanding the complainant waives the necessity of an answer on oath from a defendant, the answer must be sworn to if the defendant wishes to move to dissolve an injunction upon the bill and answer. Dougrey v. Topping, 4 Paige Ch. 94, 3: 357 278. An injunction against a corporation cannot be dissolved on bill and answer, unless the answer is duly verified by the oath of some of the corpora- tors who are acquainted with the facts stated therein. Fulton Bank y. If. T. & Sharon Canal Co. 1 Paige Ch.311, 8:659 279. Where a temporary injunction was granted to restrain the diversion of water from its natural course, upon an explanatory answer positively denying the injury it was dissolved. Beid V. GKffard, Hopk. Ch. 416, 8: 470 280. Where the defendant, in answer to an injunc- tion bill, admits the equity of the bill, but seta up new matter of defense on which he relies, the in- junction will be continued to the hearing. Mintum v. SeyTtumr, 4 Jolins. Ch. 497, 1: 914 281. When the answer of the defendants denies all the equity of the bill, the injunction will be dis- solved of course. Couch V. Ulster & Orange Tump. Co. 4 Johns. Ch. 26, 1: 763 Boberfe v. Anderson, 2 Johns. Ch. 202, 1; 348 INJUNCTION, II. c, 2. 282. If the answer denies all the equity of the bill, the injunction to stay proceedings at law will be dissolved of course ; otherwise it will be continued until the hearing ; and where it may be necessary to ascertain any matter of fact tor the information ■of the court, it must be on an issue at law awarded for that purpose. Hoffman v. LAxAnggton, 1 Johns.Ch. 211, 1: 116 283. An injunction is not dissolved of course ■even upon a full denial of the equity of the bill, 4f the court can see in the facts disclosed good ■ceasons for retaining it. Monroe Bank v. Schermerhorn, Clarke Ch. 303, 7: 183 284. In an ordinary creditors' bill, the denial of the deiendant. iu Ins auswur, tUat ba 1ms any pioperiy or cboses in action, or any interest in property, is not sufficient to entitle him to a dissolution of thu injunction restraming him from assigning or dis- posing of his property. New V. Borne, 10 Paige Ch. 502, 4: 1067 285. An injunction on coming in of the answer will not be dissolved, unless the defendants positively ■df ny aU the equity of the bill. A denial from in- formation and belief is not suifloient. Ward V. Van Bokkelen, 1 Paige Ch. lOO, 3: 576 Apthorpe V. Comstock, Hopk. Ch. 143, 2: 373 286. Where the equity of an injunction bill is not ■charged to be in the knowledge of the defendant, ■and the defendant merely denies all knowledge ;and belief of the facts alleged therein, the in- junction will not be dissolved on the bill and -answer alone. Bodjgera v. JBodgers, 1 Paige Ch. 428, 2: 702 287. A general answer of defendant, denying that ■a slaughter-house is a nuisance, will not authorize -the dissolution of an injunction restraining him ifrom using his building as such. CaUin v. Valentine, 9 Paige Ch. 575, 4: 812 288. An injunction in favor of a wife, restraining ^o^ husband from disposing of his property, wii. i;otbe dissolved upon a mere allegation in the an- swer of the husband that he has no intention o: .selling his property. Hammond v. Hammond, Clarke Ch. 151, 7:77 289. An injunction will not necessarily be dissolved "upon an answer denying fraud in an assignment, unless the wholefacia appear to enable the court to judge of the fraud. Hastings v. Palmer, Clarke Ch. 52, 7: 49 290. Where the bill on which an injunction was is- -suea to stay proceedings at law in an ejectment «uit charges the deeds on which the defendant sets up his title at law to be fraudulent, the injunc- tion will not be dissolved on the coming in of the answer, unless it be full and satisfactory as to the Iraud. but wUl be continued until the hearing. Roberts v. Anderson, 2 Johns. Ch. ii02, 1: 348 291. Stating that the defendants were not privy to any fraud, and were bona fide purchasers ; that tuey believe the title was good ; and that they do not know or believe that the deeds under which they derive their title were fraudulent,— Is not sufQcient. Ibid. 292. Tho granting and continuing of injunctions rests in the discretion of the court, to be governed by the nature and circumstances of the case. Ibid. 293. An injunction upon a creditors' bill claiming snore than $100, and uUargiiig uguitabiu a^,tiels i> the amount of more thauSlOO, will not bodissolvci because the defendant in his answer swears tliat lu has not equitable assets to ihe amount of $100. Sage v. Quay, Oarke Ch. 347, 7:1 39 294. Where the whole equity of the bill is denied' it is no answer to an application to dissolve an in- junction, that the defendant has also incorporated into his answer other matters, which are scanda- lous or otherwise irrelevant. JAvingston v. Livingston, 4 Paige Ch. Ul, 3: 365 295. Although an answer on oath is waived by the ■complainant, the defendant, as in other cases, is ■entitled to the dissolution of an injunction upon ja sworn answer denying the whole equitj' of the bUl, unless the allegations in the bill are supported by the affidavit of a credible and disinterested wit- mess in conformity to the 37th Hule. Manchester v. Dey, 6 Paige Ch. 295, 3: 993 296. Upon an application to dissolve an injunction «ipon a bill and answer, the defendant's answer ■is entitled to the same credit as the complainant's tolll. It therefore makes no difference on such an application that the bill is supported by the oaths of several complainants. Ibid. 297. Where a oolnplainant, upon obtaining an in- junction to stay proceedings at law after judgment, has given security to pay the debt and costs, in- stead of carrying the amount of the judgment into court, the detenflant is entitled to a dissolution of the injunction upon his answer denying the whole equity of the bill. Ibid. 298. But if the amount of the Judgment has been brought into court, and has been taken out by the defendant upon security to refund in case the complainant succeeds in the suit, the injunction will be continued to the hearing although the equity of the bill is denied in the answer. Ibid, 299. And if seems that the injunction may be continued to the hearing when the amount or the judgment is brought into court, although the de- fendant neglects to take out the money upon the usual security to refund if it should afterwards appear that he was not entitled to the same. Ibid. 300. It is always a good answer to an application to dissolve an injunction, that the equity of the bill upon which the injunction rests is not denied by the defendant, although no exceptions have been filed. Wakeman v. Gillespy, 5 Paige Ch. 112, 3: 649 301. It is not a valid objection to an application to dissolve an injunction upon bill and answer, that the personal representatives of a deceased codefendant who was Jointly implicated in the fraud charged in the bill have not yet put in their answer, unless they are charged with knowledge of the fraud of their testator or intestate. Ibid. 302. Itisageneral rule that an injunction wiU not be dissolved upon answer, until tlje answers of all the defendants are put in. But if the defendants answering state upon oath, positively and fully, that the defendant who does not answer was not in a situation to know, and in point of fact did not know, anything in relation to the matters charged, the injunction will be dissolved upon the answer of a part of the defendants having the whole know- ledge of the transactions, If it denies fully the equity of theibill. Coleman v. Guge, Clarke Ch. 295, 7: 120 303. In an injunction cause, if there has been any negligence in serving the subpoena, or pro- curing the appearance of a part of the defendants, those who have appeared and answered may have the injunction dissolved on their answers alone. Seebor v. Hess, 5 Paige Ch. 85, 3:637 304. It is a general rule that the answer of all the defendants must be perfected before an in- junction will be dissolved, provided all the de- fendants are implicated in the same charge. Tandervoort v. Williams, Clarke Ch. 377, 7: 148 305. Where a president of a bank is made a party dciendant as an individual, and the bank is also made a party, and the president and the bank art* both implicated by the bill in the same charge, and the bank answers by its cashier, and the president does not answer, the injunction will not be dis- solved upon the answer of the bank alone, or un til the answer of the president comes in, even though the injunction is issued against the bank alone, and denial of knowledge on its part would be suiHcient to procure its dissolution. Ibid 306. An Act of the Legislature for the incorpora- tion of a bank appointed certain commissioners for the special and sole purpose of receiving subscrip- tions, and they were dire6ted " to apportion the ex- cess of shares among the several subscribers, as tliey should judge discreet and proper." A bill was Pled charging inequality and partiality in making the apportionment, and an injuuotion granted '("he commissioners, in their answer, denied the allega- tl'^n of nartlnlily, niK" "■" 'ijnnction was dissolvci. Haightv. Day. 1 Johns. Ch. IS, 1:44 307. Where the Cohoes Company, without au- thority or license from the canal commissioners, commenced cutting through the embankment of the Erie Canal, with the avowed intention of draw- ing water therefrom for the supply of mills; and the superintendent attested to an information which alleged that the embankment was a neces- sary work to maintain the elevation of the water in the canal, and that the contemplated encroach- ment might deprive the canal of its necessary supply of water: and the answer of the Cohoes Company, put in under oath,admitted the encroach- ment but denied that it would deprive the canal of its necessary supply of water,— a motion 264 INJUNCTION, II. c, y. to dissolve the injunction restraining the defend- ants from making: such encroachment was denied. AtUyrney-Qerwral v. Cohoes Company, 6 Paige Ch. 133, 3: 988 308. The court retained an injunction where,on the doming in of an answer, there seemed to he some equity in the complainants' claim to have the fund which was in litigation applied as prayed for, which might, at the hearing, possibly, be enforced. Clark V. Martin, i Edw. Ch. 424, 6:987 309. Where an injunction is issued to restrain a foreign banking company from proceeding to fore- close a mortgage, given as security for their certifi- cates, and thereis a serious question as to the trans- action not being within the spirit of the restraining Act against unauthorized banking and the circula- tion of certain notes or evidence of debt issued by banks (1 Key. Stat. 712) the court will not dissolve the injunction on the coming in of the answer. (The court, however, in this case allowed a cross bill to be filed by the company to sell the property em- braced by the mortgage, inasmuch as the same mi?ht, otherwise, have been sacrificed.) Stoney v. Ame7-ican lAfe Ins. days allowed to the complainant to except ; but if exceptions are duly served within the time pre- scribed by the rule, it will be an answer to the ap- plication. Satterlee v. Bargy, 3 Paige Ch. 142, 3: 90 322. But a party is not at liberty to give notice of an application to dissolve the injunction for a time which is within the ten days allowed by the 38th Bule for excepting to the answer. ibid- 323. Where an answer on oath la waived, and affi- davits of disinterested witnesses in support of an in- junction are annexed to, and filed and served with,, the bill, the affidavits in support of the answer, and upon which the defendant relies in his application to dissolve the injunction, must either be serve* upon the complainant's solicitor, with the answfer^ or must be served on him the usual length of timfr before the making of the motion to dissolve the In- junction. MarkTuim v. Markham, 1 Barb. Ch. 374, 5: 48a 824. Where the complainant in a creditors' suit has ;worn positively, in his bill, that an execution has been issued to the county in which the judgment debtor resided, an injunction granted in such suit v/itl not be dissolved upon a simple affidavit contra- t'.icting that fact. The defendant must put in his answer denying the allegation, and then move to d)«'5olve the injunction on hill and answer. Strange v. Longley, 3 Barb. Ch. 650, 5: 86» 325. Where an injunction bill is filed with affidavits- annexed and an answer on oath is waived, but the same is put in under oath and strong affidavits also are read in support of a motion to dissolve the in- junction, the dissolution is not a matter of course, especially where proofs may have to be taken be- fore a correct decision can be had. Mead v. Biehards. 4 Edw. Ch. 667, 6: 1018 326. Testimony taken in the cause cannot be read upon a motion to dissolve an injunction. Brush V. Vandenbergh, 1 Edw. Ch. 21, 6: 4& 327. Affidavits ex parte are not allowed to be read in support of an answer on a motion to dissolve an injunction. Boberts V. Anderson, 2 Johns. Ch. 202, 1:348 328. Affidavits cannot be read in support of an an- swer upon motion to dissolve injunction, but may be used in opposition to motion for. Seneca Falls v. Matthews. 2 Ch. Sent. 18, 5: 1085 329. Affidavits ex parte cannot be read in opposi- tion to a motion made on the coming in of the answer, to dissolve an injunction restraining one copartner from using the copartnership name, or doing any act relative to the partnership concern, or in support of the allegations in the bill. Eastburn v. Kirk, 1 Johns. Ch. 444, 1: 20S 380. Where the complainant waives an answer oi» oath, and relies upon the affidavits of third persons annexed to his bill to sustain an injunction, in op- position to the defendant's answer on oath deny- ing the equity of the bill, the defendant, upon ark application to dissolve an injunction, may also- read the affidavits of third persons in support of his answer. HaigM v. Case, 4 Paige Ch. 525, 3: 54S- 331. If an answer on oath has not been waived as to one of the defendants, the complainant, uponaji application to dissolve the injunction, cannot be permitted to read'the affidavits annexed to thebiW tor the purpose of contradicting the positive an- swer of that defendant on oath. Ibid.. 332. Upon a motion to dissolve an injunction, It the complainant relies upon affida\-its annexed to. the bill, under the 37th Rule of the court of chan- cery, to contradict the answer, the defendant has a right to read affidavits, or other evidence, in sup- port of his answer. Brown v. Haff, 5 Paige Ch. 235, 3: 699' 333. It is no objection to an application to dissolve an injunction upon a bill of discovery in aid of & defense at law, that the complainant has excepted to the defendant's answer for impertinence merely, where the bill has been f uUy answered. Jewett V. Belden, 11 Paige Ch. 618, 6: 856. S. C. 5 Ch. Sent. 9, 6: nett 334. Upon a motion made to dissolve an injunction, upon bill and answer, every allegation positively sworn to in the biU, and not substantially denied ia INJUNCTION, II. d. 265 flic answer upon tfie defendant's own knowledge, iji-'ot ho tflken astrMp. GrimMone V.Carter, 3 TaigeCh.iZl, 3:814 3S15. A defendant who has once moved unsuccess- fully for the dissolution of an injunction cannot make a second motion for the same object, upon the same papers, without leave of the court first obtained. iMwry V. Chautauque County Bank, Clarke Ch. 57, 7: 53 336. Where the defendant has obtained an order to dissolve an Injunction by the default of the ad- verse party after due notice of the application, the court will not vacate such order merely to enable the complainant to interpose a technical objection which does not go to the merits of the application. Champlin v. Mayor, etx,. of New York, 3 Paige Ch. 573, 3: 879 337. Though an order dissolving an Injunction, etc., may be discharged by motion or petition, oa § roper grounds, yet the most regular courae is to iscuss the merits of the order on the rehearing. Fanning v. Dunham, i Johns. Ch. 35, 1: 755 d. Security; Bond. 338. No injunction shall issue to stay proceedings at law in any personal action, after judgment, un- less a sum Oi money equal to the judgment and costs is paid into court, and a bond is also given for the payment of the costs and damages which may be awarded to the defendant in the suit in the court Chrigtie v. Uogardus, 1 Barb. Ch. 1B7, 5: 3iO 339. But the chancellor or vice-chancellor before whom the bill is liled has the power to dispense with the actual deposit of the amount of the judgment and costs, upon suOicient cause shown, and may take abend, with sureties, for the payment of the judgment. Itjid. 340. Even In that case, however, the complainant must give another oond for the payment of the damages and costs which may be awarded in tiie court of chancery. Or the penalty and condition of the first-mentioned bond must be enlarged, so as to conform to that requirement of the statute also. Ibid. 341. Upon such an application, to authorize the court to dispense with any part of the deposit, or the giving of security in lieu thereof, such court must be satisfied that the part of the amount of the original judgment as to which the security or de- posit is to be dispensed with is actually paid and satisfied. It will not be sulficient if it is merely doubtful whether the whole amount claimed is j ust- ly due upon the judgment. Ibid. 342. The complainant, when he seeks to obtain an mjunciion to stay the collection of a judgment, without a deposit or security, must state the times, circumstances, and amount of each payment, so as to enable the court, by mere computation, to fix the amount of the deposit or of the bond, and to enable the defendant to controvert the fact of such payments having been made. Ibid. 343. A bond for the damages and costs which may oe awuruua against the complaiuaut can in no case be dispensed with, upon the granting of a prelimi- nary injunction to stay proceedings at law upon a judgment, although such injunction is granted upon a special application to the court and upon the hearing of the defendant. Ibid. 344. Eule 31 of the court of chancery, requiring se- curicj' to be given upou the granting of an injunc- tion in certain cases, was intended to protect the defendant from any injury he might sustain by the allowance of an injunction, whether such injunc- tion was erroneously allowed by the officer of the court, or was properly allowed by him in conse- quence of an erroneous or partial statement, in the bill, of the real facts of the case. - , , . Edimraa v. Bodine, 11 Paige Ch. 223, 5:115 345. Whenever the injunction wiU probably pro- duce a serious loss or uauiage to the defendant, by the suspension of the proceedings enjoined, the otH- oer allowing the injunction should require security from the complainant, under the last clause of the 31st Kule, to pay such osmage: or he should, at least, take the comolainapt sown bond. Sullivan v. Judah, 4 Paige Ch. 444, 3 : 508 346. Upon a biU to reach property covered by a fraudulent judgment and to stay proceedings upon such Judgment,the court in grauting the injunction may dispense with a deposit of the amount ol the ^judgment or security to i ii' v t'lp same. „ „, „ Bums V. Morse, 6 Paige Ch. 108, . ■*: »i» 317. Where the situation of the property levied. upon by execution as the property ot the defend- ,mt in the execution is such as to render it proper that a deposit of the amount of the execution should be made, or that security to the plaintiff in the suit lit law should be given upon the granting of an in- junction to a complainant who is not a party to that suit, the court or the oflicer who allows the injunc- tion should either require a deposit of the money .^ or the giving of a bond with sureties, as a eondition precedent to the issuing of the injunction. But the party against whom such injunction has been ob- tained, upon a deposit of the amount of his execu- tion, is not entitled as a matter of right to take the money out of court, upon giving security to refund th^same, if tlio oomplninnnt succeeds in his suit. Hegeman v. Wilson, 8 Paige Ch. 29, 4: 338; 348. A master has no authority to allow an injunc- tion to stay proceedings at law after judgment, ex- cept upon the terms prescribed by the statute ; and. if the injunction has been issued without deposit- ing the amount of the judgment and giving the bond, as required by the statute, it will be set aside for irrpguiaritv. Jenkins v. Wilde, 2 Paige Ch. 394, 8: 95* 349. If the suit at law is not at issue, the master should direct the provision directed by the 33d Kule to be inserted in the injunction, unless the injunc- tion is founded on a mere bill of discovery. Ibkl. 350. If issue has been joined in a suit at law, the- master should take the bond and security, a.s di- rected by the statute in such cases, and direct that it be filed with the proper officer, before the issuing of the Injunction. Ibid. 351. When there has been a verdict, the master should ascertain and direct the amount to oe de- posited ; and if a judgment has been obtained, he should not only direct the amount of the judgment to be deposited, but should also take a bond and security to answer the damages and costs, in case theinjunotion should be dissolved. Ibid. 352. None but the court,af ter verdict or judgment, can dispense with the actual deposit of the debt and costs, before the issuing of the injunction. Ibid. 353. If the register or clerk discovers that the stat- ute relative to injunctions has not been complied with by the injunction master, he should not issue the process without the special directions of the court, Ii'i-l. 354. Although a judgment is obtained through a- bond and warrant ot atouruey, yet a complaiiiuiiL, wishing to restrain proceedings under it, must make a deposit or give security under the statute relating to injunctions to stay proceedings in personal ac- Farr-lngtonv.Freeman,Z Edw. Ch. 672, 6:509 355. A oomplajnaut who obtains an injunction to restrain a sheriff from paying over the amount of a levy must make the deposit or give the bond re- quired by statute in cases of staying proceedings * Boker v. Curtis, 2 Edw. Ch. Ill, 6: 389 356. An injunction to restrain the plaintiff in a suit, at law trnm proceeding uifou nis eAucuiiuu aH.ii"S' a third person, who is the defendant in that suit, to sell the property of the complainant in the suit in the court of chancery, is not an injunction to stay the proceedings in a personal action after juag- nient, within the intent and meaning of the sec(;ions of the Revised Statutes which require a deposit ot the amount of the judgment upon the issuing of the injunction, and which authorize the plaintiff in the judgment to take the money out of court upon giving secnritv tr, refiind. ^ ^ . „„_ Begeman v. Wilsan,a PaigeCh. 29, 4: 338^ a'i7 Where a deposit is made upon obtaining an in- junction, by way of security for costs, the right to- the money cannot be decided until the final hearing of the cause on the merits. a. ■~ki Leggittv. DuBois, 1 Paige Ch. 574, 8: ,57 3,58 The defendant is not entitled to the deposit immediately upon a dissolution of the Injunctira on bill and answer. -'o'"- 359 The master who takes a bond with sureties, upon the allowance of an injunction, in the cases- providea for in the 31st Hule of the court of chan- cery, must require the sureties to justify. Carroll v. Sand, 10 Paige Ch. 298, 4: 985- S. C. 3 Ch. Sent. 35, 5: 1111 360. The officer allowing an injunction out ot court '266 INJUNCTION. II. e, III. 'must exercise a reasonable discretion in fixing the .amount of the security to be given, so that it shall, to ajl cases, be sufficient to cover the probable -amount of damages which the defendant may sus- tait by reason of such injunction. LoveUmd v. Burnham, 1 Barb. Ch. 85, 5: 303 S. 0. 5 Ch. Sent. 34, 6: 11 77 361. The oSBcer allowing an injunction should re- -quire a bond for a larger sum than $500 where, from the nature of the case, there is reason to suppose the damages occasioned by the injunction, if it should continue until the termination of the suit, ■wiU exceed $500. Ibid. 362. An in j unction bond must be acknowledged by the obligors therein, or must be proved by a sub- scribing witness to the same, or it will be invalid, and the injunction issued thereon will be irregular. Ibid. 363. The sureties in an injunction bond should be required to justify in a sum of at least double the pentilty of the bond. Ibid. 364. The voluntary dismissal, after answer, of an Injunction bill, shows presumptively that the com plainant was not equitably entitled to the injunc- tion, and entitles the defendant to a reference to ^ascertain his damages, where the usual bond has been given. Mutual Safety Ins. Co. v. Roberts, 4 Sandf . Ch. 592, 7: 1231 365. Where the injunction may produce serious in- jury to the defendant, if the otiicer allowing the same neglects to take security from the complain- . ant to pay such damages as may be sustained, the defendant may apply to the court for relief. Cayuga Bridge Co. v. Magee, 2 Paige Ch. 116 3: 837 366. Where a biU is filed to restrain proceedings on« -a judgment recovered at law, the court wUl notre- -quire the complainant to bring the amount of the , judgment into court, unless it is shown there is dan- ger of the complainant's insolvency. Badgers v. Badgers, 1 Paige Ch. 426, 8: 703 e. Berwwal; BevivaX. 367. This court has the power to reinstate or renew an injunction after a dissolution, even though the ■ order of dissolution has been afiirmed by the chan- • cellor upon appeal, and an appeal has been taken from the chancellor's decision to the court for the - ive infringement of an injunction and the nature of the suit is such as to make it difficult to calculate damages, the court will refuse an attachment and leave the chance of injury to be embraced in the decree. Iliid. 381. A defendant is not to be punished for an in- fringement of so much of a writ of injunction as goes further than the prayer of the bill. BYeeman v. Deming, i Edw. Ch. 598, 6: 989 382. An injunction directed to several persons not defendants in the suit, and it appearing upon the face of the injunction that they are not defend- ants, is not obligatory upon such perpons except Sage v. Quay, Clarke Ch. 347, 7: 139 383. Such injunction, so directed, is not authorized by the fiat of allowance; and as to such persons, when it appears upon the face of the process that they are not defendants, it is inoperative and use- less. Ibid. 384. An injunction restraining a husband from an- noying, following, or clainilug his wife and chil- dren, is not violated by his writing a letter to his wife, although he reflects in such letter upon her alleged misconduct. Laurie v. Laurie, 9 Paige Ch. 234, 4: «81 385. Where apanner is enjoined, in general terms, from intermeddling with the property and effects of the firm, it is not a breach of the injunction for him to give a confession of judgment for a debt &ona.^e due to a creditor of the firm, for the pur- pose of enabling such creditor to obtain a prefer- ence in payment, by levying upon the partnership effects. MeOreMe v. Senior, 4 Paige Ch. 378, 3: 477 886. Giving directions to the clerk of the board of supervisors to enter the several sums due the supci intendent of the poor for services, claims for which had been transferred to his creditors in payment of debts to the credit of those to whom they had been transferred, was no breach of an injunction granted upon a creditors' bill filed subsequent to such trans- fers. Biehardxm v. Bust, 9 Paige Ch. 243, 4: 688 INJUNCTION, III. 267 887. The bringing of a suit by the defendant In a 'Creditors' Dill, for an Iniury to his property ,where no injury has resulted to the complainant by such suit, is not such a breach of the usual injunction as will authorize the granting of an attachment against the defendant. Hudson V. puts, 11 Paige Ch. 180, 5: 99 388. It is no breach of the injunction granted upon B creditors' bill, for the defendant to sue for an in- jury or tort in relation to exempt property, and to collect the the amount of the damages recovered in such suit. Ibtd. 389. Where defendants, having a lien and thepos- -eession of goods, are I'estrameU by injunction from "selling, pledging or disposing" of the same, al- •though tne mere offer to sell may not amount to an Infringement of the injunction, yet it might induce ■the court to appoint a receiver. Tyler v. Pappe, i Edw. Ch. 430, 6; 929 390. Where an injunction issued upon a creditors' bill prohibits the defendant from transferring, as- signing, delivering, or in any way interfering with or disposing of his property or effects, any active Interference with the property, by tlie defendant -or his agent, for the purpose of having the legal ti- tle to the same transferred to another and thereby -to deprive the complainant of the equitable lien he ihas acquired thereon by the filing of his bill, is a violation of the letter as well as of the spirit of the injunction. Lansing v. Easton, 7 Paige Ch. 364, 4: 190 391. The ordinary Injunction upon a creditors' bill will not prevent another judgment creditor from levying upon property, which is the proper subject of a levy and sale on execution, before the title of the defendant therein is equitably devested by an order for the sequestration thereof, or tor the appointment of a receiver. Neither will tlie in- junction prevent the defendant from confessing a judgment in favor of another bona fide creditor, unless there is a special clause therein to that cffc-cf . Tbid. 892. A defendant in a creditors' bill cannot disre- .gard an injunction issued upon a Dili aeiective in not stating that the execution was issued ^o the -county where the debtor resided at the time of the issuing thereof, and will be punished for such diso- bedience, but his punishment will be coniined to the costs of the attachment, and will not extend to -the orig-inal debt. Smith V. Fttch, Clarke Ch. 265, ■?: 110 393. An injunction is not waived by a delay in ap- 5)lyipg for an attachment for its violation. DaU V. Roseuelt, 1 Paige Ch. 35, 8: 558 394. Where exeorutors obtained a decree for a per- 'petualmjunction restraining 11 from suing or pros- ecuting any action at law against such executors ■or other representatives of their testator, for the recovery of the arrears of an annuity,— He!d, that "the prosecution of a suit at law against the heirs of the testator, who were not parties to the suit in this ■court, to recover the same annuity, was not a breach «f the Injunction. There is no privity between an 'executor and the heir or devisee of the land. Ibid. Editoeial Notes. Injunction: when granted; remedy at law 1: 55, 537, 2: 50, 196, 6: 373 Temporary and permanent distinguished 5:516 Against whom to issue 7: 139 not granted to creditors at large, when 2:453 Preliminary; when granted 2:86, 3:810 prayer for 3: 416 iJill by corporation 4: 711 verified by agent or attorney 4: 711 Amendment to pleading pending 6: 1148 Application upon supplemental bill 2: 941 Not granted on mere verification of com- plaint 4:105.5:340 ITot to restrain railroad authorized by law 6' 923 Affidavits for 2: 659, 4: 106 in opposition 4: 793 Delay aa a bar to relief 2: 576 Negligence as a bar 2: 936 Pending suit in equity 2: 935 Security required 3: 509, 5: 803, 341, 6: 509 Bond; indemnity against damage; remedy upon exclusive 2: 837 To protect statutory privilege 5: 479 To restrain partner from wrongful disposal of assets 3: 961 To restrain party from settlini; his own con- troversy 2: S55 To prevent multiplicity of suits 2:196, 3:908 To protect trademark 5: 141, 573 To protect copyright 5: 918 To restrain publication of letters 6: 745 To prevent cloud on title 4: 398 To restrain trespass 1: 155, 413, 761, 2: 196, 305, 574 Injury must be irreparable 2: 305, 3: 133 Restraining trespass by public officers 3 : 908 To restrain purpresture 3: 928 Not granted when purpreit'ire doubtful 7: 135 To restrain nuisance 1 : 333, 3: 121, 4: 823 Against erection on public highways, squares, elc. 3: 178 Nuisance; trial at law; when necessary 7: 1134 Interference with navigation may be en- joined 1: 333, 759 For disturbance in use of water 3: 470, 3: 382 To restrain competing ferry, bridge, or road 1:797,1023 To protect enjoyment of privilege already possessed 1: 265 To restrain infringement of charter rights 3: 1100 Protection of exclusive rights by 7: 980 Enjoyment of easement protected by 3: 538 Against lessee 1: 200, 7: 1319 To stay waste 1:326, 750, 1046, 3:305, 3:135, 680, 4:355, 5:313 To stay proceedings at law 1: 483, 792, 959, 3: 958, 963, 3; 64, 1065, 263, 4: 63, 985, 6: 6'2a Power to stay other suits 4: 285 Against proceedings of subordinate tribunals 4: 593 Against proceedings in co-ordinate jurisdic- tion 6; 907 Against other suits in equity or in same court 2: 798, 4: 1006, 6: 1071, 7: 127, 138 Against action to compel an account 5: 297 Where party has a good defense 5: 296 Against suit on accommodation note 6: 598 Ao^ainst prosecutions under ordinances 4: 1081 Against Federal courts 6; 623 Against suits in other States _ 5: 648 Judgment at law ; when may be enjoined 1:156, 3:936,4:237 • Error no ground for enjoining 4 : 893 To restrain execution 1 : 484, 766 To protect name and goodwill of business 4: 350 Not to try title to office 4 : 795 Against municipal officers 1: 797, 1023, 3: 908, 6: 731 Against officers de facto by taxpayers 1:797,1023 To restrain tax proceedings 3: 481, 4: 744 2G8 INQUISITION OF LUNACY— INSOLVENCY, ETC. Order; sufficiency of; definitcness 3: 508 to what applies 4: 1060, 5: 99 Binding on whom 1: T51 Will not prevent other creditors from levy- ing on property of debtor 4: 190 Superseded by decree, when 7: 138 Violation of, contempt 1: 762, 4: 546 To be obeyed till vacated 6; 363 Punishment for breach of 2; 9i9 Modification 1 : 323 Dissolution or denial 1: 116, 4: 106, 5; 115 Affidavits ex parte to dissolve 1: 203 For irregularities 4; 338 Practice on dissolution 1: 752, 805, 2: 601, 3: 45, 637, 993, 6: 639, 7: 83 Abuse of, as cause for dissolution 2:444 Dissolution on answer filed 1: 327, 318,-914, 2: 372, 576, 3: 365, 649 Discretion as to dissolution 7- 123 Renewal after voluntary dissolution 1 : 1073 revival, when granted 1: 755, 7; 50, lOd appe il not revive 3: 198 New application 4: 352 INQUISITION OF LUNACY. See Incompetent Persons, n. INSANE PERSONS. See Incompetent Persons. INSOLVENCY AND ASSIGNIKEENT FOR CREDITORS. I. Assignment for Creditors. a. ValUlity, Form, and Becpiisites. 1. In Oenerah 2. Fur What Uses. 3. Selectiim of Assignee. i. Beservatinn or Retention of Interest by Assignor. 5. Conditions as to Release of Debts. 6. Schedule ; Inventory. b. General Construction and Effect. c. Assignee's Title, Bights, Duties, and Liabtl- ittes. 1. In General. 2. Sale; Accounting; Compensation. d. By Partners. e. Pi-eferences. 1. Setting Aside. n. Bights and Duties op Creditors ; Pbioriiy op CliAIMH. a. In General. b. Priority. in. Discharge. IV. Actions Br and Against Assignor and Assignee. Editorial Notes. See also Conflict op Laws, III. ; Corporations, V. ; Evidence, 2U ; Interest, 61 ; Money in Cohrt, 13 ; Parties, IV., VII. ; Partnership, 55; Set-Ofp, I. f ; united States. I. Assignment for Creditors. a. Validity, Form, and Bequisitea, 1. In General. 1. That an assijmee did not sign and seal the deed of trust, nor enter into a covenant to perform his duty, can be no ground for vitiating the instru- ment. Cunningham v. Freeborn, 1 Edw. Ch. 256, 6: 130 2. When a deed for the benefit of credilors is ab- solute, vesting the property in a trustee and giving- the creditors rishts (after preferences), the same » valid without the necessity of the creditors signing it. Ibid.. 3. Although such a deed has no schedules to show the property assigned, nor the names or the credi- tors, nor the amount of debts, yet these omissions are not, of themselves, sufficient to avoid it. In some cases, when talcen in connection with the cir-- cumstances, it might be otherwise. Ibid. t. An insolvent debtor may bona fide assign his- property to trustees, before it iias become u.>aud by any lien in trust for the benefit of all his creditors ; and the assent of the creditors is not necessary to give legal vahdity to the deed of as- signment. JVico;i V. itfumford, 4 Johns. Ch. 522, 1: 9!83: 5. But where the assignment is directly to the creditors without the intervention of trustees, the assent of the creditors is requisite to give it legal validity. . ItM.: 6. An assignment void in part upon the ground of being against the provisions of a statute is void in toto, and no interest passes tliereby to the assignees as against creditors wlin did not assent to it. Waltemanv. Orover, i Paige Ch. 24, 3: 33& 7. A voluntary assignment was executed by A. ^'2.'^ J^' conveying the whole of their estate and efTects to C, in trust for the benefit of all their creditors, giving a preference to C. It appeared by the answer that the assignors executed it because they were unable to pay their debts as thev would respectively tall due and become payable, and with a view of having their effects and claims turned to- the best ai^count, and to have them, or the proceeds- thereof, applied to the payment and jatisfaction of their debts and liabilities, so far as the same were necessary for that purpose. It also appeared that, at the time of its execution, the assignors supposed they were solvent and would have a surplus after paying all tiieir debts. HeM, that the assignment was made with the intent to hinder, delay, or de- Iraud the creditors of A and B. Van Nest v. Foe, 1 Sandf . Ch. 4, 7: 83 e 8. The assignee was the father of B, and resided about BOU miles from the place where A au^ u, the assignors, transacted business. He never toofc the actual possession of the property assigned, leaving A s effects in his possession, and those ot ,?°? ^ i°,i°® possession of the latter, to sell and collect. Held, on this ground, that the assignment was fraudulent. jjjjj^ 9. The conclusion would have been the same If it had appeared that the assignors were in truth m- solvent at the time of its execution, it being clearly proved that they believed they had a surplus, and executed the assignment with a view to such sur- plus. The law regards the intent of the assignor, and the result of his acts will not cure the fraudu- lent design. ibia- 10. In determining whether an assignment is, or is. not, fraudulent against creditors, the question iB not whether fraud may be committed by the as- signee, but whether the provisions of the instru- ment are such that, when carried out accordmg t» their apparent and reasonable intent, they will be fraudulent in their operation. Ward V. Tingley, 4 Sandf. Ch. 476. 7 ! 1 i 7 y 11. An assignment giving preferences to a fl'^t and second class of creditors, wno were designate ', pro- vided that the assignee, as soon as convenientlv might be, should advertise in such newspaper or papers as he might deem best calculated to give in- formation to the creditors, requesting them t» render their claims to him at a reasonable time and place; and the debts of the assignor which should come to the assignee's knowledge by the expiration of such time (not in the two first classes) shcu.d oonstitute the third class of creditors, ana bo paid ratably; and that all other debts should K jaid after those,— is not fraudulent against credit- 'rs- iind 12. IVhere an insolvent debtor assigned notes r3- oeived from a fraudulent sale of ins property to a creditor for the benefit of himself and other pre- ferred creditors, the acceptance by him of the- assignment will not prevent other crediti^-s from, impeaching the sale for fraud. Cooke -v. Smith, 3 Sandf. Ch. 333, ■} : 8 7.H 13. Though assignments in trust, with a power of revocation, may be good in family settlements, yet a power of revocation reserved by a debtor in aa. mSOLVEKCT AND ASSIGNMENT FOR CREDITORS, I. a, 2-4. 269 -asaigninent of his property to pay certain creditors I renders the instrument fraudulent and void. Biggs v. Murray, Z Johns. Ch. 565, 1: 493 14. This court wiU set aside an assignment void at law and necessarily leading to fraud and corrup- tion. Arden v. Patterson, 5 Johns. Ch. 44, 1: 1008 16. A general denial of fraud In an assignment of :properiy by a debtor is not sufficient to sustain the assignment, it It appears upon the face of the assignment that its legal effect must be to defraud the creditors of the assignor. Cunningham v. Freet)om,Z Paige Ch. 557, 3: 873 AfE'g 1 Edw. Ch. 256, 6: 130 16. Debtors made an assignment to trustees for id. d. By Partners. 89. An assignment of copartnership property to trustees, for the payment of all the debts of the firm, which assignment directs the surplus, if any, to be paid over to the assignors, is not necessarily fraudulent as to individual creditors of the different members of the firm. Bogert v. Haight, 9 Paige Ch. 297, 4: 708 90. Where two persons who were copartners as- signed all their partnership property and effects to trustees to pay the creditors of the firm, givmg preferences to certain classes of the creditors; and ■directed the surplus of the assigned property to be paid to the assignors; and one of the copartners afterwards made an assignment of all his property and effects to a trustee, to be applied, in the first place,to. the payment of his individual creditors, and the residue, if any, to be applied to the payment of such of the partnership debts as were not Included in the first class of debts provided for in the pre- vious assignment,— Held, that the assignment of the copartnership effects was valid as against the credi- tors of the firm, even if there were Individual cred- itors of the assignees at the time of making thea^ signment. UM. 91. One partnfer, on the eve of insolvency, cannot assign all the partnership property to a trustee, for the purpose oi paying debts of the firm, with any preferences. Such an assignment, distributing the effects equally among the creditors, is valid. Httchcoch V. St. John, Hoff. Ch. 511, 6: 1886 92. Whether a general assignment of the effects of a partnership, for the benefit of creditors, with- out any preference, executed by one of two part- ners without the knowledge or suspicion of the other, who was present attending t;o busmess as usual, be valid or void,— giKere. Hayes v. Heyer, 4 Sandf. Ch. 485, 7: 1180 93. After the"dissolution of a copartnership, one of two surviving partners cannot, without the con- sent of the other, assign the partnership effects to trustees for the beneflt of preferred creditors. Egberts v. Wood, 3 Paige Ch. 517, 3: 855 94. Whether the general partner in a limited co- partnership is authorized to make an assignment of all the partnership effects to a trustee, for the payment of debts ratably, without the consent of the special partner,— gucere. afifls V..4r0oll, 6 Paige Ch. 577, 3:1109 Egbertsv. Wood, 3 Paige Ch. 517, 3: 265 e. Preferences. 95. An assignment by a debtor which attempts to appropriate a pa,i*tO£ Uis piueoru^ lur tne use of his wife, to satisfy an alleged claim in her favor, which she could not have recovered from the as- signor by any suit or proceeding, either at law or in equity, is fraudulent and void as against the creditors of the assignor, if the property of such assignor, at the time of the assignment, was not sutlicieni to pay all his other debts and the alleged claim of his wife also, or so much of it as was at- tempted to be secured by the assignment. Planch V. Schermerhom, 3 Barb. Ch. 644, 5: 1042 S. C. 6 Ch. Sent. 75, 5: 1819 96. Where the assig:nor, as part of his preferred debts, directed his assignees to pay to his agents the amounts of such notes, checks, or drafts as they had made, indor8ed,or accepted for bis accommodation, the holders of such notes or drafts as the agents were legally liable to pay were entitled to be placed in the class of preferred creditors, if the liability arose be- fore the assignment. PraU V. Adams, 7 Paige Ch. 615, 4; 300 97. Where an assignor directed that all persons to whom he wasindebtea for money lent should be in- cluded in the class of preferred creditors, debts arising by the advance of uncurrent bank notes of other States, which were at a discount of 2 or 3 per cent in the money market, under an agreement that assignor should repay the whole nominal amount in current funds at the expiration of 30 days, were not entitled to be placed in the preferred class. Ibid. 98. An assignment of his property by an insolvent for the beneflt of his creditors, wolch assignment confers upon the trustees a discretionary power to give a future preference to a creditor, or to a class of creditors.o ver others, in payment of the proceeds of the assigned property, is fraudulent and void as against the creditors of the assignor. Bamum v. Hempstead, 1 Paige Ch. 568, 4: 878 99. An assignment of an insolvent assignor, for the benefit of creditors, which contains a provision for tlie payment, out of the proceeds of the assigned iJioperty, of future advances to the assignor, or of future liabilities which the assignees may assume for him, in preference to or to the exclusion of the debts which arc due to creditors whose debts had been contracted jyrevious to such assignment, is fraudulent and void as againstsuch creditors. Ibid. 100. An assignment, by a debtor, of all his proper- ty in trust to pay the trustees and such other credi- tors as the debtor in one year, by deed, might di- rect and appoint, etc., reserving a power to appoint INSOLVENCY AND ASSIGNMENT FOR CREDITORS, I. f, IL a. 273 ?i?y**™?*^^' A"'l *° revoke, alter, add to, or vary ti"; trusts, at his pleasure, is fraudulentand void. BiOBS V. Kurray, 2 Johns. Ch. 665, 1:493 lOLThe trustees under such deed were decreed to :5ocount for the proceeds of the property received toy them under the assignment, with Interest, de- auoting their commissions and charges: and to be entitled only to come in pwrl pami, with the other creiitors, for their ratable proportion of the debt- ■or's estate. *^ ^ jbM. 102. A general uasignment by an Insolvent debtor r.. ■■,,■ before the passage of the Insolvent Act under which the aebior wu» aischai-^ea irom liabil- ity. Ibid. 166. A mere naked trustee, without interest can- not become a petitioning creditor for an insolvent, without the consent of the cestui que trust, except in those cases specially provided for by the statute. Be Sherryd, 2 Paige Ch. 602, 8: 1048 467. A discharge, under the Insolvent Act of this State, passed April 12, 1813 (Sess. 3«, chap. 98), is not a bar to a suit here upon a contract made or debt contracted between parties in another State, and residing there at the time. Hicks V. Hotchkixs, 7 Johns. Ch. 297, »: 899 168. It seems that a discharge, under the Insolvent Act, from debts contracted within this State after the passing of the Act, is valid ; the Act, in such case, being prospective in its operation, is consid- ered constitutional. Ibid. 17. Actions Bt and Aoainst Asbiokob akd assionee. 169. The assignees of an insolvent, who had ob- tained his discharge under the Insolvent Act, must % be parties to a bill brought to enforce the execu- tion of an agreement or trust relative to his estate, existing prior to his assignment. Mman v. Hays, 1 Johns. Ch. 339, 1: 163 170. A reassignment to the insolvent by his as- signees, of all the residuary interest in bis estate, made without the assent of the creditors of the in- solvent interested iu the residuum, is void. Ibid. 171. Where a party has been discharged under th© Insolvent Act, and assigned his property pursuant to the Act, an application cannot be sustained, in relation to his property or interest, without making his assignees narties. Sells V. Bubbell, 2 Johns. Ch. 394, 1: 488 172. Where assignees, under an assignment for the Deneflt of creditors, receive promissory notes as part of the estate and collect and apply the avails in dividends to creditors, they cannot be compelled to repay the amount, where it turns out that the assignor held such notes as indemnity against his outstanding indorsements and ought not to have CAS'gned them as part of his effects. ' Weed V. Barley, 3 Edw. Ch. 277, 6: ©56 173. A simple-contract creditor may file a bill to have the trusts of a deed of assignment for the beneht of creditors carried -nto effect. But a creditor who wishes to impeach such a deed must flrpt obtain a judgment fiivi • £oceed to the extent or !in ex^r\ii"C^Ti at law. Lavjton v. Lemi, 2 Edw. Ch. 197, «: 366 Editorial Notes. Jurisdiction over proceedings in insolvency 3:179 Foreign bankrupt and insolvent laws 7:116 1:902 1:675 5:811 2:922 partial 6:806 1:382 Assignment for creditors; effect of as to foreign creditors voluntary ; validity of absolute, with schedule annexed distinction between general and assignment assent of creditors acceptance and rejection of provisions 1001 INSOLVENCY OP BANK-INSURANCE, I. b. 217 y creditors accepting benefit, bound 4: 300, 6: 109 I rights of creditors 5: 602 secured creditor entited to dividend pro ' rata 5: 341 creditor may sue if assignee refuses 5: 927 must definitely settle respective rights 4:279 restriction on right of debtor to assign 6:206 validity of; clauses affecting 6: 108, 13" provision for delay 1:493,4:74 effect of assignee's neglect 6: ii provision for payment of usurious claims 4:301 preferenses in 1: 675, 3: 327, 4: 954. 5: 341, 810, 6: 206 discretionary power to give future 4; 278 imposing conditions on creditors 3:827.6:66,206,361 Reservations to debtor 1: 493, 2: 455 of power 4:954 assignor retaining possession 6: 785, 1208 Fraudulent; effect of fraud 3: 336, 5: 602, 1042 not void ai initio 3: 837 intent; questions of law and fact 3: 273 equitable relief against 1 : 493 distribution of fund 1: 493, 3: 327 set-off 6: 425 priority of claims of United States 6: 121 Assignment by corporation in trust for pay- ment of debts 5: 841 judgment creditor of moneyed corpora- tion not entitled to preference 3: 1071 Assignment; by partner of firm property 3: 327, 614, 4:908, 5: 810, 6: 1227 by limited partnership 8 : 1109 preferences in 8: 327, 614 Assignee; selection of; presumptions 7: 623 disqualification 4:485 powers of 4:498 power to employ counsel 6: 109 as trustee 5:813, 6:206 bound to sell and pay over proceeds with- out delay 4:50 acting in good faith, protected 3: 338, 607 suit by 1:675 ejectment by 3: 179 takes subject to existing equities 5: 42 sale by, to bona fide purchaser 3: 607 INSOLVENCY OF BANK. See Banks and Banking, IV. INSPECTION. Editorial Notes. Right to inspect books and documents 1: 436, 470, 875, 2: Deposit for 2: Discovery aided by inspection 6: 1003 1003 1148 INSURANCE. b. Warranties ; Conditions, etc 0. Defenses. d. Loss Fund. e. Reinsurance. n. FiBB, a. The Loss and Proofs thereof. b. Interest in Proceeds. III. Lite. IV. Marine. a. LiabUtty; Subrogation. b. Abandonment; Spes Becuperandi ; In- terest in Proceeds. V. Insurance Companies. Editorial Notes. See also Speoitic PEBroRMANCE, 12. I. Gbnebai. Principles. a. Aareements for. I. General Principles. a. Agreements for. 1. Where a parol agreement for insurance was made with an uiiicer of an insuruncu ouiupuny w insure certain buildings, and a memorandum of the terms enti'red upon tbe company's application book, but no policy issued, and no premium paid or se- cured, or even charged to the applicant, who wa» notified to call and finish the business, but did not do so.— the company was not liable in case of loss. Whether a parol agreement to insure is valid. —aucere. Sandford v. Trust P. Ins. Co. 11 Paige Ch. 547, 5: 831 2. A court of chancery has jurisdiction to cor- rect mistalies in policies of insurance, as well as in aU other written instruments. The evidence of the mistake in all cases should be clear and satisfactory. Phoenix Ins. Co. v. Gurnee, 1 Paige Ch. 378, »: 646 3. The defendants, being a company incorporated iu the city ul JSew i ork lur the purpose of insuring property against loss or damage by fire, appointed K their surveyor at Savannah, in Georgia, to survey and return a description of the property offered for insurance, and to state the terms and probable rates of insurance to applicants; and to receive, from those who were willmg to pay, the premiums which be might name, and to transmit the same to the defendants, who reserved to themselves the right it deliberatinir and deciding on the applica- tions, and to accept or reject them, in their discre- tion; and their printed proposals stated that no insurance would oe considered as made or binding until the premium was paid, etc. Held, that K waa not the general agent of the defendants for effect- ing insurance; nor were they bound by his agree- ment for that purpose, or by his receipt of the premium of insurance, so as to make them respon- sible for a loss happening before the premium was transmitted to them, and before they laiew of the application, and, of coiu:se, before they had consid- ered of or accepted the proposal, or executed the policy of insurance. Perkins v. Washington Ins. Co. 6 Johns. Ch. 485, S: 193 b. Wa/rranties; Conditions, etc. 4. There may be several warranties in the same policy, founded upon separate aud distinct facts; and it is immaterial in what part of the policy they are Inserted. „ Callaghan v. Altanti£ Ins. Co. of N. T. 1 Edw. Ch- 64, 6: 61 5. Words amounting to a warranty of a vessel's being then at a particular port or puysically there, must have a place in the policy as forming part of tbe contract. Ibid. 6. The words in a memorandum for insurance "On ship Nancy, J. S. master, at and from the port of G. (where she now is,) etc." amouut to a war- ranty; and underwriters in making out a policy would be entitled to insert thom as part of the con- tract. J"*"- 7. Distinction betyreen an express warranty and a representation. loia. 8 For the purpose of determining whether words amount to a warranty, the circumstances, occasion of using and object of them must be scrutinized. Ibia. 9. A representation merely in a memorandum for 278 INSURANCE, I. c-III. insurance, is to be scrutinized according to its effect upon the contract. Ibid. 10. A representation fairly made will not vitiate a policy, alciiou^u ii bo in some decree erroneous; but if it contains an assertion of a material circum- stance wbicli the insured maizes in an unqualiHed manner, without knowledge of its truth or false- hood, the same w^U vitiate the policy in case it turns out to be false. Ibid. 11. Neither receivers nor a president of an insur- ance company have power to dispense with the conditions of a policy. McEven v. Laiorejtce, Hofl. Ch. 172, 6: 1 105 c. Defenses. 12. Where the underwriter means to rely upon the Insufficiency of the preliminary proofs, the objec- tion must be distinctly made; and if be puts his re- fusal to pay upon other grrounds, without any sug- gestion tnat the preliminary proofs are insuCftdent, the objection to the sufSciency of such proofs_will be considered as waived. Rogers v. Traders Ins. Co. 6 Paige Ch. 583, 3: 1111 13. Where, by the terms of a policy of insurance, the insurers are autnonzed to elect to replace tht articles lost or damaged, a refusal by the assured, without sufScient excuse, to permit an examination of the goods saved, and a proper scrutiny as to the alleged loss, would authorize a presumption that the statement of the loss was false and fraudulent. New York F, Ins. Co. v. Delavcm, 8 Paige Ch. 419. 4:486 d. Loss Fund. H. The capital stock of an insurance company is not the primary fund for the payment of losses which may accrue upon property insured. The premiums received for insurance, and the interest on the capital stock, constitute the primary and natural fund for the payment of the debts and losses of the company; and the capital stock can only be resorted to when this primary fund is found to De insufficient. De Peyster v. American F. Ins. Co. 6 Paige Ch. 486, 3: 1071 15. The words " It shall and may be lawful " for a company to set apart a fund to be held and pledged for payment of annuities and losses on lives, do not aecessarily render the doing of the thing spoken of imperative. But until a separate fund is created, the whole capital and property of the company is bound for all annuities and insurance on lives. Wlien such fund is created, then it alone will be bound. VerplancH v. Mercantile Ins. Co. of N. T. 1 B. 84, 6: 68 e. Reinsurance, 16. Where a corporation has underwritten a policy, wnd afterwards causes itself to be reinsured, and, after the loss of the property insured, such corpora- tion becomes insolvent, the sum due on the con- tract of reinsurance belongs to all the creditors of the insolvent corporation ratably. Herckenrath v. American Mut. Ins. Co. 3 B. 63. 5: 818 17. The risk which the first insurer had assumed forms, as between him and the reinsurer, the sub- lect-matter of the reinsurance; and such reinsur- ftnce is a new contract entirely distinct from the first, which still subsists in all its force. Ibid. 18. It seems that upon a contract of reinsurance the reinsurer is bound to pay the amount which the original insurer becomes legally liable to pay 1o the assured in consequence of the risk assumed, and not merely the amount which the oiiginal in- «urer actually pays in consequence of the risk as- sumed by him. Ibid. n. Fire. a. The Loss and Proofs thereof. 19. Where property in the city of New York, which was insured, was destroyed by order of tne mayor and aldermen to prevent the spreading of the fire, and the assured afterwards obtained an assessment of hisdamagesfor the destruction of his property, by a jury in conformity to the statute,— fleid, that such sssessment was not evidence, as between the assu red and the underwriters, of the am -^unt of the loss; and that the assured was entitled to recover of the insurers the whole amount of his loss in conse- quence of the fire, after deducting therefrom the net proceeds of what -had been recovered from the corporation of the city, provided such balance did not exceed the sum for which the insurers were lia- ble uneur the policy. Pentz Y. Receiver ofJEtna F. Ins. Co. 9 Paige Ch. 568, 4: 818 Keversing 3 Edw. Ch. 341, 6:682 20. Where a fire policy required persons sustain- ing loss forthwith to give notice thereof in writing to the company, etc.; and notice was not given until more than four months after the fire,— Heki, that the party injured could not recover. McEvers v. Lam-ence, Hoff. Ch. 172, 6: 1105 b. Interest in Proceeds. 21. Where, in a partition suit, the buyer is one of the heirs in interest, and an insurance uhs been had of the premises in the names of ail the heirs* and a fire destroys the buildings on the property after the time of sale as well as after a confirmation of the master's report of sale, but before a conveyance,— 0eid,that the buyer, paying his full purchase money, was entitled to the benefit of the policy. Gates V. Smith, 4 Edw. Ch. 702, 6: 1035 22. Where a judgment creditor of a corporation in- sured its real estate in the joint names of himself and of the corporation, and the property was after- wards sold under his judgment and bid in by him, and after the sale such property was partially de- stroyed by fire, and the property was not redeemed from the sale, he was entitled to the money received from the insurance company on account of such partial loss. Micldes v. Rochester City Sank, 11 Paige Ch. 118, 5: 77 23.1n such case, if the loss had happened before the sale, or if the corporation had redeemed the prop- erty from such sale, the insurance money would have belonged to the corporation. Ibid. 24. Where the owner of mortgaged premises in- sures them for his own beaeht, auU tne premises are destroyed by fire, the mortgagee is not entitled to the money payable by the insurers on account of such loss, although the assured was personally liable for the debt secured by the mortgage. Carter v. Rockett, 8 Paige Ch. 437, 4: 493 25. But if the assured was bound to insure the premises for the protection and indemnity of an- other person who had an interest in the subject of the insurance, such person will have an equitable lien upon the money due on the policy, to the ex- tent of his interest in the propc.-tv destroyed by the fire. Ibid. 26. Where a mortgagor covenants with a mort- gagee to keep the premises insured during the con- tinuance of the mortgage thereon, and the buildings on the premises are destiroyed by fire, the mortgagee hiis an equitable lien upon the money due upon the policy. Ibid. 37. Where a mortgagee properly holds a policy of insurance on mor^aged premises, and the mort- gagee sells subject to the mortgage, but the policy remains in the mortgagor's name (assigned to the mortgagee) .without the buyer having had it in any way changed, and afire happens, the mortgagee, on claiming from the insurance company, should per- mit the insurers to take an interest in the mortgage to the extent of the fire claim, and the buyer could have no benefit of it in any other way. Re Kip, 4 Edw. Ch. 86. 6:807 III. Life. 28. Where a married woman procured a poUoy of insurance upon the life of her husband, in Uer own name and for her sole use, as authorized by the Act of April, 1840, the insurance money being made payable to her children in case she should die be- fore her husband, and subsequently both husband and wife and their only child perished at sea by the same disaster and probably at the same moment, — the contract of insurance stood upon the same foot- ing as any other contract made by a feme covert in her own name, in the lifetime of her husband and without the intervention of a trustee. Moehrlng v. Mitchell, 1 Barb. Ch. 264, S: 379 29. Where G,being about to depart from New Yort INSURANCE, IV. a-V. 279 on a voyage to the East Indies, gave an order for insurance on his life to the amount of £3,000 ster- 'llng, which was [accepted by the Insurance com- pany In London; and the agents of M, who under- looK to complete. the business, paid the premium for one year, and received the policy for that :araount, to continue for ten years, at tne election ■of G ; but M afterwards, alleging that there was ;» mistake, without the knowledge or consent of G-, procured this policy to be canceled by the insurers, .and another policy to be executed by them for JE450, the difference of premium being refunded by the msurers, — Held, that M, by thus procuring ■a, valid and existing contract of insurance to be canceled, substituted himself for the insurers, and was answerable to the legal representative of G, who died within a year, for the amount Insured by vthe original nolioy, after deductinir the premium. Qray v. Murray, 3 Johns. Ch. 167, 1: 580 IV. Marine. B. lAabiHty ; StibrogaOon. 30. Under a policy of insurance upon goods, «fiiniJSt, loss by luiL-ves, tlie uuacrwriter is liable tot a loss by thieves who are in no way connected with •the smp, whether the robbery is perpetrated by a simple larceny or by opi'n violence, although the master or shipowners may be also liable as common -carriers for the loss. Atlantic Ins. Co. v. Storrow, 6 Paige Ch. 285, 3: 780 31. Whether the insurer is liable for a loss from a -simple larceny committed by persons belonging to the ship,— ijucere. lbid_ 32. Where the underwriter Insures against loss by thieves, and the master or snipowners are also lia- ble to the assured for the loss from a theft, such master or shipowners have no equitable claim upon •the underwriter for a contribution to make good the loss. And if the assured receives satisfaction from them, the policy cannot legally be assigned for their benefit, so as to enable them to recover -against the underwriter. Ibid 33. Where the master or shlpownere are liable to •the assured for a loss by theft, for which the under- writers are also liable, if there is an abandonment for a total loss, and the insurer pays the amount ol rsuch loss, he is entitled, in equity, to be subrogated to the rights of the assured, as against the mastei -or shipowners. And if the assured cancels the bill of ladmg, or discharges the claim again.st the mas- ter or shipowners for the loss after he has obtained Judgment against the underwriter, the court of chancery will relieve the latter against the Judg- ment pro tanto. IMd. 34. Underwriters are entitled to all remedies which "the assured had against the master and owner; and the assured cannot transfer them to the latter so as to defeat such remedies. Aaantic Ing. Co. v. Storrow, 1 Ed w. Ch. 621, 6: 869 35. And where a judgment was had against under- writers upon a total loss, and the assured received the amount from the owner and assigned the p olicy land gave up the bill of lading to the latter,— it was held, that the underwriters should be credited on the judgment the amount for which the master or -owner was liable. Ibid. •b. Abandonment; Spee Becuperandi; Interest in Proceeds. 36. The right to abandon depends on actual facts ■ existing at tne time of the offer, not on the informa- tion then possessed. The offer to abandon must be founded on information of facts, suflBcient to jus- tify an abandonment. There must be both infor- mation of sufficient facts, and the existence of suf- ficient facts; althougli the facts need not be the ^"^cHff V. Coster, Holt. Ch. 98, 6:1077 37. A restoration of a vessel prior to an abandon- ment converts a total into a partial loss; but this rule does not apply if the voyage be totally broken up, or the salvage exceed one half the value. The same rule applies to a restoration of cargo. Ibid, 38. Where an abandonment is rightfully and prop- • erly made, althougo tne unaerwnters nave nut ai^- cepted the same, and paid the loss, the »pes recuper- to the attorney of the next ol kin, showing the balance due, but refused to pay interest on certain moneys which hehadnotinvested. and the attorney 'j-eceived such balanoeand gave a receipt in full, the next of kin could not afterwards claim interest upon the balance of the account. Jocot V. Emmett, 11 Paige Ch. 142, 5: 86 S. C. 4 Ch. Sent. 32, 6: 11 45 77. Where interest is only recoverable as damages I for the nonpayment of the principal when It be- came due, the receipt of the principal debt by the creditor is a bar to any claim for interest thereon. IM. II. Computation; Rate, 78. The correct and legal mode of computing In- terest on an account between debtor and creditor, where partial payments are maue, is first to carry the payment to the extinguishment of the interest due, and, It such payment exceeds the interest due at the time, then to deduct the surplus only from the principal, and compute interest on the balance to the next payment. StoitoMon V. ij/noft, 2 Johns. Ch. 209, 1:351 79. Whether the practice prevailing among mer- chants, in settling their accounts, to state an inter- est account, on which interest is charged on each Item of principal on the debit side, and credited on each item on the credit side, of the account, and a balance of such interest account struck, and added to the balance of principal, is to be adopted in the pottlement of accounts between merchant and mer- chant,— gutBre. Ibid. 80. But where a master, under an order of refer- ence to him, in stating an account between the par- ties, who were partners in trade, adopted this mer- cantile usage, the amount was allowed to stand, there being evidence before the master that, from the books of account and otherwise, the parties themselves had followed this usage, and the calcu- lation was so made by an eminent merchant, to whom the accounts Were referred, with the consent of the parties, who did not question the statement when it was brought in to the master. Ibid. 81. The rule for casting Interest when partial payments have been made.is to apply the payment, in the first place, to the discharge of the interest then due. If the payment exceeds the interest, the surplus goes towards discharging the principal,and the subsequent interest is to be computed on the balance of the principal remaining due. If the payment be less than the interest, the surplus of interest must not be taken to augment the princi- pal; but interest continues on the former prmeipal until the period when the payments, taken to- gether, exceed the interest due, and then the sur- plus is to be applied towards discharging the prin- cipal; and interest is to be computed on the balance of principal as aforesaid. Connecticut v. Jackson, 1 Johns. Ch. 17, 1: 43 82. The time from which interest is to be charged, in ease of negligence, varies according to circum- stances. Dunscomb v. Dun$ccmib, 1 Johns. Ch. 508, 1: 885 S3. Although the rate of interest is governed by the law at the time of the loan, yet a subsequent law, which varies the rate, will affect it where the loan is not paid, and there is a continued refusal or neglect to discharge it. The interest will be calcu- lated at the old rate down to the repeal of the old Act, and afterwards at the rate mentioned in the new statute. Bullnek v. Boyd, Hoff. Ch. 294, 6: 1148 84. If a promissory note is dated before the first of January, 1830, and sued on afterwards, the interest is to be computed at 365 days to a year to that date, and 360 days subsequently. IbH, 85. Where a mortgagee has contracted to receive a rate of interest less than the legal rate, during the time of credit agreed upon by the parties, and he suffers the mortgagor to remain in possession after the mortgage money becomes due and payable, it seems that an understanding of the parties will be presumed that the interest shall continue at the same rate until the mortgagee thinks proper to de- mand payment. But no such presumption can be raised where the mortgagee attempts to foreclose his mortgage,' and takes possession of the mort- gaged premises, under the supposition that he has actually acquired the equity of redemption as a substitute for bis debt. Bell V. New York, 10 Paige Ch. 49, 4: 881 86. Where bankers received moneys of their cus- tomer on deposit from time to time, and an agree- ment was made between them that such customer should be allowed 5 per cent interest upon a portion of the deposit from a specified time until paid; and after the death of the customer the bankers made a false entry in their books, and concealed from his personal representatives the fact of the existence of the portion of the deposit upon which the 5 per cent 284 INTEREST, III— INTERPLEADER, I. Interest was payable, for tbe purpose of defraud- ing them out of that portion of tbe deposit,— they were liable to pay Interest at the legal rate upon that portion of the fund from the time of the com- mission of the fraud until the money was paid. Leake & W. Orphan Bouse v. iMwrenae, 11 Paiire Ch. 80, 6: 63 87. On a bond conditioned to pay, with interest at 6 per cent, for the security of which a mortgage is taken, the obligee, after a forfeiture of the bond, is not entitled to 7 percent, the lawful interest: but interest is to be paid according to the contract until it ceases to operate by beine merged in the df^^ree. MUUr V. Burroughs, i Johns. Ch. 436, 1: 894 88. The agreement under which an account of joint opei'uLiuus lu leai ^o.uti; wus directed was to make advances tor a purchase. The account em- braced those, with large disbursements also, and the decree restricted interest on all advances to 6 per cent. Held, that the disbursements were not Deluded in the restriction. Stevenson v. McaweH, 2 Sandf. Ch. 273, 7: 59i 4.v,^®- "S® ''^®* °* *° eguitable rate of interest less than the rate established by law has never been adopted m this State. Clarkson v. JDe Peyster, Hopk, Ch. 424, « 8:473 s m. Compound Interest. 90. Interest upon interest, or compound interest. Is never uiloweu unless m special cases,— as, wuere there is a settlement of the accounts between the parties after interest has become due; or there has been an agreement for that purpose subsequent to the original contract ; or a master's report, com- puting the amount of principal and interest, has been confirmed. Connecticut v. Jackson, 1 Johns. Ch. 13, 1: 41 See Barrow v. Bhindander, 1 Johns. Ch. 550, 1:348 91. Compound interest is not allowed, unless on a special agreement in writing, after the lawful inter- est has become due. The agreement, to be valid, must be prospective in its operation; as, that the interest then due and payable shall carry interest thereafter. Van Bensehootenv. Lawson, 6 Johns. Ch. 313, 8: 136 92. An agreement made at the time of the original contract or loan.that interest shall begin and run upon the lawful iuterest, from the period stipulat- ed for its payment, is not valid. Ibid. Connecticut v. Jackson, 1 Johns. Ch. 14, 16, 1: 48, 43 93.Compound interest cannot be recovered unless there is a special agreement to pay interest upon the interest of the principal debt after such latter Interest has become due and payable. Toll v. Hiller, 11 Paige Ch. 228, 5: 117 94. The principle of not giving effect to an agree- ment for^he compounding of interest which is to become due is not based upon the usury laws; but is adopted as a rule of public policy, to prevent ac- cumulations of compound mterest in favor of cred- itors who neglect to collect their interest when it becomes due. And the principle upon which the rule is founded does not apply to a case where one man advances money to purchase property for the benefit of himself and another, to be refunded to him with compound interest, out of the proceeds of the salp of the property. Qtmckenbush v. Leonard, 9 Paige Ch. 334, 4: 788 95. An agreement to pay interest on arrears of interest which have already become due is vahd; and if compound interest is voluntarily paid by the debtor it cannot be recovered back. Mowry v. Bishop, 5 Paige Ch. 98, 3: 643 96. Compound interest is allowed only in cases of gross delinquency. ClarTcsonv.DePei/sreT-, Hopk. Ch. 424, 8:473 97. Compound inteiest is not allowed in favor of a trustee or executor, though it is sometimes per- mitted against him, when he refuses to disclose the profits he has made out of tlip trust propert.v. Euertsora V. lUppen, 5 Johns. Ch. 497, 1: 11S4 98. It is only in special cases and under peculiar circumstances that interest is to be compounded against trustees, executors, etc. It is confined to cases of willful omission of duty , and is not adopted in a case of negligence. Oarniss v. Gardiner, 1 Bdw. Ch. 128, 6: 85 99. Where an administrator employed the moneys belonging to his intestate's estate in trade for hi* own benefit, of the profits of which he refused to- give any account, the master, in stating an a<^ count, after allowing a reasonable time for the set- tlement of the estate, charged compound interest^ making annual rests in the account for that pur- pose, which was confirmed by the court. Schieffelin v. Stewart, 1 Johns. Ch. 620, 1:86* 100. An executor, under the old doctrine of re- tainer foradeijc due to hiiiisuif, cannot make a rest on the day he took out letters testamentary, so as t^) entitle him to interest upon the interest which was then due to him. But if such executor is pre- vented from receiving his interest by reason of an injunction which was iDiproperly obtained, he will be allowed interest upon the interest due at the time of the service of the injunction, and which such in- junction prevented him from receivinir. Rosack V. Rogers, 9 Paige Ch.461, 4: 776- 3: V4 2: 609' 3: 995 5:825. 3: 9.>6- Editobial Notes. Allowance of mterest; when 6: 744, 7: 874- as damages 4: 883, 5: 86, 6: 744 not allowed on unliquidated demand 3: 823; on accounts 1: 726, 3: 959- partnership accounting 7: 531 on bond 2: 208 on contract obligations 1 : 894 against purchaser at sheriff's sale 7: 591 on judgment for tort on execution on investments on annuity on claims against insolvent on legacy 1: 512, 8: 986, 994 Executors and administrators chargeable; from what time 1: 67, 225, 234, 235', 5: 86, 1046, 6: 245, 42:i- Computation of, on contracts 3: 643- law of place; what law governs 2:624, 3:1129, 4: 30J Prepayment of 3; 643 Statutory rate; effect of change 6: 1148- Upon interest; when 3: 643, 5: 117 Compound, when allowed 2:136, 3:648. 4:722 liability of trustees for 1: 268, 2: 473^ on contract cannot be compounded 7: 76& Application of payment to 3: 643- Payment of principal as a bar to claim for 6: 86- INTERNATIONAL LAW. It belongs to the government of the country to- declare whether it will consider a colony that has thrown off the yoke of the mother country as an independent state; and, until government has de- cided on the question, courts of justice are bound to consider the ancient state of things as remain- ing unchanged, Gelston v. Hoyt, 1 Johns. Ch. 543, 1: 840- INTERPLEADER. I. When Lies; Who Mat File. II. Practice. Editorial Notes, I. When Lies; Who May File. 1, A bUl of interpleader may be filed whenever It ia a matter of doubt to which of the defendants the fund in the complainant's bands actually belongs, so that he cannot safely pay it to either. Bell v. Hunt, 3 Barb. Ch. 391, 5: 945- 2. Where the holder and owner of a bill of ex- INTERPLEADER, I. 385 -etaange is declared a bankrupt, and It is a matter ■of doubt whether such bill was not within tlie Jurisdiction so as to pass to the assignee in bank- ruptcy, except as to bona fide holders thereof ■without notice, the drawer of the bill, who Is lia- ble to pay the same to the rightful holder and ■owner, may flle a bill of interpleader against the -different claimants of such bill, to compel them to "Settle the right to the same between themselves. Ibid. 3. A bill of interpleader, strictly so called, is where the complainant claims no relief against •either of the defendants, but only asks for leave to pay the money or deliver the property to the one to whom it of right belongs, and that he may there- -after be protected from the claims of both. Bedai V. Hoffman, 2 Paige Ch. 199, 2: 878 4. But a bill in the nature of a bill of interpleader imay be filed to redeem and be let into possession -of mortgaged premises. Ibid. 5. The object of a bill of Interpleader is to pro. iieot a complainant standing in tlie situation oi aa ^nocent stakeholder, and where a recovery against .him by one claimant of the fund might not protect 'him against a recovery by another claimant. Badeau v. Rogers, 2 Paige Ch. 209, 8: 878 6. It is not necessary to flle a bill of interpleader ■where the holder ot me fund is already a party tu a «uit in chancery brought by one claimant against -the other to settle the right to the fund inhishanris. Ibid. 7. In such a case the holder of the fund should .apply by petition in that suit for leave to pay luu fund into court to abide the event of the litigation between the other parties. Ibid. 8. Bills of interpleader should not be filed except -in cases where tne complainant can in no other way be protected from an unjust litigation in which he has no interest. Bedell v. Hoffman, 2 Paige Ch. 199, 2: 878 9. Bills of interpleader are not to be encouraged, ■where there is any other mode of adjusting con- iflicting claims with perfect safety to the stake- ■holder. Still, a party holding a fund in which he has no interest and to which adverse claims are set up, is not bound to stand an action at law under a ■promise or offer of indemnity. Nor is he obliged to exercise any judgment on the subject of the right between the parties when one threatens or commences a suit and tb€^ other forbids payment. Bleeker v. Oraliam, 2 Edw. Ch. 847, 6: 536 10. If adverse claims arise as to the deposit money •received by an auctioneer,one party insisting upon its return and the other upon its being paid over, ■the auctioneer may flle a bill of interpleader. Ibid. 11. Although a sheriff may meet with embarrass- ment in rt'lHCiou to the ownership of personal •property upon which he is required to levy, or in regard to money coming into his hands under proc- ess at law, yet he cannot sustain an interpleader thill; he has sufficient legal protection in such cases, it is possible there may be circumstances to author- -ize a bill of interpleader by a sheriff — as, whore he ■has not been left to pursue the usual legal course with an execution; but, by following the directions of parties in interest, or by their interference, and without there being any fault, omission or neglect on his part, he has been led into embarrassment or difficulty in relation to conflicting claims from ■which he can relieve himself in no other way. Shaw V. Chester,^ Edw. Ch. ,405, 6: 446 ^Z. When a person is in danger of being doubly vexed by adverse claimants, whether by suit com- ■menced or only threatened, he may flle a bill of in- •terpleader. Nor does it matter whether one claim be of a legal and tlie other of an equitable char- acter. Tateg V. TisdaU, 3 Edw. Ch. 71, 6: 575 IB. Although the manager of a lottery is not com- cpelled to make more than one whole payment on a prize; and is not to be subjected to a multiplication -of rights and suite by the division of it among after •buyers, and will be; protected by paying the holder ■and receiving the ticket, yet, where two have an interest in a ticket and one gives notice to the man- ^ager of hie right or partnership in half, while the -other claims the whole, the manager may flle In- iterpleader. ItM. 14. A sheriff who by virtue of an execution levies upon property claimed by a third person cannot 'flip a bill of interpleader against such third person iiid the plaintiff in the execution, to have them set- '■ the right to the property between themselves. Sftato V. Coster, 8 Paige Ch. 339, 4: 458 IB. In abill of interpleader the complainant should show that be Is a mere stakeholder, having no per- sonal interest In the controversy between the par- ties claiming the funds in his hands; and that tneir respective claims against him are of the same na- ture or character. He cannot sustain an inter- pleading suit, if he is obliged to admit that as to ei- ther of the defendants he is a wrongdoer Ibid, lb. 'i'he complainant in an interpleading bill luust show that he is ignorant of the rights of the re- spective parties who are called upon by him to in- terplead and settle their rights between themselves: or, at least, that there is some doubt in point of fact to which claimant the debt or duty belonirs. And, therefore, if he states a casein bis bill wliiuh shows that one defendant is entitled to the debt or duty, and that the other is aot,.both defendants may demur. Ibid, 17. J, having placed goods in the hands of O as a security for advances, obtained the goods on a promise of other indemnity, and departed from New York to go to Liverpool, March 11, 1841, in the steamship President. Nothing was ever heard of the ship or of any person who sailed in her, after she left the harbor of New York. In AprU, and il-'ain in Mav, 1841, J's attorney placed securities in ■he hands of O for the promised indemnity, and di- rected O to pay the surplus to W, to whom J was largely indebu-d; to which C agreed. In August, 1841, administration was granted on J's estate. I'lieic being a surplus, it was claimed from O by W, and by the administrator ot J, and each sued O at law for the same. The administrator did not ques- tion O's right to the indemnity. HeM., (1) tliat it was a proper case for a bill of interpleader by O against the rival claimants; and (2) that he was un- der no personal obligation to W which prevented his resorting to that remedy. Oi/penheim v. Leo Wolf, 3 Sandf. Ch. 571, 7: 961 18. B was tenant of Mrs. T from year to year, at an annual rent payable quarterly. Upon the death of Mrs. T, her husband, T, claimed the tenement and the rent as her devisee, and the same were claimed by her heirs at law. Bach party threat- ened to distrain for the rent. B thereupon filed a bill of interpleader against T and the heirs of Mrs. T. A demurrer to the bill was overruled. Badeauy. Tylee, 1 Sandf. Ch. 270, 7: 325 19. Abill of interpleader is proper when the claim of one party is legal and that of the other equitable. Yates V. Bartlett, 2 Ch. Sent. 56, 5: 1093 20. A bUl of interpleader may be filed, though the party has not been auua at law, or has been sued ay one only of the couflicting claimants, or though the claim of one of the defendants is actionable at law, and that of the other in equity. „ - ~„ Richards v. Salter, 6 Johns. Ch. 445, 2: 180 21 A strict bill of interpleader cannot be main- tained by a bailee or agent, to settle the confiioting claims of the bailor or principal and a stranger who claims the property by a distinct and independent Marvin v. miwood, 11 Paige Ch. 365, 6: 164 S. C. 4 Ch. Sent. 67, 6:1158 22. Neither can an attorney maintain such a bill to settle the claim to money which he has collected for his client, where a mere stranger claims the money upon the ground that the security upon which the money was collected was originally ob- tained by his client wrongfully. Ibta. 23 Whether, under any circumstances, an attor- ney can sustain a bill of interpleader against bis client and a stranger, where the cUent is wholly irrpsDonsible, and where he refuses to indemnify the attorney against the claim of such stranger, which is apparently well founded,-aiiare. Ibid. 24. To sustain such abUl, the complainant at least mnat ahow that he has good reason to believe the rdvereecTaim towell founded, and that there is no Possibility of protecting himself from loss by any Ether means than by the interference of the court. 25 Where the client of an attorney assigns the de- mand on which the suit is commenced, and the as- BiB-nor afterwards attempts to repudiate the assign- mint as having been obtained by fraud, or as being invalid for any other cause, the attorney, if he has not recognized either the assignor or assignee as his cUent subsequent to the assignment, may flle a mU 286 INTERPLEADER, II. of interpleader as standing inthe same privity with each. Itmi, 26. A simple bill of interpleader cannot be sus- tained by a party who has, in auy way, lent Dimaeii; to further the claims of either of the parties who claim the fund in controversy, or to aid one in ob- taining the possession thereof i to the exclusion of the other. iWd- 27. It is no objection to a bill of interpleader, that the complainant has an inturest in respect of other, property not in the suit, but which might be litigat- ed, that one party rather than the other should suc- ceed in the interpleader, so as to increase his own chance of success in respect of such other property. Such interest may be termed an interest in the question, but not in the particular suit, and does not prevent him from filing an interpleader. Oppenlwlm v. Leo Wolf, 8 Sandf . Ch. 571, 7: 961 28. If, however, the complainant be liable to either party in respect of the spiicitic fund in dispute, be- yond the question of property, or make claims on the fund, which either of the defendants contests, it is not a proper case for an interpleader. Ibid. 29. Where a party in possession of a fund delivers it to one of two independent claimants from whom he receives an indemnity, his right to file a biU of interpleader ceases. Marvin v. Ellwood, 11 Paige Ch. 365, S: 164 30. It would seem that a trustee or agent can file a bill of interpleader. Schuyler v. Pelisaier, 3 Bdw. Ch. 191, 6: 688 31. Interpleader may be dispensed with when the party holding the fund, by payment or delivery to one, can be discharged from all liability. Ibid. 32. When a person is taxed in two different places for the same property, when he is only legally liable to be taxed once, and when it is doubtful to which party the right to tax belongs, a bill of interpleader, or a bill in the nature of a bill of interpleader, with a prayer for relief, will lie to compel a settlement of the right of taxation. Bedfield v. Oenesee County, Clarke Ch. 42, 7: 46 33. A party who is taxed in two different towns for the same property, which is only liable to be taxed once, and where it is doubtful to which town the right to the tax belongs, may file a bill of inter- pleader to compel the collectors of the tax to settle thp right between themselves. Mohawk & H. B. B. Co. v. Clute, i Paige Ch. 384, 3: 480 31 A. bill of interpleader cannot be sustained where, from the bill itself, it appears that one ot the defendants is clearly entitled to the debt or duty claimed, to the exclusion of the other. Ibvi. 35. Where a complainant is entitled to equitable relief against the owner of property, if the legal title to the property is in dispute between two or more persons, so that he cannot ascertain to which of them it actually belongs, he may file a bill for re- lief against the several claimants, in the nature of a bill of interpleader. IMd. 36. Complainant being assessed for the same per- sonal property in two different counties,— Held, that a bill of interplfeader-a^ainst the two colleo- tors is proper. Thomson v. Ebbetts, Hopk. Ch. 272, 8: 419 37. And having paid into court the amount of the highest of the two taxes, he was dismissed, with costs from the fund, after both defendants had an- swered admitting the complainant's allegations. 2bid. n. Pbactiob. 38. If there be no aflSdavit denying collusion, at- tached to an interpleader bill, it is ground of de- murrer. Shaw V. Chester, 2 Edw. Ch. 405, 6: 446 30. Generally, where a party files an interpleader bill, he must offer and be in readiness to bring the money or thing in dispute into court ; and must do BO if any injunction is to be granted. Ibid. 40. The complainant in a bill of interpleader must offer to bring the fund in dispute into court; aud he must show that he is ignorant of the rights of the different claimants, or at least that there is some doubt which of them is entitled to the fund, so that he cflnnnt safply nav it to eithor. Mohawk & B. B. B. Co. v. aute, 4 Paige Ch. 384, 3: 4S0 41. The complainant in a bill of Interpleader must ^^\\aex to lus u.n uu amuuvit ihac there is no collu- sion between him and any of the other parties; and it the bill is filed in relation to moneys in his hands, hemust bring the money into court, or offer by his bill to do so, to enable the court to compel a compliance with such offer, upon the application of either of the other parties. Shaw V. Coster, 8 Paige Ch. 339, 4: 45* 42. Where the contest between the defendants in an interpleader suit was one of equitable cogni- zance the parties were directed to interplead in the court of chancery, and to proceed by bill. Balchen v. Crawford, 1 Sandf. Ch. 380, 7: 36» 43. If a defendant permits a bill of Interpleader to be taken as confessed against him, it is an ad- mission that as to him the bill was properly filed, and that be has made an improper claim upon the fund. Badeau v. Bngers, 2 Paige Ch. 209, 8: 878 44. Where a bill of interpleader is filed against two defendants, and one oi them is not persuuauy served with process, and does not appear, and the bill is taken as confessed against him, the defend- ant who appears will not be entitled to the posses- sion of the fund until the expiration of the time limited by the statute for the other defendant to appear, unless he gives security to repay the fund in case the other defendant appears and establishes his right to the same. Aymer v. OauU, 2 Paige Ch. 284, 8: 90» 45. On a bill of interpleader, the right may be de- cided in lavor of one aefendant against the other ;. and if one defendant establishes a title, and the other makes default, the court will decree payment to the one, and award a perpetual injunction as to the other. Biehm-ds v. Salter, 6 Johns-Ch. 445, 8: isa 46. If a bill of interpleader is ripe for a decision as between the def enuants, as well as between them and the complainant, the court settles the conflict- ing claims of the parties, and makes a final decree on the first hearing. City Bank v. Bangs, 2 Paige Ch. 570, 8: 103S 47. Where the suit is not in readiness for a deci- sion as between the defendants, the court merely decides that the biU is properly filed, and dlsmlaeea the complainant, with his costs up to that time, and directs an action to be brought, or an issue, or a ref- erence to ascertain and settle the rights of the de- fendante to the fund in controversy. Ibid. 48. On a reference to a master to settle the rights of the defendants in a bill of interpleader, as be- tween themselves, the court will give them the ben- efit of a discovery, as against each other, if they, or either of them, desire it. Ibid. 49. Where one of the defendants in a bill of in- terpleader, by his answer, makes a claim againsl^ the complainant beyond the amount admitted to be due and paid into court, and which is not claimed by the other defendants, he will be permitted to- Eroceed at law to establish his right to that part of is demand which is not in controversy with tha oVasx delendauts. Ibid, Editorial Notes. Interpleader; when proper 2: 180, 877, 3: 481, 4: 452, 5: 945, 6: 535, 575. 7: 961 Bill taken as confessed 2: 877, 909' Costs upon 2 ; 877 Not favored unless necessary 2:872 Object and purpose of bill 2: 872 Strict bill, and bill in nature of 2: 872, 3: 480 By bank as to deposit 6: 622, 7: 325 To ascertain trustees' duty 3: 180 In tax cases 2: 419, 3; 480, 7: 46- By bailee 5:164 By tenant on question of title 7: 325 Pleading and practice 2: 1033, 3: 481, 4: 453 Affidavit necessary 3: 482, 4: 45S INTERVENTION— JOINT STOCK COMPANY. i&t INTERVENTION. See Afpiul, 35, 46 ; Mobtgaoe, VII. o, S. INTOXICATION. See CoNiBAcis, llEk INVESTMENT. See TatrsTS, IT. o, 5. ISSUE. For Feigned Issue, see Phaotiob, VX e. J. JAIL. See Sheriff, 1, 2. JOINDER. Of Causes of Action, see Action db Suit, II. c. Causes, see Husband and Wife, VI. d. See also Pabties, X. JOINT DEBTORS. See also Contbibution, 10; Mabshaling of As- sets AND SECUEITIES, 10. 1. In equity as well as at law,if the demand against two defendants be joint and not several, a success- ful defense by one will enure to the benefit of the other, though the latter suffers the suit to go by default. North American F. Co. v. Handy, 2 Sandf. Ch. 493, 7: 675 2. A release of one of two joint debtors discharges the original debt as to both, and a covenant not to Bue both has the same effect as a release of both, to avoid circuity of action; but a covenant not to sue one of them does not at law operate ae a release of the debt as to either, so that the original indebted- ness remains unchanged at law. Hosack V. Rogers, 8 Paige Ch. 229, 4: 410 3. In equity the part satisfaction of a demand by one joint debtor.and a covenant by the creditor not to enforce tjie collection of the residue against such debtor's individual property, will not discharge the other debtors, unless the party in whose favor such covenant is made is primarily or individually liable for the whole demand. Miller v. Fenton, 11 Paige Ch. IS, 6: 40 S. C. 4 Ch. Sent. 14, S: 1139 4. A covenant, by a creditor, not to collect a Joint debt out or the property or one of the joint debtors, is not a technical release which can be set up by the other debtor in a joint suit against them, even at law. JMa. 5. Where a mortgagee in a suit to foreclose a mortgage seeking a decree over against two joint guarantors, on a defense being made by one, com- promised with and released him,— HeM, that he could not take a decree for the deficiency against the other guarantor, who had suffered the bill to be taken as confessed, but he was left to his remedy at law. North American F. Ins. Co. v. Handy, 2 S. 492, 7: 675 6. Where the receiver of a bank brought suit against two of its officers for the fraudulent ab- straction of its funds by them jointly or in concert, and made an agreement with one that, in consider- ation of his transferring to the receiver certain property in part satisfaction of the claim, the re- ceiver would not collect any further claim against him or out of his property, such agreement was no bar to the further prosecution of the suit against the other defendant and him jointly; and all the- other defendant could claim was to have the value- of the property so transferred, after satisfying the- individual claims against his oodefendant, applied-, toward the satisfaction of the claims for which both were liable. Miller V. Fenton, 11 Paige Ch. 18, 5: 40- S. C. 4 Ch. Sent. 14, 5: 1139 7. A release of a claim for the fraudulent ab- straction of funds cannot be availed of on motion, as a bar to the further prosecution of a suit there- for. Ibid. 8. The maxim of the common law, that a release of one joint debtor is a release of all, is not appli- cable to cases of joint trusts, where the party re- leased was not in default. Kirby v. Turner, Hopk. Ch. 309, 2: 433- 9. Where tenants in common unite in executing a joint mortgage for a joint and several debt, one of them has no equity to compel the mortgagee to receive half the debt, and to proceed against his co- tenant's moiety for the collection of the other half, although he tender a suflBcient bond of indemnity against eventual loss. Frost V. Frost, 3 Sandf. Ch. 188, 7: 830- 10. Nor on a foreclosure against both mortgagors- will a decree be made for a sale of the undivided moieties separately, for the respective half parts of the debt. Ibid. IL The doctrine of principal and surety is not ap- plicable, and the creditor is entitled to receive his whole debt, or to have the usual decree for a sale of the whole premises. Ihid. 12. Where a debt is joint and several, the creditor may proceed against the surviving debtor, or against the representatives of the deceased debtor, at his election, to obtain satisfaction of his debt^ But if the debt is joint, and not several, he cannot proceed in chancery against the estate of the de- ceased debtor, without stating in bis bill a sufttcient excuse for not suing the surviving debtor at law, to obtain satisfaction of such debt. Leahe & W. Orphan House v. Lawrence, 11 P. 80. 6:6»: Editorial Note. Joint debtors; recovery against part, after claim barred against otliers 5: 731. JOINT OWNERS. See Pabtnebship; Shipping. JOINT-STOCK COMPANY. See also Cobpobations ; Pabtnebship. A voluntary Joint-stock association was formed- for owning and conducting ferries. By the articles, . seven trustees were to be elected, who were to be vested with the property, hold it for the stock- -388 JOINT TENANT3, ETC.— JUDGMENTS, ETC. holders, and be liable for the debts: and eveir va- cancy amon(? the trustees, by death, resignation,or •otherwise, was to be fllled at the regrular meeting. B was elected one of the trustees and acted. A, an- other trustee, resigned, whereupon an election of trustees was ordered, and notice given, and an ■election held, at which seven were chosen, displac- ing B. B acted as a trustee in appointing inspec- tors of election, and at the election voted for seven, including aU the old trustees except A. On B's be- ing excluded from the further management of the -association, he filed a bill for an account and disso- lution. Held, that his acts respecting the election - did not effect a resignation of his office, and that there was no vacancy to be filled except that made -T)y A, and that B was still a triistee. Berry v. Cross, 3 Sandf. Cb. 1, 7: 747 JOINT TENANTS AND TENANTS IN comnioN. •See also Joint Debtoks, 9, 10. 1. A testator devised all the rest and residue of his estate to his brother and sister, " to tuem and their heirs forever;" all the children of his said brother and sister to-have an equal share in every- thing he left ; and if his brother died without chil- dren, the children of his sister should enjoy equal- ly. Held, that the brother and sister took as ten- ants in common, not as joint tenants. Westcott V. Cody, 5 Johns. Ch. 334, 1: 1101 2. Previous to the Eevised Statutes, tenants in common could bold their several shares in the prop- erty by different tenures. And where one third of the property is held by a tenant In common in allo- dium, and the other two thirds are held by others by a socage tenure, a subsequent purchaser, who unites the titles of all the tenants in common in himself, holds the different undivided portions of - the property by separate and distinct tenures. Putnam v. Ritchie, 6 PaigeCh. 390, 3: 1033 3. Where one of several tenants in common, who •'is in possession of the premises held in common, ■ claiming title to the whole, sells and conveys the same to a third person, who enters under that con- veyance claiming title to the whole, it is such an -ouster of the other tenants in common as to bar their right of entry after an adverse possession of twenty years. Town V. NeedJuim, 3 Paige Ch. 545, 3: 868 L Where one tenant In common receives more than bis snare of th*i rents uua profits uf the estate held in common, his cotecant has an equitable lien upon his undivided interest in the premises, which may be enforced against the same while the parties c'lifinne to hnlrt the premises in common. Hannan v. Osbom, i Paige Ch. 336, 3: 460 5. Upon the death of a tenant in common who has received more than his suare of the rents and profits of the estate, the amount due to his co- tenant, which is a personal charge, is payable pri- marily out of the personal estate of the decedent. Ibid. 6. A tenant in common who has been in posses- sion, anu receiveu the wuulu rents and profits t-.f the estate, in accounting for such rents and prohts to bis ootenants, is entitled to an allowance for such sums as he may have paid for taxes or assessments on the premises, or for keeping the same in ordi- nary repair. Ibid. 7. Where one of the tenants in common of an un- divideu ui'act or i.xuu pajo t o tii.iUo u, .... ...a a_...„ of the tract, and a certain number of acres, undi- vided, are sold out of the whole tract to pay the taxes upon the share of his cotenants, his legal in- terest in the whole tract will not be diminished by -such sale; but the sale will only diminish the inter- <«Ei8 of his cotenants In the undivided tract. Broker v. Devereaux, 8 Paige Ch. 513, 4: 534 8. Where two tenants in common of lands subject to an old mortgage had become involved in per- plexing claims and counterclaims, a severe litiga- tion between them had ensued, in which their joint interests had been ordered to be sold, and the same had been sold to a stranger,— Be!d, that one of such cotenants was at liberty to purchase and hold the -old mortgage for his own benefit exclusively: and •he may enforce it for its whole amount, although •he bought it at a discount. Wai» V. Chapman, i S. 31Z, 7:1115 9. Admitting that one tenant in common may, in a E articular case, y urcuaao iii liu outscauuiUjf t»..cior is own benefit, yet where two devisees are in pos- session of land under an imperfect title derived from their common ancestor, one of them cannot buy up an outstanding-or advert-e title, to disseise or expel his codef endant: but such purchase will enure to their common benefit, subject to an equal contribution to the expense. Van Home v. Fonda, 5 Johns. Ch. 388, 1: 1118 10. A widow having a right of dower in land is not a tenant in commuu with luu owner or ovvucrs of the land; and she cannot be made the sole complain- ant or defendant in a suit for partition. Wood V. Clute, 1 S. 19!), 7: 295 Editorial Notes. Joint devisees as cotenants 7: 173 Rights of owner as 7. 1027 Cannot purchase adversary claim 7: 172 Ouster by one tenant 3:268 Conveyance by one of whole of premises 3:395 Lien of one on excess of rents and profits ap- propriated by cotenant 3: 460 Shipn iiers are tenants in common 1 : 923 Purchase of outstanding interest by one 1: 1118 JUDGE. See Chancellob ahd Vice-Chancelixje, 6, CO0ETS, 8-11. JUDGMENTS. DECREES, AND ORDERS. I. Bendition : Entry : Form ; Against Whom. a. By Confession and Consent. b. Bendition ; Form ; Entry. 1. Rendition; Time; Circumstances. 2. Form. 3. Conformity to Proofs. 4. Entry, Enrollment, Service, etc c. Extent of Belief ; Amendment. d. Construction; Execution. e. Against Whom. n. Btfeot and Conchjsiveness. a. Finality; Effect. b. Dismissals; Consent and DefavU Decrees, c As to Questions lAtigated. 1. General Bvles. 2. Matters as to Real Property. 3. Probate Matters. 4. Infunctifm. 5. Miscdlaneovg Cases. A. As to Persons. 1. General Rules. 2. Heirs and Representatives. 3. Infants; Married Women. 4. Other Cases, e. Upon Courts. t. How Pleaded. HL Lien. a. ..^.ttocTiment. b. Priorities. c. Duration. d. Discharge. rv. Foreign Judgments. V. Satisfaction; Discharge; Assignment. IV. Entoroement; Bevtvai.. VIL Belief Against ; Opening ; Setting AsiTJi. a. Setting Aside ; Impeachment. b. Equitable Relief ; Fraud ; Surprise ; Trreg- ularity. 0. Default; Opening Decree. Vm. Pdbohase Subject to. IX. Validitt, Bequi,abitt, and Observance OF Orders. Editorial Notes. See also Action or Suit, 31; Confuot of Laws, 33; Corporations, 136, 180: Discovert, 63; Equity, I. c ; Evidence IV. o ; Execution ; JUDGMENTS, DECREES, AND ORDERS, I. a— b, 2. 289 Executors and Admihistbatoks, 394, 398, 899, 496, 499; Fraudulent Conveyances, 18, 26; Husband and Wife, 432; Insolvency and Assignment fob Cbeditobs, 154; Interest, I. o; Mortgage, n. b, 342; Paetnbbship, 64; Pleading, III. e, 5, vn. o, 2; Set-Ope, II. I. Rendition ; Bntby ; Foem ; Against Whom. a. By Confession and Consent. 'Bee also Pbactiob. 1. The Act "To Prevent Abuses in the Practice of the Law," etc., passed April 21, 1818 (Sess. 41, chap. ^59, 9 8), is not to be extended by construction. Seaving v. Bririkerlioff, 5 Johns. Ch. 329, 1: 1099 2. Judgments entered up by confession or war- rant of attorney, without the speciQcation of tlie particulars of the debt remiired by that Act, are ^ood as against the debtor himself, and are fraud- ulent only as respects bona fide creditors and bona fide purchasers, in the usual and popular sense of the term "purchaser," as distinguished from "cred- itor." Ibid. 3. A judgment confessed by a debtor to secure existing and future iudoi'semeuts tor his accoinmo- Nation,— Heid, to be valid. Such a judgment is not An estate or interest in lands, and is not within the provisions of the Revised Statutes relative to uses and trusts. SembU, that new liabilities incurred by the debtor, under such judgment, would be post- poned to intervening liens. Lamsing v. Woodworth, 1 Sandf. Ch. 43, 7: 231 4. Where an assignment in trust for creditors yras invalid because it contained a reservation in favor of the debtor, a judgment subsequently con- fessed to the same trustees upon the same trusts, but without the reservation in the debtor's favor, may be vaUd, although intended to be asserted only in case the assignment should be adjudged invalid. Mackie v. Cairns, Hopk. Ch. 373, ' !Si 455 5. If the separate estate of the wife is loaned by the trustee to the husband to purchase f uruiture for his benefit, a subsequent judgment for the amount thereof, confessed in favor of the trustee, is founded upon a valid consideration, and a sale thereunder will vest title in the purchaser, although such purchaser is the trustee. Danforth v. Woods, 11 Paige Ch. 9, 5: 37 b. Rendition; Form; Entry. 1. Rendition; lime; Circumstances. 0. A decree is never prononnced unless the cause is regularly set down for hearing 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 vacation, at the discretion of the ■chancellor. Rose V. Woodruf, 4 Johns. Ch. 547, 1: 938 7. Where a biB is taken pro confesso, the plain- tiff cannot therefore take a decree, but must set down the cause for hearing in term ; but no notice of the hearing need be given to the defendant, or afBxed up in either of the pubUa ofBces. Ibid. 8. The court can settle a decree without the neces- sity of a notice of settlement, or on short notice. Tovmsend v. Low, 4 Edw. Ch. 249, 6: 868 9. Where the principal defendant (mortgagor) in a foreclosure suit died after bill taken p. c, and after reference to compute amount, but before de- cree,— It was held, that no decree could be had until the suit was revived against his representatives. Thomson v. Dudley, 3 Edw. Ch. 137, 6: 601 2. Form. 10. The recitals in a decree should not be argu- mentative, but state merely the conclusions of few and fact. Dey V. Dunham, 2 Johns. Ch. 182, 1: 340 11. In a suit by the assignee of a bond and mort- gage for the foreclosure thereof against the mort- gagor and the mortgagee, who has assigned to the complainant- with guaranty, the decree will be (1) for the sale of the mortgaged premises; (2) for an execution against the obligor for the deficiency; (3) for an execution against the guarantor for any deficiency after the return of the execution against the obligor. iMce V. Hinds, Clarke Ch. 453, 7: 169 Ch. Dig. I'J 12. Form and requisites of a decree for the re- demption of mortgaged premises, where the mort- gage has been assigned by the mortgagee to a third person as seouiity for a debt. , Sweet V. Van Wyck, 8 Barb. Ch. 647, 5: 1043 13. Form of decreelin foreclosure suit where the mortgagor is himself a party to the suit, and is primarily liable for the payment of the deficiency, and where a third person is made a party defendant, who is only secondarily liable for a part of the mortgage debt. Jones V. Stteribergh, 1 Barb. Ch. 250, 6: 374 S. C. 6 Ch.Sent. 48, 6: 118% 14. The proper decree upon a bill filed to reach the interest of a debtor iu his father's estate is co direct the appointment of a receiver of the prop- erty, equitable interests, and chooses of action of the defendant, or in which he had any interest at the commencement of the suit, including the interest of the defendant in his father's estate, and to direct the defendant to assign such property, etc., to the receiver, so that the proceeds thereof may be ap- plied to the payment of complainant's debt and McArthurv. Bbj/sradt, 11 Paige Ch. 495, 5: 810 15. A decree of divorce in an adultery case may reserve to the wife, who is the complainant, the right to go before a master and get his report as to a proper allowance to her for alimony. Cooledge v. Cooledge, 1 Barb. Ch. 77, 5: 306 16. In suits for separation, where the complainant proves his or her ease, the form of the decretal or- der settled by Chancellor Kent is to be used. Pool V. Pool, 2 Edw. Ch. 192, 6: 364 17. Where, in a suit by the wife for a divorce, the husband has made advances of money to her for the expenses of the suit pendente lUe, the decree should direct the taxing otflcer, upon the taxation of the costs of the wife, under the decree, to allow to the husband the amount of his advances in dim- inution of the taxable costs, after deaucnng from such advances the reasonable expenses and counsel fees which have been paid by the wife, and which are not included in the ordinary taxed bill. Or the court itself should determine whether any, and, if any, what allowances should be made for extra ex- penses and counsel fees beyond the taxable costs, and should direct that the residue of the advances which have been made by the husband be deducted by the taxing ofiicer, upon the taxation of the costs under the decree. KendaJl v. Kendall, 1 Barb. Ch. 610, 5: 514 S. C. 6 Ch. Sent. 29, 6: 1203 18. Where a bill is filed and a bond given to stay an action at law, and the complainant does not make out his case at the hearing, it is proper to in- sert a clause in the decree (and not have a separate or after order) for the delivery up of the bond. Carpenter v. Acby, HofiT. Ch. 31}, 6: 1155 IH. The caption of a decree or orderomplninnnt nnd such defendants. Jcmea v. Grant, 10 Paige Ch. 348, 4:1005 88. The court may also make a decree between co- defendants for contribution, or a decree over In favor of one defendant against another, founded upon facts stated in the complainant's bill, and which are admitted by the defendant, who is sought to be charged by his codef eudant, either by his suf- fering the bill, stating such facts, to be taken as confessed against him, or by a direct admission of such facts in his answer. Ibid. 89. But no such decree can be made between co- defendants, founded upon matter not stated in the bill, nor in litigation between the complainant and jhe defendants, o r either of them. Ibid. 90. It seems that relief will be granted as between codefendants, on the foot of the final decree, upon motion or petition, founded upon matters stated in the complainant's bill, and which are not in dispute between such defendants, without resorting to a supplemental bill in the nature of a cross-bill against the defendant sought to be chai'ged. Ibid. 91. A decree between codefendants may be made, grounded upon the pleadings and proofs between the complainants and defendants. ElUott V. Pell, 1 Paige Ch. 263, 9: 640 92. But such decree, to be binding, must be founded upon and connected with the subject- matter in litigation between the complainant and one or more of the defendants. ibid 93. A controversy will be decided between code- fendants, in respect of the funds sought and recov- ered by the bill, where the material facts were stated in the bill and their respective claims were arerued at the hearing. Davison v. De Wreest, 3 Sandf. Ch. 456, 7: 918 JUDGMENTS. DECREES, AND ORDERS, II. a— c, 1. 293 II. Effect and Conclusiveness. a. Finaltty ; Effect. 94 What must be the character of a decree to make It a final decree. Colfhe V. Orane, 1 Barb. Ch. 21, S: 883 95. A final decree in a cause disposes of the whole cause and of all previous interlocutory questions. LongfeUmv v. LongfOlmi), Clarke Ch. 344, 7: 138 96. A decree on a bill for a specific performance, on the coming in of the master's report as to the quantity of land to be conveyed and the payments made, directing the balance due to be paid and the conveyance to be executed, is a final decree. Travis v. TTafers, 1 Johns. Ch.85, 1: 68 97. Where a decree gives all the consequential di- rections, so as finally to dispose of the whole case upon the coming in and confirmation of the mas- ter's report, by a common order in the register's office, without the necessity of bringing the case again before the court for any other decree or di- rections, it is a final and not an interlocutory decree, although further proceedings must be had in the master's ofSce to carry the decree of the court into effect. 1/mU V. Hbog, 7 Paige Ch. 18, 4: 41 Johnson v. Everett, » Paige Ch. 636, 4: 846 S. C. a Ch. Sent. 51, 5: 1098 Qaaekenbush v. liomardL, 10 Paige Ch. 131, 4: 915 S. a 3 Ch. Sent. 4, 5: 1101 98. A decree which declares the rights of the par- ties merely, and directs an account in conformity therewith, but reserves the consequential directions and the question of costs until the coming in of the master's report, is an interlocutory decree. Jnlinson V. Everett, B Paige Ch. 636, 4: 846 99.The decree is not final where the party in whose favor it is made cannot obtain any benefit there- from without again setting the cause down for hear- inT. upon the equity reserved, on the coming in and confirmation of the report of the master to whom a reference is made to ascertain certain facts, neces- sary to be ascertained before the case can be finally disposed of by the court, or which the chancellor thinks proper to have ascertained before he grants any relief to the comolainant. Ibid. 100. A decree which finally decides and disposes of the whole merits of the cause, and reserves no further qiieslions or directions for the future judg- ment of the court, so that it will not be necessary to bring the cause again before the court for its further dnpi^ion, is a final decree. MiOs V. Hbas, 7 Paige Ch. 18, 4: 41 101. A decree setting aside proceedings by which the real estate of a feme covert had been transferred from the trustee of the estate and vested in her hus- band, as being fraudulent and void as against the children of the/erne cnveit; directing a reference to a master to ascertain the value of those portions of the trustestate which have been sold by the husband to bona fide purchasers, and what sum, if any,should be paid by him to reimburse the trust estate, and to report a proper person and appoint him as trustee; and giving all the consequential directions, so as fi- nally to dispose of the whole case upon the coming in and confirmation of the master's report,by a com- mon order in the clerk's office, without the neces- sity of bringing the cause again before the court for any other decree or further directions, and which also disposes of the question of costs,— is a Hnal decree. Wright V. MUler, 3 Barb. Ch. 883, 5: 941 102. wh-^vp a decree disposes absolutely of the whole subject-matter of the litigation, and leaves nothing further to be done by the court in relation thereto, it is a final decree. A mere direction in the decree as to the manner of carrying such decree in- to effect, but which does not require the case to be again brought before the court for further direc- tions, will not make the decme interlocutory. Dickenson v. Cndwise, 11 Paige Ch. 189, 5: lOi 103. A decree making a final disposition of a part of the subject-matter of litigation, and reserving no question of costs in relation thereto, is final as to that part, although it directed a reference as to another part of the subject-matter of the suit. Ibid. 104.Tf the nupstion of costs is rese 'ved bv a decree, it will be interlocutory, although a portion of the subject-matter in litigation is finally disposed of in other respects. Williamson v. Ficid, 2 B^rb. Ch. 281, 5: 644 105. A decree by the surrogate for the payment of the residue of testator's personal estate to two re- siduary legatees, rendered after an accounting by the executor upon the citation of such legatees' hus- bands, is not a decree for the final settlement of the account of the executor, other parties interested in the estate not having been cited to attend the ac- counting. Guild v. Peck, 11 Paige Ch. 475, 5: 303 106. By the common law, an order or decree of the court of chancery did not have the effect to trans- fer the legal title to land or real estate; aud such is still the effect of the orders and decrees of the court, except so far as the provisions of the Revised Statutes have given to them the effect of a legal transfer, or the effect of authorizing a transfer in a mode not sanctioned by the common law. Be Van WycH, 1 Barb. Ch. 585, 5: 496 107. Although a suit in chancery abates by the death of one uf the parties after the making of a decretal order therein directing an account to be taken between the parties, the rights established by such decretal order are not lost or impaired by such abatement of the suit. Wood V. Bytngton, 2 Barb. Ch. 387, 5: 686 b. DismissaU ; Consent and Default Decrees. 108. The voluntary dismissal of a bill is no bar to another suit for the same cause. Cummins v. Bennett, 8 Paige Ch. 79, 4: 358 Sea Im. Co. v. Day, 9 Paig:e Ch. 247, 4: 688 Simpson v. Brewster, 9 Paige Ch. 245, 4: 68^ 109. A decree dismissing a bill on the merits is conclusive until reversed, and may be pleaded in bar of a new bill for relief on the same matter. Holm^ V. Bemsen, 1 Johns. Ch. 286, 2: 895 UO.But to make a decree of dismissal a bar, it must be an absolute decision upon the same point or matter, and the new bill must be brought by the same plaintiff who filed the original bill, or his rep- resentatives, against the same defendant or his rep- resentatives. If the defendant in the original suit, having since acquired a legal estate or legal advan- tage, files his bill against the former plaintiff, the cause is opened on ite merits. Neafic V. Neajie, 7 Johns. Ch. 1, 8: 201 HI. Where a cause was set down for hearing on the bill and answer, and the bill was dismissed, with costs, because no person appeared for the plaintiff, and the decree was enrolled, it was held to be no bar to another suit for the same matter. Bosse V. Bust, 4 Johns. Ch. 300, 1: 847 112. A bill taken as confessed after publication, against one wlio does not appear in the suit, is not evidence of any fact as against him, even as to his pei'sonal rights. Danforth v. Woods, 11 Paige Ch. 9, 5: 37 113. The remedy of the owner of judgments ren- dered by justices of the peace upon attachments which were not served on the defendant personally is to bring new suits thereon, so as to give the de- fendant an opportunity to rebut the prima facts evidence of indebtedness, or to offset any demand which he may have. Corey v. Cornelius, 1 Barb. Ch. 571, 5: 499 114. A decree or judgment by consent is binding and conclusive, unless procured by fraud. French v. Shotwell, 5 Johns. Ch. 655, 1: 1178 115. Neither party can have any benefit from a decision of the court until the order upon such decision is drawn up and perfected. And where it is material to either party, the caption or date should be made to correspond with the time of the actual entry of the order. Whitney v. Belden, 4 Paige Ch. 140, 3: 378 c. As fo Questions Mtigated. 1, Qeneral Bules. 116. In those cases where the form of proceeding does notailowof special pleading, a former decision may be given in evidence, and is conclusive upon the parties, the court, and the jurv. KingOand v. Spalding, 3 Barb. Ch. 341, 5: 925 117. A decree made upon bill and answer cannot affect the rights of any of the parties, as to other matters which were not the subject of litigation in that suit. „ „._ Elliott V. Pea, 1 Paige Ch. 283, 8: 640 118. A party who wishes to avail himself, in a pres- 294 JUDGMENTS, DECREES, AND ORDERS, II, c, 3—4. ent suit, by wa? of estoppel or otherwise, of any particular fact as having been conclusively estab- lished In a former suit between the same parties, must show that the fact he relies upon was absolute- ly necessary to the finding of the verdict in the pre- vious suit and without the ascertainment of which the verdict could not have been rendered. Hence a question of copartnership which came up collat- erally in a former action— although passed upon there— was no bar to going into the point of co- partnership in the present suit. Coutant V. Feaks, Z Edw. Ch. 330, 6: 418 119. A decision upon a motion made by a defend- ant Detore answer, the conditions of which are no4 C9mphed with by the defendant, does not prevent nim .-from making a new motion after answer and upon the answer, for the same object. Evans v. Tan HaU, Qarke Ch. 22, 7: 41 120. A judgment by scire facias is of the same force as any other; and a defendant cannot avail hiiuseli of his own neglect or omission as a ground on Which afterwards to ask relief in equity. Thompson V. Hammond, 1 Edw. Ch. W, 6: 88.3 121.The principle that every defense which might have been set up in a suit, whether actually made or not, is cut off by a judgment or decree, applies to a defense first made by a cross-bill, which might have been set up in the answer. Draper v. Gordon, i Sandf. Ch. 210, 7: 1079 122. Where the defendant in a foreclosure suit puts in an answer clHimiiig the absolute title to the equity of redemption in the mortgaged premises, subject only to the incumbrance of the complain- ant's prior mortgage as set out in the bill, or sets up in his answer an incumbrance upon the mortgaged premises in his favor, which is entitled to a priority over all other liens thereon except the mortgage set forthinthecomplainant'sbill,— adecreeintheeause, upon bill and answer, will preclude the complain- ant from afterwards setting up any other claims or incumbrances upon the mortgaged premises, as against such defendant. Tower v. White, 10 Paige Ch. 395, 4: 1036 123. Where a judgment has been recovered against a person on the ground that he has received moneys to the use of the plaintiff, under an assignment made and a judgment given in trust for the benefit of the latter, the.def endant is estopped from litigat- ing the question again in a creditors' suit founded upon such judgment, either as to the fact of its oemg a fiduciary debt, or as to the amount received in his fiduciary character. Kingsland v. Spalding, 3 Barb. Ch. 341, 6: 985 124. An order of the court made upon a motion is not resjudicaia, in the proper sense of that term. Banks v. American Tract Soc. 4 Sandf. Ch. 438, 7: 1163 2. Matters as to Real Property, 125. A Judgment in favor of a mortgagor in asuit on the bond is not a bar to a suit to foreclose the mortgage, where the premises had been previously sold on execution against the mortgagor. Heyer v. Pruyn, 7 Paige Ch. 465, 4: 238 126. The recovery of mere nominal damages in a suit brought by a vendor against the executors of his vendee, who had assumed the payment of a mortgage upon the property as part of the pur- chase money, before he was compelled to pay such mortgage, was no bar to a subsequent suit brought after he had been compelled to pay. Halgey v. Beed, 9 Paige Ch. 446, 4: 769 127. A verdict for the defendant and judgment thereon in an ejectment suit, previous to the Re- vised Statutes, brought for the recovery of lands alleged to have been fraudulently conveyed to the defendant, is not a bar to a subsequent suit in chancery against him to set aside the conveyance on the ground of fraud. Van Wyck v. Seward, 6 Paige Ch. 62, 3: 899 128. A judgment in ejectment is of the same bind- ing force and efficacy as any other judgment, and is a bar, except in a second action in ejectment. Van Wyck v. Seward, 1 Edw. Ch. 327, 6: 158 129. When an action of ejectment was brought in the supreme court to try the validity of a deeu, auu the question of fraud was ultimately passed upon by the court of errors, which rendered a judg- ment against the plaintiff, chancery would not sus- tain a bill for the same plaintiff to impeach the deed as fraudulent, upon grounds involved in the for- mer suit. Ibid. 3. Probate Matters. 130. The sentence of a surrogate's court upon the final passage of executor's accounts is conclusive unless appealed from. It settles the validity of a debt, or the right of a legatee, as well as the fact of payment. Wright v. Trustees of M. E. Church, Hofl. Ch 202, 6: 1115. 131. A determination against the validity of a will, by the chancellor, on appeal from the decision of a surrogate, is not conclusive as to the vaUdity of a devise of real estate. Bogardus v. Clarke, 1 Edw. Ch. 286, 6: 133 132. Adecision of the chancellor against the validity of a will, oil the ground of the decedent's mental incapacity, reversing the surrogate's decree admit- ting it to probate, does not decide the question as to its validity as a will of real estate, either In the court of chancery or any other court. Clarke v. Sawyer, 3 Sandf. Ch. 351, 7: 879 183. The sentence or decree of a surrogate, upon the final accounting of an administrator before him, is, unless appealed from, conclusive as to the amount of the personal estate with which such administrator is chargeable; and it cannot be re- viewed in a collateral suit. Stiles V. Burch, 5 Paige Ch. 132, 3: 657 134. The sentence of a surrogate, or of the chancel- lor upon an appeal from such sentence, as to the validity of a will of personal estate, is binding and conclusive, in all courts and places, until reversed by a higher tribunal. Bogardus v. Clark, 4 Paige Ch. 623. 3: 585 135. Such sentence is in the nature of a proceeding in rem, to which any person having an interest In the subject of litigation may make himself a party, and who will therefore be bound by the sentence or decree, although he is not in fact a party to tie suit. ibid. 136. The sentence of a surrogate, or of a higher court having power to review nis decision, in rela- tion to the competency of a testator to make a will of personal property, Is not conclusive upon the parties to that btigation, in a subsequent suit as to the validity of a devise of real estate contained in the same will. Ibid. 137. A surrogate may distribute the proceeds of real estate sold under a will, although the sale took place before the statute of 1837. Wright v. Trustees of M. E. Church, Hofl. Ch. 202, 6: 1116 138. Pecuniary legacies were given to various Insti- tutions. Upon a citation before the surrogate, the executors' accounts were finally settled, and sen- tence pronounced. The legacies were therein stated as paid. Held, that this sentence was final on all who were legally competent and were cited; was pleadable in every court; and the only remedy was an appeal under the statute, 'ihat the phrase of the Act (2 Kev. Stat. p. 9\, i 65), that the settlement shall be conclusive eVi fnce of the chs'-ses for moneys paid being correct, luuludes the validity of a debt, or the right of a legatee, as well as the fact of payment. ibid. 139. A decree of a judge of probate in Louisiana, declaring that petitioner Is the sole heir of a de- cedent, is not conclusive evidence of her right to his personal estate, as against another heir who has been absent and not heard from for twelve years at the time of the decree, but who subsequently ap- pears and claims his share of the property. Sherwood v. Woost^r, 11 Paige Ch. 441, 6: 198 140. Where executors have accounted under an en- rolled decree in a prior suit, the same is conclusive against them so far as it adjudicates upon the rights of complainants in an after suit instituted by them and founded upon such decree. O'Brien v. Heeney, 2 Edw. Ch. 242, 6: 385 141. The recovery of a judgment by executors In their representative character la conclusive evi- dence of their right to sue in that character, in a subsequent suit founded on such judgment. Rogers v. Rogers, 3 Paige Ch. 379, 3: 196 4. Injunction. 142. The decision of a vice-chancellor dissolving an injunction is conclusive between the same par- ties, in that branch of the court, on any application for its revival on the same stat/O of facts, or on a JUDGMENTS, DECREES, AND ORDERS, II. c, 5— d, 3. 293 new state of facta, except upon leave first had to apply anew. Banks V. American Tract Sob. 4 Sandf . Ch. 438, 7: 1163 143. But the decision does not conclude such vloe- chanoellor, or any judge, from prranting a perpetual injunction on the same state of facts, at the final •hearing of the cause on the merits. Ibid. 5. MUcellaneovs Caeea. 144. An attachment regularly prosecuted in one «tate according: to the provisions of its Jaws,agaiii8t «ne who is a nonr<.>sident and is a creditor of a resident of such State, is a bar against a suit in another State by the creditor to enforce his demand which was taken by the attachment. Cochran v. Pitch, 1 Sandf. Ch. 142, 7: 878 145. C, a resident of New York, was a creditor of T F, residing in Pennsylvania, and of T F B, re- siiliug m Connecticut, jolntij. J F B, a creditor of C, proceeded by process of foreign attachment against C in the courts of Connecticut. The two debtors of C were named as his trustees and debt- ors in the attachment, and it was served on T F B. C was not served with process and had no notice of the proceeding, but it went on to a Judgment and execution against him. The execution accord- ing to the laws of Connecticut was demanded of T F B who paid it to the officer. Held, that the for- eign attachment and subsequent proceedings were a bar to any suit by C in this State, to recover hie debt from T F and T F B. Jhid. 146. After a verdict and judgment in a suit at law 'for a nuisance, it Is competent for either party to .prove in another suit, on which of several grounds of nuisance stated in the declaration the judgment •was given. Blunt V. Bay, 4 Sandf . Ch. 363, 7:1134 147. Where a vessel was seized and libeled in the district court of the United States, as fori euea lor being fitted out in violation of an Act of Congress, ;to be employed in the service of a foreign state, to wit, that pait of the island of St. Domingo under the government of Petion, to commit hostilities on the subjects of another foreign state, to wit, that part of the same island under the government of ■Christophe, with whom the United States were at peace; and the district court dismissed the libel, and ordered the vessel to be restored to the claim- ant, and refused a certificate of probable cause of pciznre,— this decree was held conclusive as to the lawfulness of the seizure. GeUton v. Hoyt, 1 Johns. Ch. 543, 1:840 148. Where an executor pays an adeemed legacy and takes a bona and mortgage for bis inaemnity, a suit by residuary legatees against such executor for an account and a decree therein will bar a sub- sequent suit by such legatees to have the benefit of ".the bond and mortgage, or to compel the refund- ing of such legacy. Newcomb v. St. Peter's Church, 2 Sandf. Ch. 636, 7:737 d. .4.8 to Persons. 1. Oeneral Rules. 149. In chancery, a judgment recovered in a 'Court of law is considered as binding upon the real parties in the suit, although not the nominal par- ties on the record. Southgate v. Montgomery, 1 Paige Ch. 41, 8: 554 150. A decree, sentence , or Judgment of a court of ■competent juritiuiutiuii la euuemdlve upon the par- ties in a future litigation of the same question be- tween those parties or those claiming under them, whether such question arises directly or collaterally in the subsequent litigation, provided the question of estoppel is brought before the court in the prop- er form. Kingskmd v. Spalding, 3 Barb. Ch. 341, B: 985 151. To render a judgment conclusive in a new suit in relation to the same matter, it is requisite that the former suit should have been between the par- ties to the last suit, or their privies; but it is not essential that all the parties in the first suit should be parties in the last. ' Dows V. McMichael, 6 Paige Ch. 139, 3: 931 152. In order that a decree may be pleaded as a bar In a second suit, it must biud the party against whom it is pleaded and beconclusive upon his rights or upon the rights of tliose under whom he claims. and can be no bar against a party or those claiming under him where he is not a party in the first suit. QrisiDold V. Jackson, 2 Bdw. Ch. 481, 6: 467 153. An order upon a purchaser under a decree of foreclosure to complete the sale, made on a specific objection taken to the title, does not decide a question of title or of parties which was not made the ^ound of objection or brought to the consideration of the court. Anu such order is not a protection to the purchaser against persons hav- ing vested interests in the equity of redemption, who ought to have been, but were not, made par- ties to the foreclosure. Williamson v. Meld, 2 Sandf. Ch. 533, 7: «9S 154. Where a bill is taken pro confesso against a defendant who is absent from the State, he may, under the statute, come in after the decree, and answer and defend the suit. But he cannot insti- tute a new suit while the decree in the former suit remains in force. Davoue v. Fanning, 4 Johns. Ch. 199, 1: 813 2. Beirs and Representatives. 155. The Act of April, 1843, to amend the Act con cerningthe proof of wills, etc., was not retroactive in its operation, so as to make a decree against ad- ministrators, which had been obtained previous to its passage, for a debt due by their intestate, prima facie evidence of the amount of the debt as against the heirs and other persons interested in the real estate of the intestate. Wood V. Byington, 2 Barb. Ch. 387, 5: 686 156. A judgment recovered against a testator is only prima facie evidence of indebtedness as against hispersonal representatives. Kidd V. Chapman, 2 Barb. Ch. 414, 5: 696 15''. Where abUl is filed against a trustee jointly with the cestui que trust, and the latter appears and puts m an answer denying the charges in the bill, the suffering the bill to be taken as confessed by the trustee cannot be permitted to prejudice the rights of the cestui que trust. Danforth v. Woods, 11 Paige Ch. 9, 5: 37 158. Section 13 of the title of the Eevised Statutes relative to the sale of the real estate of a lesiiiior or intestate is not applicable to a decree in chancery against administrators after the death of their in- testate, so as to make such decree conclusive evi- dence of the indebtedness of the decedent,as against the heirs and other persons interested in his real estate, upon a proceeding before the surrogate for the sale of such real estate to pay dehts. Wood V. Byington, 2 Barb. Ch. 387, 5: 686 159. But a decree against the administrators is conclusive evidence or the indebtedness, as against them, upon the hearing before the surrogate on the preliminary order requiring them to show cause why they should not be ordered to mortgage, lease, or sell the real estate of the intestate for the pay- ment of his debts. [hid. 160. The administrators are estopped, by such a de- cree, from alleging that the debt was not due at the time the decree against them was rendered, or from insisting that the claim of the creditor was barred by the Statute of Limitations previous to the com- mencement of the suit in which the decree was en- tered. Ibid. 161. A decretal order in a suit of chancery, made during the lite of the defendant in such suit, estat>- lishing a partnership between him and the com- plainant, and directing an account to be taken between them in reference to the partnership trans- actions, is conclusive evidence against the heirs of such defendant, as well as against his personal rep- resentatives, upon a proceeding before the surro- gate for the sale of the real estate of the deceased defendant for the payment of his debts,— not only of the existence of the partnership, but also of the right of the complainant in that suit to call him to account, and also that such right was not barred by the lapse of time or otherwise, at the time such de- cretal order was made. Ibid. 162. No privity between personal representatives and jhe heirs and devisees— Judgment against ex- ecutors not evidence against heirs. Baker v. Kingsland, 3 Ch. Sent. 73, 6: 1184 163. Where a suit was brought against two persons as joint debtors.and both appeared and put in sepa- rate defenses to the suit,and one of them died before the trial,— HeM, that the judgment subsequently recovered against the survivor was not evidence ot 396 JUDGMENTS, DECREES, AND ORDERS. II. d, 3-e. a joint Indebtedness as against the representatives of the decedent, upon a bill filed against them tu charge his estate with the debt; and that the com- plainant in bis bill should make a distinct allegation that a joint indebtedness existed, and that he was bound to prove such nil'^o-ntion if it was denied. Smith V. Ballantyne, 10 Paige Ch. 101, 4: 904 161. A judgment recovered against the surviving copartner for a debt alleged to have been due by the firm, in a suit in which the representatives ot the deceased copartner were not parties, is not evi- dence,as against such representatmae, of the indebt- edness of the decedent,in a subscquentsuit to charge his estate with the debt. Leake & W, OrpJum Home v. Lawrence, 11 P. 80, 5: 63 S. C. i cm. Sent. 17, 5: 1140 165. Whether such a judgment would be evidence of the indebtedness, as against the personal repre- sentatives ot the decedent, where one of the repre- sentatives was himself the surviving copartner against whom the judgment was recovered,— Qiwere. ibid. 166. Heirs; how far bound by decree pro confesso against original defendant. Christie v. Bishop, 5 Ch. Sent. 40, 5:1179 3. Infants ; Married Women. 167. Qucere, if the sentence is final on infants, or those bound only by publication. Wright v. Trustees of M. E. Church, Hoff. Ch. 202, 6: 1115 168. The orders of the court made on the sale of infants' lands under the statute, and distributui^ the proceeds, though conclusive between the in- fants and purchasers, do not conclude the infants as between themselves, as to their respective rights and interests in the fund. Davison v. De Freest, 3 Sandf. Ch. 456, 7: 918 169. Executors were called to account in a surro- gate's ofBce by a widow of the testator having a present interest and acting on behalf of infant chil- dren: and at the time of bringing in their accounts they got a citation for creditors to attend a final settlement. Had, that— althbugh this was going beyond the original application— the widow and creditors would be bound by It, but not the chil- dren, as there was not to be a distribution until they came of age. BogaH v. Van Veisor, 4 Edw. Ch. 718, 6: 1031 170. Where a feme covert Is a legatee, a decree of the surrogate, made upon the application of her liusband in his own name, will not oe binding upon her. Guild V. Peck, 11 Paige Ch. 475, 5: 803 17L Where the suit is continued in the name of the female compliiiuiiut aliei- iier inarnage, witliour making her husband a party, she will not be bound by the decision made in the cause if adverse to her interest, although the defendant would bo bound by a decree in her favor, and could not afterwards urge the objection that the suit had abated by her mnrrinire. Quaekeribwih v. Leomard, 10 Paige Ch. 131, 4: 915 4. Other Cases. 172. Persons entering into possession of land under the defendant in a judgmeuc, subsequent to tlie i:i- Buing of an execution thereon, are bound to yield up the possession to the purchaser under such exe- cution, unless they can show a better right in them- selves, or establish the fact that the judgment was invalid as against them. tJfico Bank v. Mersereau, 3 Barb. Ch. 528, 5: 998 173. Where an administrator found among the pa- gers of the decedent certam promissory notes whicli ad been given to him in his lifetime, and, suppos- ing them to be justly and legally due, called upon the maker of the notes for payment, who voluntari- ly confessed a judgment for the amount, and sub- sequently mortgaged his real estate, upon which such judgment was a lien, to his father,— ifeid, that the mortgagee could not impeach the consider- ation of the judgment by showing that the notes upon which it was founded were given upon a sale of tickets in a lottery not authorized by Jaw, and contrary to the statute. Shufat V. Shufat, 9 Paige Ch. 137, 4: 639 174. Proof that the husband has recovered a ver- dict against his wife's alleged paramour In a cniiu con. suit is not even presumptive evidence of the fact of adultery as against her, in an action for di- vorce. WHUams v. Wmiams, 3 Barb. Ch. 628, 5: 1036 S. C. 6 Ch. Sent. 60, 5: 1813 175. If, pending a suit which results in establishing the riffhts of the trustees of a corporation as against usurpmg trustees, a suit is begun against the cor- poration and such usurping trustees to enforce- payment of a mortgage executed by them in ihe name of the corp{jration, without making the riii:lit- f ul trustees parties, the decree will not be binding on the corporation, and will be set aside., _ , „. BrindernoQle v. German Bef. Church, 1 Barb. Co. 15, S: »8i o. Upon Courts. 176. A decision on a point of law in a former case jctwceu itiu saine piu-Ll%!S, in the same court, is uoC an estoppel or conclusive; but it is binding upon the same court, though held by another judge, un- less the latter l>e clearly and strongly convinced of its error. Carter v. Bloodgcod, 3 Sandf. Ch. 293, 7: 85S 177. A decision of a court of competent jurisdic- tion, being res judicata, is conclusive and binding on all other courts of concurrent jurisdiction. Simpson V. Hart, 1 Johns. Ch. 91, 1: TO 178. A decision of a court of competent jurisdic- tion, on the point at issue before it, can only be re- viewed in the regular course of appeal. Oelston V. Hoyt, 1 Johns. Ch. 543, 1: 840 179. The decree of a court of peculiar and exclusive jurisdiction is conclusive on all other courts. Ibid. 180. A judgment of a court of competent jurisdic- tion cannot be impeached collaterally in another court. HawUy v. Mandvs, 7 Johns. Ch. 174, 2: 859 181. Though a judgment at law may be impeached in this court for fraud, yet this court will never in- terfere with a judgment at law on the ground of irregularity ; but the record of the judgment and execution, and title under them, are a conclusive bar in equity. It belongs to the court of law ex- clusively to inquire into the regularity of its judg- ment. Shxittenkirk v. Wheaer, 3 Johns. Ch. 275, 1 : 616 182. The court of chancery does not decide upon the regularity of the proceedings of the supreme court. Bradford v. Bead, 2 Sandf. Ch. 163, 7: 649 183. After a decree for an account has been made in the cliancery suit, for the t)enetit of all persons in- terested in the estate of the decedent, such decree will deprive every such person of the right to pro- ceed before the surrogate for an account. Rogers v. King, 8 Paige Ch. 210, 4: 40* 184. And even since the statute ot 1843 the record of the judviueutuisaiust the personal representatives of the decedent, or an authenticated copy thereof, must be produced before the surrogate, in order that he may see, by the inspection thereof, that the existence of the debt of the decedent was put ia issue by the pleadings, and was passed upon by the jury, so as to constitute a trial of the case upon tho merits, within the intent and meaning of the stat- Baker v. KingsTand, 10 Paige Ch. 366, 4: loiS 185. Where the court of chancery and a court of law have concurrent jurisdiction of the subject-matter of a suit, if the plaintiff elects to proceed at law ia the first place, the decision of the question in that court will be conclusive as to the rights of the par- ties in a subsequent suit in chancery, to the same- extent that it would have been in anew suit at law in relation to the same matter. Orcwtt V. Orms, 3 Paige Ch. 459, 3: S3^ 186. A co-ordinate tribunal cannot review the de- cision of the court made upon an application for the disposal of an infant's equitable estate. Pitefter v. CaHer, 4 Sandf. Ch. 1, 7: 1001 187. But where the order of the court in such a cas» Is obtained by misrepresentation as to the situation of the property, and by concealment of facts very material to the exercise of the judgment of the court, the order cannot be upheld in favor of par- ties participating in or chargeable with notice of such misrepresentation and concealment. Ibid. 188. Although a court of law declines to determine a question of set-off, yet this is not res judicoto so JUDGMENTS, DECREES, AND ORDERS, II. t, III. a. a97 as to preclude an inquiry in a court of equity hav- ing concurrent jurisdiction. Backett v. Connett, 2 Edw. Ch. 73, 6: 313 189. Where the complainants brought a suit against the defendant and B & K in the supreme court, as the makers of a note given by a copartnership firm, and the defendant and B & N pleading in abate- ment the nonjoinder of B & D, two other persons who were alleged to be partners, upon wnich plea issue was joined and a verdict and judgment was rendered against the defendant and B & N there- on ; and upon a creditors' biU filed in this court against the defendant alone he put in a plea which, among other things, averred that D & D were part- ners in the firm, and were jointly holden as makers ot the note with the defendant and B & N,— Held, that the record of the judgment in the supreme court was conclusive evidence in favor of the com- Slainants, in opposition to this averment in the efendant's plea in this court. Dows V. McMichael, 6 Paige Ch. 139, 3: 931 190. A decision which goes upon the ground of the want of jurisdiction in a court of law, or where the matter is of exclusive equitable cognizance, is not ^nr. Varick v. Edwards, Hofl. Ch. 382, 6: 1180 191. A party is not precluded by a judgment at law to the effect that the interest of a person in certain laud did not pass by his transfer thereof so as to be effectual in a court of law, from raising the ques- tion in a court of equity. Itnd. 192. Error of judgment by a surrogate, however palpable, does not render proceedmgs under it void; and advantage of it can only be taken on ap- peal. It cannot be passed upon in a collateral suit or action. Woodruff V. Cook, 2 Edw. Ch. 259, 6: 393 193.The decision of a court of law, on n "'immarv appUcation to its equity by motion and afSdavlt,la not such a res judicata as will conclude this court from any inquiry into the case. Arden v. Patlerson, 5 Johns. Ch. 44, 1 : 1002 194. Where a judgment at law, by a confession on a warrant of attorney, appears regular and formal, according to the record, tnis court will not inter- fere with or impeach it on the ground of any al- leged irregularity or informality in entering it up, but wiU consider the rights acquired under such judgment as valid in law: especially where several years have elapsed since the judgment, and the de- fendants have acquiesced in it, and in an execu- tion and sale under it. De Biemer v. Cantillon, i Johns. Ch. 85, 1: 77? 195. Judgment in an action of assumpsit in the su- preme court against the plaintiff upon the mei ics. Bill now filed by the party failing, which embraced the same parties, was for the same sum and the same evidence was necessary in each. The judg- ment had never been reversed, and the defendant set it up in his answer as a bar. Bill dismissed— the Judgment being conclusive — but, as it was a case of lardshlp, without costs. Oregory v. Burrall, 2 Edw. Ch. 417, 6: 451 196. A co-ordinate tribunal cannot review the de- cision of the court made upon an application for the disposal of infant's equitable estate. Pitcher v. Carter, 4 Sandf. Ch. 1, 7: 1001 197.Where a party applied, in the first instance, to a court of law, to allow the set-off, and that court, after a full consideration of all the circumstances of the case, refused to allow it, this court refused to sustain a bill filed for an injunction and a set-off. Simpson v. Hart, 1 Johns. Ch. 91, 1: 70 f. How Pleaded. 198. 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. Davoue V. Fanning, 4 Johns. Ch. 199, 1: 813 III. Lien. B. Attachment, 199. Decrees are hens on real estate only from the time of being docketed— not from the period of en- rollment. But an execution may issue immediately after enrollment, and a levy will hold (where there are no chattels) if actually made upon the real es* tate. Still, the fi. fa. should not direct a levy and* sale of lands of which the defendant was in posses- sion at the date of the decree. Nort'm V. Tallmadge, 3 Edw. Ch. 310, 6: 669- 200. Judgment creditors obtain a hen by process of law, and they must take what the law gives themj and, independent of fraud or contrivance, they can take nothing beyond. Orosuenor v. Allen, Clarke Ch. 275, 7: 113 201.The lien of a judgment creditor upon the lands- of his debtor is su'jject to all equities wnich existed, in favor of tuird persons, again.st such lands at the time of the recovery of the judgment. Keirsted v. Avery, 4 Paige Ch. 9, 3: 319- 202. The court of chancery will protect the equita- ble rights of third persons against the legal lien of a judgment, and wu' limit such lien to the actual interest which the judgment debtor has in the es> tate. Ibid. 203. A judgment, as soon as it is docketed, becomes at law, a general Hen on all the real estate of the debtor, not only as against himself, but also as against all other persons deriving title through or under him subsequent to such judgment. Morris v. Mowatt, 2 Paige Ch. 586, 9: 1041 204. In chancery the general lien of a judgment is controlled by equity, so as to protect the rights- of those who are entitled to an equitable interest in the.lands or in the proceeds thereof. White V. Carpenter, 2 Paige Ch. 247, 8: 894 205. The court of chancery will so control the- legal lien of the judgment creditor as to restrict it to the actual interest of the judgment debtor in the property, so as fully to protect the rights of those who have a prior equitable interest in such property or in the proceeds thereof. Buohan v. Sumner, 2 Barb. Ch. 185, 6: 599' Wilkes V. Harper, 2 Barb. Ch. 338, 5: 666 206. As a court of equity will not allow the legal, lien of a judgment to be enforced against a vendee who had purchased and paid for his land before the recovery of the judgment, a purchaser of the land under such judgment, who at the time of his purchase had notice of the equitable rights of the original vendee, will not be permitted to hold the land as against him or his assigns. Gouvemeur v. Titus, 6 Paige Ch. 347, 3: 1015 207. Judgments recovered for debts secured by prior mortgages are not liens upon the equity of redemption which can be enforced after the as- signment of the mortgages. Loimis V. Stuyvesant, 10 Paige Ch. 490, 4: lOea 208. A judgment recovered for a debt secured by a mortgage on lands cannot become a lien upon such lands; and a sale of the equity of redemption under an execution upon such judgment will not confer any title upon the purchaser. And it makes no difference that the judgment was not recovered upon the bond accompanying the mortgage, so long as it was obtained for, or confessed to secure, the same indebtedness. GreenwiehBank v. ioomis, 2 Sandf . Ch. 70, 7: 512 209. Judgments are not liens in a case where a par- ty has a lease but not the present possession, and parts with the lease before the time arrives for him to enter upon the possession. Crane v. O'Connor, 4 Edw. Ch. 409, 6; 922 210. Judgments do not attach to leasehold prem- ises unless where there is possession in the lessee (judgment debtor). Ibid. 211.Where there is a resulting trust in favor of the^ creditors of the person who pays the consideration for real estate and takes a conveyance in the name of another, in fraud of their rights, U seems that a judgment recovered by one of such creditors is in equity a lien upon such real estate, except as against binta jide, purchasers without notice, although such estate cannot be sold under an execution upon the judgment. Brewnter v. Power, 10 Paige Ch. 562, 4: 1091 213. A judgment is not a specific lien upon the reali estate of the debtor. Rogers v. Rogers, 1 Paige (a. 188, 2: 611 213. The lien of a judgment does not in equity at- tach upon the mere legal title to land existing in. the defendant, when the equitable title is in a third! ^mux. TousUy, 1 Paige Ch. 280, 2 : 64 T 214. And if a purchaser under the judgment haS notice of the equitable title before his purchase and' 298 JUDGMENTS, DECREES. AND ORDERS, III. a. •the actual payment of the money, he cannot pro- tect himself as a 2)(»ta.^de purchaser. Ibid. 215. Where a suit is commenced against fire heirs, for the debt of their ancestor, and the writ is only served upon three, but the plaintiff proceeds and takes judgment against all as joint debtors, he ob- tains a lien only upon the estate of those upon ■whom the process was served. Purdy V. Doyle, 1 Paige Ch. 558, 8 : 751 216. The interest of a person holding a contract ■lor the purchase of land is not bound by the docket- ing of a judgment against him. Boughtonv. Orleamx Bank, 2 Barb. Ch. 458, 6: 714 Hertdl v. Bogert, 1 Ch. Sent. 25, 5: 1057 217. The interest which a judgment debtor has in ■lauds under an executory contract of purchase is not bound by the docketing of the judgment. Brewster v. Power, 10 Paige Ch. 562, 4: 1091 218. The Revised Statutes having provided that the Interest of a person holdiug a couiiact for tue pur- chase of lands shall not be bound by the docketing of a judgment or decree, nor sold on execution, a .judgment or decree agtiinst the bolder of such a •■contract is not a lien upon the land in equity. Qrosvenor v. AUen, 9 Paige Ch. 74, 4: 613 219. An error was made m a deed from a father to his son, by describing the lands as being in the north west,instead of the northeast corner. The son con- veyed the property absolutely to creditors of the father in satisfaction of their debtjand the error was continued in the deed to them. The de Eendant, a judgment creditor of the father, persevered in a *levy upon the land in the northeast corner, after being notified of the error. Held, that the judgment • did not attach upon the land thus conveyed. The defendant was perpetually enjoined, and costs were given against her. Goiroeraeur V. TiftiS, 1 Edw. Ch. 477, 6:817 220. A judgment fraudulently obtained creates no lien in the hands of a bona llde assignee. Livingston v. Hiibbs, 2 Johns. Ch. 512, 1: 469 221. Where B obtained from L a deed for land, through fraud in which H was concerned, and B •afterwards confessed a judgment to M, who as- signed it to B for a valuable consideration and with- ■out notice of the fraud, it was held that, the deed to B being null on account of the fraud, the judg- ement created no valid lien on the land ; that R took the assignment at his peril, and subject to all the existing rights of the debtor ; and the land was de- -clared to be reoonveyed, discharged from the judg- ment, and a perpetual injunction awarded. Ibid. 222. Where a creditor has separate judgments against each of two partners, the partnership prop- erty will be bound to the same extent as if the amount of both judgments had been included in a joint judgment against both partners. Brinkerhof v. Marvin, 5 Johns. Ch. 320, 1: 1096 223. Where there are two judgment creditors, one •of whom holds personal property of the debtor as collateral security, the court wiU not confine him to the personal property, or restrain him from pros- •«cuting his remedy under the judgment until such personal property is exhausted or tne rights con- •ceming it are first settled, if he offers to substitute the other judgment creditor in his place on being paid the amount of his debt. Ibid. 224. When an equitable claim to be relieved from .an incumbrance on land attaches itself to the legal estate of the owner of the land, such equity will be bound by the lien of a judgment against such own- er, and will pass to the purchaser of the legal estate -at a sheriff's sale under such judgment, so as to en- title him, in equity, to relief against the incum- Kellogg v. Wood, 4 Paige Ch. 578, 3: 568 225. In the case of a mere equitable interest of a judgment debtor, in lands held for him in trust, and which are liable to be sold on execution under the provisions of § 4 of the Statute of Uses, the judgment is only a lien upon the estate of which the trustee was seised to the use of the judg- •ment debtor at the time of the issuing of the exe- cution, and not upon that of which he was so seised •at the time of docketing of the judgment, as in the case of lands of which the debtor is seised as of a Jegal estate. Ibid. 226. Where the owner of land which is subject to • mortgage conveys the same wiia warranty, the •covenant of warranty runs with the land, and ia > bound by the lien of a judgment against the grantee -of the land, or his assigns; and if the grantor subse- quently acquires title to the land, under a foreolos. ure of the mortgage, such title enures to the bene- fit of a purchaser at the sheriff's sale under the judgment, and such grantor is estopped from ques- tioning the title of such purchaser. Ibid. 227. The original grantor is also bound to indem- nify the purchaser at the sheriff 's sale against the mortgage, if it remains unpaid, or where the lien thereof is continued by the substitution of a new mortgage for the purchase money on a foreclosure. Ibid. 228. Where B sold to M lots 12 and 13, in the Bing- hampton Patent, who gave B a mortgage thereon to secure the payment of the purchase money: and M afterwards sold lot No. 13 to W for a sum a UtUe less than the amount due B, to secure the payment of which W gave M a mortgage on lot 12, condi- tioned to pay the purchase money for that lot to B, to be applied on B's bond and mortgage ; and, pre- vious to the sale to W, K recovered a judgment against M, and after the sale N recovered a judg- ment against him, and, subsequently to the recov- ery of N's judgment, ■R& H and several others recovered judgments against M ; and R & H then ob- tained an assignment of the bond and mortgage given by W to M,— He!ie duty of the mas- ter, without any further order of the court for that purpose, to proceed to a sale of the property with all reasonable diligence, if he is requested to do 80 by any of the parties to the suit who will be injured by a delay in making the sale. Kelly V. Israel, il Paige Ch. Ii7, 5: 88 8. The master, in the exercise of a sound discre- tion, may adjourn the sale to a future day, when a BufBoient reason is shown for such adjournment. JbUi. 9. The owner of a decree for the sale of mort- gaged premises has no right to control the action of the master in relation to the order of the sale of the different parcels of such mortgaged premises. Snyder v. Stafford, 11 Paige (Jh. 71, 5: 60 10. Unless a decree directs the master to subdi- vide and seE lands in parcels, he is not compelled to do so. _ WoodhuU V. Osborne, 2 Edw. Ch. 614, 6: 534 11. It is the duty of the sheriff to sell lands in parcels where the property is so situated that it will probably produce more by that mode of selling, or where a part only is required to satisfy the exe- Mohamh Bank v. Atwater, 2 Paige Ch. 54, 2:810 la. But a saleof several parcels together does not render the sale void, but only voidable; and after a ereat lapse of time the sale will not be disturbed. Ibid. 13. Where the property consists of separate and distinct parcels which can be enjoyed by the own- ers thereof separately without diminishing their value, it is the duty of the ofiHoer who sells the same under a decree of the court to sell in parcels, except in very special cases. American Ins. Co. v. Oakley, 9 Paige Ch. 259, 4: 692 14. The last clause of Bule 138 was only intended to provide for special oases, where it is evident that the several parcels of land, from their peculiar lo- cation in reference to each other, will be more val- uable if owned by one person than if owned by dif- ferent individuals in severalty; or where, in conse- quence of some prior incumbrance upon all the parcels, purchasers will not be likely to bid upoD a portion only of the property, subject to such a general incumbrance. Ibid- 15. Mortgaged premises are not sold on credit without the consent of both parties. SedffivUkV- Pishi Hopk. Ch. 594, 8: 536. II. Validity ; Effect. 16. it seems hatthemaster'sreport. of asalemade by him, or any written memorandum of the sale- containing the requisites of the statute and sub- scribed by him, is a sulfident compliance with the statute to render such sale valid and binding upOD the purchaser. Natwnai I', iiif. Co. v. Loomiis, U Paige Ch. 431, 5: 18'7 17. The principle upon. which the employment of puttKis at a sale by auction is disallowed is not ap- plicable to a master's sale of property under a de- cree, where the complainant is authorized to bid up- on the property at the sale, and is bound to take the property if bid off by him or by his agents for him. 18. Any person who is a real bidder at a judicial sale may bid either in person or by his agent duly authorized. Ibid. 19. The court will not give a purchaser at a mas- ter's sale the benefit of his purchase, where he neg- lects to comply with the terms of sale within a rea- sonable time, if a resale is deemed more beneficial to the parties. Jackson v. Edvxirds, 7 Paige Ch. 386. 4: 20O 20. So the court will not compel him to take the title where, by the fault of the parties, the comple- tion of the sale has been delayed so long that he cannot have the benefit of his purchase substan- tially as if the sale had been completed at the time contemplated by the terms of sale. Ibid. 21. Where a master, who has neglected to file se- curity for the faithful discharge of the duties of his office, assumes to act as such master, and sells mortgaged premises under a decree of foreclosure, and the report ot the sale is confirmed by the court, the objection that the master had not given secur- ity, as required by law, cannot be raised in a collat- eral suit so as to affect the title of the purchaser at such sale. Nicholl V. NvchoU, 8 Paige Ch. 349, 4: 456 22. The remedy of the party whose property is sold, if the objection to the master's authority to sell is valid, is by an application in the foreclosure suit to have the sale set aside for irregularity. But such an objection, even if raised in the foreclosure suit, will not be listened to after a great lapse of time. ibid, 'tZ. Mortgagees and judgment creditors may pur- chase at sales made by virtue of their securities, be- cause they stand in no relation of trust or confi- dence to the debtor. Iddings v. Bruen, 4 Sandf. Ch. 223, 7: 1084 24. A sale under an order or decree of the court transfers only the riir hfs and interests vested in the parties when such order or decree was made, with such as are specifically enumerated and directed to be «old. Wens V. Chapman, 4 Sandf. Ch. 312, 7: 1115 25. After the entry of a decree directing a sale of property, and ueiore the saie, a party to thu suit may buy a prior lien which is unaffected by the de- cree, and the sale under the decree will not impair his lights in respect of such lien. iMd- m. Purchaser. u. RigUti and lAaWiities OeneraUy. 28. The sale of real estate by a sheriff, upon aa execution against the nonunal owner thereof, con- veys an apparent legal title to the purchaser. ftadcK# V. Rowley, 2 Barb. Ch. 23, 5: 548 27. A purchaser under a decree of the court, at a. master's sale, may be compelled to complete the- purchase; and the court, where the conditions of the sale give no alternative to the purchaser, will exercise its discretion, under the circumstances of the case, in coercing the purchaser by an attach- ment. Brasher v. Tan CorOandt, 2 Johns. Ch. 505. 1: 466 JUDICIAL SALE, III. b. 807 28. An appeal interposed after a decree for a sale is essentially executed does not supersede the com- pletion of the purchase. n Ibid. 29. A purchaser at a master^s sale, under a decree Ot the court of cbaucei-y, muy luuiiu a vtiliu iraimjiT of his bid to a third person, before the execution of the master's deed for the premises. And the court, upon the application of such assig'uee, may direct the execution of a conveyance immediately to him, by the master, subject to the equitable rights or Uens of other persons, as against the original pur- chaser, which had become vested previous to the assignment of his bid. Proctor V. Famam, 5 Paige Ch. 614, 3: 853 30. Where mortgaged premises were sold under a decree of the coux-t of cuauuery, ana the puruutuser being unable to raise the money immediately, and being informed by M that the tr & S Kailroad Com- pany intended to take the premises for a depot, and that the damages would be appraised without ref- erence to the increase of the value of the land by the location of such railroad, assigned his bid to M, who was the solicitor for the complainant in the foreclosure suit, and assumed the payment of such bid; and such original purchaser afterwards sold and assigned his bid. a second time, to other per- sons for a considerable advance,— Held, that M, the first assignee of the bid, was entitled to a convey- ance of the premises from the master. Ibid. 31. A bofta Me purchaser of property ata judicial sale, under tbe order of a court having jurisdiction of the subject-matter, is always protected where the proceedings are onlv voidnble, not void. American Im. Co. v. Fish, 1 Paige Ch. 90, 8: 572 32. And courts ought to be liberal in sustaining the regularity of such sales, where there exists no doubt as to the fairness and official nature of the transac- tion. Ibid. 33. The courts are likewise protected, whose pro- ceedings have been Irregular, where they have ju- risdiction of the subject-matter. Ibid. 34. Jt seemji that where a purchaser at a sale under a surrogate's order desires notice, to enable him to attend before the surrogate and litigate the ques- tion of confirmation, he should file a caveat and re- quest that he may be summoned or notified of the time and place of hearing when the report of sale shall be brought before the surrogate for confirm- ation. Delaplaine v. Lawrence, 10 Paige Ch. 602, 4: 1109 35. On a master's sale, the buyer, in equity, becomes the owner from the day the report of sale is con- firmed; and the premises are then at his risk, even though he hsis not received a deed. Gates V. Smith, i Edw. Ch. 702, 6: 1025 36. A loss by fire, after such confirmati on and be- fore deed, falls upon the buyer; but not so where the loss is prior to a confirmation of the master's report. Ibid. 37. It seems that a surrogate has not the power to compel the purchaser of the real estate of the dece- dent, at a sale made by the executors as adminis- trators under an order of such surrogate, to take the conveyance of the property and to pay to the executors or administrators the purchase money bid upon the sale. Butler V. Emmett, 8 Paige Ch. 12, 4: 326 38. Where an agent bids off property in his own name at a master's sale under a decree, without disclosing to the mast«r that he is bidding for an- other person, he is personally responsible for the completion of the purchase. JVottonal F. Ins. Co. v. ioomis, 11 Paige Ch. 431, 5: 187 39. An announcement by the master, after the property has been struck off at a sale made by him, that if the purchaser does not comply with the terms of the sale the property will be resold at his expense, does not didcmirge the purchaser from his bid. Ibid. 40. Where a decree is had in a partition suit where- in an infant (amongst others) has been made a de- fendant, but no guardian ad litem has been ap- pointed, nor order entered for appearance, nor bill taken as confessed against him, a purchaser under the decree will be discharged from his bid, even though this defendant may have since attained his majority and offers to release his interest— the de- cree being so far irregular as to be incapable of en- rotlmpnt. _ „„ Kohler v. Knhler, 2 Edw. Ch. 69, 6:311 U. False representations made at a master's sale by a defendant in the suit, as to the situation of the property and the amount of its rental, although such representations were disavowed by the mas- ter, will, if the purchaser is deceived thereby, be a Bumclent ground for his being discharged. American Ins. Co. v. Simers, 3 Ch. Sent. 70, 6: 112S 12. Where the purchasers took possession of the property and made improvements thereon, after being informed by the master that the facts would be submitted to the court, and without n aiting f oi the confirmation of the report of sale,— it wasneld that they were not entitled to Indemnity for »iicb improvements. Beqim v. Bea, 2 Paige Ch. 339, 2 : 934 43. Where a person becomes a purchaser under a decree of the court nf chancery, ue submits himself to the jurisdiction ot the court in the suit in which the decree was made, as to all matters connected with the sale, or relating to him in the character of purchaser. Ibid. 44. Where the special guardian of an infant, who was authorized by an order of the court of chan- cery to sell the real estate in conjunction with an adult tenant in common with the infant, reported a sale of the property, which sale was confirmed: and upon an application to compel the supposed purchaser to (iomplete his contract the purchase was denied; and it appeared that the special guar- dian had made his report of the sale upon verbal Information derived from the adult tenant in com- mon merely,— the application to compel the sup- posed purchaser to complete his purchase was denied, with costs, to be paid by such special guar- dian. Be Hazard, 9 Paige Ch. 865, 4: 734 b. Sufficiency of Title ; What Title Passes. 45. The court of chancery has power to give re- lief to the purchaser of lands upon execution, for an eviction or failure of title. Utica Bank v. Mersereau, 3 Barb. Ch. 528, 5: 998 46. Where the plaintiff in a judgment is himself bDe purchaser, and has been evicted for want of title in the judgment debtor, his remedy still de- f>ends upon the equitable principle of the Coloninl aw derived originally from the Statute of Hen. VlJi. as applied to sales of land upon execution; which equitable principle has been applied, by an- alogy, to sales 6f personal property. Ibid. 47. Where the common law does not provide for such oases, they are proper subjects for the inter- ference of the court of chancery, or for relief upon a summary application to the equitable power of the court out of which the execution issued. Ibid. 48. This equitable principle applies to a case where a judgment creditor purchased premises at a sale thtrejf by the sheriff, under the Judgment, in the belief that the title was in the judgment debtors, or one of them, at the time of the docketing of the judgment; and where the judgment debtors, in a statement of their property furnished to the judg- ment creditor and others, previous to such sale, had represented that they were the owners of the lands subsequently sold and bid ofl! by the judgment creditor Ibi'i. 49. A purchaser at a master's sale is bound to com- plete the purchase where the vendor shows a prima facie title, against which there are no reasonable gfoi7Tirls of suspicion. Be Browning, 2 Paige Ch. 64, 2: 814 50. If it appears that any person is making a claim adverse to the title of the vendor, or that there are probable grounds for supposing such a claim will be made, the court will direct the testimony of the witnra^ies to be perpetuated. Ibid. 51. Where a purchaser at a master's sale purchas- es under the assurance, given at the time, that he is to receive a perfect title, if such title cannot be given, he will not be compelled to complete the pi'^'chase. aforris V. JIot«att,2 Paige Ch. 586, 2: 1041 53. Neither can he be compelled to receive a good legal title It it is liable to be litigated in conse- quence of some equitable claim which may be brouffht against it. ibid. 53. He is not obliged to accept a mere equitable tH;le or a doubtful title. Ibid. 54. He has a right to require, under such circum- stances, a title which is good both at law and in equity. IbiA. 308 JUDICIAL SALE, IV. 55. A purchaser at a master's sale, who Is not noti- ced of risk in the title, will not be compelled to take, unless he can get a legal and equitable estate. Coster V. Cla/rke, 3Edw. Ch. 428, 6: 714 66. The purchaser at a master's sale cannot object to the title merely on the ground that there is a possibility that some person other than the parties in the suit has an interest in the premises, where there is no probability that any such interest exists. Dunham v. Mimard. 4 Paige Ch. 441, 3: 506 57. Where real estate is sold by a master under a decree of the court ur uhiiocury us and rur a >:»».> i title, the purchaser is only entitled to such a title as a purchaser of the premises at a private sale would be bound to receive from his vendor. Sprina V. Sond/onJ, 7 Paige Ch. 550, 4:870 58. Chancery will not compel a purchaser in good faith under its decree to take a defeeuvo title, where the defect is brought to its notice: but it does not undertake that none but good titles shall be sold under its directions. Wmiaimon v. Field, 2 Sandf. Ch. 533, 7: 693 59. Where land is sold by a master under a decree of the court of chancery, the court will not compel the purchaser to complete bis purchase when he will not obtain such an interest in the premises, and in the buildings thereon, as he had a right to suppose, from the terms of the sale, be was buying when the property was struck off to bim on his bid. Seaman v. Hleks, 8 Paige Ch. 655, 4: 580 60. Where the owner of premises subject to the lien of two mortgages given in 1810, and of a judg- ment docketed in 1815, and of a third mortgage given in 1818, sold the premises to W, with warranty, subject to the payment of the three mortgages, the J purchaser being ignorant of the existence of the udgment; and where the premises were subse- quently sold and conveyed by the sheriff to the plaintiff in the judgment, under an execution is- sued thereon; and W subsequently purchased the premises from the plaintiff in the judgment,— W was entitled to hold the premises discharged uf the Hen of the third mortgage, whicb was overreached by the sale under the prior judgment. McCammon v. Worrall, 11 Paige Ch. 99, 5: 70 61. A purchaser under the decree in a partition suit, commenced within the three years allowed Uj creditors to apply for an order of sale, will be com- pelled to take the title if it appears that there are no debts, or that the personal property is an ample fund to pay all claims against the decedent's estate. Sprtno V. Sa?id/ord, 7 Paige Ch. 550, 4:270 62. Where a master sells property with buildings thereon, as and for a good title, if the < orporatiuu of the city or village in which the premises are sii> uated has a right to take the land for a street at some future time without paying for the buildings, of which fact the purchaser was ignorant at the time of the sale, the court will not compel him to complete his purchase, although the probability of the exercise of such right by the corporation is very remote. Seaman v. Hicks, 8 Paige Ch. 655, 4: 580 63. Where, by the terms of the master's sale of mortgaged premises under a decree, the property was f^ be sold free of incumbrances, and all taxes and assessments were to be paid out of the purchase money, provided bills thereof were produced to the master before the completion of the sale; and it afterwards appeared that an assessment to a large amount against the property, for the opening and macadamizing the avenue through the same, had not in fact been confirmed by the corporation of the city at the time of the sale, although the work bad been contracted for and coinpleted more than three years before that time,— ije^o, that purchasers at- the ejile who had bid off the property under tbe belief that such assessment had been con- firmed, and that they would hold their lots dis- charged of the expense of opening such avenue, were not bound to take the property subject to the asf^essment for that improvprnent. Post V. ieet, 8 Paige Ch. 837, 4:451 64. Where some of the purchasers at a master's sale bid upon the supposition that a large assess- ment, amounting to more than one third of tbe value of the property, was to be paid out of the pro- ceeds of the sale, and other persons who bid at tbe sale knew that the assessment was not confirmed, and bid accordingly,- HeW, that the purchasers were not entitled to hold their purchases,and to have the unconfirmed assessments paid out of tbe amou nt bid, unless the persons interested In the proceeds of the sale consented tbereto; but, as the property had tieen purchased under a mistake, that there must l>e a resale. IMA. 65. In equity, the purchaser under a judgment takes the land subject to all equitable claims prior in point of time to the judgment, of which he had notice at or prior to the sheriff's sale. Samdfnrd v. McLean, 3 Paige Ch. 117, 3: 80 6«. The purchaser at a sale of the real estate of a decedent lor tlm piiyineiituf debts under unorder of the surrogate takes the property subject to all the previous incumbrances thereon, by judgment, mort- Kage, or otherwise. And if he wishes to obtain a per- fect title to the premises, free from incumbrances, the amount of such incumbrance musi be ascer- tained before the sale, and the premises must be sold upon the condition that the amount, as thus ascertained, shall be paid out of his bid upon tbe property, and that the residue of such bid only shall be returned to the surrogate as the proceeds of the gale, which are to be distributed ratably among the other creditors of the decedent. Butler V. Emmett, 8 Paige Ch. 12, 4: 326 67. A stranger purchasing at such a sale and pay- ing the price, without notice of a mortgage execut- ed pendente lite, would be protected against the mortgage. WesterueU v. Haff, 2 Sandf. Ch. 98, 7: 523 IV. Opekino ; Besale. 68. The English practice of opening biddings up- on an offer of a greater price has not been adopted in New York. Nor will the court order a resale merely because the property will sell for more ex- cept, perhaps, where the mortgagee buys for less than tbe amount of his mortgage and the mort- gagor will remain liable for all deficiency on a re- sale. Woodhvll V. Osborne, 2 Bdw. Ch. 614, 6: 524 Gardiner v. Schermerhom, Clarke Ch. 101, 7: 63 69. Where a stranger purchases at a chancerv sale in >food faith, something more must appear than a mere offer of a higher price to induce a resale. There must be fraud or misconduct of the master or person controlling the sale, or surprise upon the party interested, or his having been misled as to time and place by the purchaser or some person connected with or having the management of the sale. If the party interested be of full age and un- der no disability, he cannot be permitted to allege his own negligenceorinattentionas the cause of bis surprise or mistake; and a sale cannot be opened if this appears. Woodhua V. Osbirme, 2 Edw. Ch. 614, 6: 534 70. Before confirmation of report of sale, a resale will be oiUereu >»ucii it is equitable underthe pecu- liar circumstances of the case; and when there is fraud or misconduct in the purchaser orany person connected with the sale; when there is surprise upon any party in interest, created by the conduct of the purchaser or other person directing the sale; when the interests of infants are concerned in opening the sale; or when a guarantor has misunderstood his iiahility. Gardiner v. Schermerhom, Clarke Ch. 101, 7: 63 71 Mere inadequacy of price is not of itself a suffi- cient reason for opening the sale. Ibid. 72. When the purchase is fair and free from f raudi suspicion, or surprise, a resale will not be ordered if the purchaser has a subsequent lien which would be periled by a resale. Ibid. 73. Until the report of sale is confirmed, any per. son interested may make a summary applicu^. jn to the court for a resale, provided be has any just grounds to sustnin the application. But wLere the sale is properly made, and there are no grounds for setting it aside, the former owner of the equity of redemption cannot prevent the completion of the sale, and the confirmation of the master's report, by a mere tender cf the amount due upou the decree, with interest and costs. Brnum v. Front, 10 Paige Ch. 243, 4: 962 S. C. 3Ch.Sent. 19, 6: 1106 74. Mere inadequacy of price is not alone suffi- cient to authorize the court to set aside a master's sale, although the complamunt in the foreclosure suit is the purchaser. But in such case, if theownc-r of tbe equity of redemptiou intended to bid a greater sum for the morigaged premises and to comply with the terms and conditions of the salo. JUDICIAL SALE, IV. 30» «nd was prevented from so doing by mistake or ac- cident, he has a clear and adequate remedy by a summary application to the court in which the suit was pending for a resale; he cannot, however, file an original bill to set aside such sale. ibid. 75. Where the master sells property under a de- cree in chancery at an improper lime, or m such a manner as to prevent a fair competition, or if for any other cause it is inequitable that such sale should be permitted to stand, the proper remedy of the party aggrieved is by a summary application to the court in the suit in which the decree was made, to set aside the sale upon such terms and conditions as may be just, so as to protect the rights of the purchaser as well as of the parties interested in such sale. Ibid. 76. Where property is regularly advertised and fairly sold by a master, a sale will not be set aside, and a resale directed, for the benefit of parties in- terested in the proceeds of the sale, to protect them against the consequences of their own negligence, where they are adults and competent to protect their own rights on the sale. AmerUxm Ins. Co. v. OoMey, 9 Paige Ch. Z59, 4:69a 77. And where the sale is in the usual manner, and the purchase is made by a stranger to the suit, iMMie inadequacy of price is not a sutBcient ground Jor depriving the vendee of the benefit of his purchase, unless the inadequacy is so great as to be evidence of fraud or unfairness in the sale. Ibid. 78. But the parties Interested in the property to be sold have a right to expect that it will be put up and sold in the usual manner, and in a way to produce a fair competition among the persons at- tending the sale to bid upon the property. And whore the property has been sacrificed by the neg- lect or mistake of the master to comply with the legal requirements on such sale, or by his having improperly put up for sale several lots together which should have been sold separately, the parties injured are entitled to a resale, or to such other re- lief as can be given without doing injustice to a bona fide purchaser of the premises at the sale. Ibid. 79. Mere inadequacy of price is not sulBoient to entitle a party to an order for the resale of lands under a decree, where the purchase has been made by a stranger to the suit, and where the party ap- plying for a resale has suffered the property to be sacrificed by his own ne^gence. Thompson v. Jlfount, 1 Barb. Ch. 607, 5: 513 80. The court of chancery will open a sale of property made under its decree, where the prict bid bears no reasonable proportion to the actun value of the property, and where the loss has been occasioned by an accident which no ordinary vi^i i lance and foresight could have guarded against. But the court will not interfere to protect parties against their own negligence, where property has been fairly sold and struck off to a stranger to the suit. Ibid. 81. Where property was sold, upon a decree of foreclosure, at a price greatly below its value, and was bid in by the complainant's solicitor in his own name; and the defendant, instead of applying Ui the court for a resale, entered into an arrangement with the purchaser to redeem the property upon payment of the amount due upon the mortgage, with interest and costs, within a specified time, and to have possession of the mortgaged premises in thf mean time, — it was too late for the defendant, afte? he had broken his agreement to redeem the prem ises, to apply to the court to set aside the sale, and for a resale of the premises. Toll V. HiUer, 11 Paige Ch. 228, 5:117 82. Where a codef endent of the mortgagor in a foreclosure suit took an unconscientious advan- tage of the illness of the latter, which prevented him from attending the sale under the decree, in inter- fering to prevent a postponement of the sale, and himself became the purchaser of the mortgaged premises at less than one third of their real value, the court ordered a resale, making provision in such order for the repayment to the purchaser of the full amount of his bid, with interest thereon. BUUngton v. myrbes, 10 Paige Ch. 487, 4: 1061 83. Where, by an order for the resale of mortgaged premises, tne master was directed to put up the premises at a particular sum, and resell the same. If that amount or a larger sum was bid therefor, and at the sale the premises were struck off to a pur- chaser for the sum specified, and thereupon the master, acting under the direction of the complain- ant's solicitor, and without any previous intimation to that effect, insisted upon the immediate payment of the bid in specie, although the purchaser offered to pay the same in good current bank bills, or in good drafts on specie-paying banks at Albany, or to pay the amount in specie as soon as it could be ob- tained from the banks where it could be found; and the master immediately put up the property again upon the terms that specie should be paid down, and, no person purchasing on these terms, he re- ported that the terms upon which the resale was directed had not been complied with,— Held, that the conduct of the master was improper and un- justifiable, and that the purchaser was entitled to a deed of the premises, upon payment of the amount of his bid; and the report of the master was set aside, and he was directed to execute to the purchaser a deed upon such resale. Baring v. Moore, 5 Paige Ch. 48, 3: 63? 84. Where a purchaser at a master's sale has beeL, prevented from completing his purcnase, and has been kept out of the possession of the premises and out of tne receipt of the rents and profits thereof, by an appeal from an order denying a motion for a resale, the appellant, upon the reversal of the order, will be required to fulfill his offer to give an in- creased price on a resale, so that the former pur- chaser may be enabled to obtain the interest of his purchase money which has been lying idle in the mean time. American Ins. Co. v. Oakley, 9 Paige Ch. 496, 4: '789 85. A decree ordered a sale of mortgaged premises to be made by a master residing in the City of New York, but was made by a master residing in Brook- lyn, Kings County; the court set aside the sale, al- though a purchaser had taken his deed. Tatesv. Woodruff, 4 Bdw. Ch. 700, 6: 1034 86. Where a memorandum, not authorized by the master, was read at a master's sale, describing the dimensions of the dwelling houses sold, and which turned out to be incorrect by several feet, the sale was vacated. Laight v. Pell, 1 Edw. Ch. 577, 6: 353 87. Where land sold under a decree of the court was described in the master's notice as contain- ing about 20 acres, when in fact it contained only 13 acres, and one of the complainants who was present at the sale knew of the deficiency, but concealed that fact from the master and the bid- ders, and encouraged them to bid, the sale was set aside on the application of the purchaser. Feeder v. Fonda, 3 Paige Ch. 94, 3: 71 88. Where a resale is ordered and that the default- ing buyer make up any deficiency, he wiU not be let up, merely on account of a variation of the original terms of sale in regard to the percentage of deposit— especially where ne attends on the res^e and is a bidder. Bibby v. Gouvemeur, 4 Edw. Ch. 535, 6: 966 89. Where, under a decree for a foreclosure and sale, a purchaser refuses to perfect his purchase, and the complainant does not press him, the master Hhould sell the property over again, and not let the complainant take it at the purchaser's bid and re- ceive a deed. Thompson v. Dimond, 3 Edw. Ch. 298, 6: 665 90. On a master's sale, which reserves to the master a right to consider the biddings open until the de- posit is paid, no sale can be enforced where the pur- chaser refuses to pay the deposit or sign an ac- knowledgment; and no order for a resale is neces- sary—the master will go on as if no sale had taken rlnoe. Hewlett v. Davis, 3 Edw. Ch. 338, 6: 681 91. The biddings at a master's sale will not be opened except in very special cases, and unen it will not be done unless the purchaser is fully and liberally indemnified for all damages, costs, and ex- penses to which he hna been subjected. Duncan v. Dodd, 2 Paige Ch. 99, 3: 839 92. Where the master, who was directed to se'l mortgaged premises under a decree, had written instructions from the complainant's solicitor not to sell the premises for a less sum than $2,600, the amount of the debt and costs, but, through ignor- ance of his duty, the premises were sold for "i ,000 less, to purchasers who were mf ormed of th^ ia- structions at the time of the sale, and before they paid their bid, the court ordered a resale of the r''operty. Bequa V. Bea, 2 Paige Ch. 339, 3: 934 JIO JUDICIAL SALE, V., VI. 93. Where property passes into third hands on a master's sale, such sale should not be vacated save for fraud. But where a judgment creditor has here- tofore bought in the rights, title and interest of the mortgagor and is recognized as the buyer at the master's sale, but, from circumstances, he does not pay down deposit (though he went prepared to do so), and the mast«r puts up the property again, re- fusing tn take any biddings from such former buy- er, and the property is knocked down, at an under firice, to the mortgagee, the court will vacate the ast sale and reinstat« the first bidder. McM V. WaXOey, 3 Edw. Ch. 590, 6: 773 94. One personally liable for a deficiency arising upon the sale of mortgagea premises, who has no interest in the premises, cannot apply for a resale on the ground of inadequacy of price, if he and his sureties are discharged from lialiility to the extent of the full value of the premises. Bodine v. Edwards, 3 Ch. Sent. 46, 5: 1114 95. An original bill in chancery cannot be filed by a party to a foreclosure suit, to set aside a master's sale under a decree, where relief could have been obtained by a summary application to the court in the foreclosure suit. Brovm. v. Frost, 10 Paige Ch. 243, 4: 968 96. Where a purchaser at a master's sale under a decree is himself a party to the suit in which the decree was entered, if the decree is irregular, so that he will not get a good title to the premises purchased by him, his remedy is to apply to thp court directly to set aside the decree on that grou ' CancMin v. Mall, 2 Barb. Ch. 136, S: 587 97. In sales made by masters, under decrees and orders of the court of chancery, the purchaser who bids off the property and complies with the terms of sale is considered as having an Inchoate right, which entitles him to a hearing upon, the question whether the sale shall be set aside. Ddaplaine. v. Lawrence, 10 Paige Ch. 603, 4: 1109 98. A defendant who has appeared in the suit, and who has any Interest in property sold by the master, or in the proceeds of the sale, is entitled to notice of an application to discbarge the purchaser, or for a resale. Robinson v. Meigs, 10 Paige Ch. 41, 4: 878 99. One obtaining a void order to stay proceed- ings under a decree of foreclosure cannot set up that he relied upon the validity of the order, in or- der to set aside the sale upon the ground of sur- prise. Bodine v. Edwords, 3 Ch. Sent. 46, 5:1114 V. Eedemption. 100. In order to make a valid redemption of lands from a sherill's sale under a judg^mtsuL and execu- tion,»the directions of the statute must be strictly complied with ; the sheriff has no power or discre- tion to dispense with any one of them. WalUr V. HarrU, 7 Paige Ch. 167, 4: 109 lOL A redemption was held Invalid for the non- S reduction and delivery m tue sheriff, on the re- emption, of a copy of the docket of the judgment under which the redemption was claimed to be made, duly certified, as required by the Bevised Statutes. Ibid. 103. Where a junior judgment creditor sells the lands of his debtor under bis judgment, and be- comes the purctiaser thereof, and at the end of fif- teen months from the sale receives the sheriff's deed therefor, and afterwards the same premises are sold under a prior judgment, such junior judgment creditor, being the owner of the lands by his pur- chase, cannot, after the expiration of the year from the last sale, redeem the premises from such sale ; for the lien of his Judgment was extinguished by his purchase of the premises under it. BtisseH V. ATlen, 10 Paige Ch. 249, 4: 965 103. And such lien is extinguished, although there remains a balance due upon the judgment beyond the amount of his bid at the sale, except where the judgment debtor has acquired a subsequent tltJe to the premises which overreaches and devests the previous title which such junior judgment creaitor obtained under his sheriff's dexd. Ibid. 104. The owner of lands sold under a judgment must exercise his right to redeem them from such sale within one year. And if an equitable owner of the lands thus sold has a right to redeem, he must also exercise his right within the year, as equity follows the law in such cases. Ibid. 105. Where mortgaged premises have been sold at a Bberitf's sale uuuer a juuKmt^nc juuiur to Liiu mortgage, and where the time for redemption has not expired, the general lien of the judgment is turned into a specific lien upon the premises, to the extent of the amount of the bid at the Bherill'.a sala and of the interest thereon. Snyder v. Stafford, 11 Paige Ch. 71, 5: 60 106. Where the interest of a husband in his wife's real estate is sold under a judgment recovered gainst him, bis right to redeem toe premises from the sale is at an end at the expiration of twelve months* And if the original purchaser, or a re- demption creditor, obtains the legal title at the end of three months thereafter, the wife has no right to redeem upon paying the amount of the original bid and interest, although she is then entitled to a decree of separation. Sackett v. QiUs, 3 Barb. Ch. 204, 5: 874 107. A deputy sheriff who sells real estate upon an execution has the right to authorize a deposit of the redemption money with another person as his agent for that purpose; and a deposit of the money with such agent, within the time allowed by law for re- deeming, will constitute a good redemption of the premises from the sale. Hall V. Fisher, 1 Barb. Ch. 53, 5: 396 108. Where the sheriff makes a miscalculation of the interest upon the sum bid by a purchaser, and thereby misleads a party coming to redeem, who in consequence thereof makes a short payment, it neems the redemption will, notwithstanding, be held valid and effectual, even at law. Ibid. 109. But where the redeeming party makes the calculation for himself, or by an agent employed by him for that purpose, and a mistake occurs in consequence of which a sum less than the amount due is paid, the redemption will be invalid. Ibid. 110. Whether the court out of which the execution issued could, upon an application made previous to the execution of the sheriff's deed, relieve the re- deeming party against the consequences of such a mistake,— (fiWBre. Ibid. HI. Whether a court of equity has power to grant such relief after the execution of the sheriff's deed to the purchaser,— grjcerc. Ibid. VI. LiABiLiTT or Master. V\2. It Js the duty of the master who sells property umJei" auui'uur oi luu uv^uil, lu jjay over Cue luuuos received upon the sale to the parties entitled there- to, without delay. And if he neglects to pay over the money, as directed by the order of the court, the interest which is lost by such neglect should be charged upon the master personally. Lawrence v. Murray,3FaXge Ch. iX), 3: 305 IIB. it seems a master is Uable for the costs of set- ting aside his report of sale and of the subsequent groceedings thereon, if ills conduct as such master as been grossly imprnppr and oppressive. Baring v. Moore, 5 Paige Ch. 48, 3: 633 Editorial Notes. Judicial sales; control of, by chancery 2:934 Power of court over 2: 829 Jurisdiction over purchaser 1:466 Adjourned sale not void 2 : 934 Offer of upset price 1 : 466 Extinguishes lien 4: 965 Duty of officer to sell by parcel 4: 656 Power to order, of trust estates 2: 924 Protection of infants' rights and interests. 7:918 Deed takes effect by relation 6: 1025 "What title passes 4: 640, 6: 709 Conveyance to third person 3: 853 Effect of Statute of Frauds 1 : 466, 5: 187 Reopening 1: 622, 671 Postponement 1 : 152 Setting aside 2: 572, 811, 829, 5: 107 grounds for 4: 962 bill will not lie when regular 4:692 JURAT— LANDLORD AND TENANT. I. a. 311 Setting aside; mere inadequacy of price not sufiScient 4: 693 Redemption; right to 4: 963, 6: 1057 owner must redeem within a year 4:965 suit for 4: 109 Deputy sherifE may authorize deposit of redemption money 5: 396 llxecution sale under judgments 3: 569 interest of beneficiary cannot be sold on 3:339 property in possession under contract not subiect to 3: 124 ■Of mortgaged premises 1: 338, 3: 341 Application for confirmation of judicial sale 3:164 Purchasers; rights of 1: 286, 2: 1041, 3: 633 relief to 1: 315, 3: 47, 4: 451, 580, 963, 6: 311, 7:68 right to demand good title 4: 270 remedy against, for refusing to complete purchase 3: 984, 4: 201, 337, 5: 964 under statute foreclosure 3: 341 "beneficial improvements 3: 341 protection of 8: 1019 Purchasers; under judgment take subject to prior equities 3: 81 Resale; when ordered 3: 934, 3: 633, 4: 693, 6: 665 JURAT. See Fleadino, I. k,3. JURISDICTION. See ChANOEIiLOU and VlOE-CHANOBIiLOR ; COHETS; Equity; Surrogate. For Particular Subjects, see also Cloud on Title ; Creditors' Bill ; Disootert ; Executors ; AND Administrators; Habeas Corpus: In- junction ; Mortgage; and the various Other Titles which may Involve any Question of Jurisdiction. JUROR. See Incompetent Persons, 2? ; Teiai. L. LACHES. See also Limitation of Actions. L Laches and neglect are always to be discoun- tenanced In equity. A party must not sleep upon his ricrhts here, any more tnan at law. And this principle is more particularly applicable to stale demands brought forward and attempted to be supported for the first time after the death of an •original party. Powell V. Murray, 8 Edw. Ch. 636, 6: 538 2. In general, the oases in which silence and delay have been considered as furnishing presumptive ■evidence of abandonment or release of claim, are those wherein executors, administrators or trustees «re called upon to pay, after having distributed the funds. A partnership in stock is not within this irule. Atwater v. Fowler, 1 Edw. Ch. 0.7, 6: 193 3. Equity gives great effect to the lapse of time ■And discourages claims not promptly made, espe- cially where there has been no personal disability or other impediment. Philips v. BOden, Z Edw. Ch. 1, 6: 885 i A party in a litigated suit must be vigilant or ■a court will not relieve him. Bay V. Connmr, 3 Edw. Ch. 478, 6: 738 5. The consequences of the laches or negligence of ^n officer of the State, which occasions loss or in- jury to an individual, are to be borne by the State, in the same manner as individuals would bear them ifor similar laches or negligence. Hayden v. Agent of Autni/m State Prison, 1 S. 195. 7:293 6. This doctrine applied to the neglect of the agent -of one of the State prisons to enforce a levy on aL -execution in his favor, and the judgment held sat isfled as to a junior liPn on real estate. Ttml 7. In order to establish such constructive satis- . taction, it lo not necB^sa^y tor the junior incum brancer to show any positive interference or direc- tion of the plaintiff in the execution, in the omis «ion to proceed diligently upon the levy. Ibid LAND CONTRACT. See Contracts, I. b,a; Vendor and Purobabbr. LAND GRANT. See Public Lands. LANDLORD AND TENANT. I. Lease ; Validity and Effect. a. In General. b. Covenants Oenerally. c. Benerwal; Covenant for New Lease, d. Forfeitwres. e. Transfer by Lessor or Leasee. n. Rent. a. Bight to ; Recovery. b. Distress. Editorial Notes. See also Contracts, 1; Covenant, 2; Discovery, 18, 19; Estovers; Improvements, 3; Injunc- tion, 86, 37, 1^, 121 ; Interpleader, 18: Lim- itation OF Actions, 23; Set-Ofp, 27, 58; Specific Performance, 65; Waste. I. Lease ; Validity and Effect. a. In General. 1. A lease for a term of years is not, in the ordi- nary acceptation of the term, a conveyance of the land. Tone V. Brace, 11 Paige Ch. 666, 5: 836 2. An unrecorded lease for two years at a rent of $800, giving lessee the privilege of cutting and car- rying away all the wood and timber on the lot. If done within the continuance of the lease, is valid as against a subsequent bona fide purchaser without notice. Beebe V. Coleman, 8 Paige Ch. 892, 4:476 3.2 LANDLORD AND TENANT, I. b, c. 3. In su jb case, where the right to distrain for rent was riven in the lease, the title to notes (riven to the orii^inal owner for future rent passed to thi- Tendee, and he could collect the amounts of them from the tenant unless they had passed into the hands of bonaflde purchasers. Ibid. 4. Where the owner of a farm leased the same, with the cows and sheep then on it, to a tenant for the terra of five years, at a certain annual rent, and the lease provided that cows of equal aife and qual- ity should be returned to the landlord at the end of the term, and also the sheep ; and a judgment creditor of the tenant, before the expiration of the term, levied his execution upon a part of the cows and sheep originally put on the farm by the land- lord, and upon other cows and sheep which the ten- ant had purchased and put on in the place of those which bad been Bold,— Held, that the landlord had no lejral or equitable right to restrain the creditor from selling the cows and sheep thus levied on, to satisfy his execution. Carpenter v. Oriffln, 9 Paige Ch. 310, 4: 713 5. C. 1 Ch. Sent. 72, 5: 1073 5. "Where cattle or implements of husbandry, or other articles which are not necessarily consumed in the using, are delivered by the landlord to his tenant, to enable the latter to cultivate and improve the premises, and to be returned in property of the same kind and value at the end of the term, but not in the same property specifically , the cattle or goods thus delivered belong to the tenant, and not to the landlord, during the term ; and they maybe sold by the tenant, or levied on by bis creditors for the pay- ment of his debts. Ibid. 6. Where a lease in perpetuity contained a con- dition and covenant that, upon every sale of the premises, the lessee or his assigns should obtain the consent in writing of the lessor, and should otter to such lessor the pre-emptive right to purchase, and that if the premises were sold to any person after such offer, one tenth of the purchase money should be paid to the lessor; and the lessee afterwards con- tracted to sell the premises, and agreed to pay the tenth sale to the owner of the rent and rever- sion; and the purchasers actually took possession under their contracts to purchase,— Held, that the remedy against the lessee for the recovery of the tenth sale, if any, was at law, and not in equitj'; that the covenant and condition in the lease was in restraint of and in the nature of a fine upon aliena- tion, inconsistent with the spirit of our institutions, and injurious to the community; and that the court of chancery would not interfere to enforce the per- formance of such covenants and conditions in leases in cases in which the landlord by the terms of his lease had not secured to himself a remedy at law. lAvlngeUm v. SUcMes, 8 Paige Ch. 398, 4: 478 7. Whether the lessee is bound to pay the tenth sale stipulated for in a lease upon every alienation of the premises, upon a mere contract to sell, and before he has actually received the whole purchase money agreed to be paid upon such sale by the vendee,— qucEre. Ibid. 8. Where a lease for a store contained a clause that it should be occupied for the regular dry goods jobbing business and for no other, the lessee cannot carry on in the store the business of an auctioneer. Stewa/rd v. Winters, i Sandf . Ch. 587, 7: 1319 9. Where a tenant covenants to pay all taxes, cnarges and assessments, ordinary and extraordi- nary, which might, during the term of his lease, be charged or assessed upon the demised property or upon him, and he paid an assessment on account of a publie sewer, for which a prior assessment had been paid by his landlord before the lease, but re- turned to the latter with interest on account of an erroneous principle in the assessment,— Held, that the tenant had no remedy in equity upon the rule of accident. Oram v. Munro, 1 Edw. Ch. 123, 6: 83 10. Whether, as he bad paid the assessment, he can have relief in equity upon the ground of mistake, —quoBre. Ibid. b. Covenants Generally. 11. Section 140 of the Be vised Statutes in relation to alienation by deed does not abolish implied cov- enants in leases for years. Tone V. Brace, Clarke. Ch. 503, 7: 184 13. The words "demise" and "lease," in a lease, im- port a covenant for quiet enjoyment by the tenant of the demised premises. Tbid. 13. Whether,under the provisions of the Revised Statutes relative to imphed covenants in convey- ances of real estate, the word "demise" in a lease- for a term merely Implies a covenant on the part of the lessor of quiet enjoyment of the demised prem- ises by the tenant,— quwre. Tone V. Brace, 8 Paige Ch. 597, 4: 567 U. Where a covenant was contained in a lease, oa the part of the lessee, to pay all taxes and assess- ments which might be Imposed on the premises by authority derived from the United States, the State of New York, or from the corporation of the city of New Tork; and an improvement was made by the corporation of New York In the opening of La Fayette Place, which took a part of the leasehold premises,— it was held that the lessee was chargeable with the amount of the assessment upon the inter- est of the lessor in the premises. A^or V. MtUe/r, 2 Paige Ch. 68, !8: 816- 15. A covenant in a lease, that at the end of thfr term the premises and the improvements thereof should be separately valued, and the lessors have the right, either to purchase the improvements or sell the premises at the appraised value, is indivis- ible; and if the lessee's interest has been assigned to dilf erent Individuals, all who are interested in the different parcels must ftnitein the appraisal and In the purchase, if the lessors elect to convey the same. Ostrander v. Livingston, 3 Barb. Ch. 416, 6: OSS- IB. A verdict for the plaintiff in an ejectment suit, not followed by a judgment, is not tantamount to an eviction of the tenant, when the question as to the eil'ect of such a verdict arises between the ten- ant and his grantor with warranty. Miller v. Avery, 2 Barb. Ch. 582, 5: 762 o. Renewal ; Covenant for New Lease. 17. A covenant to renew a lease at a certain rent, without stating what covenants the new lease should contain, does not carry any of the old cove- nants with it. Therefore, although an old lease- contained a provision that the tenant should pay taxes and assessments, yet, as the lessor merely cov- enanted to make a new lease at a given rent and said nothing about covenants,- Held, that be must give such new lease, exclusive of a covenant, on the part of the tenant, to pay taxes and assessments. Willis V. ^stor, i Bdw. Ch. 594, 6: 987 18. In a covenant to grant a new lease, all the ma- terial terms must be specified. Whitlock V. Duffield, Hoft. Ch. 110, 6: 1081 19. Where a clause to grant a new lease is void for uncertainty, the lessor, by a tender of a further lease at a larger rent, does not thereby give such a construction to the covenant as allows the tenant to require a reasonable new lease. Ibid. 20. A lease contained a clause that at the end of the term buildings should be taken at a valuation, or the lessors would grant a new lease for the term of twenty years uvonsuch terms as such lessors, their heirs, eta., mloM, think proper, and be approved of by the tenant, etc. Held, that the clause was void for uncertainty. Ibid. 21. A distinction exists between a clause to grant a new lease, and one to renew the lease. In the latter there is an implied covenant to give a new one for the same term, rent and conditions. The rent to be paid is as essential a part of the contract to give a lease, as the price is upon a contract to sell. If the agreement does not contain it, and it is not sup- plied by other competent evidence, no performance can be enforced. Ibtd, 22. Where a lease is made with covenant of re- newal or that the buildings shall be paid tor under an appraisal, and such appraisal takes place; the amount of it does not become a lien upon the de- mised property. IIM. 23. A covenant to extend a lease which does not fix the amount of rent cannot be enforced in equity. Bobimon v. Kettletas, 4 Bdw. Ch. 67, 6: 800 24. A covenant to renew a lease does not necessarily imply another lease, not only for the same term and rent, but also with all the covenants contained in the former lease; such covenants being acci- tlpntal, and not essential parts of a lease. Rutgers v. Hunter, 6 Johns. Ch. 215, Z: 104 25. As, where, in a building lease for twenty-one years at a certain annual rent, it was covenanted that, at the expiration of the term, the buildings erected and improvements made by the lessee LANDLORD AND TENANT, I. d. e. 81» ehould be valued In the manner specified In the lease ; and if the lessor should not abide by and pay the amount of such Valuation, he should " renew the lease, or redemise the lot at such rents and upon such terms as might be agreed upon between the parties ; " at the end of the lease, the lessee refused to accept a redemise of the lot upon any terms, and insisted upon being paid for his buildings and im- provements according to the valuation thereof, made pursuant to the covenant in the lease ; and the lessor tendered a renewal of the lease for the same term and for the same rent, but without any covenant as to buildinprs or paying for buildings and improvements, — Hel ment to be presumed from lapse of time. Be OOiUy, 2 Bdw. Ch. «8, 6: 473 IV. Kdnnino of Statute ; When Time a Bab a. MlMdeUaneoua Cases. 21. There is no limitation, in the statute, of the iigut of a judgment ciuditor to apply to the court of chauoery for relief after he has exhausted his remedy against defendant's property by areturn of an execution unsatisfied, except the ten years which the statute has tixed as the time within which suits purely of equitable cognizance must be brought in the court of chancery. Coming v. SWbUns, 1 Barb. Ch. 589, 5: 506 22. Where the equitable owner of lands is in posses- sion thereof, and is evicted by the one havuig the mere legal title, he may Hie his bill in chancery to establish his equitable right to the premises at any time within ten years after the eviction. yaricfc V. Edwards, 11 Paige Ch. 289, 5: 139 23. The remedy by distress for the recovery of rent in arrear is not limited to six years. The landlord is therefore authorized to distrain for all the rent in arrear, although it exceeds that time. But he cannot distrain for interest on the rent. Techte v. Brmimett, 8 Paige Ch. 213, 4: 404 21 The statute is a bar to any demand of one ten- ant in common against another for an account further back than six years. Kane v. Bloodgood, 7 Johns. Ch. 90, 2: 831 25. Twenty years, by analogy to the Statute of Limitations, is the period allowed in chancery for commencing proceedings to set aside conveyances of real estate on the ground of fraud. Ward V. Van Bohkelen, 1 Paige Ch. 100, a: 576 26. Twenty years are required to bar an equity of redemption. Slee V. Manhattan Co. 1 Paige Ch. 48, 8: 557 Moore v. Cable, 1 Johns. Ch. 385, 1: ISO 27. Twenty years' possession by a mortgagee, without any account, or acknowledgment of a subsistine mortgage, is a bar to all equity of redemp- tion, unless the mortgagor can bring himself with- in the proviso In the Statute of Limitations, the construction of which is the same in equity as at Demarest v. WTfrOwop, 3 Johns. Ch. 129, 1: 566 28. Where a mortgage upon real estate Is given to iecure the payment of a note, or other simple con- tract debt, the remedy of the mortgagee against the land will not be barred by lapse of time short of twenty years, although the Statute of Limitations might have been pleaded in bar to a suit upon the note at the expiration of six years from the time it became due. Heyer v. Pryn, 7 Paige Ch. 465, 4 : aS3 b. Rule in Equity Oenerally ; Laches. See also Laches. 29. Lapse of time operates in equity only by way of evidence, as affording a presumption of pay- ment. lAvtngston v. Livingston, i Johns. Ch. 287, 1: 843 30. Therefore, where the defendant admitted the original covenant, to pay rent, and did not, in his answer, pretend to any payment,— HeZd, that he could not insist on the lapse of time, being twenty years from the date of the covenant to the filing of the bill, as presumptive evidence of payment. mta. 31. Equity, before the Bevised Statutes, applied the doctrine of limitation of actions, by ansilogy to the construction and application of the statute in the courts of law in like cases. Dtdier v. Davison, 2 Sandf . Ch. 61, 7: 508 32. The Statute of Limitations is a good plea in equity, as well as at law. Kane v. BImdgood, 7 Johns. Ch. 90, 8: 831 Stafford v. Bryan, 1 Paige Ch. 239, 8: 63 1 Souzer v. Be Meyer, 2 Paige Ch. 674, 8: 103S Lansing v. Starr, 2 Johns. Ch. 150, 1: 327 83. If a demand on a simple contract can be en- forced in equity, as weli as u,c law, auu the creaivor files a bill in equity, the defendant will be allowed the benefit of the Stavute of Limitations, if it would have been a good plea in bar to an action at law. Roosevelt v. Mark, 6 Johns. Ch. 266, 8: 121 34 Where the complainant nas a concurrent rem- edy in a court of equity and in a court of common law, time is as absolute a bar in equity as it is at law. Humbert v. Trinity Church, 7 Paige Ch. 195, 4: 121 Van Hook v. Whitloek, 3 Paige Ch. 409, 3: 209 35. The Statute of Limitations does not, in terms, apply to cliauoery; still when its jurisdiction is in- voked in cases of whicb it has notan exclusive, bat a concurrent.jurisdictlon, equity gives to it the like effect as a court of law. Bertine v. Varum, 1 Edw. Ch. 343, 6: 165 36. The Statiite of Limitations is a good plea in bar, in tiiis coui't as wen ati ul uiw ; ana wUere to a suit at law the defendant had pleaded the statute, and the plaintiff filed a bill of discovery, with a view to enable him to show a promise within six years, it was held that the defendant was not bound to discover anything that would destroy the effect of bis plea at law. Lanslnd v. Starr. 2 Johns. Ch. 150, 1:327 37. Upon a liability created by statute, the plain- tiff may bring an action of debtor assumpsit, at tin election, if no form of action is prescribed by the statute creating such liability. A suit in equity founded upon such liability would not therefore be barred till the expiration of the longest time limited for brincring either of those actions at law. Van Booh v. WhiUoek, 3 Paige Ch. 409, 3: 209 38. Where an agent had suffered thirty years after his agency had ceased, and sixteen years before tbe death of his principal, to elapse, without rendering any account or filing a bill,— flew, that the staleness of the demand was a bar to its admission. Mooers v. White, 6 Johns. Ch. 360, 8: 150 39. Where a bill was filed to settle the accounts of a joint adventure, more than twenty years after the whole subject of the controversy had arisen, and where the justice of the claim had not been ad- mitted during that time, the staleness of the de- mand was considered a good reason for refusing any relief to the complainant. Kingsland v. Roberts, 2 Paige Ch. 193, 2: 870' 40. A bill filed in 1809, for an account as to transac- tions before and at tue commencement of the Amer- ican war was dismissed on the ground of staleness of the demand ; twenty-six years having elapsed from the end of the war before the bill was filed, and no cause shown for the delay ; and especially as against the representatives of the opposite party, who had no knowledge of the original transactions. EUison V. Moffatt, 1 Johns. Ch. 46, 1 : 54 41 Where the husband had a contract for the pur- chase of land, upon which he made a mere nommal payment, and he afterwards died without leaving any means of paying for such lands, leaving a wife- and several infant children surviving him; and the- wife subsequently paid for the land and took a deed thereof in her own name, and afterwards con- veyed the same with warranty ; and her children, after they became of age, waited from nine tofifteett years and until their mother had become insolvent before they attempted to assert their claim in equi- . ty to the land,— the bill will be dismissed on account of the delay. Spoor V. TTellB, 3 Barb. Ch. 199, 5: 878 0. Merchants' Accounts. 42. The exception in the Statute of Limitations of 1801, relative to actions whioli concern l-.c tiuue of merchandise between merchant and luerchaut, their factors or servants, does not apply to a bill in chancery for an accountand settlement, and for the payment of a liaiaoce due from one mercantile firm to another, by reason of joint adventures in which the two firms had been engaged, where all the items of the account, on both sides, were more tban^ix years previous to the filing of the bill. In suat a case the statute is a bar. Didier v. Doulson, 2 Barb. Ch. 477, 5: 72li LIMITATION OF ACTIONS, IV. d. e. 81£ 43. Where goods in which both parties were inter- ffite-l \:ai-e bcUL to tUe ^OiULUuuta, wuo agreea lo be accountable f or the shn re of the plfiintife or the Sroceeds thereof, and to charge no commissions on le sale,— it seems that this is not "a trade of mer- chandise between merchant and merchant," within the meaninor of the exception in the statute. Sese. 24, chap. 183, S 5 (1 N. B.1,. 184). Coster V. Afun-ay, 5 Johns. Ch. 532, 1:1163 44. Whether the exception does not apply to other persons than merchants,— gucere. Ibid. 46. Whether even open accounts between mer- chants, where the last item is above six years' standing, are not within the statute,— gwcere. Ibid. 46. If part of an open account be within six years, it draws after it items beyond six years, so as to protect them from the statute. Ibid. 47. To bring a case within the exception in the statute, there must be mutual accounts between the parties. Ibid. d. Cases of Fraud or Trust. 48. Where there is fraud or collusion between the executor and debtor, or insolvency, lapse of time is not ground of demurrer to a biU; it is matter of evidence, and not an absolute bar, and may be set up in the answer of the defendant. arXKncl V. Charles, 6 Johns. Ch. 132, iS: 77 49. No length of time is a bar to a redemption of a mortgage, where there is a fraud in the transac- tion, or where by the agreement of the parties at the time the mortgagee is to enter and lieep pos- session until he is paid out of the profits. Marks v. Pell, 1 Johns. Ch. 584, 1: 258 50. No lapse of time is a bar to a direct trust, as between trustee and cestui que trust. Detxuche v. Savetier, 3 Johns. Ch. 190, 1: 587 Ctoodrich v. Pendleton, 3 Johns. Ch. 390, 1: 659 51. The Statute of Limitations does not apply to a direct trust, as between tne trustee and ccsiui que trust; or to parties standing in the relation of prm- cipal and agent or factor, and not in the proper re- lation of debtor and creditor, or of joint partners in trade. Cost er V. Ktirray, 5 Johns. Ch. 522, 1:1163 52. But where a person takes possession of propr erty in his own right, and is afterwards, by matter of evidence or construction, changed into a trustee, lapse of time may be pleaded in bar. becmiehe v. Savetier, 3 Johns. Ch. 190, 1: 587 53. Application under the statute (Sess. 24, chap' 30, g 7) for infant trustees to convey, etc., ihust be by petition, and not on motion; and the course is to direct a reference of the petition to the master to examine and ascertain the facts, and report the same, with his opinion. Ex parte Qvuxckenboss, 3 Johns. Ch. 408, 1 : 665 54. It seems that if the trust is not in writing, or the infant has an interest, or if it be a doubtful case, the cestui Qite trust will be put to his bill. Ibid, 55. Where the defendant, a bona fide, purchaser without notice, and those under whom he claimea, had been in possession of land above twenty-six years before the plaintiffs filed their bill to enforce their claim f ouncled on an implied trust, the bill was dismissed without costs. SImmr v. Badley, 4 Johns. Ch. 310, 1: 851 66. Where a person having the legal title to lands, but, in trust tor the delendants, sold and conveyeu his right and title, for a valuable consideration, to abonafld^ purchaser, without notice, who remained in possession of 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 fraudulent, the devisees of such purchaser were entitled to hold the lands discharged from the trust. Coxe V. Smith, 4 Johns. Ch. 271, 1: 837 67. Those trusts which are mere creatures of a court of equity, and not within the cognizance of a court of law, are not within the Statute of Limi- tations. BTane V. Bloodflood, 7 Johns. Ch. 90, 8:831 58. As long as there is such a continuing and sub- sisting trust acknowledged or acted upon between the parties, the statute does not apply ; but if the trustee denies the right of his cestui que trust, and the possession of the property becomes adverse, lapse of time, from that period, may constitute a bar in equity. Ibid. 59. But all other trusts which are the ground ofr an action at law are within the statute ; for where there is a concurrent jurisdiction in the courts of common law and equity, the rule must be the same^ and the Statute of Limitations may be pleaded with- the same effect in a court of equity as in a court of.' law. IMd.- OD. The statute receives the same construction and application, in analogous cases, in equity as at law. Ibid. 61. Where a plaintiff is entitled to dividends iih shares of an incorporated company, and for which he has a clear remedy at law, it is not such a direct and express trust as will take the case out of the- statute. Ibid, 62. Where a church claimed a legacy, and.upon the refusal of the executor to pay the same because of doubt as to its validity, received it and executed a mortgage for the executor's indemnity, in a suit to enforce it for the benefit of the residuary legatees, —Held, that the mortgage created no trust or confi- dence between the church and the residuary lega- tees; and the presumption from lapse of time that it was paid or satisfied is conclusive. Newcomb v. St. Peter's Church, 2 Sandf . Ch. 636,, 7: 737 e. Suits about Decedents' Estates. 63. Since a remedy at law is given by statute to- recover legacies or distributive shares, the Statute of Limitations will be a bar to a suit in equity for a legacy, as well as at law. Kane v. Bloodgood, 7 Johns. Ch. 90, 8: 831 64. Suits by creditors, legatees, or distributees be- fore a surrogate, to outam payment of their debh or legacies or distributive shares, should be insti- tuted within the time in which suits of tlie samar cnaracter are required to be commenced ia tht. courts ot common law or of equity. JIfcCorfee v. Camel, 1 Barb. Cn. 456, 5: 453 S. C. 6 Ch. Sent. 9, 5: 1195 65. In cases where the courts of common law, the- court of chancery, and the surrogate's court have concurrent j urisdiotion, a suit before the surrogate^ must be brought within the time limited by tlie Revised Statutes for commencing the suit at law or in chancery. But in cases in which the court of" chancery and the surrogate's court alone have con- current jurisdiction, the suit before the surrogate should be instituted within the time prescribed for the commencement of suits of the same character- in equity, in cases where the subject-matter of the suit is not cognizable by the courts of common law. Ibid, 66. Where the action, by S. F's next of kin, for suchc proportion of the legacy of $800 was not com- menced by the legatee's next of kin until six years after the death of the widow of the testator or of the grant of any administration to S. F's widow or of the coming of age of such next of kin, the Stat- ute of Limitations applied. Frost V. Frost, 4 Edw. Ch. 733, 6: 1036 67. Where an executor put bonds and notes du& to the testator into the hands of an attorney to col- ic, b, and after the death of the executor, the attor- ney collected the money, and applied it to his own use, and became insolvent,— JfeM, that the estate of the executor was not chargeable with the loss, es- I ""iflllv after a lap°e of more than =ix years. Bayner v. Pearsall, 3 Johns. Ch. 578, 1: 783 68. The Statute of Limitations may be interposed,, against legacies, if not charged upon the land, a» well in equity as at law. Sauzer v. De Meyer, 2 Paige Ch. 574, 2: 1035^ 69. An executor cannot plead the Statute of Lim- itations in bar to a legacy, though he may against a creditor. Decouche v. Savetier, 3 Johns. Ch. 217, 1 : 59T 70. An administrator, being a trustee, cannot set up the Statute of Limitations in bar of the next of km, or the persons entitled to the distribution of the assets. Ibid. 71. In a suit between the representatives of a father and the representatives ot his son, where all the matters in controversy were referred to a master, the court refused to allow the exceptions made to the report ; the transactions being very stale and an- cient, and most of them famUy dealings and con- cerns, and the parties and their witnesses having been fully examined before the master. Arden v. Arden, 1 Johns. Ch. 313, 1: isa- 72. Though the Statute of Limitations is no bar ti*- 320 LIMITATION OP ACTIONS, IV. f— V. c. a legacy, yet the court, in regard to very stale de- mands, will adopt the provisions of the statute, in the exercise of their discretion. laid. 73. Though a lapse of thirty years affords a pre- sumption that a legacy has been paid, yet that pre- sumption may be repelled by circumstances. Ibid. 74. Where a church claiming two legacies, as to which the executors entertained doubt, leceivco the same from the executors, and executed to them a bond and mortgage for the amount payable in three years, but which were given solely for their indemnity,— JfeW, after the lapse of twenty-six years, that the residuary legatees could notenforee the mortgiige, although the church was not enti- ■tled to receive the legacies so paid by the execu- tors. Newcomb v. St. Peter's Church, 2 Sandf. Ch. 636, 7: 737 f. Suits between Husband and Wife; Dower. 75. The time for bringing a suit for a separation 'from bed and board on account of cruel treatment is not limited to five years; and the court of ehan- -cery In its discretion may allow such a suit to be brought at any time within the ten years limited by the Kerised Statutes for bringing suits in equity. BervwicH v. Benwiek, 10 Paige Ch. 420, 4: 1035 76. A suit to annul a marriage, on the ground that the consent of one of the parties thereto was ob- tained by fraud, must be brought within six years after the discovery, by the aggrieved party, of the facts constituting the fraud. Montgoma-y v. Mont^rnnery, 3 Barb. Ch. 132, 5: 845 77. If a complainant knows that his wife has mar- .ried a second time, and that she is living and co- habiting with her second husband, or it he knows this wife is living in open and notorious adultery with a paramour, his right to a divorce on account ■of such adultery will be barred at the expiration ol Ave years, although such adultery has been con- tinued down to the time of filing his bUl. And where such continued adultery is notorious, the complainant must satisfy the court that, by reason of absence or otherwise, he did not know of the -same until within five years previous to the filing of the biU. Valleau v. VaUeau, 6 Paige Ch. 207, 3: 957 78. The Statute of Limitations does not bar arrears •of dower. Van Odder v. Post, 2 Edw. Ch. 577, 6: 510 79. It seems that the Statute of Limitations (Sess. 24, chap. 188, 1 N. K. L. 184) does not apply to the .action of dower, as, by the statute relative to dower (Sess. 10, chap. 168, 1 N. R. L. 80), the widow may, at any time during her life, demand her dower, and the tenant of the freehold has the means of coercing an assignment of dower. Jones V. Powell, 6 Johns. Ch. 194, 8:97 g. Against Corporations or stockholders. 80. It seems that a suit against the stockholders of ■a corporation to charge them individually for itb debts upon a dissolution of the company, being a suit founded solely upon a statutory liability, was barred at the expiration of three years after the right of action accrued, by the provision relative to suits upon statutes contained in § 6 of the Limil> -ation Act of April,. 1801. „ Van Hook v. WhiUock, 7 Pai(;e Ch. 373, 4: 194 81. The creditors of a company had a concur- rent remedy by a suit at law or by a bill in ■equity, to recover the amount due from the individ- ual stockholders respectively under the provisions ■of the Act of incorporation ; and, in analogy to the limitation of actions at law, a suit in this court to recover the sum due from each stockholder must be brought within the same time as is required at •law. _ Van Hook v.WMttock, 3 Paige Ch. 409, 3: 209 82. The nature of the demand against the company makes no ditference as to ttio leuKtli of tim re- quired to bar a suit against the stockholders, af tei the risrht of action asrninst thenu had accrued by"' dissolution of the corporation. Ibid. 83. The statute did not commence running against the individual stockholders of the Comraeroial In- ■surance Company of New York previous to the ex- piration of its charter in January, 1820. Ibid. y. SnSPENSION AND INTERR0PTIOH. a. In Oeneral; By Suit. 84. Where the statute begins to run, it continues to run without being impeded by any subsequent event. Mooers v. White, 6 Johns. Ch. 360, 8: 150 85.The Statute of Limitations does not run in favor of heirs during the three years next succeeding the granting of letters testamentary or of administra- tion on the estate of their ancestor. Van Wezel v. Wyckoff, 3 Sandf. Ch. 528, 7: 945 86. The filing of a biU and taking out of subpoena and making a bona fide attempt to serve it is the commencement of a suit as against the defendant himself, so as to prevent the operation of the Stat- ute of Limitations, if the suit is afterwards prose- cuted with due diligence. Hayden v. Bucklin, 9 Paige Ch. 512, 4: 796 b. By DisdbOitieii. SI. Where a legacy to a daughter was payable on her marriage or when she became of age, and she married before arriving at full age, in a suit brought by her and. her husband for the legacy, after the lapse of six years, it was held that the Stat- ute of Limitations did not run against her, she com- ing within the exception in the statute in favor of femes covert. Wood V. Biker, 1 Paige Ch. 616, 2: 773 88. An administrator in 1805 became the purchaser of lands of his inieslatc, at a surrogate's sale, and they were held adversely from that time onward. W, a daughter of the intestate, was then a married woman and so continued until 1827. In 1839 she nied a bill to set aside the sale. Held, that she was not barred by Iap.ae of time. Ward V. SmUh, 3 Sandf. Ch. 592, 7: 968 89. Where a person having an interest in real es- tate IS under a disability uuriag her lifetime, by reason of coverture,which prevents her from bring- ing an ejectment, her heirs must bring their suit tvithin ten years after her death. Carpenter v. Schermerhom, 2 Barb. Ch. 314, 5:656 90. If one of such heirs is also a /erne covert at the death of her mother, that circumstance will not have the effect to extend the period within which ejectment must be brought. Ibid. 91. The disability that entitles the party to the L o ueflt of the proviso must be existing at the time tlie right first accrues ; so that if, during the ten years aDowed to an infant, a subsequent disability— as coverture— arises, the time continues to run, notwithstanding such second disability. Demarest v. Wynkoap, 3 Johns. Ch. 129. 1 : 566 92. Successive or cumulative disabilities are not within the policy of a settled and sound construc- tion of the statute. Ibid. 93. Eight to redeem in equity, and right of entry at law, are analogous. Ibid. 135, 1: 569 94. The construction of the Statute of Limitations is the same in equity as at law. Ibid. 136, 1: 570 c. By Absence from Jurisdiction. 95. The statute does not run in favor of a debtor during his absence from the State. Hewlett V. HewUtt, 4 Edw. Ch. 7, 6:779 96. Where a debtor who is absent from the State at the time the cause of action accrues against hiiu afterwards comes into this State, and is here pub- licly and openly, so that by reasonable diligence his creditor might have commenced asuit against him, it is a return into this State, within the meaning of S 5, Act of 1801 for the limitation of actions. Didier v. Davison, 2 Barb. Ch. 477, 5: 721 97. But a mere clandestine return of the debtor, which will not enable the creditor, with ordinary diligence, to serve process upon him, is not such a return as will cause the Statute of Limitations to commence runninc against the demand. Ibid. 98. The open residence in this State, for three or four years, of a debtor who was absent at Loe time the cause of action accrued, is such a return as was contemplated by the statute, although in point of fact the creditors were not aware of such residence. Ibid. LIMITATION OF ACTIONS. VI. 331 99. Under the Act of 1801, If the debtor was In this State at the tin^e the cau^e ol ap Vi^' accrued against him, or came here subsequently, so that the statute once began to run against the demand, It contin- ued to run, notwithstanding he departed from the •State within the six years; and no subsequent disa- bility would stop it; but by the provisions of the Revised Statutes, the time he has resided out of the State after the right of action accrued is not to be taken Into the account, in the computation of the time within which the action must be commenced. ibid. 100. Even the death of either of the parties, after the statute once commenced runnmg, would not prevent the limitation from attaching, except in •cases which were provided for by some other stat- utory provision. Ibid. 101. Under the provisions of the old Statute of Limitations, the return of one oi two Jomt debt- ors into the State, after the right of action had accrued against both, and his subsequent death within the six years, will not bar the right of action against the survivor, who does not come into the State until within six years of the time when the suit is brought against him. Ibid. 102. Under the Statute of Limitations enacted in 1813, it was not necessary that the person relying upon a return to this State as commencing the pe- riod of limitation should have resided here full six years after such return, nor that his residence here became known to the creditor. Didier v. Davison, 3 Sandf. Ch. 61, 7: 508 103. J, residing in the West Indies In and prior to 1816, became largely indebted to D & D. merchants m Baltimore. He failed, and went to England, from whence in 1817 he wrote to the D's, promising to pay when he became able. Subsequently he went to South America and resided there several years. In March, 1834, he came to New York to reside, hav- ing sent his family here in the summer of 1833. He declared his intention of becoming a citizen in April, 1834, and he and his family resided here open- ly until September, 1835, with the exception of his own temporary absence from March till July, 1835. In November, 1843, D commenced a suit in equity in this State against J, to which J pleaded the lapse of time, setting up as a bar his residence here in 1834 and 1833. Held, that the plea was a good bar to the suit. Ibid. VI. Acknowledgment and New Pkomise. 104. To revive a debt barred by the Statute of Limitations, there must be an admission of a sub- sisting indebtedness, unaccompanied by anything which shows the intention of the party to avail himself of the statute as a bar, or which is sufficient to rebut the implication of a promise to pay Stafford v. Bryan, 2 Paige Ch. 45, 8: 806 105. An acknowledgment by a party, to take a case out of the Statute of Limitations, must be of a present subsisting debt, unqualified, and made by the party himself. Bosevelt v. Mark, 6 Johns. Ch. 266, 8: 181 106. Any payment or act of his assignees or trustees who are not parties to the contract, or under any personal obligation to pay or contribute, is not suf- ficient to create a constructive acknowledgment of ihe original debtor. ibid. 107. A devise of real and personal estate, for the payment of just debts, does not revive a debt barred oy the Statute of Limitations, or discharged by a bankrupt's certificate. Ibid. 108. An acknowledgment or admission by an exec- utor or administrator will not bind the real assets to the hands of an heir or devisee, or of the People, by escheat, or affect the right of either to plead the Statute of Limitations. iifooers V. TT/iite, B Johns. Ch. 360, 8:150 109. Whether loose declarations of the father as to the receipt of money belonging to his daughter will revive the cause of action for the same, after a lapse of twenty-five years from the time the legal right of the husband to recover the money had ao- cruedt—qfiuzre. Van Epps v. Van Den^en, 4 Paige Ch. 64, 3:344 110. Where a will directed copartnership debt to bo paid in the following words: "I order and direct my said executor to pay and divide the same to and among the creditors of the late firm of C. & M'C. of tiie City of New York, curriers, to whom I, as one of th" said firm, maj- be indebted at the time of my Ch. Dig. death, ratably and proportionally, according to the amount of their several and respective claims and demands, so far forth asheshallbe able convenient- ly to ascertain the same; and with a view to free this subject from all embarrassments, I will and di- rect that my executor shall cause an advertisement to be inserted for one month In two of the daily papers of the City of New York, notifying the said creditors of this order and direction, and that such as come in at the end of the said month and pro- duce their claims, duly authenticated, shall be en- titled to their dividends, and all others shall be ex- cluded from any participation in the same; all debts of whatever grade to be placed on an equal foot- ing." HeW, that this did not revive debts otherwise bf^^'t'Pd by tiiTi**. Murrciyv.Meclianics Bank,iEdw. Ch. 567, 6: 978 111. Where the purchaser of a farm subject to a prior mortgage given by a former owner thereof, and duly recorded, had within twenty years pre- vious to the filing of the complainants bill to fore- close the mortgage recognized the existence of such mortgage as a valid and subsisting incumbrance upon the premises,— Held, that neither such pur- chaser, nor those who had derived their titles to the premises under him subscq uent to such recognition, could set up the Statute of Limitations in bar of the suit, although the mortgage bad been due for more than twenty years. Beyer -v. Pruyn, 7 Paige Ch. 465, 4: 838 112. A purchaser of mortgaged premises, who at the time of his purchase has either actual notice of the mortgage, or constructive notice thereof by means of its registry, is bound by a previous acknowledg- ment of the person under whom he claims of the existence of the indebtedness, within twenty years. Ibid. 21 Editorial Notes. btatute as a bar; construction and applica- tion 8: 309 when begins to run 3: 231, 3: 210 enforced In equity 3:131,231,4:131,6:165,7:508 statute applies to municipal corporations 1 : 394 fraud prevents running 6: 165 Equity will not aid stale demands 1 : 54, 310, 587, 723, 816, 5: 452 Equity follows analogy of statute as to time 1: 54 as to suits purely equitable 5 : 872 Creditors' bill 5: 506 Bills for relief 5: 543 Merchants accounts 1: 1163, 7: 508 *iits for an account 5: 453, 6: 193, 7: 508 As to trusts 1: 587, 1162, 3: 281, 7: 508 Action founded upon statute 4: 195 to bar equity of redemption 1: 566, 7: 935 To bar claim against estate 3: 151 Against heir and devisee 4: 620, 7; 945 Leeacy; when suit for barred 1:153,2:1035,5:350,979 Who may set up in favor of decedent's es- tate 6: 617 Debt not barred if mortgage is not 4: 333 Mortgaee enforced though debt baned ^ ^ 4: 233 Laches; relief barred by 2: 870 Laches and neglect discountenanced 3: 1136 Defense of, how taken 1:657,3:210,894,4:194 Law of forum governs; proceedings against executors; executor may plead in bar of debt but not of legacy 1 : 587 Exceptions in statute; disability from in- fancy or coverture; running of statute cannot be arrested by subsequent disa- bility; cumulative disabilities not al- lowed 1:566 333- LIQUIDATBD DAMAGES; LIS PENDENS. Absences from State deducted 5: 731, 7: 508 Return to State after absence therefrom 5:721 As to heirs of person under disability 5: 657 Acknowledgment to revive debt; devise does not revive debt 2: 131 LIQUIDATED DAHAGES. See Damages, IV. LIS PENDENS. See also Ikjunctioij, 233; Judicial Sale, 67. 1. The commencement of a suit in chancery is only constructive notice of the pendency of such suit, as against persons who have acquired some title to, or some mterest in, the property involved In the litigation, under the defendants, or some of tbem, pendente lite. Stuyvemnt v. Hall, 2 Barb. C!h. 151, 5: 598 2. The constructive notice by a Ms pendent applies to those who derive their title to the subject-mat- ter from a party to the suit after it is conimcncea. It does not affect one who has a paramount title superior to that of all the parties to the suit. Stwyvesani v. Hone, 1 Sandf. Ch. m, 7: 381 3. A lis pendens duly prosecuted is notice to a purchaser, so as to affect and bind iiis interest by the decree ; and the pendency of the suit is deemed to commence from the service of the subpcena after the bill is filed. Frost V. Beetonan, IJohns. Ch. 302, 1:149 Mv/rrav v. BaOcm, 1 Johns. Ch. 566. 1:247 4. A purchaser from a defendant in a foreclosure suit, who purchases after decree pro con/e880,take8 such property subject to all the rights of the com- plainant. Uti£a Bank v. Fiiuih, 1 Barb. Ch. 75, 6:305 5. Where the defendant purchased part of a trust estate, with notice of the penden cy of a suit against the trustee for a breach of trust and of an Injunc- tion, he was decreed to pay the consideration money, with interest, to the plalntitf, for the use of the eestutsque trust, or to convey in fee the land purchased to and for the same trusts. Murray v. Finster, 2 Johns. Ch. 155, 1:339 6. A purchaser is chargeable with notice of a suit pending in this court ; and after such notice, all further proceedings towards completing the purchase or paying the money are fraudulent and void. HeaOey v. Mmter, 2 Johns. Ch. 158, 1: 330 7. A denial of notice of the pendency of the suit Is notsufScient, if the defendant at the time knew the character of the person of whom he purchased, —that he was a trustee, and had no power to sell. IMd. 8. The rule as to a bill bein.i? consfrii'^tiv'* no^'ce Is that it is notice of what the bill plainly contains, and nothing more, and should not be extended be- fond the property which is the subject of the suit, f land is affected by collateral proceedings in a cause, where the bill itself does not affect it, actual notice of such proceedings must be proven, to charge a purchaser. Griffith V. OrljjUU, Hoff. Ch. 153, 6: 1097 9. A bill filed before the statute of !«•?:!. ai i " e notice filed in the county clerk's ofBoe since, is con- structive notice by a record, and is of so high a character that it cannot be gainsaid. Construc- tive notice from possession of a deed, etc., showing the claim, is also legally conclusive. ibia, 10. It would seem that the filing of a judgment creditors' bill is a constructive notice of to pendens, sufficient to affect a purchase of t he debtor's f uml- ■ ture made pendente lite. Scudder v. Van Amburgh, 4 Edw. Ch. 29, 6: 787 11. An original bUl cannot be filed by a purchaser SendenteMte after a decree in the suit pending, to tigate anew or question the subjecti-niatter of such suit. OreemotehBank v. LoomU, 2 Sandf. Ch. 70, 7: 513 12. The complainant's right to a thing in action being established by the decree in a suit, the court will, on petition, enforce it against one to whon« the defendant has assigned such thing in action pendente lUe. „ „„, m.ttAi, Jackson v. Losee, i 8. 381, 7! 114* 13. Apurcliaser pendente lite will be bound by a decree in the suit, and the complainant need not make him a party or otherwise notice his purchase. If he desires to defend the suit, he must make him- self a party to it by a supplemental bill before it terminates. „ „ „ ,.». OreenwUihBamkv. LoomU,2B. 70, 7: 5ia 14. An assignee or purchaser pendente lite may file a ouppn.-iiiLi.mi uili la mi; liuLUre oi a croBS-tiill, lur the purpose of making himself a party to the pend- ing suit, and thus have his rights protected. Whitbeek v. Edgar, 4 8. 427. 7: linff 15. Held, accordingly, where, during an abatement of a suit lor tue tutcelosure of au oid mortgage nf more than twenty years' standing, one of the de- fendants in possession claiming in fee executed a mortgage to a nonresident of the State, who on the revivor was made a party, but not served with pro- cess or actually notified, and who afterwards as- signed his mortgage to one who had no notice of any of the suits. Ibid. 16. Though, in a bill filed against a trustee of lands for an account and a conveyance of them to the cesttti que trust, the description of the lands is general ; as, " divers lands in Cosby's Manor, in the patent of Springfield," it is enough to put a pur- chaser of a lot in Cosby's Manor on inquiry ; and, being chargeable with notice of the pendency of the suit, and of all the facte in the bill, it is good^ notice to lilm that the lot purchased was a part of the trust estate mentioned in the bill. Orem. v. Slayter, 4 Johns. Ch. 38, 1 : 766 17. A Ms pendens or constructive notice of a suit pending against a trustee for an account, etc., will not prevent the payment, by the debtor, of a bond to the trustee, or to his assignee, being the legal owner of the bond, no receiver having been ap- pointed by the court. Imd, 18. Where an insolvent banking association, after jervice upon its president of a copy of a creditors' illl, assigned a portion of its real and personal es- rate to secure an existing debt, as to the personal iiroperty asslened the li» pendens rendered the as- signment inoperative; and «em6!6, that such was i ts effect as to the real estate, on the ground tliat th« assignee was not a purchaser within the meamng of the statute requiring notice of the pendency of a suit to be filed. Leavitt v. TyUe, 1 Sandf. Ch. 207, 7: 298 19. In ordinary cases of creditors' bills, the liapen^ dens begins upon service of subpoena after bill filed. There may be exceptions, however, to this rule. BoynJbon v. Bawaon, Clarke Cli. 584, 7: 807 20. A service of the subpcena upon the defendant, subsequent to the filing of the complainant's bill, is necessary to create a lis pendens as against a bona fide purchaser, of the subject-matter of the iltlga^ tion in the court of chancery, who has not actual notice of the suit. Bavden v. Bucklin, 9 Paige Ch. 512, 4: 796 S. 0. 2 Ch. Sent. 13, 5: 1083 21. Personal service of the pn^tncpna is not neces sary to create a lis pendens, which is constructive notice to third persons of the commencement of a suit in chancery; and where the subpoena cannot be served personally, service upon the defendant's wife, or other members of his family of suitable age and discretion, at the defendant's place of residencer will be sufficient. Ibid. 22. And where the defendant Is proceeded against as an absentee, under the statute, tt seems that the actual publication of a notice of the order for him to appear and answer the complainant's bill is equivalent to a service of the subpoena at the de- fendant's residence, in creating a lis pendens. Ibid. 23. The neglect to file a correct notice of lis pen- dcnx In a forccloiiiiv »uit, where proper proof olthe filing of such notice is produced to the court upon the making of the decree, does not render such a decree absolutely void, as to judgment creditors of the mortgagor who are not made paitles to the suit. But it is an Irregularity which will authorize such juiigment creditors to apply to set aside the decree and the sale under the same, if the applica- tion is made within a reasonable time after such irregularity is discovered by them: without preju- dice, however, to the rights of bona fide purchasers LITERARY PROPERTT— LOAN OFFICERS. 333 at the master's sale, who have paid the purchase money without notice of such irregularity. Curtis V. HitehBock, 10 Paige Ch. 399, 4: 1087 S. C. 3 Ch. Sent. 87, 6: 1188 ^24. The notice of lis pendens required to be filed by the Bevised Statutes, and by the rules of the court of chancery, does not affect the rights of persons who do not claim under the defendants in tne suit, or whose rights accrued previous to the commence- ment of sucn suit, and who are not made parties thereto. jtM. 85. The filing of such notice of lis pendens is still necessary to make the filing of the bill a construc- tive notice to subsequent purchasers. But as the notice of lU pendens in mortgage cases, which is to be filed under the provisions of the Act of May, 1840, contains all the requisites of both notices, that notice alone is sufficient, for both purposes, in fore- closure suits. Ibid. 28. Where the complainant amends his biU after the filing of the notice of lis pendens in a fore- closure suit, by striking out the names of certain judgment creditors who are parties, the safer course is to file a new notice of (is pendens against the remaining parties. Jbid. Zl. And where the bill is amended by adding new parties after the filing of the notice or its pendens, a new notice is necessary to be filed, to bar the rights of the Judgment creditors of such new parties, as well as to make the amended bill constructive no- tice to subsequent purchasers from such new par- ties. Ibid. 28. Where the complainant in a foreclosure suit filed the ordinary notice of lis pendens previous to the passage of that Act of May, 1840, and after the passage of that Act he dismissed his bill as against the Judgment creditors who had been made parties to the suit,— HeJd, that the filing of a new notice of lis pendens, under the Act of May, 1840, was neces- sary to bar the rights of such judgment creditors, and others claiming under them. Ibid. 29. Where all parties in interest are before the court, an informal notice of lispendens filed in a suit irior to the Act of May, 1840, will not affect the lecree. Totten V. Stuj/vesant, 3 Edw. Ch. 500, 6: 740 30. Where a bill was filed February 3, to enforce a contract, and a deed to another was dated January 31, and recorded February 4, but no notice of lis pendens had then been filed,— Beid, there was no constructive notice. Wiswda V, McOmoan, Hofl. Ch. 125, 6: 1087 31. On the first of August, 1834, a written agree- ment for the sale of lana was entered into between the complainants and the defendant McGowan,who was the vendor. The fulfillment was extended from time to time as admitted down to December 9, 1834. On the 29th of January. 1835, the defendant McGowan, agreed to sell the same premises to the other defendants. A sum of money was paid down then, and a further sum on the 30th. A deed was acknowledged January 31, and recorded February 4. The original bill was against McUowan alone on his contract with the complainants, and was filed February 3, but without a notice or lis pendens in the clerk's office; none being filed till the 23d of June ensuing. Held, that assuming the record of the deed to have been the date of its delivery, the grantees were not affected with constructive notice of the suit, and, upon the testimony, held that no actual notice of the claim was proven. Jbid. Editokiai Notes. I/is pendens ; doctrine of ; effect on pur- 1.440, 756, 997, 2: 883, 4: 797, 6: 785, 1097,7:381. 513, 1143 Sufficiency and effect 1: 409, 756 Rights of purcliaser pending foreclosure 1:1019 When commenced, suit must be prosecuted ; effect of suit ; notice of suit ; as to real estate ; partnership property ; personal property ; creditors' bill ; personal prop- erty from trustee ; negotiable securities ; divorce proceedings 1:440,443 Notice of pending suit 1: 347, 839, 330, 2: 724, 4: 1037, 5: 593, 6:785 oonstructive 7: 381 Affidavit of filing 4: 1037 Rights and interests protected by filing 3:810 LITERARY PROPERTY. See Copyright. LOAN. See also Debtor and Creditor ; Principal and Agent, 48. 1. When a person in want of money applies to a cupitaii6L lui- Ills uotu puyuoie ut a lutui'c auy, of- fering as security his own obligation with an in- dorser, or a mortgage, and the respective obliga- tions are executed accordingly, the transaction is a loan. Nenu York Dry Dock Co. v. American L. Ins. 4 Truni, Vu. 6 S.XiZ, 7: »8» 2. When two persons who are both desirous to raise money exchange their own notes to be used for that purpose with third persons, it constitutes an exchange of securities merely. The effect is the same as if each had used his own note with the oth- er's indorsement. Ibid. 3. A banking company in New York which had stopped payment, being desirous of borrowing a large sum of money, applied to a trust company usually lending money in New York, for a loan of their certificates of deposit payable at short dates, and offered to secure the payment of the amount by their own obligations and a mortgage on real estate of sufHcient value. The trust company agreed to issue their certificates bearing 5 per cent interest, payable in London within two years, for £48,000 sterling, on receiving the bank's promissory notes for £50,000 sterling, payable in London at the rate of $5 for each £1 sterling, with 6 per cent in- terest, within seven years, secured by a conveyance of the real estate to trustees, containing a pro vision that the bank should pay to the trust company in New York the respective installments of the £50,000, with interest at 7 per cent, forty days before each installment should mature in London, at the rate of 85 for every £1 sterling. It was understood by the parties that the trust company would negotiate the bank's obligations in London, with their own guar- anty, in order to meet their certificates of deposit. The arrangement was consummated between the parties. Held, that the transaction was a loan by the trust company to the bank, and not an excliange of paper, or sale. Ibid, i. On applying for a loan, the borrower offered to the lender B agent a collateral advantage, which was likely to be prejudicial to the former and was cer- tain to be profitable to the latter. The offer was accepted and the loan was made. Held, that the offer constituted one of the .terms and conditions of the loan. Ibid. LOAN OFFICERS. 1. Though by the Act authorizing the loan of money, etc. (Sess. 31, chap. 216), themortgagor, after a default of payment, loses all equity of redemp- tion, and the commissioners become seised of an absolute estate in the premises, yet the commission- ers are trustees for the People, to the amountlol the mortgage debt and interest, and for the mortgagor, in respect to the surplus; and the mortgagor, as well as the People, has a right to demand of the commissioners a faithful execution of the trust. Denning v. SmifTi, 3 Johns. Ch. 332, 1: 637 2. The notice of sale, according to the true con- struction of the Act, must continue to be fixed up at three public places, and be advertised in a public newspaper of the county, from eight days after the fourth Tuesday of May , (to the third Tuesday of Sep- tember, or the time of sale. IMd. 3. And where, on a default of the mortgagor, the S34 LOTTERY— MAINTENANCE. commissioners caused the mortgaged premises to be sold, without giving due public notice of the sale, pursuant to the Act, and under circumstances de- noting fraud and collusion on the part of one of the commissioners, the sale was set aside, and the deed executed by the commissioners ordered to be deUvered up to be canceled; and the proceedings in an action of ejectment brought by the purchaser, to be stayed by a perpetual Injunction. Ibid. L The notices of sale required by the Act to be fixed up in three public places mean that they should be put up in those places best calculated to bring home the notice of sale to the mortgagor, and f o -.ifTirtrsons who are most likely to attend ns p'lr- chasers. IBM. 339, 1: 640 5. Three weeks' notice is not sufScient. Ibid. 341, 1:641 8. The notice must contain the name of the mort- gagor, and an accurate description of the quantity and situation of the land foreclosed and to be sold. I&id. 343, 1:641 7. If the commissioners abuse their trust, this court will afford relief, either by setting aside the sale, and letting in the mortgagor to redeem, or di- recting the commissioners to account for the differ- ence between the sum for which the land was sold and its real value at the time. IMd. 343. 1: em 8. Under the Act authorizing the loan of moneys, etc., passed AprU 18, 1788 (Sess. 9, chap. 40), the loan ofScers are bound strictly to pursue the directions of the statute, in the sale of premises mortgaged. If, therefore, there be a defect in the advertise- ment of sale, in describing the quantity and situa- tion of the land, the sale is irregular and void; and the purchaser under such an irregular sale was de- creed to releaae aU his title to the owners of the equity of redemption : and a note given by him to the loan ofiicers, for the balance of the purchase money, waa ordered to be delivered up and can- celed ; but he, being an innocent and bona fide pur- chaser, was not subjected to costs. Sherman v. Dodge, 6 Johns. Ch. 107, 8: 69 t. Where a mortgage taken by two loan-ofSce commissioners of the county of Essex had become forfeited, and the land was regularly advertised and sold, pursuant to the Act, except that one of the commissioners was not present at the time the order for the advertisement for sale was made, nor at the sale,— Held, that the assent of the absent commissioner was to be presumed, as no dissent waa afterwards expressed by him, and he united in the deed to the purchaser; and, though it is the duty of both commissioners to be present at the sale, yet the absence of one of them, from neces- sity or just cause, which was to be presumed In this case, would not affect the validity of a sale oth- erwise regular and fair. King v. Stoic, 6 Johns. Ch. 323, 8: 139 10, And though the commissioners neglected to make all the proper minutes, or entries. In the book, of their proceedings, according to the direc- tions of the Act, yet an omission on their part, in this respect, will not vitiate or defeat the sale itself, as against a bona fide purcbasei:. Itnd. 11. Where the advertisement of sale was affixed up by the commissioners, at the court house and two public taverns in the village of E, belne the three most public places in that village, which is the place of the greatest resort in the county,— Held, that this was sulBcient, as the Act did not necessarily require that the advertisement should be put up In three different villages or towns, and the practice of the commissioners in Essex County bad been uniformly otherwise. Ibid. 13. But admitting that the commissioners erred in their construction of the Act in this respect, yet a mere error of judgment, where there was no fraud, or pretense for imputing fraud, but everything was intended to be fair and regular, wOl not vitiate the sale as against a bona Jlde purchaser for a valu- able consideration, without notice of any irregular- ity or omission on the part of the commissioners. Ibid, 13. Where, by the division of the county of Wash- ington, lands mortgaged to the old loan oiBcers of that county fell witliin the limits of the new coun- ty of Warren,— Held, that under the Act of the 12th of March, 1819, the loan biflcers. upon a foreclosure or sale of the mortgaged premises, were bound to publish a oopyof their advertisement of sale in a newspaper In warren County. Bogere v. Murray, 3 Paige Ch. 390, 3: 201 14. Asale made by the loan officers without giving the notice required by law is Invalid, and will be set aside upon the application of the owner of the mortgaged premises, IMd, Editorial Notes. Loan commissioners as trustees ; sales by 1:637 Preliminary requirements to mortgage sale 4:570 LOTTERY. See INTEBPLEADEB, 7 ; SAI.E, 3. LOUISIANA. LAWS OF. Laws of Louisiana relative to the administration of the estate of a decedent in cases of intestacy or of vacant successions,— explained. Sherwood v, Wooster, 11 Paige Ch. 441, S: 19a LUNATICS. See Incompetent Febsons. LYCEUM. See COBPOBATIONS, IL M. MADISON COUNTY. See Bbaikaqe Acts, 5. MAINTENANCE. When Decreed to Wife, see HtrsBAND and Wife. See also Champebtt. Advancing money to a poor man to enable him to prosecute his suit is not maintenance. Perlne v. Dunn, 3 Johns. Cb. 508, li 609 Editorial Notes. Maintenance; vrhat is not Assisting poor man is not 6: 1194 1:699 MANDAMUS— MARSHALING OF ASSETS AND SECURITIES, I. 325 BIANDAMUS. Editorial Notbb. Mandamus; remedy by 8: 488 To officer 1: 412 To set aside process 6: 973 MARINE INSURANCE. Bee Insurance, IV. MARRIAGE. As to Abatement of Suit, see Abatement, 8-10. See also Contmct op Laws, IV. ; Evidence, II. d, 3; Husband and Wife, MARRIAGE SETTLEMENTS. See Husband and Wife, IV. 1 ; Infants, 76. MARRIED WOMAN. See Husband and Wife. MARSH. See Dbainage Acts. MARSHAL. Editorial Notes. Marshal, commissions of 6:115 MARSHALING OF ASSETS AND SECURITIES. I. In General. n. Fob Payment of Incumbrances upon Land. Editorial Notes. See also Creditors' Bili,, 85, 174, 175 ; Executors AND Administrators, rv. a, 6 ; Mortgage, 374, 428 ; Partnership, III. I. In General. 1. The rule of this court as to equitable assets ia to put aU the creditors on an equal footing. Purdy V. Doyle, 1 laee Ch. 5M, 8: 751 2. Where assets are partly legal and partly equi- table, this court cannot take away the legal pref- erence as to the legal assets; but if one creditor has, by reason of his priority, been partially paid out of the legal assets, when satisfaction conies to be made out of the equitable assets, his claim thereon will be deferred until the other creditors have been paid a proportionate amount out of the equitable assets. Hid. 3. To prevent circuity of action, the court per- mits, and sometimes requires, a creditor who has two funds to resort to for payment of his debt, to proceed at once against the primary fund. Smith V. Wyckoff, 11 Paige Ch. 49, 5: 53 4. Where the owner of a note had two funds to which he could resort for the payment of his debt, and other creditors provided for in an assignment for creditors had but one, he was bound to resort first to the fund on which be alone had a claim, and leave the other fund to the other creditors. Beriej/ v.iatwence, 11 Paige Ch. 58], 6:840 6. If two funds are specifically bound for one debt, and one of the funds only bound for another debt, that other debt has a preference on the only fund to which it is entitled to resort. Hawley v. Mancivs, 7 Johns. Ch. 174, 2: 859 6. Where a creditor has a lien upon two f undsf or the payment of his debt, chancery will not compel him first to exhaust the fund which a junior credi- tor cannot reach, if the senior creditor will there- by be Injured, or if he offers to substitute the ju- nior creditor in his place on being paid the amount of his debt. PToolcocJcs V. Hort,l Paige Ch. 185, 8:610 7. Where there are both legal and equitable as- sets, a creditor who, having a preference as to the legal assets, has been partially paid out of such as- sets, cannot receive any share of the equitable as- sets until the other creditors have received sufficient to place them upon an equality with him ; and then all the creditors will be paid ratably out of the as- sets which remain. TKilder V. Keeler,3PaigeCh. 167, 3:101 8. Equitable rules are tidopted by the court of chancery in the administration of legal assets, ex- cept in cases where the law has given an absolute preference to one class of creditors over another. Ibid. 9. The court does not marshal assets constituting a surplus after satisfying legacies under a will, in favor of charities. Wright V. Trustees of M. E. Church, Hofl, Ch. 202, 6: 1115 10. Where there is a Joint debt, but there never was any joint fund, and the joint cruUitor looked origi- nally to the separate property of the joint debtors respectively for the payment of his demand, and one of the joint debtors dies, leaving the survivor insolvent; and the fund to be distributed in chan- cery consists of equitable assets,— the joint creditor will bo permitted to come in upon the fund with the separate creditors of the deceased debtor, at least for one half of his debt; but if the assets are legal, the separate creditors cannot be deprived of their legal preference. wader V. feeler, 3 Paige Ch. 167, 3: 101 11. If one judgment creditor has a right to go upon two funds, and a second judgment 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 judgments may be satisfied. Dorr V. Shaw, 4 Johns. Ch. 17, 1: 748 12. But if the first creditor has a judgment against A and B, and the second creditor against B only, the latter cannot compel the former to take the land of A only, it not appearing whether A or B ought to pay the debt due to the first creditor, nor any equitable right shown In B to have the debt charged on A alone. Ibid. 13. The plaintiff purchased two lots of land of V, against whom there was an existing judgment. All the real estate of V (the residue of which was more than sufBcient to satisfy the judgment) was sold, subject to all incumbrances, under a subsequent Judgment, to the defendant, who afterwards took an assignment of the prior judgment, and issued execution thereon, under which the two lots of the plaintilf were sold to the defendant, who made im- provements thereon and sold one of the lots. Held, that though the court would have interposed and prevented the sale of the two lots of the plaintiff, & he had applied in due season for that purpose, yet, as he knew of the sale at the time, and delayed four years before he filed a bill for relief, the court refused to disturb the sale, or to direct a reconvey- ance of the lots to him ; but the defendant was or- dered to pay the plaintifl,as an equitable indemnity, under the circumstances of the case, the sum for which the lots were sold, with interest from the time. Ibid. 14. Where particular property appropriated in an assignment for creditors to the payment of a special debt was levied upon and sold under executions which were general liens on the assignor's personal property, and was bid in by the trustee, and after- wards sold again, he should reimburse himself for the amount of his bid out of the property assigned for the general creditors, and keep the proceeds of thf SRle to npplv in satisfnrtion of the special debt Slade V. Van FecMen, 11 Paige Ch. 21, B: 48 15. Where the maker of a note assigned to the sureties a bond and mortgage upon condition that they should pay the note, and then assigned other property in trust to be sold and the proceeds applied first to the payment of the note and the residue to S26 MARSHALING OF ASSETS AND SECURITIES, II. ; MASTER. certain other creditors, complainants In a creditors' 1)111 could not insist that the note should be paid out of the property assigned in trust, so as to give them the benefit of the bond and mortgage, to the exclu- sion of other creditors who had a prior right to be paid out of the property assigned in trust in case the note was paid out of the proceeds of the bond and mortgage. Besley v. Lawrence, 11 Paige Ch. 581, 5: 840 11. For Payment op Incumbrances upon Land See also Vendor and Purchaser, V. 16. 4. person who purchases laud subject to the pay- ment of a prior mortgage itiereuii ims no Iffirai 1 1^ >iv to have the mortgage debt charged upon the mort- gagor personally, instead of charging It on the land upon which it was charged by the mortgage. Cherry v. Monro, 2 Barb. Ch. 618, 5: 775 17. By the mortgagor's conveyance of mortgaged premises to a puronaser subjecc to the payiuuut. m the mortgage by the latter, the land becomes the primary fund for the payment of the debt to the mortgagee. Tripp V. Vincent, 3 Barb. Ch. 613, 5: 1030 McCammm v. WtnraU, 11 Paige Ch. 99, 5: 70 18. After a conveyance subject to a mortgage the land becomes the primary luiid tor mu paj nient ol' the mortgage debt, and the personal liability of the mortgagor is the secondary fund. The mortgagor stands, in respect of the land, as a suretv Brewer v. staples, 3 Sandf. Ch. 579, 7: 964 19. Where the Intestate, in 1834, gave a bond and mortgage upon a lot of land of which he was the owner, to secure the payment of $6,000, and the lot was afterwards sold and conveyed to B, subject to tho payment of the mortgage, who afterwards sonveyed the premises to a trustee, for the separan use of the wile of the mortgagor: and after the death of the mortgagor, the cestui que tniat of the mortgaged premises, who became entitled to the le- gal estate in the equity of redemption under the provisions of the Revised Statutes, administered upon the estate oJ the mortgagor,— He!d, that the mortgaged premises were the primary fund in equity for the payment of the bond and mortgage. Jumel V. Jumel, 7 Paige Ch. 591, 4: 889 20. Where, in a conveyance of real estate, it was expressly stated that It was understood and agreed by the parties to such conveyance that the prem ises were thus convoyed subject to a previous mort- gage thereon executed by the grantor in such con- veyance, and to all interest due or to become due thereon,— Held, that, as between the grantor and the grantee, the mortgaged premises were the primary fund for the payment of the mortgage debt, and t liai if the mortgagor was afterwards compelled to pay that debt to the mortgagee, he would bo entitled, in equity, to be subrogated to the rights of the latter and to reimburse himself out of the mortgagee' premises. Held, also, that a subsequent purohusii of the premises from the grantee In such convey ance took them subject to the same equity, al though the deed to such subsequent purcbaser ih not in terms refer to the lien of the mortgage, oi describe the lands as being conveyed subject ti such lien, Ihiil 21. As between the purchaser at foreclosure sale under a first mortgage and the owner of the equity of redemption, the value of the mortgaged premises beyond the amount due on the firstmortgage is the primary fund for the satisfaction ol a second mort- gage, the holder of which was not made a party to the suit for foreclosing the first mortgage. Vanderkemp v. Shelf on, 11 Paige Ch. 28, 5: 4.''i 23. Where, in an assignment of a mortgage, then IB a covenant guaranteeing the collection, the cov- enantee must first proceed against the obligors in the bond, next against the land, and lastly against the covenantor; and if the covenantor is the owner of the land, and the bill is filed by the assignee be- fore suit brought upon the bond, proceedings will be suspended until the fruits of a suit upon the bond can be known, inasmuch as under the New Tork statute full justice can be done to the par ties by a single decree upon such foreclosure. Vanderkemp v. Shdton. aarke Ch. 321. 7: 13 1 23. S having mortgaged his lands to B, subsequen t ly transferred to B a debt against Q as a collateral security. Afterwards S, being largely indebted to T, compromised the debt for less than its amount and paid it by conveying to T the same lands, ex pressly subject to the mortgage to B. IJe>d, that T had no right to require B to collect Q's debt and apply it to the s;, t istaetion of the mortgage ; that the land was the primary fund ; and that S could require B to exhaust it before resorting to Q's debt, which was collateral to tho mortgage. Brewer v. Staples. 3 Sandf. Ch. 579. 7: 964 24. A husband and wife joined in executing two mortgages, accompanying his two bonds, all being given lor the same debt. This was in part a pre-ex- isting debt of the husband's, and in part money ad- vanced to him at the time. One mortgage was on his own lands, the other was on the wife's Inherit- ance. Held, that the husband's lands were the pri- mary fund for the payment of the mortgages, and the wife's became the secondary or auxiliary fund for that [jurpose. She became the surety lor her husband in respect of the latter. Lnomer v. Wheelwright, 3 Sandf. Ch. 135. 7: 800 25. If a part of the mortgaged premises has been mortgaged a second time, and the residue i.iii, m has been sold and conveyed absolutely, subsequent to such second mortgugc, tiie part mortgaged should be sold first, and tliL- surplus proceeds of that s«le, beyond the amount of the principal and interest duo on the second moitnage, should be applied in pay- ment of the first mortgage, before resortiug to a sale of the residue of the premises, for that purpose which were conveyed absolutely. ' Kellogg v. Band, 11 Paige Ch. 59, S: 56 26. Where the owner of certain lots and a farm mortgaged the same and then con>ejed them sub- ject to the mortgage, which the grantees assumed; and the farm was subsequently conveyed and a mortgage to secure the purchase money taken back, which together with the lots was afterwards trans- ferred to a bank,— the bank was bound to satisfy the portion of the mortgage charged upon the lota. Torreyy. Bank of Orleans, 9 Paige Ch. 649, 4: 853 27. In such case. If the bank neglects to pay its portion of the mortgage, whereby the mortgage, which was also a lien on other property of the mortgagor, was foreclosed, the purchase of such other propeii./ at the master's sale, by the cashier ol the bank, will be set aside. Ibid. 28. Where one creditor has a mortgage of two funds, and another creditor has a subsequ^it mort- gage ol one ol those funds, the first mortgagee must pursue and exhaust bio remedy against the fund not mortgaged to the other, before he can subject the fund mortgaged to the other to sat- isfaction. York & J. S. B. Co. v. Jersey Co. Hopk. Ch. 460, 8: 487 29. And this principle is enforced, though there may be a question concerning the validity of the first mortgage, in respect to a part of one of the funds. Ibid. 30. And it is also enforced where a part of the property subject to the first mortgage is situated in another State. Ibid. Editorial Notes. Marshaling s'!Ourities 2:610 Resort of creditor having two funds 1:190, 748, 2:259, 487,751, 3:1086, 5: 42, 241, 7: 299, 1189, 1285 Debtor with several funds; order of appro- priation 3: 101, 4: 771, 7: 231 Lands primarily liable for mortgage debt 1:601, 5 : 45, 129 Sale of mortgaged premises; land the pri- mary fund for payment of incumbrance 4: ?3S 289, 1067 Lands chargeable in inverse < m r of aliena- tion 1: 204, 3: 336, 889. 4: 892, 428, 655. 656, 852, 5: 414, 592 Purchaser of equity of redemption liable for debt, when 4: 289, 770 MASTER. See a'so Judicial Sale, VI. ; Mobtgaoe, VII. g ; Reference, II., IV. 1. A master continues in office for a period of six MASTER AND WARDENS OF THE PORT OP NEW YORK— MERGER. 337 •months after the expiration of his term, for the purpose of completingproceedings previously be- fun.and his certiflcate is considered as being under is oiScial oath. American Ins. Co. v. Slmers, 3 Ch. Sent. 70, 5: ll»a 2. Upon a decree for a sale by a master, for the benefit of some of the defendants iu the suit as well as for the benefit of the complainant, the complain- ant's solicitor is entitled to select the master and to place the decree in his hands to be ejcecuted, unless ■the court has directed otherwise. TTatt V. Orawford, U PaiKe Ch. 470, 6:801 3. But where the complainant in the suit has no iaterest in the execution of the decree, or where he consents to its being executed under the direction of a defendant who is interested in havlnp the sale made, a stranger to the suit cannot object that the decree was placed in the hands of the master by the solicitor of such defendant to be executed. Ibid. 4. If the decree has been placed in the hands of a master to be executed, the court, upon the applica- ition of a party who is interested in having the sale made, may direct the master to proceed and exe- f the decree, the surety himself not being a party to the suit, or a party in interest in the sale of the premises or in the proceeds of the sale. Ibid. 8 The master is not excluded from executing a liecree of foreclosure and sale of mortgaged premi- ses by reason of consanguinity or afBnity to either of the parties. ^o™- 9. Where the sale of mortgaged premises adver- tised for sale by a master under a decree of fore- closure is suspended by an injunction or by an order of the court, the master is not entitled to any- thing by way of commissions, except the commis- ■sions upon the sale which is afterwards made. Edwards v. Bodine, 11 Paige Ch. 323, a: 115 10. The master will in no case be allowed more -than $5 per day, including his taxable fees on the reference and for the report. And if his taxable fees amount to that sum, or nearly so, no extra allowance will be mada ,_ ,„ q.^oo Woodruff V. Strati), 4 Paige Ch. 407, 3: 498 Editorial Notes. Master ; proceedings before 4: 1035 Extent of authority of 4 : 215 Sliould not act unless petition is in form 3:147 MASTER AND WARDENS OF THE PORT OF NEW YORK. 1. The powers given to the master and wardens of the port of New York by § 5 of the Act of Feb- ruary, 1819, were in the nature of a franchise, and were in their nature exclusive until the Legisla- ture should think proper to repeal or modify the Jaw, or should authorize other persons to perforrr the same duties. „ -,„ r . mr, TuaOt V. BrwmUy, 1 Barb. Ch. 519, 5: 479 Modifying, 4 Bdw. Ch. 258, 6:871 2. It is a usurpation of power for another body of men, under a different name of office, to attempt to perform the duties assigned to the portwardens, and to establish a tariff of fees of office for the dis- charge of such duties. Ibid. 3. Portwardens, by the common law, were not ex officio surveyors of damaged vessels or damaged goods. And the exclusive powers originally con- ferred by statute upon the master and wardens of the port of New York as surveyors having been taken away by the Act of 1819, such master aril wardens are no longer ex officio surveyors of dan aged goods imported into the city of New York, except in the cases specified in §6 of that Act,— viz., when such damaged goods are required to be sold by the owner or consignee on account of such dam- age, and for the benefit of underwriters who do not reside in New York. Ibid. 4. As the statute does not prohibit the master and wardens from acting as surveyors in cases not men- tioned in the Act of 1819, it is proper to have a tariff of fees which shall apply to other surveys, in case they shall be made by such master and ward- ens, as bad been done previous to that Act. The granting of a fixed rate of fees for particular ser- vices, however, docs not, even by implication, give to the master and wardens the exclusive right to perform such services, nor does it interfere with the right of others to perform similar services for such persons as may think fit to employ them. Ibid. MASTER OF VESSELS. See Shippino. MASTER'S SALE. See Judicial Sale ; Mortgage. VII. L MAXimS. See also Doweb, 24 ; Equity, II. a. 1. The maxim, pater est quern nwpticB derrumstrant, is founded upon very strong reasons of policy as well as of law. ,„,.■„„», Van Aemam v. Van Aernam, 1 Barb. Ch. 375, 5: 488 2. In all cases in respect to mere equitable liens the maxim prevails, in the court of chancery, that he who is prior In time Is stronger in right. WiVies V. Barpe/r, 2 Barb. Ch. 338, 5:666 Chei-ry v. Monro, 2 Barb. Ch. 618, 5:775 3. The maxim that custom is the best interpreter of the law, applied to the furm of a compiroUer's deed given on a sale of land for taxes, where it appeared that it had been the custom to execute deeds in the same form for more than a quarter of a century. Ulica Bank, v. Me/rsereau, 3 Barb. Ch. 528, 5: 998 MEASURE OF DAMAGES. See Damages. MERGER. See also Annuity, 2 ; Covenant, 6, 21 ; Descent AND Distribution, 7, 8 ; Husband and Wiee, 134 ; Mortgage, VI. c ; Partition, 2 j Wills, 336. 1. Although in the absence of direct pr oof of inten- tion, equity will intend a merger, or the contrary, from the interest of the party taking the deed be- ing in one direction or the other, it cannot prevent a merger contrary to his interest, where he clearly intended to do the acts which legally effect a mer- ger, although he may have done them under an er- roneous view of their legal consequences. Where two persons are joint mortgagees, butare each own- ers in severalty of a part of the mortgage debt, one of them may so act as to merge his own mortgage interest, without affecting that of the other. ioomeV v. Wheelwright, 8 Sandf . Ch. 135, 7: 800 328 MILITARY BOUNTY LANDS— MONEY IN COURT. 2. Where the holder of a eecond mortgage assigns the same and guarantees its collection, and subse- Juently becomes purchaser of the premises at a oreclosure sale under the first mortgage, to which the holder of the second mortgage was not a party, by which be acquires the interest of the holder of the first mortgage and that of the owner of the equity of redemption, without that of the second mortgagee, his interest under the first mortgage and in the equity of redemption do not merge either In his own hands or those of his mortgagees. Vanderkemp v. Sftelfon, 11 Paige Ch. 28, 6: 45 Editorial Notes. Merger ; doctrine of 1: 193, 1061, 3: 161, 169, 4: 393, 965, 7: 800 Intention to govern; equitable principles to govern 1 : 540, 4: S50 Upon purchase of estate by tenant 7: 609 Assignment of mortgage as 4: 3S0 Of mortgage and equity of redemption 4:250 Of dower Inberuanceof annuitant Of incumbrance upon payment Not created by mere operation of law 4:315 3:136 5:776 5:134 miLITARY BOUNTY LANDS. See ACKNOwiiEDGMENT, 4, 5 ; Pubucc Lands. MILL. See Nuisances, 18, 19 ; Wru*, 235. MISJOINDER. See Parties, X. ; Pleading, VII. c, 3. MISREPRESENTATIONS. See Fraud. MISTAKE. See also Contracts, V. b, 3 ; Equity, I. g ; Evf DENCE, VI. b ; Execution, 73 ; Highways, 16 ! Specific Performance, 1. b. 1. The court does not relieve parties from their acts and deeds fairly done on a full knowledge of the facts, though under a mistake of the law. iyon V. BtcftmoTid, 2 Johns. Ch. 51, 1:^98 2. Every person is charged, at his peril, with a knowledge of the law. ShotweU V. Murray, 1 Johns. Ch. 516, 1:389 3. Courts wiU sometimes grant relief against a mistake of the law, where it can be done without im- pairing the rights of those who were ignorant of the existence of any such mistake when their rights Ball V.' Reed, 3 Barb. Ch. 500, 5:730 i. Distinction between ignorance of the law, and a mistake of law. Ibid. 5. Mistakes of solicitor not corrected for sole pur- pose of giving client a preference, Rochester Bank v. Emerson, 3 Ch. Sent. 74, 5: 1134 6. Equity relieves against a mistake, as well as against fraud, in a deed or con tract in writing; and parol evidence is admissible to prove the mistake, though it is denied in the answer ; and this whether the plaintitF seeks relief alErmati vely on the ground of the mistake, or where the defendant sets it up as a defense, or to rebut an equity. Oillespie v. Moon, 2 Johns. Ch. 585, 1: 500 7. Where the intention is manifest, this court will always relieve against mistakes in agreements, and that as well in the case of a surety as in any other case. Wiser v. Elachly, 1 Johns. Ch. 607, 1: 36» 8. Where a bill is filed to correct an alleged mis- take in a contract or agreement, the evidence of the mistake must be clear and certain. Getman v. Beardsley, 3 Johns. Ch. 274, 1: 37© 9. The bill, being filed solely to correct a mistake in the contract, will not be retained on the ground that there is money due on the contract from the defendant. ItM. Editorial Notes. Mistake; as giound of relief 2:90, 4, 1077,' 5: 730, 6:313 In deed 6: 317 As to quantity of land sold 4: 441 failure of title 4: 442, 768 Clerical errors will be corrected 4: 661 In award, correction of 1 : 883 Of law ; relief from, when 1 : 997, 6: 213 court will not relieve from 4: 97 MONEY. See also Wills, 319. Money means gold or silver, or the lawful cur- rci.jy of the country, or bank notes, where they are known and used in the market as cash, or money deposited in bnnkforsafe keeping; and does not comprehend promissory notes, bonds and mort- gages, or other securities. Mann v. Mann, 1 Johns. Ch. 331, 1: 183 MONEY IN COURT. See also Executors and Administrators, SO ; Infants, 99 ; Interest, I. b ; Mortoaob, 532 ; Taxes, 13, U; Tender, 4; Trusts, 276. 1. Where a sum of money is paid into court while the suit is pending before the chancellor, and th& cause is subsequently referred to a vice-chancellor to hear and decide the same, the party in whose favor the decision is made must, for the purpose of obtaining the fund, obtain an order from the chan- cellor that the register or assistant register pay over the fund in conformity with the decree of the vice-chancellor. City Bank v. Bangs, 4 Paige Ch. 285, 3: 439' 2. Where the amount of a master's report against a defendant is ordered, for security, to be brought into court and invested in stock, pending excep- tions by the complainant, any gain or loss which may ultimately accrue on the sale of the stock, is to be received or borne by the defendant. Clarksan v. De Peyster, Hopk. Ch. 505. S: 50* 3. The payment into court is a collateral security, and is not to be taken as a payment to the com- plainant, ibid. 4. A creditor of the ancestor, who is entitled to maintain a suit against heirs in respect of the real estate descended to them, may have a decree against the proceeds of such real estate where the same have been paid into court upon a sale of the property under an order or decree of the court. VanWezel v. Wj/cTco/, 3 Sandf . Ch. 528, 7: 945 5. In all cases of special applications for orders to pay out moneys brought into court, the party applying must produce the certificate of the regis- ter or clerk with whom the money was deposited showing the amount of the fund, and the way in which it is invested, and the claims, if any, which have been made thereon, so that the proper order rtiav be entered to enable the applicant to obtain tb^fi'iid. HuTbert v. McKay, 8 Paige Ch. 651, 4: 579 6. Upon a reference to a master to ascertain the rights to the surplus moneys on a sale of mort- gaged premises, under the provisions of the 136tb Bule of the court of chancery, the party prosecut- MONEY IN PUBLIC TREASURY-MORTGAGE. 32!> log the reference must produce l)ef ore the master a oertlfloate of the register or cleric with whom the report Is filed and the surplus money deposited, showing that no notice of claim to such surplus was annexed to the report of sale, and that no claim to the same has been filed previous to the entry of the order of reference ; or, if claims have been filed, stating the names of the claimants, and of their solicitors.'if any, and their places of residence. ibid. 7. An incumbrancer who has neglected to file a notice of his claim upon the surplus moneys, as prescribed by the 136th Rule, may go before the master pending the reference as to such surplua,and file his claim with him, duly verified ; and he will then be entitled to be heard upon the reference, as to the validity of such claim, upon such equitable terms as to costs as the master shall direct. Ibid. 8. Parties and other claimants, upon a reference - to a master to aseertain-,the rights to the, surplus moneys upon a mortgage sale, must verify their claims in the same manner as creditors coming in under a decree are required to do ; and the master may examine the claimants upon oath touching their respective claims. VHd. 9. Before the master proceeds to make his report as tu tiui'iJius inuiic',\s, .i^; buuuiu utiu^i-L.Liii, by lUe proper certiflcate and other evidence, that all claim- ants and other proper parties have been notified or summoned to attend before him on such reference; and the fact that such certificate and evidence was produced before him should be stated in the report. Ibid. 10. Where it appears from the master's report that the proct^euiugs upon the reference as to sur- plus moneys were entirely ex parte, so that no per- son has a right to except to the report, the entry of an order nisi to confirm the report may be dis- pensed with ; and the special order of the court to confirm the report, and to pay over the surplus moneys accordmg to the report, may be entered together. Ibid. 11. But in all other cases an order nisi to confirm the rupurc must be firtst, uutc-i-ed; and a certificate of the register or clerk that such order has become absolute must be produced upon the application to the court for an order to pay out such surplus noneys according to the report. Ibid. 12. The court of chancery has no jurisdiction,upou the petition of a stranger to a suit in that court, to order a demand which he has against a firm in which the defendants in such suit are partners, to be paid to him, out of funds In the hands of the re- ceiver in the suit. Be Inardham, 2 Barb. Oi. 35, 5: 546 13. Where the subject of litigation was a fund in the hands of an insulvent assignee, who was a de- fendant in the cause, and had no personal interest therein, but claimed the fund for the benefit of others, the money was ordered to be brought into court and invested, to abide the further order of ibB court. Hctggerty v. Duane, 1 Paige Oh. 321, 8: 664, 14. Where a fund in the court of chancery has been paid out to a person not entitled to it, under an order irregularly obtained, the court has juris- diction, by a summary proceeding, to compel the party to restore the fund thus improperly obtained without the authority of the court. Bwrehard v. PhiUips, 11 Paige Ch. 66, 5: 69 15. Bill by judgment creditors against the defend- ant at law, and against the assignees of defendant's property, to set aside the conveyances of the prop- erty as fraudulent, and to subject a certain mort- fage to the payment of the complainant's demands, ending suit, defendant assigned the same mort- fage, receiving a promissory note for payment. Fp'on certain subsequent proceedings, the maker of the note paid the amount of it into court, to the credit of this cause. The petition of the complain- ant to have that money paid over to him,— denied, on the ground the question was involved in the merits or the cause to be determined at the bear- '°g; lenton v. Graves, Hopk. Ch. 308, 2:431 Editorial Note. Payment of money into (lourt; how de posited and Invested 6; 275, 413 OIONEV IN PUBLIC TREASURY, 1. The statute exemption from the payment ot mterest on moneys paid into the treasury of the- city of New Tork by the public administrator wa» designed as a compensation for the important pub- lic duty of rescuing the effects of aliens andi strangers, and preserving them for their creditors- and relatives ; and it was intended by the Legisla- ture that the corporation of the city should have the benefit of the use of the money until It should) be claimed by the rightful owners. Simrez v. New York, Z Sandf . Ch. 173, ?: 55* 2. And before paying the fund to a foreign claim- ant, regard to the public duty, as well as the pecuni- ary liability of the corporation, requires that his right should be very fully established. Ibid. 3. The common council is a legislative body charged with interests and duties of great magni- tude and Importance ; and its action in respect of claims is necessarily more like that of a legislature than like an individual's. Therefore the corpora- tion of a city is not put in default as to the pay- ment of the fund in such a case, by a petition io' the common council truly exhibiting a rightful claim, where no proof is presented with it. It i» the claimant's duty to follow up his petition andi exhibit his proofs to the common council, or to the- committees entrusted with its examination. IMtU MONOPOLY. Editokial Note. Distinction between franchise and monopoly 7:980 MONTH. See MOBTOAOi;,346. MONUMENT. See Executors and Administrators, I MORTGAGE. I. Nature, Validiit, and Eefect. a. In General. b. Conveyances Absolute in Form. c. Execution and Delivery. d. Validity and Construction OeneraUy;. Description. e. Debt Secured. II. Pbiobitt; Notice. a. As to Other Mortgages. b. As to Judgments. c. As to Other Equities. m. Eights op Mortgagor and Mortgagee. IV. Vendee of Mobtqagob ; Assumption of- Debt. V. Assignment. a. Sufieiency; Vdlidily. b. Bights of Assiffnee. o. Notice. VI. Satisfaction ; Discharge ; ReijEASe. b. Discharge or Cancellation of Beeord. c. Merger. Vn. Enforcement. a. Remedies ; Plurality of Suits. b. Bight to Foreclose. c. Parties. 1. Generally. 2. Mortgagors and Their Bepresentct- 3. Mortgagees and Their Bepresenta- 4. Incumbrances. 5. Interventi»n. d. Pleading: Defenses. e. Litigation between Defendants. 530 MORTGAGE, I. a, b. f . DefaiM in ImtaamenU ; Relief from. g. Reference to Ascertain Amount. . Relief; Decree. t Sales. 1. In General. 2. By Advertisement; Power. 3. Terms; Quantity Sold. J. Proceeds; Surplia; Reference to Ascer- tain. k. Deficiency; Recovery of. 1. Pu/rcltaser's Bights, Title, and IMbiLi- ties. m. Setting Aside ; Resale. VIII. Redemption ob DiSAPriBMANCE. a. In General ; The Right. b. Time. c. Terms and (Conditions. d. Parties; Practice. IX. Chattel Moktgaqes. Editorial Notes. ■By Marned Woman, see Husband and 'Wifb, IV. i. For Records of, see Real Pbopebty, n. discharge of, see Officers, 9. -See also Action or Suit, 99 ; Adveesb Posses- sion, 2; Bonds, 15; Contribution, IL 17, 18. 25; Corporations, 57, 98: Costs, I. h. III. m; Cov- enant, 21 ; Deed, 24 ; Doweb, 13, 14 ; Estoppel, 44; Evidence, 55, 287, 296; Executohs and Administbatoes, IV. a, 6, c, 36, 74; Fraudu- lent CONVBTANCEB, 9, 10, 40 ; INFANTS, 79 ; IN- JUNCTION, 55 ; Improvements,! ; Insurance, 25 ; Judgments, etc., 70 ; Marshaling op Assets AND Securities, n.; Merger, 1, 2 ; Monet in Court, 6-11; Partition, 112; Payment, 13, 24 ; Pleading, 204, II. e. 487 ; Practice, 101, 102 ; Principal and Surety, 47; Receivers, I. b, 3; Set-Oft, Ld; Subrogation, HI. I. Nature, Validity, and Effect. a. In General. 1. An agreement for a mortgage is, in equity, a epeoittc lien on the land. Re Howe, 1 Paige Ch. 125, S: 586 2. An assignment of a land contract for the se- curity of a debt due the assignee, upon the condi- ■ tion that. If the debt was paid at the time stipulated, 'the assignee should reassign the contract, is, in «quity, a mortgage, and the assignor has a right of redemption. Brochway v. TTells, 1 Paige Ch. 617, a: 773 3. As between the representatives of the real and personal estate, the land is the primary fund to pay off a mortgage. • Dulie of Curnherland v. Codrington, 3 Johns. Ch. -252, 1: 609 4. Where a man gives a bond and mortgage for iiis own debt, the mortgage is merely a collateral -security. Ibid. 257, 1 : 611 5. But if a purchaser or devisee of laud incum- bered renders himself personally liable to the cred- itor for payment, the land, as far as relates to the .marshaling of a^ets, is the primary fund for pay- "ment. Ibid. 6. Unless a contrary intent be clearly shown. IblA. 7. The purchaser, by express directions in his will, may throw the incumbrance upon his person- al assets, or by dispositions and language equivalent to an express direction. DM.m, 1:615 8. Expenses of security are to be paid by mort- gagor. Rii\e V. Handy, 1 Johns. Ch. 7, 1:39 9. The Act concerning mortgages extends to .leasehold as well as to freehold estates. Berry v. Mutual Ins. Co. 2 Johns. Ch. 603, 1: 508 b. Conveyances Absolute in Form. 10. An absolute deed with a defeasance is a mort- .«age. Dey V. I>unftam, 2 Johns. Ch. 189, 1:344 11. A deed absolute on the face of It, but intended •t)y the parties as a security merely for a debt. though registered as a deed, is valid and effectual between the parties, as a mortgage ; but it is liable to be defeated by a subsequent mortgage diily re- gistered. James v. Johnson, 6 Johns. Ch. 417, !t: 169 12. A deed, although absolute in its terms, may be proved by parol to aave been inteuued by the par- ties thereto to operate only as a mortgage; and a judgment creditor of the mortgagor will be permit- ted to redeem the premises in the hands of the heirs or personal representatives of the mortgagee, upon the payment of the amount justly due. Van Bwen v. Olmstead, 5 Paige Ch. 9, 3 : 605 13. Where a deed absolute is intended merely as a security for the payment of money, an agreeuienc executed long afterwards, to reoonvey the property upon payment of the amount due, cannot convert the deed into an absolute and unconditional one. Wmiams v. Thorn, 11 Paige Ch. 459, 5: 198 14. Where a deed is executed by one, and a de- feasance IS executed by the grantee to a person other than the grantor, and both are recorded as a mortgage, it is to be deemed in the nature of a mortgage, and may be foreclosed as such by the grantee of the deed or his assigns. Weed V. Stevenson, Clarke Ch. 166, 7: 88 15. In the absence of other proof, evidence of an advance of money and the finding of title deeds of the borrower in the possession of the lender estab- lishes an equitable mortgage. BockweU V. Hobby, 2 Sandf. Ch. 9, 7: 486 16. E advanced money to one who held a bond and mortgage against his mother, H, paying its full amount. There was no assignment executed, the securities were lost, and it did not appear that they ever left the possession of their mutual attorney; but E had the possession of H's deed for the prem- ises mortgaged, and retained it till his death. It did not appear how he came by the deed. Held, that the son had an equitable lien on the premises for the amount of his advance, with interest. Ibid. 17. Where a deed absolute on its face is given as security for the payment of a debt, the absence of the personal liability of the grantor to pay the debt is not a conclusive test in deciding whether the conveyance is absolute or is intended as a security. Brown v. Dewey, 1 Sandf. Ch. 66, 7: 238 18. A conveyance of real estate, intended merely as security for a debt, ttiougu absolute on the lacu- of it, is a mortgage ; and any agreement, on a sub- sequent event, to change its nature, is void. Henry v. Davis, 7 Johns. Ch. 40, 2: 813 19. H, having a bond and mortgage executed to him by D for 81,065, assign ml them over tx) C torse- curing the sum of $225. The assignment was abso- lute ; but C gave H a writing, promising to reassign the bond and mortgage to him, on his pas Ing the $225 with interest, on a day specilled. Notice of the assignment, and of its being intended as security merely for the 8225, was given to D, and that he must pay no more to C. D and C afterwards set- tled, and canceled the mortgage, on D's paying part of the money ^nd giving to C a new security for the residue. Held, that the canceling of the mort- gage was fraudulent, and C was decreed to pay the balance, after deducting the 8225 and interest, tr< ^. Ibid. 20. Where a debtor conveyed his farm to his credi- tor for the amount of his debt, which was about the value of the farm, by an absolute deed with cove- nants of warranty, and the creditor gave up and discharged the securities which beheld for his debt, and on the same day gave to the grantor a writing to the efTect that if such grantor could find a pur- chaser for the farm within one year, he should bo entitled to all the surplus which he could obtain for the same beyond the amount of the debt for which It had been conveyed, and the interest thereon,— Held, that the writing thus given was not such a de- feasance of the conveyance as necessarily to con- stitute it a mortgage, even if it was given at the time of the execution of the deed and in pursuance of a previous agreement to that elfect. Holmes v. Grant, 8 Paige Ch. 243, 4: 415 21. As a general rule, where a contract and con* veyaace are made upon a negotiation tor the loan of money, a court of equity will construe the con- veyance to be a mortgage, whatever may be the form of the contract, if the person to whom the ap- Elication for the loan is made agrees to receive back is money with legal interest, or a larger amount, within a specified time thereafter, and to reconvej the property,— where it is apparent that the real MORTGAGE, I. c, d. 381 transaction was a loan of money. And gross inad- -equacy of price is always a strong circumstance in favor of the supposition that a sale of the property 'Was not intended. Ibid. 32. Where a sale is made with an agreement for ■a repurchase wiihin a spect ' ■ nremises and received the income thereof, feept down the interest upon the prior mortgage, and paid the taxes ; but the income was InsufBciiii. tor that purpose. On a bill filed by P, praying thai the balance due to him upon his own bond and mort- gage, and the interest which he had paid upon tin prior bond and mortgage beyond the income of th' premises, might be ascertained; that the premisi'* XDight be sold ; that he might be i>ermitted to bid ii the sale, for the protection of his rlgbts, etc., and might be permitted to enforce his former decree for the deficiency,— HeW, that, taking the whole trans- action together, it must be considered merely as a further security of the debt due to P, and that the interest of P in the premises was in the nature of a mortgage merely. Parsons v. Mumford, 3 Barb. Ch. 152, 5: 853 28. Held, also, that P's interest in the premises was subject to an equity of redemption in M, and was not strictly a trust which could enable P to convey a good title to a purchaser who was ac- quainted with the facts of the case. Ibid c. Execution and Delivery, 29. The acknowledgment of a mortgage is pre- sumptive evidence of the execution and delivery of the mortgage at or before the date of such ac- knowledgment, which may be rebutted by proof that the mortgage actually remained in the posses- sion and under the control of the mortgagor subse- quent to that time. Wyekoff v. Bemsen, U Paige Ch. 564, 5: 236 30. A mortgage attested by a witness who was previously unacquainted with the grantor is not an unattested conveyance within the meaning of 1 Eev. Stat. 738, 8 137. Goodfiue V. Beirien, 2 Sandf. Ch. 630, 7: 734 d. Validity and Construction Oenerally;. Description. 31. Where a mortgage is taken by a corporation whose cuarter einponcrs ic Lu luivc inui (.is..rit& », itu interest to be payable annually, the regulation as to payment of interest is to be deemed a part of the contract. Farmers Loan & T. Co. v. Perry, 3 Sandf. Ch. 339, 7: 875 32. Where a corporation with power to take mort- gages with interest payable yvariy takes a mort- gage m July with interest pa5-able on the first day of November in each year, the words " first day of November" will be rejected as surplusage. ibid. 83. One who executes a bond and mortgage to an- U...ur VVllllUUL V-Uili-iUt-itn-iUu, \iL ,<..l...Ci I.WC tialiju III the hands of the latti'r for a particular purpose which is not accomplished, will become liable to pay the mortgage debt to a stranger who advances mon- ey or property upon it, it he does any act from ■wuich sucu stranger is authorized to infer that the securities are valid. Day V. Perkins, 2 Sandf. Ch. 859, 7: 625 34. A bond and mortgage were executed by three persons to C on a leasehold property, the principal value of which consisted in a white-lead manufac- tory, with steam-engine, machinery, and other fix- tures, with which those persons conducted business together. The premises were insured in the names of two of them, P and T. The three deposited the bond and mortgage with C for him to raise money in their behalf. C gave no consideration for the bond and mortgage. Being unable to raise the money, C some months afterwards delivered them to D as security for a loan of stocks made to him thereon. The stocks not being replaced when due. D called on P and T to assign to him the policy of insurance, which they did, without questioning his right to the securities. Held, that this was evidence of a loan of the bond and mortgage to C, and the consideration paid to him by D was sufficient to support them against the mortgagors. Ibid. 35. A mortgage, after describing the premises, contained an exception of such village lots as hays been or may be laid out by the mortgagor, within certain limits, so that the whole of the lots do not exceed 50 acres. The mortgage was recorded Oct. Ill, 1817, and April 29, 1820, the mortgagor released to the mortgagee his right in the exception beyond 10 acres in extent, or any buildings erected thereon, (^n a bill for a foreclosure, a creditor having a i udg- inent against the mortgagor, of April 35, IsM, claimed the whole 50 acres as excepted from the mortgage. Held, that the 50 acres were included m the mortgage, subject to the election and appro- priation of the mortgagor, who was bound to m^e Ills election within a reasonable time ; and It hia light was not exercised before the commencement (if the suit, he must be deemed to have waived the exception. Albany Ins. Co. v. Lansing, 7 Johns. Ch. 143, 2:248 332 MORTGAGE, I. e, II. a. 36. And the master, in such case, was directed to ascertain what Tillage lots had been laid out by the mortgagor before the commencement of the Suit, and to exempt them from the sale, provided that they did not include more than 10 acres, or any buildings, etc. IMd. e. Debt Secured. 37. The expense of insurance against fire is not a charge upon mortgaged premises, unless by ex- press agreement of the mortgagor or the owner of Faure v." Winane, Hopk. C!h. 283, B: 482 38. But it seems that taxes are a regular charge, and, tf paid by the mortgagee, may be included in the master's report of the amount due. Ibid. 39. A prior mortgagee is not allowed to enlarge his demand bey oil u wjiat appears on the recoru, m consequence of a separate agreement between him and the mortgagor, to the prejudice of a second mortgagee who had no notice or information, at the time he took his mortgage, of such agreement between the first mortgagee and mortgagor, by which the former claimed interest, when, on the face of the bond and mortgage, no interest was payable. St. Andrew's Church v. Tompkins, 7 Johns. Ch. 14, 9: SOS 40. A mortgage was executed to secure sundry lia- bilities incurred for the accommodation of the mortgagor. It recited the execution of his bond of the same date and tenor with the mortgage, but no such bond was ever delivered. The mortgage was nevertheless held to be valid. Ooodhue v. Berrien, 2 Sandf. Ch. 630, 7: 734 41. Where a debt is secured by a bond and mort- gage, the mortgagee has a lien upon the land for the whole amount of the principal and interest due, according to the condition of the mortgage, al- though such amount exceeds the penalty of the bond. Mower v. Kip, 6 Paige Ch. 88, 3: 910 42. A mortgage for a debt may be held as security for further loans, if there is no intervening right. James v. Johnson, 6 Johns. Ch. 417, 8: 169 43. Although mortgages were designed to secure future advances which are expected to be made up- on the bonds, they are nevertheless valid. Barry v. Merchants Exchange Co. 1 Sandf. Ch. 280, 7: 389 44.A mortgage to secure future advances is valid. It is not necessary that such a mortgage should ex- press that object on its face. It suffices that the extent of the intended lien be clearly defined. But the omission to state the object renders the mor1> gage liable to suspicion, and Imposes upon the mortgagee stricter proof of the payment of the consideration. Craig v. Tappin, 2 Sandf. Ch . 78, 7:515 45. The policy of the registry laws does not affect the question of its validity in this respect. Ibid. 46. A mortgage or a judgment may be given to secure future uuvances, or as a general secm-ity lor balances which shall be due from time to time from the mortgagor or judgment debtor. Ultoi Bonft V. FJncft, 3 Barb. Ch. 293, 5:906 47. This security for future advances may be taken in the form of a mortgage or judgment lor a specific sum of money sutflciently large to cover the amount of the floating debt intended to be secured thereby. IbUi. 48. Where a bond and mortgage are actually given iO secure a particular debt mentioned therein, the mortgagee cannot, as against subsequent purchas- ers or incumbrancers, hold the mortgage as a lien for an entirely distinct and separate debt, upon parol proof that It was intended to cover that debt also. Ibid. 49. Where the mortgage is given to secure a par- ticular debt, with a coudition to be void upon the payment of that debt, the mortgagee does not lose his security by the mere extension of the time of payment, although that extension is in the form of a renewal of the note which was given as a collat- eral security for the payment of the same debt, where it was not the intention of either party to discharge the mortgage security by such renewal of the note. Ibid. n. Pbioritt; Notiob. a. As to Other Mortgages. See also Ebal Pbopektt, II. 50. Where a trustee who had two sums of mone}> belonging to dilferent cestuin (jue trust loaned both Rums to one person at the same time, and took sepa- rate mortgages upon the same premises, to secure the payment of the moneys loaned, and without intending to give a priority to either mortgage,— Held, that the cestuis que trust were entitled to be paid ratably out of the proceeds of the sale of the taortgaged premises, the amount of such proceeds not being sulBcient to pay both, although one of the mortgages happened to be received by the clerk, to be recorded, a short time previous to the other. Rhnades v. Canfleld, 8 Paige Ch. 545, 4i 636 S. 0. 1 Ch. Sent. 1, 6: 1051 51. Where two mortgages upon the same property are given simultaneously to diff*jrent persons, and without any intention to give a preference to either* and each mortgagee is aware of the giving of the other mortgage at the time he receives his own, nei- ther of them is entitled to a preference in payment, under the Becording Act, although one of them pro- cures his mortgage to be first recorded. Ibid. 52. But it seems that if the mortgage first record- c IV. Vendee of Mobtgaoor ; Assumption off Debt. 96. Where land is conveyed subject to a mortgage for which the grantor is persoiuiiiy iiai/ie, am. ..u deed declares that the grantee is to pay the mort- gage asa iiart of his purchase money, he is liable to. the grantor for the amount of the mortgage, as the same becomes due, in an action of assumpsit. Bawson v. Copland, Z Sandf . Ch. 251, 7: 68» 97. One who purchases and takes a conveyance o^ land subject to a moitgage thereon, without any agreement on his part to pay off and discharge the mortgage, only takes the land subject to the charge thereon; the mortgagee cannot have any iicrsonat claim against him lor the deficiency, unkss he has made an agreement to pay the mortgage debt, either- with the mortgagee himself or with someone who- is legal tv or equitably bound to pay the same. Peabody v. Thomas, 4 Ch. Sent. 9, S: 1137 98. Where one purchases land which is subject to a bond and mortgage executed by his grantor, an* in his deed assumes and agrees to pay the mortgage, he is liable to his grantor to pay the same as a part of the price or consideration of the land. Blyer v. Monholland, 2 Sandf. Ch. 478, 7: 669- 99. If the purchaser of mortgaged premises agrees with the mortgagor to pay oft' and discharge tho- mortgage thereon, for the protection and indemni- ty of the mortgagor, the mortgagee is in eq uity en- titled to the benefit of such agreement. And sucl» agreement is within tho equity of the provision of the Bevised Statutes which authorizes the court of chancery, in a foreclosure suit, to make a decree- over for the deficiency against a third person who If ".'hie for ^bp nnv*n"nr nt tt"' mortgage del't. Halsey v. Beed, 9 Paige Ch. 446, 4: 769- Blyer v. MonhoVand, 2 Sandf. Ch. 478, 7: 669- Marsh v. Pike, 10 Paige Ch. 595, 4: 1104 100. Where the mortgagor sells the mortgaged, premises to a third person, who promises to pay oflC the bond and mortgage and to indemnify him, such mortgagor cannot compel the mortgagee to file a- bill against such third person to foreclose the- mortgage and to compel the latter to pay the de- ficiency. Marsh v. Pike, 10 Paige Ch. 595, 4: 110* 101. But such mortgagor may file a bill i n chancery MORTGAGE, V. a. 83& aealnst the mortgra? ee and the subsequent grantee who has assumed to pay the debt, to have the debt paid to the mortgagee,by such grantee, or from the proceeds of a sale of the mortgaged premises^ Jbid 102. Where a purchaser assumes a mortgage as part of the purchase price of the property, the premises muse be Srst resorted to for the payment of the mortgage, and the purchaser's personal estate is only liable for the deficiency. HaZseK y. Heed, 9 Paige Ch. 116, 4: 769 103. One who purchases subject to an outstanding mortgage is precluded from setting up its inyalidity In the hands of its owners, and on any ground then existing. Waia V. Chapman, i Sandf. Ch. 312, 7: 1115 104. The grantee of the equity of redemption took a conveyance subject to a mortgage. Held, tuat she was not thereby precluded from availing herself of any valid defeasance of the mortgage, or showiug that the debt was partly paid. Ruasell v. Kinney, I Sandf. Ch. 34, 7: 228 105. One who purchases land subject to two mort- gages, and assumes the payment of both, cannot, by a purchase under a foreclosure of the elder mort- gage, cut off the lien o( the second mortgage; and the latter will be enforced notwithstanding the de- cree of foreclosure under the first moiigage. Hilton V. Bissell, 1 Sandf. Ch. 407, 7:377 106. A mortgagee whose lien was upon several lots of land which, subsequently to his mortgage, were conveyed to various purchasers, released a part of the lots from his mortgage, without any notice of such conveyances, either actual or constructive. Beld, that the lots not released were subject to the whole amount of the mortgage. Stuyvenant r. Hone, 1 Sandf. Ch. 419, 7: 381 107. A mortgage being a specific lien upon the mort- gaged premises, if such premises are sold under a prior judgment the lien of the mortgage attaches upon the surplus moneys in the hands of the sberiO!, wno has no right to pay such moneys to the mort- Sagor; and if the purchaser is permitted to retain the surplus in satisfaction of an antecedent debt due from the mortgagor, he takes it subject to the specific lien of the mortgagee, although he has had neither actual nor constructive notice of the mort- gage. BarOett v. Oale, I Paige Ch. 503, 3: 633 108. Where the complainant had a mortgage upon the lana of U for S1,50U, which land was previouijiy incumbered by two judgments, and another mort- gage which was prior to the judgments, and J Q, with full knowledge of the several incumbrances, purchased the land under an execution Issued upon the junior judgment, and bid therefor $2,000 more than the amount of such judgment, but much less than the real value of the land, and, instead of pay- ing the surplus money to the sheriff, retained it in satisfaction of other claims against the mortgagor, who was the defendant in the execution, and took from him a discharge to the sheriff for such sur- plus, and thereupon received the sheriff's deed for the land,— He/ gaged premises. King v. WhiUy, 10 Paige Ch. 465, 4: 1058 113. He!d,oJso,that if the grantor in the conveyance had been personally liable to the holder of the mortgage for the payment of the mortgage debt, the holder of such mortgage would in equity hav& been entitled to the benefit of the agreement re- cited in such conve3-ance to pay off the mortgage^ and would in that case have been entitled to a de- cree over against such grantees for the deficiency. Ibid. 113. Where the owner of land subject to a mort- gage sold a portion of it, and the granteeassumed the payment of the bond and mortgage as part of th& purchase money, such owner could not recover the amount thereof from the executors of the gran- tee before he had paid the same to the mortgagee. Haieey v. Beed,9 Paige Ch.446, 4: 76» V. Assignment. a. Sufficiency; Validity. 114. It Is not a valid objection to an assignment of a bond and mortgage, especially in a court of equity, that the assignee is not described therein by name. It is sufilcient if the assignment is made to a person in a particular character sustained by him, provided the description identifies the as- signee with as much certainty a£ if he had been de- scribed by name. iMdy Superior, etc. v. McNamara, 3 Barb. Ch. 375- 6:939 115. Where the payee of a bond and mortgage given for the benefit of a third person has eoiisented be- forehand to take such bond and mortgage for the purpose of assigning them to the person whose debt is intended to be secured thereby, it is not necessary that any particular formality should be observed in delivering the Instruments and obtaining his assign- ment thereof. ItM. 116. The delivery of the assignment to the mort- gagor for the benefit of the assignee is also a good delivery of the assignment to the latter by the mort- gagee. And the bringing of a suit by the assignee to foreclose the mortgage, as such assignee there^ of, is an assent to the assignment, and relates back to the time when such assignment was delivered to the mortgagor for the benefit of the real party for whose security the mortgage was given. Ibid. 117. Where G and W, the one by the purchase of a mortgage, and the other by the purchase of the equity of redemption, became possessed of the whole estate, and leased it to C for a term of years, and G afterwards assigned the mortgage with no- tice of the term,- Held, that the assignment was not a fraud on C, the lessee ; and though the property was art^rwards sold on a bill of foreclosure filed by the assignee of the mortgage, and the terms thereby merged in the inheritance, yet, as C himself became the purchaser at the sale under the decree, he there- by waived all right, if any he had, to relief for any damage he may have sustained by the loss of his term. Che$terman v. Gardner, 5 Johns. Ch. 29, 1: 99 336 MORTGAGE, V. b, c. 118. Where a person obtained the assignment of a t)ond and mortgage, from the owner thereof, by false pretenses amounting, notonlytoa gross fraud, but also to a felony, and transferred the same to a third person for less than their value, and under -circumstances calculated to put the latter upon in- <)ulry, no title passed to the purchaser under the «S8iH:nment. Peabody t. Fenton, 3 Barb. Ch. ISl, 6: 968 b. Bights of Assignee. 119. The assignees of a mortgage take it subject to outstanding equities. Vanderhetmp v. Shelton, Clarke Clh. 331, 7: 131 Pitcher v. Carter, i Sandf. Ch. 1, 1: 1001 Ktc/iv.Cot/ieaJ,2Sandf. Ch. 29, 7:495 WiUiams v. Thorn, 11 Paige Ch. 459, 6: 198 Ettiis V. Messervie, 11 Paige Ch. 467, 5: 200 J20. If a mortgage while in the hands of the mortgagee is not a valid lien on the property, it will not be valid in the hands of the assignee of «uch mortgage. PendJeton V. Fay, 2 Paige Ch. 202, 8:874 121. The assignee of a bond and mortgage, al- though for full value without notice, takes them subject to all the equities which existed against them in the hands of the mortgagee. EUia V. Messervie, 11 Paige Ch. 487, 5: 800 122. If void in the hands of the mortgagee, they will be void in the hands of the assignee. Ibid. 123. The holder of a mortgage who has been guilty of a fraudulent concealmeut which deprives liiin. In equity, of the right to enforce the lien of his mortgage against the mortgaired premises in the hands of a purchaser from the mortgagor, cannot by a subsequent assignment of the mortgage givf) to the assignee a right to enforce such lien. L^Amourevx v. Vandenbwrgh, 7 Paige Ch. 316, 4:171 124. Where a mortgage is brought into an attorney's oiUce for collection, and subsequently purchased by bis clerk, with his knowledge, by means of worthless post-notes, and he subsequently purchas- es the same from the clerk for less than its value, he is not a bona fide purchaser, and can transfer no title which will prevail over the mortgagee's equity to have the mortgage restored to him. PoilZon V. Marfire, 1 Sandf . Ch. 569, 7:437 125. Where a creditor, having a judgment lien upon property, agreed with the vendor and purchaser to relinquish it, and take an assignment of the mort- gage given for the purchase money in lieu thereof, he is entitled to satisfaction out of the mortgaged premises, to the extent of his judgment lien, in preference to an equitable claim of set-off In behalf of the mortgagor, which has subsequently arisen. Smith V. Smith, 1 Paige Ch. 391, 2: 689 126. Where one transfers his interest in lands by an absolute conveyance, but in fact as security for a debt, which fact is stated in a written defeasance which authorizes the creditor to sell the lands to pay the debt, and the creditor afterwards sells his interest in the land to a trustee of the grantor, the gurchaser can only hold it for the amount paid by im. and interest, although it is less than the whole amount of the debt. Qwickeribush v. Leonard, 9 Paige Ch. 334, 4: 782 127. Where the purchaser of a bond and mortgage obtained from the owner thereof by fraud and felony pays for such s( ourities less than the amount actually due thereon, if he is entitled to protection as a bona fide purchaser without notice, he will not, in equity, be permitted to retain the bond and mortgage for the full amount due thereon, but only for the amount which he paid for them. Peabody v. Fenton, 3 Barb. Ch. 451, 6: 968 128. S, a simple-contract creditor of M, arranged with M and a surety of M on sundry debts, to whom M. Had given a mortgage as security, that M should discharge part of the mortgagee's liabilities and S the residue, upon which the mortgage was to be as- ^ned to S; and the arrangement was consummated. Held, that S could not enforce the mortgage for any more than he advanced, against a judgment docketed against Af before the assignment. Yelverton v. Shelden. 2 Sandf. Ch. 481, 7: 670 129. In respect of the judgment, the mortgage was discharged to the extent of the liabilities of the mortgagee which were paid by M. Ibid. 130. Another debt could not be substituted and eecured by the mortgage, in lieu of the extin- guished liabilities, so as to give It priority over the judgment. Ibtd. 131. If premises held as security for the payment of money are conveyed to one having knowledge of the facts, he obtains no greater interest therein than his assignor had; and a mortgage back to secure the purchase money will be a lien upon the premises only to the extent of the amount which they were originally transferred to secure. In such case the rents and profits received by the mortgagee in possession will be applied to reduce the amount of the debt and interest, after deducting necessary expenses for repairs, insurance, and taxes. Williams v. Thorn, 11 Paige Ch. 459, 6: 198 132. Where a mortgagor applied to a third person for an advance of money to enable him to take up his mortgage, promising to give him the same se- curity for such money as the mortgagee then held, and upon receiving the money paid it to the mort- gagee and took ai. assignment of the mortgage from him to such third person, — Heltl, that the mortgage was not discharged, and that the assignee was enti- tled to hold the same as a security for the money thus advanced. WTiite V. Knapp, 8 Paige Ch. 173, 4: 380 133. Where persons purchased a bond and mortgage originally given to secure the payment of $8,000, and upon which the sum of 82,000 and the annual interest had been paid, they paying therefor only three fourths of their actual value, in unsalable goods at 40 per cent above their market price, and out of the usual course of business,— Held, that the facts were sufficient to put the purchasers upon in- quiry as to the ownership of the bond and mort- gage. Peabody v. Fenton, 3 Barb. Ch. 451, 5: 968 134. Where two successive mortgages were exe- cuted to a married woman, on premises in which she had a right of dower, and were afterwards as- signed by her and her husband to the trustee of her separate estate, previous to which, and before the second mortgage was given, she and her husband entered into possession of the premises and con- tinued in possession until the trustee proceeded to foreclose the mortgage,— Held (1) that the husband, before the assignment, was the mortgagee ;^rema- riti, and thus became mortgagee In possession; (2) that no notice of the assignment being given to the owner of the equity of redemption, the laii. was entitled to treat the husband as mortgagee ii. possession, during the whole period; (3) that the clear rents and profits which the husband received, or ought to have received, must be applied to the reduction of the mortgage debt. _ „„„ Hanley V. CoTTOll, 3 Sandf . Ch. 301, 7:860 135. An assignment of a mortgage as security for a debt, by a mortgagee in possession. Is evidence that the mortgage is redeemable. Borst V. Boyd, 3 Sandf. Ch. 501, 7:935 V. Notice. 136. All dealings with a mortgagee, before notice of an assignment by him, are vadd. James v. Johnson, 6 Johns. Ch. 417, 2: 169 137. A secret assignment of a mortgage, by a mortgagee who has purchased the equity of re- demption, will not affect a subsequent purchaser. Ibid. 138. The assignee of a bond and mortgage must give notice of the assignment to the mortgagor, if he wishes to protect himself against a bona ,^de pay- ment by the latter to the assignor or his authorized agent. Beed v. Marble, 10 Paige Ch. 409, 4: 1031 S. 0. 3 Ch. Sent. 90, 5: 1189 139. The mere recording of the assignment of a mortgage is not of itself legal notice to the mort- gagor of such assignment, so as to invalidate a pay- ment made by him or his heirs or representatives to the assignor. New York L. Ins. & T. Co. v. Smith, 2 Barb. Ch. 82, 5: 665 S. 0. 6 Ch. Sent. 51, 5: 1810 140. The recording of the assignment of a mort- gage is only coustructi ve notice of such assignment, as against persons claiming by virtue of some subse- quent assignment or conveyance from the mort- gagee or assignor of the mortgage, or his represen- tatives. Ibid. 141. An assignee of a junior mortgage assigns such MORTGAGE, VI. a. 837 mortgage to a third person, with a covenant of guaranty as to the collection. A senior mortgage tipon the same premises is afterwards foreclosed in chancery, and a sale ordered. Upon the sale the as- signee who assigned with covenant of guaranty becomes the purchaser. The subsequent assignee of the junior mortgage afterwards flies a bill to foreclose his Junior mortgage. Held, that the land was liable to the paymentoE such Junior mortgage, inasmuch as the assignor with guaranty had become *he purchaser, and his guaranty enured for the t>eneflt of the junior mortgagee; and all the assign- ments of the mortgage having been recorded, sub- sequent purchasers or owners of subsequent equi- ties take them subject to the rights of the assignees. Vanderkemp v. Shetton, Clarke Ch. 331, 1: 131 s VI. Satisfaction; Dischabqe; Release. a. OeneraUy. 142. It is an established rule, both at law and in ■equity, that a mortgage is not evidence of a subsist- ing title or interest in the mortgagee, if he has Dever entered under his mortgage, and no interest :faas been paid, or demanded thereon, lor more ■than twenty years. IMnhaiii V. lUoiMi-d, i Paige Oh. 441, 3: 506 143. Although a mortgage may have been paid,yet, ■on a valuable consideration, it may be kept alive for other purposes where the rights of creditors ^nd third persons have not intervened; but, although the mortgagor and mortgagee, after payment, may thus resuscitate it as between themselves, yet an as- signment of it, after another mortgage by the same mortgagor is executed and recorded, will not ■override the latter. Nor will it have that effect as against an assignment for creditors (by the same mortgagee) also executed and recorded prior to ■such assignment of the resuscitated mortgage. Here is something tantamount to notice and more 'than a latent equity. Pwraer v. Anderson, 4 Edw. Ch. 17, 6: 783 144. Where a mortgagor, for his own advantage, 'et in good faith, procures satisfaction pieces from lis mortgagees and cancels the mortgages without ■paying the mortgage moneys, and does so upon an understanding that he is to give new mortgages, but dies before accomplishing it, and his heirs give «uoh new mortgages,— 2feid, that they should have the same elfect as the old securities, subject to in- 'tervening rights; and that the United States was not entitled to come in for the amount of duties se- ■cured upon bonds afterwards given by the deceased imortgagor ratably with the mortsagees. United States v. OroolaihanH, 1 Edw. Ch. 333, 6:131 145. Where one refused to receive a partial pay- ment on a mortgage as a payment to stop interest, "but did receive it as a deposit, upon the understand- ing that he should not allow interest on it, and used -the deposit as his own, the mortgagor was equi- tably entitled to have the money applied as a pay- Tnent on his mortgage as of the time it was so received and used. Toll V. Hiller, 11 Paige Ch. 328, 5:117 146. The discharge of a mortgage does not operate as a discharge of a decree of foreclosure thereon, except as against a hona fide purchaser who might have been deceived thereby. Benwick v. Macomb, 1 Oh. Sent. 61, 5: 1009 147. The release of a debt which is secured by a mortgage may discharge the lien of the mortgage upon the land. But where the debt is secured by the personal obligation of the mortgagor, as well as by a mortgage upon land, the debt will still ex- ist as a valid claim against the land, although the ■creditor consents to discharge the personal liability of his debtor, and to look to the land alone upon which the debt is a lien, for the payment thereof. Tripp V. Vincent. 3 Barb. Ch. 6X3, 5: 1 030 S. 6.6 Ch. Sent. 63, 6: 1187 14S. Whether the debt itself was intended to be dis- charged, or only the personal liability of the debtor. is in such cases a question of fact arising either from extrinsic circumstances, or upon the construction of the instrument which is claimed to be a discharge of the debt. IMJ 149. After the mortgagor's conveyance of mort- gaged premises to a purchaser, subject to the pay- ment of the mortgage by the latter, releasing the personal liability of the mortgagor, who in equity is then only secondarily liable, leaves the mortgage in full force against the land, in.thesaine manner Ch. Dig. a-i as if the mortgagor had been discharged from his personal liability under the bankrupt Act. Ibid. 150. If a mortgagee of premises which, subsequent to the date ot Uis mortKUge, have been sold to dif- ferent purchasers in parcels or incumbered, with full notice of the equitable rights of the subsequent purchasers or incumbrancers as between them- selves, releases a part of the mortgaged premises, which in equity is primarily liable for the payment of his debt, he will not be permitted to enfprce the lien of his mortgage against other portions of the premises, without first deducting the value of that part of the premises which has been released by him. Stuwesant v. Hall, 2 Barb. Ch. 151, 5: 59a 151. As a release to a subsequent purchaser of one parcel of the land is not a technical discharge of the lands previously conveyed from the lien of the incumbrance, it is not an equitable release except in those cases where upon the principles of natural justice and equity it ought to thus operate against the releasor. Patty V. Pease, 8 Paige Ch. 277, 4: 488 152. Where a mortgagee whose mortgage is a lien upon two parcels of land subsequently conveyed by the iriortgagor to different purchasers releases the piece last conveyed from the lien of his mort- gage, without any notice.either actual or construct- ive, that the other patcel had been previously sold by the mortgagor, he does not thereby discharge the parcel not released. Ibid. 153. Where a mortgagor sold the mortgaged lands to M, who assumed the mortgage debt, and M sold them to T, who also assumed the mortgage, and M was then compelled by the original debtor, for his Indemnity, to pay to the creditor the amount of the mortgage,— Ifeld, that M could foreclose the mortgage against T and the lands mortgaged. McLean v. Towle, 3 Sandf. Ch. 117, 7: 793 154. Where M, who was liable for a mortgage debt, sold the land to one who assumed the debt, and M was afterwards compelled to pay it,— Held, that be could proceed to foreclose the mortgage for his in- demnity, and that his right to foreclose was perfect without an assignment ot the bond and mortgage; and an agreement by M to forbear collection on re- ceiving such assignment was without consideration and invalid. Ibid. 155. In equity a mortgage is not extinguished by payment of the mortgage debt by a surety. Ibid. 156. Where a creditor of N held as his security for a specific debt a mortgage of N against H, which by an agreement between themselves N was bound to discharge, payment made by N on the specific debt operates as a discharge of so much of H's mort- gage. New York L. Ins. & T. Co. v. Howard, 2 Sandf. Ch. 183, 7: 657 157. N absconded, and the creditor obtained some security from him, though far less than his other debts. H Is not entitled to participate in the bene- fit of such security to reduce his mortgage. Ibid. 158. A mortgagor, and one to whom he had subse- quently conveyed part of the lots mortgaged sub- ject to a portion of the debt, applied to a banker to advance money to satisfy the mortgagee. The banker made the advance, on such grantee of part of the lots agreeing to take an assignment of the mortgage for his benefit and security, as against the lots remaming in the mortgagor, half the sum requisite to satisfy the mortgagee being furnished at the time, ostensibly by the grantee. Payment was made to the mortgagee, who assigned the mort- gage to the grantee; and he soon after canceled it ot record, without the assent or knowledge of the banker. Held, that the transfer for the benefit of the latter was valid, and the subsequent discharge of the same was void, and that he could reinstate the mortgage, and foreclose it against the lots still owned by the mortgagor, and against a second mortgagee of the same, whose lien was prior to the oancelment, but subsequent to the flrst-mentloned mortgage. King v. McVlckar, 3 Sandf. Ch. 192, 7: 881 159. A creditor taking from his debtor, in com- J)romise and satisfaction, a conveyance of land sub- eot to a mortgage thereon, ceases to be a creditor, and becomes a purchaser of such land; and he can- not compel the debtor to pay the mortgage. Brewer v. Staples, 3 Sandf. Ch. 579, 7: 964 160. When a mortgagee who bad taken a mortgage from his son encouraged a purchaser to purchase 338 MOETGAGE, VI. b, c. the mortgaged premises, and said his sou would ar- range about the mortgage, and left the mortgage with his son; and the sou sold to the purchaser, au^- delivered to him the mortgage aa satisfied, but it was afterwards handed to the eon to enable him to procure a legal discharge from thii father, and the mortgage was destroyed by flre, before such dis- charge was procured,— HeW, that the mortgage could not be enforced by the administratrix of the father after his death, as against the purchaser. Ourtiss V. THpp, Clarke Ch. 318, 7: 130 161. The wife of J W, being seised of lands, joined him in executing three several mortgages to secure his bonds for money lent. Before his death, his at- torney, with means furnished by him, paid the mort- gagees and took an assignment of the bonds and mortgages to S, who soon after gave J W a certifi- cate that he lield them in trust for J W and subject to his order and control. Held, that after the assign- ment and certificate the securities belonged to him in equity, and the lands were thereby discharged from the lien of the mortgages. MtcTiv. Cof/iMl,2Sandf. Ch. 29, 7:495 162. Held, aJso, that one who subsequently pur- chased the mortgages of S in good faith and with- out notice could not enforce them against the widow of J W and her heirs. Ibid. b. Discharge or CancellaHon of Record. 163. A mortgage executed to the clerk of a court for money arising from the sale of lands in parti- tion, invested by him, cannot be discharged with- out an order of the court entered in its minutes. Walworth v. Farmers Loan & T. Co. i Sandf . Ch. 51, 7: 1019 164. Asatisffiction nifop acknowledged by one of several executors Is sufficient to discharge a mort- gage given to the testator, and to authorize the oan- celment of the registry of such mortgage. Stuyveount. \ . ^ j^.., « Lim'u. (Jli. lul, 5: 593 165. Whether a purchase of the equity of redemp- tion to a part of the mortgaged premises, by a mortgagee, will extinguish the mortgage as to the whole,— guosre. James v. Johnson, 6 Johns. Ch. 417, 2: 169 166. Where a mortgagee, having received an equi- table satisfaction of his mortgage, afterwards at- tempts to set it up as a subsisting lien upon the mortgaged premises, satisfaction of the mortgage may be decreed, so that it may be canceled on the record of mortgages. Kellogg v. Wood, 4 Paige Ch. 578, 3: 568 167. Where, on a sale of mortgaged premises un- der a aecree, the bond is lully paid, the obligor is entitled to have the bond and mortgage delivered up to him and canceled. Be Coster, 2 Johns. Ch. 503, 1 : 466 168. The obligee or purchaser of the mortgaged premises is not entitled to retain them In his hands lor his own convenience, or for greater security of bis title under the decree without the assent of the obligor. Ibui. 169. But a third person who pays off mortgage debts for his own security may be substituted in the place of the mortgagor or obligor, and retain the bond and jnortgage. Ibid. 170. The statute regulating the entry of mortgage discharges is to be read in connection with the co- temporary enactment in the Partition Act, and quaufled accordingly. Walworth v. Faimers L. other person whose equity of redemption is already barred, a party to the suit. _ _ _ „ Benedict V. &awwxn, 4 Paige Ch. 58, 3:340 209. In a suit to foreclose the equity of redemption of a judgment creditor after a statute foreclosure, the court may order a sale of the premises, or may decree a strict foreclosure against the creditor, II he neglects to redeem. Tbid. 210. Second mortgagees who are not made parties to a suit to foreclust! a first mortgage may liiu lucu- bill to foreclose their mortgage, and are entitled to a decree of foreclosure and sale, although they do not redeem the premises from the sale under the decree in the formT suit. „ _„ Yanderkemp v. Shelton, 11 Paige Ch. 28, 5: 45 211. Where a mortgage is given by a husband and wife as executor and executrix to their coexecu- trix, to secure the payment of moneys of the estate received by the husband as executor, the wife, after her husband's death, cannot file a bill in her charac- ter of executrix against his personal representa- tives and heirs at law to foreclose such mortgage, where it does not appear from such bill that she is entitled to a portion of the fund secured by the mortgage ns a Ina-atee. for hT sole nnd separate i^'"' Lawrence v. Lawrence, 3 Barb. Ch. 71, 6: 821 213. If. in such a case, the wife had an Interest in the fund, and the coexecutrix to whom the mort^ fage was given, upon a proper application to her or that purpose, refuses to proceed to foreclose the mortgage, the widow of the mortgagor and the other legatees for whose benefit the mortgage was given may file a bill showing their respective rights in the fund, and claiming to have the benefit of such mortgage and of a foreclosure thereof, llii'l. 213. But in that case the mortgagee and all the leg- atees who are mterusteU in the tuud must be ujauc parties to the suit, or the bill must be filed by some of the legatees in behalf of themselves and of all others having an interest in the fund. Ibid. 214. Money was left by H. with M, under a parol request to put it out at interest and let It accumu- late until the youngest of certain children attained the age of twenty-one, when the same was to be di- vided amongst the survivors. M., fearing misfor- tunes in his business, executed his own bond and mortgage to these children. This transaction is not a mere loan of money, but a special deposit for in- vestment and accumulation. Money so deposited remains the property of H. and subject to her will; and as she afterwards bequeathed all her estate to the said children, with a reservation of the share of a party dying to such one's issue, and some of them died leaving children,— Kwcw/jeld thatabill of fore- closure and sale against them could not be sustained by the personal representatives of the parents who had left issue. Harrison v. HTMennomy, 2 Edw. Ch. 251, 6: 390 c. Parties. 1. OeneraUy. 215. Generally the proper parties to a suit for the foreclosure of a mortgage are the mortgagor and mortgagee, and those who have acquired rights and interests under them subsequent to the mort- gage. Western Reserve BariH ■v. Potter, Clarke Ch. 432, 7:163 216. Where there are several future and contingent interests in the equity of redemption in mortgaged premises, it is not necessary, in a bill of foreclosure, to make every person havmg a future and contin- gent interest m the premises a party to the bill of toreclosure ; but it is sufficient if tne person who has the first vested estate of Inheritance, and all other persons having or claiming prior rights or in- terests in the premises, are brought before the court. Nodine v. Oreenfleld, 1 Paige Ch. 544, 4: 867 217. To make a decree of foreclosure valid as against all claimants, the person who has the first estate of inheritance in the mortgaged premises. iinil the several intermediate remaindermen, must l)(' made parties to the bill. ibid. 218. Where the mortgagor of real estate devised the rents and profits to his wife for life, with re- mainder to the children of his brother, the children of the brother who were in ease at the time of filing the bill ought to have been made parties to a suit to foreclose the mortgage, or their equity of redemp- tion would not be barred by a sale under the decree. ibid. 219. As a general rule ceetuis que .trust must be made parlies where the equity of redemption to vested in a trustee for their benefit. Butwherethere are remote trust limitations, it suffices to bring be- fore the court the beneficiaries in esse who have the first estate of inheritance, together with those hav- ing the precedent estates and prior interests, and ' Viiiiamlm V. Field, 2 Sandf. Ch. 533, 7: 698 220.1n a suit to foreclose the equity of redemption in lands mortgaged and to sell the lands, aU persons having an interest in the equity of redemption should be made parties. Ibid. 221. This was held of persons having a vested equitable remainder in fee in the equity of redemp- tion, and that their rights were not affected or im- paired by a decree of foreclosure and sale in a suit to which they were not parties, although the trustee vested with the legal title was made a defendant ibid. 232. The fact that the trustee executed the mort. gage of the estate under the authority of the court of chancery, and with the sanction and Joint exe- cution of a master of the court, as prescribed in the order, was held not to excuse the omission to make the remaindermen parties. Ibid. 223. Asa general rule, it is suflicient to bring be- fore the court the first person m being who has a vt'Sted estate of inheritance, together with those claiming the prior intcrestjj and omittluijr those who MORTGAGE, VII. c, 2. 841 may cla!m In remainder or reversion after such vested estate of inheritance. A decree against tlie party having that estate of Inheritance will bind those in remainder or reversion, or who, in any way, come afterwards; and they have a right of appeal from a decree made against the person having the prior estate. But there must be a clear tenancy in tail to dispense with the necessity of a remainder- man being a party to a bill of foreclosure. If there be an express estate for life and it is doubtful whether the same person is also tenant in tail, the remainderman who has the first estate of inheri- tance ought to be a party. Eagle Fire Ins. Co. v. Cammet, 2 Edw. Ch. 127, 6: 336 224. M. C. mortgaged real estate, and died, after making his will. He thereby ^uve uii bis ruui uiiu personal estate to his widow until second marriage or death; then to his daughter Mary as long as she lived; and if she had no heirs at her death, ttien to go to the children of J. C. Held, that the daughter Mary had only a lite estate: and that on a bill of foreclosure, the children of J. C. ought to have been made parties. ibid. 225. A purchased a farm of a widow and several heirs. He executed simultaneous mortgages for the purchase money,— to the widow, for the inter- est of one third of the purchase money, payable annually during her lite; to each of the heirs for their proportionate share of the purchase money, payable in installments, with Interest, and for their Eroportionate share of the widow's interest after er death. All these mortgages covered the same farm, and were simultaneously executed. One of the heirs, upon default in his mortgage, files his bill against A and his mother and coheirs, to fore- close his mortgage. Dedded, that he cannot have a decree without the refusal of his mother and co- heirs to become parties with him; nor in any event unless the whole rights are set forth in the com- plaintint's bill. Potter V. CrandaTl, Clarke Ch. 119, 7: 68 226. Where the owner of a mortgage, after as- signing it and covenanting that the amount there- of was due and collectible, took the bond of athird person as further security for its payment, such third person was a proper party to a suit to fore- close the mortgage, to enable complainant to ob- tain a decree over against him for deficiency. Cwrtw V. TyUr, 9 Paige Ch. 432, 4: 768 227. The owner of the equity of redemption in the mortgaged pr< mises is a necessary party to a suit for the foreclosure of a mortgage; and where the mortgagor has conveyed his equity of redemption in the mortgaged premises to another, no suit in chancery can be iustltuted against the mortgragor, for the payment of the mortgage debt, without making the grantee of the equity of redemption a party. Beed v. McwbU, 10 Paige Ch. 409, 4: 1031 228. Although a person purchases premises subject to a mortgage, aud assumes (as between the seller who originally gave the mortgage and himself) the payment of the mortgage debt as a part of the pur- chase money, and afterwards conveys the premises to another in like manner subject to the mortgage, he is not a proper party to a bill of foreclosure; there is no sulBcient covenant or privity of con- tract between him and the holder of the mortgage to make him liable for any deficiency upon a sale. Lockiimod v. Benedict, 3 Edw. Ch. 472, 6: 729 229. A tenant of the morta-agor, or a person who has gone into possession of the mortgaged premises under the mortgagor subsequent to the mortgage, but before the commencement of the foreclosure suit, must be made a party to the suit to enable the court to turn him out of possession, by a writ of as- sistance, upon the application of the purchaser un- der the decree, although the tenant or person so in possession has no defense, and might be turned out of possession by an ejectment suit brought ajrninst him by the purchaser. Boynton v. Jackway, 10 Paige Ch. 307, 4: 988 230. The complainant in a foreclosure suit cannot make a person who claims the mortgaged premises adversely to both the mortgagor and the mortgagee a party defendant in such suit. Banks V. Walker, 3 Barb. Ch. 438, 5: 963 231. Upon a bill to foreclose a mortgage, the mort- gagee has no right to make a person whose claim is prior to the mortgage, and who claims the legal title to the premises adversely both to the mortgagor and mortgagee, a party to the suit, for the purpose of testing the validity of his legal title to the mort- gaged premises. Eagle Fire Co. v. iMit, 6 Paige Ch. 635, 3: 1133 2^. A bill by a mortgagee against the mortgagor, to foreclose a mortgage, and also against one who claims the land adversely to both, would be multi- farious. Banks V. Walker, 2 Sandf. Ch. 344, 7; 619 2. Mortgagors and Their Bepreaentatlves. 233. A mortgagor, where the equity of redemption has been solu by a sheriu unuer au execuiiou u,u law, has, by the Act of April 12, 1820 (Sess. 43, chap. 184), one year from the sale to redeem the land from the purchase; and therefore on a bill to fore- close, during the year, he ought to be made a party to the suit. iiaitL/i,rt V. Smith, 4 Johns. Ch. 649, 1: 968 234. The fact that the principal debtor is an ab- sentee, ana uas uboiKued all uia right and iutuivstiu the equity of redemption of the mortgaged prem- ises, is a sufBcient reason for not making him a party to the bill of foreclosure, even where his surety is made a party for the purpose of obtaining a decree over against such surety for a deficiency Bmlow v. Bmh, 6 Paige Ch. 343, 3: 1013 235. A mortgagor who is personally liable to the mortgagee lor tue payment of the debt secured by the mortgage, but who has parted with all his right and interest in the mortgaged premises, is a proper party but not a necessary party to a bill to foreclose the mortgage. ibid. 236. Where the mortgagor has conveyed the equity of redemption absolutely aud without warranty, the mortgaged premises are the primary fund for the payment of the mortgage debt; and the grantee has no right to object that the mortgagor is not made a party to the bill of foreclosure. IMd. 237. But where the complainant makes a mere surety of the mortgagor, ior the payment of the debt, a party to the bill of foreclosure, for the pur- pose of obtaining a decree against such surety or his property if the proceeds of the mortgaged premises are found to be insufficient to satisfy the debt and costs, such surety has a right to insist that the prin- cipal debtor shall be made a party to the suit, if he is within the jurisdiction of the court. Ibid. 238. S, a simple-contract creditor of M, arranged with M and a surety of M on sundry debts, to whom M had given a mortgage as security, that M should discharge part of the mortgagee's liabilities and S tlie residue, upon which the mortgage was to be as- signed to S; and the arrangement was consummat- ed. Held, that S could not enforce the mortgage for any more than he advanced, against a judgment docketed against M before the assignment. S hav- ing given up to M his note on receiving the assign- ment, expecting to collect his debt upon the mort- gage, and insisting upon such right,— Held, that M was a necessary party in a suit by the judgment creditor to redeem the mortgage. reJuertojiv. S?ieIder!,2Sandf. Ch.481, 7:670 239. It was also held that the mortgagee was not anecessary party to such suit. ibid. 240. Where, after the filing of a bill of foreclosure against a man and his wife, bankruptcy proceed- ings are instituted against the husband, the proper course for the complainant, after the decree in bankruptcy has been obtained, is to file a supple- mental Dill in the nature of a bill of revivor, to re- vive and continue the proceedings against the as- signee in banki'uptoy as the party upon whom the equity of redemption has been cast by operation of law. Johnxonv. Fitzhugh, 3 Barb. Ch. 360, 5: 933 241. Where a bill is filed against husband and wife, to foreclose a mortgage executed by them, but be- fore a decree is obtained in that suit the husliand is declared a bankrupt by the decree of the district court, the effect of that decree is to vest in the as- signee in bankruptcy the whole interest of both defendants in the mortgaged premises, except Iho inchoate right of dower of the wife in the equity of redemption. And unless the assignee in bankrupt- cy is made a party to the suit after the decree in bankruptcy, a decree of foreclosure subsequently obtained will be a nullity as to him, and will not forr- cloee his equity of redemption in the morrg- 1 premises. ibid 242. Where a mortgagor assigned all hispropcrty. 843 MORTGAGE, YU. c, 3—5. Including his equity of redemption m the mort- gaged premises, to the mortg:as'ee and another per- son as trustees for the benefit of theoreditors,— ijeid, that the proper way for the morfeag-ee to enforce his speciflo lien upon the mortfrag:ed premises was by a bill of foreclosure, and that his cotrustee was a necessary party to such bill; and that, the wife of the mortgagor having joined in the mortgage, the husband and wife were proper parties to the suit for the purpose of extinguishing her contingent right of dower in the mortgaged premises. Paton V. Murray, 6 Paige Ch. 474, 3: 1066 243. The complainant in a foreclosure suit cannot make tne heirs or devisees of a deceased mui-tgua"* or guarantor, who have no interest in the mort- gaged premises, parties to his bill for the purposi of obtaining a decree over for the deficiency, agains: the real estate of the decedent which has come tc tbem by descpTit or devise. Leonard v. Morris, 9 Paige Ch. 90, 4: 680 8. CI Ch. Sent. 31, 6: 1060 344. If the mortgagor or other party who is per- sonally liable for the deficiency in a foreclosure case is dead, his personal representatives may be made parties to the suit, to enable the complainant to obtain a decree that the deficiency be paid out of the estate in their hands In a due course of admin- istration. Ibid. 3. Mortgagees and Their Bepresentatlvei. 245. A mortgagee who has assigned a bond and mortgage to secure a loan made to ber is a neces- sary party In a suit commenced by the assignee to foreclose the mortgage, although the assignment is absolute in terms and expresses the payment of a full consideration. Kittle V. Van Dych, 1 Sandf. Ch. 76, 7: 846 246. A mortgagee who assigns the mortgage and guarantees the principal and interest is a. proper party in a foreclosure suit. Bristol V. Morgan, 3 Bdw. Ch. 142, 6: 608 247. Where the mortgagee aligns his bond and mortgage and guarantees the collection of the debt, the assignee may make him a party to the billot foreclosure, for the purpose of obtaining a decree over against him for the deficiency, in case the amount of such deficiency should not be collected from the mortgagor, who is primarily liable there- for. Leonard v. Morris, 9 Paige Ch. 90. 4: 620 S. 0. 1 Ch. Sent. SI, 6: 1060 248. Where a mortgage is assigned as a mere securi- ty for the payment of a debt, or where but a pait of the mortgage debt is assigned to the complainant, the assignor is a necessary party to a bill filed to foreclose such mortgage Christie v. Herrick, 1 Barb. Ch. 254, 6: 375 249. But where there is an absolute and uncondi- tional assignment of a bond and mortgage, and the assignee subsequently files a bill to foreclose the mortgage, it is not necessary to make the assignor • party. Ihid. Whitney v.MKinney, 7 Job.nB.Ch.'i.ii, 2:849 250. The same principle is applicable, it seems, to the case of an absolute assignment of a bond and mortgage to a third person in trust to collect the amount due thereon, and apply the same to the pay- ment of the debts of the assignor. Christie v. Herrick, 1 Barb. Ch. 254, 5: 375 251. Nor does the circumstance that the mortgagee took possession, and received the rents and profits until the assignment, render it necessary to make him a party. Whitney v. WKinney, 1 Johns. Ch. 144, 2: 249 252. The heirs of a subsequent mortgagee are not necessary parties to a bill to foreclose a prior mort- gage. Shaw V. McNish, 1 Barb. Ch. 326, 5: 403 253. Where the whole interest of a mortgagee in a mortgage is assiprned, with a guaranty, and the mortgagee dies before a foreclosure is commenced, it is not necessary for the assignee to make the per- sonal representatives of the mortgagee parties de- fendant in a foreclosure of the mortgage, if he does not also proceed upon the guaranty or per- sonal covenant of the mortgagee. Western Beaerve Bank v. Potter, Clarke Ch. 432, 7: 163 254. On a bill of foreclosure of a mortgage, and a eale, it appeared that the defendants were owners of two flrthfl only of the premises, under the will ol their father, and ttiat there were legacies given t' other persons, charged upon the mortgaged prem- ises. Held, that, the legacies being prior incum- brances, the legatees ought to be made parties to the suit, for the security of the purchaser at the sale, and to prevent injury to the rights of the mort- gpn-orfl. WQiywn V. Yerks, 6 Johns. Ch,45D, 8: 188 4. Ineurnbrancers. 255. It la proper for a junior mortgagee made a de- fendant in a foreclosure suit, to appear in the suit, so as to protect his rights. Smack v. Duncan, 4 Sandf. Ch. 621, 7: 1231 256. To a bill for foreclosure and sale of mort- g:aged premises, all incumbrances, or persons hav- ing an interest existing at the commencement of the suit, subsequent, as well as prior, in date to the plaintifC^s mortgage, must be made parties ; other- wise they will not be bound by the decree. Haines v. Beach, 3 Johns. Ch. 469, 1: 682 Ensworth v. Lambert, 4 Johns. Ch. 605, 1: 951 257. An incumbrancer pendente lite need not be made a party to a suit for the foreclosure of a mortgage. Cookv. Mcmcius, & Johns. Ch. 89, 1: 1019 258. An incumbrancer pendente lite is not entitled to redeem, and therefore need not be made a party to a bill of foreclosure, unless under special circumstances; as, where he became a judgment creditor after the commencement of the suit, but before the decree, and the purchaser at the master's sale had previous notice of the Judgment, and, by a previous agreement with the mortgagor, obtained from him an order for the surplus moneys, which was accepted by the purchaser. Burnet v. Denniston, 5 Johns. Ch. 35, 1: 999 259. Where a prior mortgagee is made a party to a suit to foreclose a second mortgage, if he is in possession under his Inortgage he can only ask that he shall not be unnecessarily subjected to costs, where the proceeds of the sale of the property will probably not be sufficient to pay his debt and costs. Vanderkemv v. Shelton, 11 Paige Ch. 28, 5: 45 260. A mortgagor defendant cannot insist that a mortgagee under a mortgage elder than the mort- gagor's title shall be made a party defendant in a buiD to foreclose a murigaKe lor itie purchase money, unless in his answer ue makes some claim In relation to such prior incumbrance, to show that it should be taken into consideration in the decree. Western Reserve Bank v. Potter, Clarke Ch. 432, 7: 163 361. The repeal after suItbrought,but before de- cree of the statute dispWising with judgment credi- tors as parties to foreclosure proceedings does not make such creditors necessary parties to the pend- ing proceedings, where the notice of lis pendens was filed forty days before decree. Wood V. Oakley, 4 Bdw. Ch. 562, 6: 976 262. A purchaser at sheriff's sale should be made a party in a foreclosure suit, although he does not gel; his deed until after bill filed. N. T. Life Insurance & T. Co. v. Bailey, 3 Edw. Ch. 416, 6: 709 5. Intervention. 363. A judgment creditor of the mortgagor, whose judgment was recovered pending the foreclosure suit and after the filing of the notice of the penden- cy and object of the suit, is not entitled to come in by petition and make a defense in such suit, under the provisions of the Act to reduce the expense of the foreclosure of mortgages in the court of chan- cery. The statute only applies to persons who had a lien upon the mortgaged premises by judgment or decree, or some interest therein under such Judg- [ncnt or decree, at the time of the commencement of fhe foreclosure suit. People's Bank v. Hamilton Mfg. Co. 10 Paige Ch. 481, 4: 1059 364. The purchaser of a judgment during the pen dency of a foreclosure suit, from a defendant in the suit, is not entitled to come in by petition and be made a party to the suit, under the provisions of the Act of 1840, to reduce the expense of foreclosing irortgas-es in the court of chancery Loomis T. Stuyvesant, 10 Paige Ch. 490, 4: 1062 265. A judgment creditor of the mortgagor, who applies to the court after a decree in the cause, for leave to come in and make a defense in a foreclosure MORTGAGE, VII. d. 84S ault, under the Act of 1840, must show upon oath that he has a defense, and state what it is. And it la not sufficient for him to state that he is informed and believes he has a good defense, without pro- curing the affidavit of the person who gave him the information. People's Bank v. Hamilton Mfg. Go. 10 Paige Ch. 481, 4: 1059 286. Whether a purchaser pendente lite of the equity ol' redemption in mortgaged premises, or of a junior Incumbrance on the premises, from a party to the suit, can he heard in relation to the time or manner of selling the premises under a decree of foreclos- ure, without making himself a party to the suit by « supplemental bill,— Qucere. Kelly v. Israel. U Paige Oh. 147, 5: 88 S. C. 4 Ch. Sent. 32, 6: 1145 267. Where a decree of foreclosure and sale of murtifagcU premises is made, a Junior znurLMtigee who is a party to the foreclosure suit, and who is interested in the proceeds which are to arise from the sale, or any other party to the suit who is inter- -ested in having the mortgaged premises sold under the decree witliout delay, may apply to the court to 'Commit the prosecution of the decree to him, if the complainant neglects to proceed to a sale with due diligence. ibid. 268. The mere consent of a party in interest who is not a party to the suit, and whose interest in the •mortgaged promises is not affected by the decree of foreclosure, to come in and be bound by the decree in the same manner as if he was a parly to the suit, IS not sufficient to authorize him to inter- "fere in such suit. ibid. 269. Where the complainant in a foreclosure suit assigns all his interest iu ttie mortgage pendente lite. and the defendant also sells his interest in the equity of redemption, it is irregular to proceed in the name of the original complainant to foreclose the equi- ty of redemption as against such assignee of the mortgagor. But the suit should be continued against Dim by a bill, in the nature of a bill of re- vivor and supplement, filed by the assignee of the -complainant. Tan Hook v. Throckmorton, 8 Paige Ch. 33, 4: 333 270. Purchasers pendente !{te,and creditors obtain- ing liens upon the mortgaged premises subsequent to the commencement of a foreclosure suit and to the filing of the notice of lis pendens, can only make themselves parties to the suit by filing a bill to pro- tert their nVtits. Peovle's Batik v. Hamilton Mfg. Co. 10 Paige Ch. -481, 4:1059 d. Pleading; Defenses, ■See also Pleading. 271. It Is improper to detail the proceedings at length in an alSdavit of regularity. The affidavit should merely state that the bill had been taken as ■confessed upon a personal service of the subpcena, or on a voluntary appearance of the defendant, or upon a proceeding against him as an absentee, as the case may be, and that all the proceedings to take the bill as confessed are regular, except in special cases, where the solicitor wishes to submit the ques- tion of regnlaritv to tb'" court. _ „_„ Nott v. HUl, 6 Paige Ch. 9, 3: 87'? 272. A oross-biU will be sustained in behalf of a sec- ond mortgagee who is placed in the relation of a surety as to one of two mortgagors who ezeouted the mortgage to the first mortgagee. King v. McVickar. 3 Sandf. Ch. 192, 7: 881 S73. Where defendant In a foreclosure suit claims absolute title to the equity of redemption, or sets up an incumbrance in his favor which is entitled to priority over all other liens except the mortgage set forth in the bill, if complainant has other claims or incumbrances against the property he must ■amend his bill and set them up therein so that they may be litigated and disposed of by the decree in Tower V. White, 10 Paige Ch. 395, 4: 10!}6 874. The defendants in a foreclosure suit, who are ■owners of the equity of redemption in any part of the mortgaged premises, have a right to insist that the whole of the complainant's incumbranoea there- on shall be ascertained and settled by the decree, in order that the other owners of the equity of re- •demption may. If they think proper, pay oft his incumbrances and prevent the necessity of a sale, where none of the other defendants have any spe- .oiflc liens upon the premises. Ibid 275. An assignment of a mortgage for less than ita face will enable the assignee to recover the whole amount secured by the mortgage of the mortgagor, even though the assignment was accompanied by u guaranty of payment of the full amount due and to grow due upon the mortgage; and In a suit by the assignee against the mortgagor to foreclose the mortgage, the mortgagor cannot set up usury in the transfer from the mortsrairee to the assignee. Western Beterve Bank v. Potter, Clarke Ch. 4S2, 7: 163 278. Where a corporation has taken the transfer of a mortgage contrary to the express provisions of its charter, the mortgagor may avail himself of such illegality, and thereby show that the corporation has no valid title to the mortgage. 7:865 Green v. Seymmir, 3 Sandf. Ch. 285, 277. One purchasing a leasehold which is subject to a mortgage, as to which there is no covenant of renewal, cannot escape the lien of the mortgage by suffering the lease to expire and afterwards ob- taining a new lease for the premises. Qlbbes V. Jenkins, 3 Sandf. Ch. 130, 7: 798 278. Such new lease is in equity subject to the mortgage, precisely as the former one was when its term expired. Ibid. 279. Where the ri ghts of the several defendants are truly stated in a bill of foreclosure, it is not neces- sary for them to appear and answer, to protect their rights. Merchants Ing. Co. v. Marvin, 1 Paige Ch. 557, 8:751 280. It is not a valid defense to a suit in chancery for the foreclosure and satisfaction of a bond and mortgage given for the purchase money upon a sale of the land, that an ejectment suit has been brought against the mortgagor by a stranger claim- ing the land. Miller v. Avery, 2 Barb. Ch. 582, 5: 768 281. To constitute a good defense to a bill for the foreclosure ot a mortgage, on the ground of fraud In obtaining such mortgage, it is necessary, not only to show that the defendant was defrauded, but also that he was defrauded by the mortgagee or his agents; or at least to show that the mortgagee, at the time of taking the mortgage, was aware that a fraud had been committed upon the mortgagor. And the several facts necessary to constitute the fraud, and to bring home to the mortgagee the knowledge of it, should be distinctly stated iu the answer of the defendant. Aikin V. Morris, 2 Barb. Ch. 140, 6: 588 S. C. 6 Ch. Sent. 65, 6: 1215 282. Where A conveyed land to B by deed, with covenants of warranty, and B executed to A abend and mortgage to secure the payment of part of the purchase money, B cannot be relieved against the mortgage on the ground of a failure of considera- tion for want of title in A, possession having been taken by B under the deed, and there being no evic- tion at law under a paramount title; and, more especially. In a case where the bond and mortgage having been assigned to C, B, in consideration of forbearance, executed anew bond and mortgage to C for the same premises, will relief be denied against the assignee Cor a valuable consideration without notice of any fraud or failure of consideration in the creation of the original debt. JBumpus V. Piotner, IJohns. Ch. 213, 1:116 283. In a suit for the foreclosure of a mortgage, the defendant set up that tne mortgage was given for the purchase money, that the lands were con- veyed to him without eovenant8,and that one claim- ing a paramount title had commenced an eject- ment for the recovery of the lands, which was in vigorous prosecution, and, if successful, would de- vest all the mortgagor's title except a dower right. The defendant entered into the possession of the lands at the time of his purchase, and had not been turned out or evicted. The defense was overruled, and a decree made for the sale of the lands, and against the mortgagor for the deficiency in case the proceeds of the sale were insufficient to pay liis bond accompanying the mortgage. Banks v. tfalfecr, 2 Sandf . Ch. 344, 'J «19 284. Where real estate is sold at auction and with- out warranty as to the title, and is conveyed ac- cordingly, and a bond and mortgage is taken back for the purchase money, it is no defenso to a suit to foreclose the mortgage that the title failed in part, where there was no fraud or misrepresentation on the part of .the mortgagee, and where the property wns put up nnrl sold nt. tho ri=k of the purchaser. Banks. V. Walker, 3 Barb. Ch. 438, S : 9eciime of age. EagU Fire Co. v. Lent, 6 Paige Ch. 635, 3: 1133 287. A mortgage was given in 1814, by P, one of the occupiers of a lot of land, for a ratable proportion of money due on a former mortgage covering the whole lot, of which the premises in question were only apart, which former mortgage was given to B in 1799, in renewal of a prior mortgage of the lot in 1794, to K, who had assigned it to B . Held, that though K claimed under the grantee of the pa- tentee, whose title to the land had become forfeited to the State by his attainder, and therefore the mortgage by P might be said to be without consid- eration,— yet P, being fully apprised of the state of the title when he gave the mortgage, could not set up the defense against the plaintiff, a bnna ftde pur- chaser of the mortgage, especially as he had, with other occupiers of the lot, in a petition to the legis- lature, stated that he had satisfied the mortgage toB. Lee V. Porter, 5 Johns. Ch. 268, 1: 1079 288. It seems that the court will not relieve against a mortgage, on the ground of an outstanding claim which the mortgagor, for greater security to his title, had bought in, without anyjudlcial investiga- tion or decision on such claim, in a suit in which all proper persons would be made parties and called on to bring forward their title. Ibid. 289. A deed from the State, pursuant to an Act of the liCgislature, reciting that the title to certain lands was vested in the State by the attainder of J W, and that such title had been perfected by the removal of incumbrances, and directing the sur- veyor-general to convey the land, etc., cannot be set up as a defense to defeat a bona Me mortgage on the land; for such an Act cannot devest the title of persons holding adversely, without a regular eviction in the ordinary^course of law. Ibid. 290. Vendor's failure to perform promises, there- by rendering land of little value, may be a defense. Rogers v. Salmon, 8 Paige Ch. 559, 4: 541 S. 0. 1 Ch. Sent. 3, 6: 105!$ e. Litigation between Defendants. 291. In mortgage cases, defendants whose claims are upon the equity of redemption merely, and who have no interest in the mortgaged premises in opposition to the complainant's claim, are not per- mitted to litigate their claims to the surplus as be- tween themselves, until it is ascertained that there will be a surplus, unless their liens are upon dif- ferent parcels of the mortgaged premises, or their rights are of such a peculiar nature as to require them to be passed upon by the court previous to a Union Ins. Co. v. Tan Rensselaer, i Paige Ch. 85, 3: 353 292. Defendants in a foreclosure suit who have claims upon tue equiiy of redemption merely, and who have no interests adverse to the claim of the complainant, will not be permitted to delay his pro- ceedings to obtain satisfaction of his mortgage, by a litigation of their claims to the equity of redemp- tion as between themselves. Warmers Loan & T. Co. v. Seymour, 9 Paige Ch. 638, 4: 808 293. To authorize a stay of proceedings in a fore- closure suit, upon the filing of a croas-bill by one or more of the defendants in the original suit, the complainants in the cross-suit must satisfy the court that such stay of proceedings, until they can liti- gate their claims against their co-defendants in the- original suit upon such cross-bill, is absolutely ne- cessary to the protection of their rights. Ibid. 294. The provisioiis of the 132d and 136th Bules of the court of chaucery were intended to relieve the complainant from the expense and delay of a liti- gation between codefendants, who were junior Incumbrancers, previous to a decree of sale of the mortgaged premises: but they were not intended' to deprive the defendants of the privilege of setting out their respective rights in their answers, so far lis might be necessary to enable the court to make- a proper decree for the sale of the mortgaged premises in parcels, so as to protect the rights of the several defendants, upon the reference, as to tlif surplus monpvs. Tower v. White, 10 Paige Ch. 395, 4; lOaft 295. Nor were such provisions intended to relieve the complainant in a foreclosure suit from the ne- cessity of setting out in his bill all his claims upon the mortgaged premises, or to prevent the defend- ants from setting up in their answers any claims they might have to the equity of redemption, as incumbrancers or otherwise, as against the com- plainant. IMd. 296. A mortgagee who has commenced a fore- closure ot ais mortgage will not be compelled to suspend proceedings to enable junior incumbran- cers to litigate their liens, even though a bill has been filed by one of them for that purpose, in which the complainant's ritrhtp are Hdmitted. Mmer V. Case, Qarke Ch. 395, 7: 153 297. Since the Bevised Statutes, a sale under a mortgage tort'cluauiu wiii u.- ui.,vtu., ucitjre the amount of other junior incumbrances are ascer- tained; and it is not necessary now for the complain- ant to procure a report of the amount of such Junior incumbrances. Ibid. 298. Where one defendant in a foreclosure suit sets up equities agamst His codefendauts lespectuig the order of sale of different portions of the mort- gaged premises, the decree of sale may direct the master to ascertain and settle those equities and to sell the premises accordingly. New York L. Ins. & T. Co. v. Cutter, 3 S. 176, 7: 815 299. Junior Incumbrancers have their rights ascer. tained and settled as between themselves, upon a reference to a master of their claims to the surplus money. The rights of such junior incumbrancers as between themselves are not settled by the decree of sale in a foreclosure bill. Miller v. Case, aarke Ch. 395, 7: 153 f. Default in Installments ; Belief from. 300. Where a mortgage is given to secure a sum payable in installments, with interest, and, on de- fault in payment of the first installment, a bUl is filed by the mortgagee, the defendant will not be allowed to stay proceedings, on bringing into court the principal and interest due, with the costs which had accrued, unless he also put in an answer, con- fessing the debt, etc., or consent to a decree -jf fore- closure, to remain subject to the further order of the court upon a subsequent default. Zianslng v. Capron, 1 Johns. Ch. 617, 1: 867 301. And it seems that, in such case, if the subse- quent installments are punctually paid, the defend- ant will not be charged witn the further costs. Ibid. 302. Where the mortgagor has from mere negli- gence failed to perform his contract, whereby the whole debt becomes due and payable according to the terms of the mortgage, the court will not Inter- fere to relieve him, without a tender or payment of the whole debt. Noyes v. Clark, 7 Paige Ch. 179, 4: 114 303. A court of equity will not permit the mortga" gee or his assignee to take an unconscientious ad- vantage of the mortgagor,who is willing to pay at the time prescribed, but is unable to do so in conse- quence of the act of the other party. Ibid. 304. Where a bond and mortgage for the payment of $800 in five years, with auiiuai interest, contained a condition that if default should be made in the payment of interest, or any part thereof, at the time it became due, the whole principal and inter- MORTGAGE, VII. g, h. 345 est Bhould become due by reason of such default ; and shortly before the interest became due in Feb- ruary. 1838, the mortgagee, who had assigned the bond and mortgage and guaranteed its paymenl,ln- f ormed the mortgagor he had so assigned it, but gave no information of the residence of the a*, signee, and the mortgagor, being unable to find the supposed assignee, tendered the interest to the mortgagee on the day it became due, who refused to receive It, and shortly afterwards the assignee filed a bill to foreclose the mortgage,— Held, that the tender of the interest to the mortgagee was suffi- cient to save the forfeiture, or at least sufficient to authorize the court to stay the proceedings, upon the payment of the interest then due, until further default in payment of the principal or interest. Ibid. 305. A bond and mortgage to secure the payment of money in installments, with interest payable ut particular periods, with the further provision that in case a default is made in the payment of any in- stallment of principal or Interest for ninety days after the same became due and payable by the con- dition of the mortgage, then the whole principal sum should be deemed due and payable, upon the happening of a default in any payment, and a lapse of ninety days, becomes wholly due, and the mas- ter in computing the amount should treat the whole principal as due, and the court will decree accord- ingly. Orane v. Ward, Clarke Ch. 393, 7: 158 3C6. Injunction granted to stay proceedings on power of sale, on payment of costs by the plaintiff, and his paying into court the amount reported to be due by a master. Hine v. Handy, 1 Johns. Ch. 6, 1: 39 30T. Where only a part of the mortgage debt is due, a decree tor a sale will not be ordered until a reference has been made to a master, and he has re- ported as to the situation of the mortgaged prem- ises. Ontario Barih v. Strong. 2 Paige Ch. 301, 8:917 308. If the master upon such reference reports that a sale of the whole premises is necessary, he should give the reasons upon which his opinion is founded. Ibid. 309. If he decides that the property may be sold m puroclti, ue biiuuid state in uis report tne relative situation and value of the several parcels, and what part of the premises ought to be lirst sold, and all other facts necessary to enable the court to make such order of sale as will be most beneficial to the parties. Ibid. 310. Where a mortgage payable by installments contained a power to sell the premises If any install- ment of principal or interest remained unpaid for 30 days after it became due, the surplus arising from such sale to be paid to the mortgagor after de- ducting the interest and costs and the whole debt secured by the mortgage,— Heid, that this clause was only intended to ai'.thorize a statute of fore- closure in case of the nonpayment of the install- ments within the time prescribed, and with the right to retain for the whole debt in case the installment and costs were not paid before the sale; but that it did not make the whole debt due and payable by a mere neglect to pay the installment within the time pr(^8cribed. Hblden v. OObert, 7 Paige Ch. 208, 4: 126 g. Reference to Ascertain Amount. 311. Where only part of the money secured by a mortgage is due, and the bill is taken as confessed, the reference to ascertain whether the premises can be sold in parcels is a common order. Bverttt V. Huffman, 1 Paige Ch. 648, 8: 786 312. No decree for sale until the amount of the Incumbrance is reported. Oa/rdiner v. Oamisa, Hopk. Ch. 306, 8: 431 313. The amounts of all incumbrances on mort- gaged premises must be reported by the master, before a sale will be ordered ; and this, though the amount due to one defendant is litigated by an- other defendant, and though there is no question as to the amount due to the complainant. There may be exceptions to this course, in special cases. ' Bemeich v. Macomb, Hopk. Ch. 277, 8: 430 314. On a bill of foreclosure by a subsequent mort- gagee, he will be entitled to redeem the prior mort- gage, and then to sell the whole estate for the money due on both mortgages. Buffalo Western Ins. Co. v. Eagle Fire Ins. Co. 1 palge Ch. 284, 8: 649 315. If the prior mortgage should not be due, the Junior mortgagee will be entitled to a decree for a sale of the mortgaged premises, subject to such prior mortgage. ibid. 316. Where a defendant has appeared in a fore- closure suit, he is entitled to notice to attend the master upon a reference to ascertain the amount due upon installments which have become payable subsequent to the decree. Knapp V. Bwmham, 11 Paige Ch. 330, 5; 153 S. 0.4 Ch. Sent. 65, 6:1157 317. Where, in a bill for a mortgage foreclosure, some of the defendants are proceeded agaiust as absentees, the master— upon reference to take proofs of theamount of payments made upon such mortgage which ought to be credited thereon, and of the truth of the facts and circumstances stated in the bill— must report the proofs and and depo- sitions so taken, at length. It is not sufficient for him to report that he was satisfied, without also re- porting the proof and depositions. Arumymow, Clarke Ch. 423, 7: 160 318. Where the complainant's claim to priority ia a mortgage case is denied by the defendant's an- swer, the master, upon the ordinary reference to compute the amount due upon the mortgage pre- vious to the hearing of the cause, under the 134th Bule of the court of chancery, is not authorized to settle the question of priority between the parties, but must leave it for the decision of the court upon the hearing. Harris v. Fly, 7 Paige Ch. 431, 4: 813 319. Upon a bill for the foreclosure of a mortgage payable by installments, some of whicb installments were not due and payable at the time of the decree in the cause, where the master upon the original reference reported that the premises could not be sold in parcels, it is not necessary to obtain another report upon that subject, previous to the obtaining of another order of sale to pay installments whict» have become due subsequent to the decree. Knapp V. BumTmm, 11 Paige Ch. 330, 5: 153 h. Belief; Decree. 320. Where the mortgaged premises were clearly worth more than the debt ana costs, and were laid out in city lots, the decree of foreclosure and sale permitted the owners of the equity of redemption to direct in what order the lots should be sold. '" Walworth v. Farmers Loan & T. Co. 4 Sandf . Ch. 51, 7: 1019 321. Where the bill in a foreclosure suit shows that tt judgment has been recovered for the mortgage debt, the court cannot make a decree of foreclosure until an execution has been issued upon the judg- ment and returned unsatisfied, although the de- fendant has suffered the bill to be taken as confessed against him. Shufelt V. Shufdt, 9 Paige Ch. 137, 4: 639 322. A bill filed to foreclose a mortgage claimed that there was more than $1UU due. 'J.ue an»wi,r denied that there was $100 due. Before the hearing, other installments became due, which were not paid. The master, on reference, reported that there was less than $100 due at the time of filing the bill; but that there was more than $100 due at the date of the report, by the falling due of subsequent installments. Held, that the complainant was en- titled to a decree of ptIp. with cootq. Smalley v. MaHin, Clarke Ch. 293, 7: 119 323. Where a bill for the foreclosure of a mortgage has been filed, and notice of lis venaens iias ueen filed in the proper office, under the Act of May 14, 1840, and the bill is afterwards amended by making new parties defendant, and no amended lis pendens is filed, the complainant cannot, under the present rules of the court, obtain a decree of sale at a special motion t,rm, as the li« pendens does not comply with the Act and the rule in stating the names of the parties to the suit. Form of an affi- davit upon which to ground a motion for a decree of sale in foreclosure cases, under the new rules. Clorfc V. Havens, Clarke Ch. 660, 7; 800 324. In a foreclosure, where one of three mort- gagees died pending the suit, which was revived and proceeded in the name of the survivors, with- out any objection being made until the hearing, the court made a decree of foreclosure and sale, with suitable provisions to protect the rights of the legal representative of the deceased mortgagee, the complainants also undertaking to give effect to such rights. _ Green v. Storm, 3 Sandf. Ch. 305, 7: 863 S46 MORTGAGE, VII. i, 1, 2. 325. In a suit simply to foreclose a mortgage upon Infant's landsexeuuied by atrustee to one contract- ing to erect buildings thereon, the court, on de- claring it invalid, cannot enforce the contractor's claim to be reimbursed for his services and mate- Piicher v. Carter, i Sandf. Ch. 1, 7: 1001 326. Form and requisites of a decree for the fore- closure of a mortgage and the sale of the mort- gaged premises, where the mortgage is conditioned for the support of the widow of the mortgagee, and where the several owners of different parcels of the mortgaged premises are bound to contribute to her sunport rntablv, Ferguson v. Kirnball, 3 Barb. Ch. 616, 5: 1031 327. Form of decree of foreclosure where separate parcels have been sold or incumbered by the mort- gagor subsequent to the date of complainant's mortgage. New York L. Ins. & T. Co. v. Milnor, 1 Barb. Ch. ^53, 6: 414 S. C. 5 Ch. Sent. 57, 6: 1188 i. Sales. 1. In General. See also Judicial Sai,b. 338. All sales of mortgaged premises, under a de- ■cree of the court, must be made by a master or under his execution. Hej/er V. Daroes, 2 Johns. Ch. 154, 1:338 329. A sale by a person deputed for that purpose by a master, in his absence, is irregular, and will be set aside. Ibid. 330. Where there is an order of reference to a master to ascertain the amount due on a mortgage, •on the coming in of his report the cause must be set down for hearing, on the requisite notice. Dean v. CoMington, 2 Johns. Ch. 201, 1: 347 331. A decree of sale entered immediately on flimg the report was set aside for irregularity. Ibid. 332. Sale of mortgaged premises, under a decree, will not be postponed merely on account of the ex- istence of war: war, as a general calamity, not be- ing sufficient to Justify the court in interrupting the regular administration of justice and the col- Jeotion of debts. Astor V. Bonmyne, 1 Johns. Ch. 310, 1: 15a 333. But if it should be made satisfactorily to ap- pear that there was any immediate or impending -calamity over the city or place where the mort- gaged premises were situated, which would cause a suspension of all civil business, the court would interfere and postpone the sale. Ibid. 334. A sale of mortgaged premises was postponed for six weeks, to give tne mortgagor an opportu- nity to comply with the proposal of the mortgagee, euou delay being equally beneficial to both parties. 335. If mortgaged premises are Incapable of be- ing sold in parcels, or of bemg divideu, without in- jury, the whole may be sold, though the whole debt ■IS not due, and the proceeds applied to pay the in- terest and costs, and the surplus to the principal of the debt Campbell y. Maccmb, i Johns. Ch. 534, 1: 987 336. Where, in such case, the bond having become forfeited at law for the nonpayment of tne inter- est, the whole mortgaged premises are decreed to be sold, and the mortgagor or purchaser of the equity ■of redemption, before the day of sale, pays the in- terest and costs, the sale will be stayed; but the de- cree of sale and foreclosure entered will remain as further security to enforce the payment of future interest, and the installments of the principal, as t;hey respectively become due. Ibid. 337. Though the mortgagee should be not only a trustee, but a surety for tne 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 the debt is due. or the debtor is in default. ibid, 338. Nor will the court, where the premises mort- gaged, being a dam and bridge, were injured by storms, interfere to compel the mortgagor in pos- session to repair them at his own expense. Ibid. 339. Where a second mortgagee was proceeding to sell the mortgaged premises, by virtue of a power contained in the mortgage, the court, as the rights of an infant were concerned, and it appear- ing to be for the interest of all parties, ordered the sale to be stayed, and that it should be under the direction of a master associated with the mort- gagee, on giving further notice of sale for six weeks; and that no more of the premises should be sold than would be suiBcient to pay the amount due on the mortgage, to be computed by the mas- ter, provided the sale of a part could be made with- out prejudice. Tan Bergen v. Demarest, 4 Johns. Ch. 37, 1: 755 340. Mortgaged premises are not sold on credit without the consent of both parties. Sedgwick v. Fish, Hopk. Ch. 594. 8: 536 341. But on the complainant's application, the court will order a sale on credit, to the extent of principal and interest. Ibid. 342. The 35th Rule of the court, which declares that no process shall be issued, or other proceedings had, on any final decree, until the same have been enrolled, does not, if seems, apply to decretal sales of mortgaged premises; but at any rate, if the en- rollment, whicn is matter of form, be afterwards made and perfected, it will have relation back to the time of the decree, and protect the intermediate sale. Goelet V. Lansing, 6 Johns. Ch. 75, 2: 59 343. A mortgagee has equal rights with third per- sons to purchase in mortgaged premises; and the lowness of price at which he purchases is no ground to set aside a sale. Mott V. Walkley, 3 Bdw. Ch. 590, 6: 778 344. An agent for the complainants in a foreclos- ure suit may bid upon the property for his priuci- pals in his own name, witnout giving notice to other bidders that he is not bidding for himself, but for the complainants. National F. Ins. Co. v. Loomis, U Paige Ch. 431, 5: 187 345. Whether the mortgaged premises can be sold upon a'statute foreclosure, subject to the payment of future installments which are to become due on the bond and mortgage, even if the amount of such future installments are stated in the notice of sale, — OMCBre. Jencks v. Alexander, 11 Paige Ch. 619, 5: 855 2. By Advertisement ; Power. 346. Where the statute directs the advertisement for the sale of mortgaged premises to be published "once a week for six successive months," lunar, not calendar months, are intended. Stackhouse v. Halsey, 3 Johns. Ch. 74, 1: 547 347. Whe^e the advertisement of sale of mort- gaged premises, unaer a power of sale, states a j... . .; assertion,— as, that the premises are to be sold t(.r default as to three mortgages, when there are onlv two, the third mortgage being on other land,— by which the pu.blic may be mislea, or purchasers de- terred from bidding, the sale will be irregular and void. Bwmet V. Dennisfon, 5 Johns. Ch. 35, 1: 999 348. So, if no place of sale is designated in the ad- vertisement, or It the mortgagor was not uveiii, - five years or age when he executed the mortgage,"a sale under a power will create no bar to the eq-' • of redemption under the statute. Ibid. 349. A power of sale contained in a mortgage of lands in this State, to a person residing in another State, may be lawfully executed by an administra- tor appointed in another State where the mortgagee died, it being a special authority derived from the mortgagor, not from the court of another State. DonMttie v. Lewis, 7 Johns. Ch. 45, 8: 815 350. A sale under a power in a mortgage is final and conclusive, as against bona Ude purchasers. It is a statute foreclosure and bar of the equity of re- demption. Ibid. 351.The power of sale in a mortgage, so far as it re- lates to tne equity of redemption or the surplus value of the mortgaged premises beyond the amount of the mortgage debt, is a power in trust. And any collusive arrangement between the mortgagee and a third person, to execute the power of foreclosure and sale in such a manner as to deprive the owner of the equity of redemption of the benefit Intended to be given to him ;by the statute relative to the notice of sale, or whereby such owner will be de- prived of the benefit of a fair competition at the sale, is a fraud upon his rights. Jencks v. Alexander, 11 Paige Ch. 619. 5: 865 352. It seems that the notice of sale upon a statute MORTGAGE, VII. i, 3. j. 347 foreclosure sbould state the whole amount which is •claimed to be unpaid upon the bond and mort- ^atre, and that it is irregular to sell the mort^a^od premises subject to the payment of future install- ments, without speoifylug the amount of such in- ;8taUmeat8. , Ibid- 8. Terms; Quantity Sold. R53. After a decree for the foreclosure and sale of amortgaged premises, the court will control and reg- ulate the proceedings and manner of sale so that mo injustice shall be done to either party. Sufem V. Johnson, 1 Paige Ch. 450, 8: 711 351. Where mortgaged premises are an inadequate security for the deot, and the morti^agor is irres pon- slble, the court, although the entire mortgage debt is not due, will order the whole of the premises to t)e sold, or so much as is necessary to pay the whole r V. MtUer, a Paige Ch. BS, ii: B16 364. Prima facie the mortgagor,or the persons who are stated in the bill to be the owners of the equity of redemption, are entitled to the surplus moneys brought into court under a decree of sale in a fore- closure suit. Franklin v. Van Cott, U Pfuge Ch. 129, 5: 81 S. C. 4 Ch. Sent. 37, 5: 1147 365. Where real estate is sold under a decree in a suit to foreclose a first mortgage, to which the sec- ond mortgagee is not made a partv; and a suit la subsequently brought to foreclose the second mort- gage and the premises are sold,— the proceeds are to be distributed: first to the purchaser under the first mortgage and his assigns to the amount of that mortgage; then to the second mortgagees to the ex- tent of their mortgage; then to the purchaser under the first mortgage and his assigns. Vaniierkemp v. Sheltnn, 11 Paige Ch. 28, 5: 45 366. Where the complainant in a foreclosure suit is the owner of several mortgages of different dates, the decree of foreclosure should direct payment of the first mortgage only, and that the surplus be brought into court to permit intermediate incum- branners to come in and claim the same. Kellogg v. Babcock, 1 Ch. Sent. 47, 5: 1065 367. Where a mortgagee had obtained a master's report in his favor, and a payment of his mortgage out of the surplus moneys, under a regular order of the court, in consequence of the neglect of a prior judgment creditor, to give notice of his claim in time, he is entitled to retain the money which he has become legally entitled to by his superior vigil- ance. Burchard v. PhiUips, 11 Paige Ch. 66, 6: 59 S. C. 4 Ch. Sent. 20, 5: 1141 368. So long as the surplus fund remains in or under the control of the court, it is competent for such court to let in the prior incumbrancer to as- sert his claim to the surplus moneys, where his ne- glect to file his claim thereto in season is satisfacto- rily accounted for. Ibid. 369. The surplus arising on a sale under a statute foreclosure of a mortgage cannot be claimed by a subsequent incumbrancer unless he releases to the purchaser all future claim upon the equity of re- demption, which equity is not foreclosed as to him. Waller v. Harris, 7 Paige Ch. 167, 4: 109 370. Where the owner of premises which were jubjeot to the lien of a mortgage sold the same and took back a mortgage for the purchase money, pay- able in three installments, and assigned such mort- eage to M. who subBeonentIv filed a liill to foreclose the same, and during the pendency of that suit sold and assigned the second installment, and guaran- teed the collections thereof, and the premises were afterwards sold under the decree of foreclosure and bid in by M for the amount of the first install- ment, with interest and costs, and were subsequent^ ly purchased by J under a judgment against M; and the prior mortgage upon the premises was after- wards foreclosed,— -Held, that J was entitled to the whole surplus moneys upon the sale under the last decree of foreclosure, to the exclusion of the as- 848 MORTGAGE. VII. j. elgnee of the second installment of the juniormort- prage, altboush at the time of the asslfrnment of that installment M had agreed to bid to the amount of both installments on the sale under his decree; and that the sale should be for the benefit of the assignee after paying the first Installment and in- terest, J being ignorant of that agreement at the time he purchased in the premises under bis judg- nif^nt against M. Norton V. Stone, 8 Paige Ch. 22Z, 4: 407 371. Where land is sold under a decree of fore- closure, and the surplus is brougnt mto this court, Judgment creditors who had obtained a specific lien thereon at law before the foreclosure are entitled to a ^priority of payment out of the proceeds, ac- cordmg to the dates of their respective judgments, Purdy V. Doyle, 1 Paige Ch. 558, 2:751 372. But if the person against whom their judg- ments were obtained had only an eouitable estate in the mortgaged premises, so that the judgments could not bind his interest at law, the creditors here are to be paid upon the basis of equality only. Ibid. 373. The complainant, holding two mortgages against the defendant upon distinct parcels of land, brought this bill for foreclosure and sale. On one sale there was a surplus, and on the other, a de- ficiency. Held, that the surplus of one could not be applied to supply the deficiency of the other. Bridgen V. Carhartt, Hopk. Ch. 234, 8:405 374. Where a mortgagee whose mortgage is payable by iustulliuent« sells the premises uuuer a statute foreclosure to pay an installment which has become due, subject to the future installments, the mort- gaged premises in the hands of the purchaser are, in equity, the primary fund for the payment of such future installments; and the mortgagor is entitled to the surpltis moneys arising from the statute fore- closure, after paying the installment which has be- come duf^. "nd tlie costs of sale. Coa; V. WheOer, 7 Paige Ch. 248, 4: 143 375. Where the complainant in a foreclosure suit makes a junior mortgagee of the premises a party, the court may make a decree directing a sale of so much of the mortgaged premises as will be sufli- oient to satisfy the amount due on such junior mortgage and all intermediate liens and incum- brances, in addition to the amount of the complain- ant's mortgage and costs: and the master may be directed to ascertain the amount of such liens pre- vious to the sale. But, before such junior mortgagee can be paid, the master's report of the sale must be filed and the surplus moneys brought into court, so that other persons, who have not been made par- ties to the suit, may have an opportunity to flic their claims to such surplus moneys, according to the provisions of the I36th Rule. Beekman v. GKbbs, 8 Paige Ch. 511, 4:623 376. Where it does not appear that a person who was in possession of mortgaged premises claiming to have an equitable interest therein, prior to the mortgage, was a party to a suit brought to foreclose such mortgage, the tenant will have no claim upon the surplus moneys arising from the sale of the mortgaged premises under the decree of fore- closure. De Buyter v. St. Peter's Chwch, 2 Barb. Ch. 655, 5: 761 377. Where a person has an equitable lien upon the suriilus moneys ai isliig from ilie sale of mortgaged premises under a decree of foreclosure, his proper course is to deliver notice of his claim to the master who makes the sale, or to file it with the clerk in whose oflSce the surplus moneys are deposited by the master, or, in case an order of reference has been catered upon the application of some other claimant before he is aware of his rights, be should then go before the master upon the reference, and present and establish his claim there. Ibid. 378. A judgment obtained against the owner of an equity of redemption in mortgaged premises, after a decree of foreclosure but before a sale of the premises by the master, is an equitable lien upon the surplus moneys produced by the sale under the decree. .AMier if the judgment was docketed sub- senuent to the snle. Sweet V. .Tacocte, BPaige Cb. 355, 3: 1018 379. A, being seised of a house and lot of land, de- vised the same to B, his wife, who, after his death became duly seised, etc., and mortgaged the same, subsequent to the mortgage, several judgments were recovered against B, and Aug. 21, 1823, B died, having devised the said premises to C, her daughter. subject to the incumbrances. Executions wece is- sued on all the judgments against B, by virti^ 'of which the premises in question were sold No^ 23,. 1823, to S, the petitioner, for 12,100, and a certificate- delivered by the sheriff, pursuant to the Act of" April 12, 18^0. May 10, 1823, a bill was filed to fore- close the mortgage above mentioned, upon which, bill a decree of sale was entered November 22, and the premises sold in pursuance thereof, Deo. 4, 1823,. to the petitioner S, for $7,040. The mortgage and judgment creditors were fully paid, and a balance remained in the hands of the assistant register. The petitioner had paid on the two sales $2,000 more than the property was worth. The court directed, the balance remaining with the assistant register CO be paid to S, the petitioner. Be Scrugham, Hopk. Ch. 88, 8: 358 380. By the purchase under the executions, S, the purchaser, acquired ail the title of B, subject to the mortgage; and that title so acquired was a perfect right in equity, subject to be defeated or trans- ferred by a redemption according to the statute. Ibtd^ 381. The sale under the decree of this court extin- guished the right acquired under the sheriff's sale, the mortgage being a prior incumbrance. Com- pensation may be made, however, to the purchaser at J^e sheriff's sale. Ibid^ 382. C, the representative of the mortgagor, couldi have redeemed the land only by discharging the in- cumbrances ; and the land having been converted IntD money, under the decree of the court, she can- not be entitled in equity to any tuing more than so much of the value of the land as may remain after satisfying the incumbrances. Ibid. 383. H was seised in his own right of an undivided fourth u£u I. or u tract of laud, ana was also seised In right of his wife of one undivided fourth part thereof. D and T also each owned one undivided fourth part. The share of T was subject to a mort- gage. A voluntary partition was made of the prem- ises between the parties, by which two lots thereof were released by D and '1' to H and wife, and the residue was released by H and wife to D and T as tenants in common, they paying to H and wife $675. for the difference in value. Afterwards the mort- gagee, without regarding the partition, and with- out making H and wife parties to the suit, f cyre- closed his mortgage against T, in chancery, and sol* one undivided fourth of the whole premises, leav- ing a balance due on the mortgage after the sale. Previous to the foreclosure and subsequent to the partition, several judgments were recovered in the supreme court against T. T, after the recovery of these judgments, assigned all his property to trus- tees for the payment of his debts. Subsequent to. this assignment the premises released as aforesaid by H and wife to D and T f hf dofpndBnt's property in the mean time. Bank of Boehester v. Emerson, 10 Paige Ch. 359, „ 4: 1011 S. C. 3 Ch. Sent. 74, 5: 1 124 404. In a foreclosure suit the court of chancery is authorized to make a contingent decree for the pay- ment of the deficiency by the mortgagor, upon the coming in and confirmation of the report of the srtlc, in case it shall appear from such report that the proceeds of the 'mortgaged premises were not SPflici'Tit to pav the debt hiid costs. Kc Cartfty V. Groham, 8 Paige Ch. 480, 4:611 405. In aforeclosure bill it is impossible to comply with the provisions of the Kevised Statutes relative to suits against heirs and devisees, so as to obtain a decree against them, or the estate of the decedent in their bands, tor the deficiency iconardv.ilibrris, 9PaigeCh. 90, 4:681 406. A pei'Son who sells a bond and mortgage for less than the amount due tueieuu, iiuu .lui-ually guarantees the payment of the whole debt, is liable to be made a party to a bill of foreclosure in this court; and the complainant may have a decree over against him for the deficiency, if any there be, to the extent of the money paid on the sale, with legal interest thereon. Jones V. Stienbergh, 1 Barb. Ch. 250, 5: 374 S. C. 5 Ch. Sent. 48, 5:1183 407. A person who has secured the payment of a part of a mortgage debt uy Ins pwsouai uulijfaiiuu may be decreed to pay the deficiency, if the mortgaged premises do not sell for sufficient to pay so much of the debt as he has guaranteed the payment of, and including the costs of foreclosure and sale. Byld. 408. The provisions of the Revised Statutes giving jurisdiction to this court to make a personal decree against the mortgagor, or his surety, or other party who is personally liable for the debt, do not extend to cases where the complainant had no right to come into this court to foreclose the mortgage, as against the interest of anyone in the mortgaged premises, or in any pnrt thereof. Mannv. Coover, 1 Barb. Ch. 185, 5: 348 409. A bond and mortgage is executed by two ob- ligors; one of the obligoi'S dies before forec' -isure; and upon foreclosure, the heirs and personal rep- resentatives of the decedent are made parties de- fendant. Held, that there could be no personal de- cree against the representatives of the deceased obligor. Rhodes v. Evans, Clarke Ch. 168, 7: 88 410. Where a mortgage is taken for the security of a pre-existing indebtedness, without any intention of discharging the original debtor from personal responsibility upon his former security, his liability upon that security will remain.notwlthstanding the debt is further secured by such mortgage. But if the original indebtedness is intended to be dis- charged, and there is no express covenant to pay the same, and no bond or separate instrument is given, the mortgagee must resort to the land alone, or to the proceeds thereof, for payment. Hone V. Fisher, Z Barb. Ch. 559, 6: 753 411. The result Is the same where an absolute deed is taken as a mere security for the repayment of the amount of the consideration of such deed, instead of an ordinary mortgage, and where there is no 350 MORTGAGE, VII. 1. covenant or other instrument rendering anyone personally liable for the debt intended to be secured by such absolute deed. lUd. L Pu/rchaser'a Rights, TliU, and lAdbV/SHes. OS. The purchaser of mortgaged premises upon a foreclosure and sale thereof is entitled to the growing crops or emblements thereon, as against the mortgagor. Aldrich v. Revnolda, 1 Barb. Ch. 613, 5: 516 413. Where mortgaged premises are sold under a de- cree of foreclosure, if the accruiDg rent becomes payable between the day of sale and the time when the purchaser will be entitled to the possession of the mortgaged premises by the terms of the decree and the practice of the court, such rent belongs to the owner of the equity of redemptian, and not to the purchaser at the master's sale. Astor V. Turner, 11 Paige Ch. 436, 5: 189 414. In such case, if the mortgaged premises will proDaoiy Pe insuhiclent to pay the amount due on the mortgage, and the one personally liable thereon is insolvent, the mortgagee may obtain a lien upon the rents for the payment of the defloiency, by the appointment of a receiver. ZIM. 415. Where a Creditor holding two mortgages for his dbbt,— one upon lands of the debtor and the oth- er upon those of his surety,— after the satisfaction of the debt by the debtor, and the death of the surety, forecloses the latter's mortgage against his infant heir, and purchases a portion of the lands at the foreclosure sale, the mortgagee must release to the infant the lands bought in by him, and account for the rents and profits of the same, and for the sums paid by the purchasers at the sale, who were strangers to the fraud. Loomer v. Wheelwright, 8 Sandf. Ch. 135, 7: 800 416. Where one who has taken land subject to a mortgage, which his grantor agrees to pay off, mort- gages the same, a purchaser at a foreclosure sale under such latter mortgage is entitled to the benefit of the agreement made by the original grantor. Kinney v. HTCuttough, 1 Sandf. Ch. 370, 7: 363 417. A purchaser under an order for the sale of infant's lands, who has never been evicted or dis- turbed in his possession, cannot resist the foreclos- ure of his mortgage forthe purchase money, on the ground that he did not obtain a good title. Davison v. De Freest, 3 Sandf. Ch. 41)6, t: 918 418. If a senior incumbrancer neglects to attend to his interest upon such sale, he will not be relieved as against a more vigilant junior incumbrancer. Famham v. Colton, Clarke Ch. 35, 7: 44 419. Where, at a master's sale on foreclosure, the bill having prayed a sale, suojectto a mortgage, the master put up and sold the premises, expressing that they were subject to its incumbrance, the pur- chaser is not at liberty to claim that by the sale he acquired a right to such mortgage. WeOa V. Chapman, 4 Sandf. Ch. 312, 7: 1116 420. If the sale was made at an inadequate price, but tlie value of the propercy has, oy arrangement, been appropriated to the payment of the debts of the mortgagor, that circumstance will create a strong equity in favor of the purchaser. Fa/rnham y. Cotton, Clarke Ch. 35, 7: 44 421. A vigilant creditor purchasing at a mortgage sale, so as to secure his own deut, win oe protected in such purchase, unless he willfully misleads, sur- prises, deceives, or defrauds senior incumbrancers. IWd. 422. A mortgagee foreclosing a mortgage, and making a prior incumbrancer a party defendant, with a notice that the premises would behold sub- ject to such prior incumbrancer's rights, and such incu mbrancer not appearing, a decree was taken by default and for the foreclosure of his rights as well as of the other defendants, and the premises after- wards sold to a bona fide purchaser under such de- cree. The prior incumbrancer did not discover the fact until three years had elapsed. Held, that he could not defeat the title of the bona flde purchaser, but that he might consider the fund produced by the sale under the decree as subject to his incum- brance, and proceed against the original complain- ant, who had received it, for the application to the payment of his incumbrance. BanMn v. McCahUl, Clarke Ch. 249, 7: 106 &3. B purchased land subject to two mortgages. the payment of which he assumed. The Junior mortgage belonged to H. B neglected to pay the' interest on the senior mortgage, and it was fore- closed in chancery against B, H, and others. B pur- chased the land at the master's sale under the decree and received a deed. There was no surplus. On a bill by H against B to foreclose the junior mort- gage—Held, that the decree and sale were no bar to the suit. _ Hilton V. Bissell, 1 Sandf. Ch. 407, 7: 3 7T 424. In equity, B's bid and purchase will, in favor of H, be deemed a payment and extinguishment of the prior mortgage, leaving the land subject to the- junior lien. Ibid. 425. A sale of mortgaged premises at public auc- tion, by a surviving executor of the mortgagee, ac- cording to the statute, is a complete bar to the equity of redemption. Dema/rest v. Wynkoop, 3 Johns. Ch. 129, 1: 566 428. And where the sale was regular and fair, but the deed of the executor produced was dated nine- teen years after the time of sale, it was presumed that a deed was duly given at the time, and lost, and that the one produced was executed for greater caution. Ibid. 427. But, as between the parties, where there is no intervening right, such a deed will take effect, by relation, from the time of the conclusion of the bargain and sale, especially in a court of equity. Ibid 428. Where the equity of redemption in mortgaged premises is sold under a judgment, or under a junior mortgage, which judgment or mortgage isa lien u pon the equity of redemption merely, the legal presumption is that the purchaser only bids to the value of the equity of redemption. And the land thus purchased is, in equity, the primary fund to pay the amount due upon the prior bond and mort- gage. McKinstry v. Curtis, 10 Paige Ch. 503, 4: 1067 429. Upon the sale of mortgaged premises upon a statute foreclosure, where the premises are struck off to the mortgagee, the affidavits of the publican tion and of the affixing of the notices of the sale, and of the circumstances of the sale, have the same effect in vesting the title in the mortgagee, as a deed would have in vesting the title in a stranger who had become a purchaser Brewster v. Power, 10 Paige Ch. 562, 4:1091 430. Whereaseoond mortgage is assigned, .and the assignment is not recorded, and the mortgagee in the first mortgage makes the mortgagee in the second mortgage a party to his bill of foreclosure, but doe» not make the assignee a party, a bona^ide purchaser at the master's sale, or a subsequent purchaser un- der him, who has no notice of such assignment at the time of his purchase, will be protected against the claim of the assignee under such unrecorded as- signment. Va/nderkemp v. Shelton, 11 Paige Ch. 28, 5: 45 431. A purchaser of mortgaged premises at a sher- iff's sale under a junior judgment, or at a master's sale under a decree in a suit to foreclose a junior mortgage, in which the owner of the first mortgage is not a party, only acquires title to the equity of redemption in the mortgaged premises; and he can- not, after such purchase, take an assignment of such prior mortgage, and cbarge the mortgagor with the amount of such mortgage by a suit upon his bond, before he has exhausted his remedy by a resort to the mortgaged premises as the primary fund for the payment of the mortgage debt. Ibid, 432. Where real estate devised subject to the pay- ment of legacies was mortgaged by the devisee and sold upon foreclosure sale, the purchasers took the property subject only to such equitable claims as would have existed against it If the mortgagee had become the purchaser without any other notice of the claims of the legatees than he had at the time of the execution of the mnrtga^e. Dodge v. Manning, 11 Paige Ch. 334, S: 155 433. A purchaser under a sale by virtue of a de- cree of foreclosure will only take a title as against the parties to the suit; and he cannot set it up against the subsisting equity of those incumbran- cers who are not parties. Haines v. Beach, 3 Johns. Ch. 459, i: 683 434. An order upon a purchaser under a decree of foreclosure to complete the sale, made ona speciflo objection taken to the title, does not decide a ques- tion of title or of parties which was not made the ground of objection or brought to the consideration of the court; and such order is not a protection to MORTGAGE, VII. m. 351 the purchaser against persons having: vested inter- ests in the equity of reaemptlon, who ought to have been, but were not, made parties to the foreclos- ure. Waiiamson v. Mela, 2 Sandt. Ch. 533, 7: 698 435. Where a junior mortgagee is not made a party to a foreclosure suit, his rights and those of his as- signees are not impaired by the sale; and the pur- chaser at the sale only obtains an interest in the premises to the extent of the amount due on the first mortgage and the equities of redemption sub- ject to the payment of the second mortgage. t uuani uctiLij V. titLeiLurit il Faige Un. <»), 6: 45 436. The equitable claim of a person in possession of mortgaged premises, who has advanced money for the erection of a building thereon, will not be cut ofE by the foreclosure of the mortgage and the sale of the premises, unless he was made a party to the foreclosure suit. DeBwt/ferv. St. Peter's Chvreh, Z Bai-b. Ch. 655, 5: 751 437. Upon a statute foreclosure, if there are judg- ments which are liens upon the equity of redemp- tion, the purchaser obtains the whole legal and equitable interest in the mortgaged premises, as against the mortgagor and all persons claiming under him, subject to the equitable right of the judgment creditors to redeem. Benedict v. Oaman, i Paige Ch. 58, 3; 340 438. The effect of a statute foreclosure is to trans- fer, to the purchaser, the right of the mortgagee to the extent of his claim or interest in the mortgaged premises for the security of his debt, and also to transfer to the purchaser so much of the equity of redemption as is not vested in subsequent mort- gagees, nor bound by the lien of subsequent judg- ments. Troom v. Ditmas, i Paige Ch. 536, 3: 545 439. Where the complainant in a foreclosure suit is himself the purchaser under the decree, he is chargeable with constructive notice of an irregu- larity in neglecting to file a proper notice of the pendency and object of the suit. GmiAS V. mtchcock, 10 Paige Ch. 399, 4: 1087 440. A stranger who becomes purchaser at a fore- closure sale and pays tlie puronasu money before notice of the irregularity of neglecting to file cor- rect notice of liK vendene, will be protected as a bona ^de purchaser. ibid. 441. In mortgage and partition sales in chancery. If the premises are not sold at the risk of the pur- chaser, he wiU not be compelled to complete the purchase, in case the premises should be incum- bered, or no title should pass by the sale, or there should be difficulty in obtaining possession. WeGmim v. WUkim, 1 Paige Ch. 130, 2: 584 See also JnniciAi, Sale, III. b. 442. 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 Dy the court. Kershaw v. Tfuympsim, 4 Johns. Ch. 609, 1: 953 443. Where, after a foreclosure and sale of mort- gaged premises, 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, will order the possession to be delivered to the purchas- er, and not drive him to his action of ejectment at law though the delivery of possession is not made a part of the decree. ibid. 444. And in case of disobedience to such order, an injunction issues: and on proof of its service, and refusal by the party to obey it, a writ of assist- ance issues of course to the sheriff. ITHd. 445. But where the deliver of possession is made part of the decree, a writ of execution is the prop- er remedy in case of disobedience. Ibid. See also Assistance, Writ or. 446. On a sale of mortgaged premises, if a defend- ant In possession will not, on being shown the mas- ter's deed, deliver them up, an order may be taken requiring him to deliver possession; and on disobe- dience of that order, an injunction may issue. Ludlow v.Lansimg,Hop^.Ch.Zai, 8:404 m. Setting Aside; Resale. 447. The practice of the English Chancery, of opening biddings at the masters' sales, has not been aw^Iimnson V. Dale, 3 Johns. Ch. 290, 1:688 448. But where the executors of a mortg;agee wer»- innocently misled, and induced to believe that the sale of the mortgaged premises would not take- place on the day appointed, there being no culpable- negligence on their part, the court, under the cir- cumstances of the case, ordered the sale to be set aside, on the ground of surprise, on the defend- ant's paying to the purchaser all his costs and ex- penses, and the costs of the application, though, the sale was perfectly regular and fair, and no un- fair intention was imputed to the mortgagee or his solicitor. Ibid. 449. A decree taken pro confesso on a bUl for a foreclosure of a mortgage, after a sale and a de- lay of more than six months, will not be set aside, unless under verv special circumstances. Lansing V. STPherson, 3 Johns. Cb.4Zi, 1:671 450. But the sale was opened, the defendant, who was bound to make good any deficiency on the sale, offering 60 per cent more than was bid, on condition of his aepositing that advance with the register, in eight days, and paying the expenses of the former sale. Ibid. 451. Where the evidence showed that a mortgagee- hau fraudulently and in collusion with a third per- son foreclosed his mortgage by a statute foreclosure, for the purpose of enabling the latter to obtain the premises at a price far below their value, and with the intention of defrauding theownersof the equity of redemption, the court of chancery set aside the sale. Jenehs v. Alexander, U Paige Ch. 619, 5: 855- 452. Where, upon sale of mortgaged premises worth $.1,000, two bids were offered,— one of $1,800, and- the other of $2,000,— when the sale was suspended, and the $2,000 bid was then withdrawn; whereupon tiie master, instead of falling back upon the $1,800 bid, put up the premises anew and struck them off' for $560,— the sale was set aside as irregular, upon application of a judgment creditor of the mort- gagors, who was ignorant that the sale was to take phice. May V. May, 11 Paige Ch. 201, 5:107- 453. A mere mistake in computing the amount due upon a bond and mortgage, at the time of the first Eublication of the notice of sale upon a statute oreclosure, is not of itself sufficient to vitiate the- sale. Jenclcs v. Akxander, U Paige Oh. 619, 6: 855 454. Where a bill was filed to foreclose amortgage.- which was a valid lien upon premises worth the whole amount due on such mortgage, including costs of foreclosure, but, owing to the ignorance or carelessnessof the person employed to foreclose the mortgage, a subsequent purchaser of the mort- gaged premises from the mortgagor was not made- ^ party, and the bill having been taken as confessed against the mortgagor, a decree of foreclosure and sale was entered, and the premises were sold for less than one third of the amount due upon the mortgage, to a person wh o transferred his bid to the owner of theequity of redemption, — it wasaproper case for setting aside such decree and the sale under it, and for granting leave to amend the bill, upon thf Rnplipaiiion r,f the comnlainants, on terms. Wakeman v. BasUton, 3 Barb. Ch. 148, 6: 85* 455. Where the owner of premises covered by a mortgage was a nonresident of the State, and was ignorant of the institution of the suit to foreclose such mortgage until after the sale of the premises- under a decree; and the agent to whom he had con- fided the care of the property had, by the visitation of God, been so far deprived of his reason as to be incapable of attending to any business, in conse- ?uence of which the premises were sold at a price ar below their value,— it was a proper case for set- ting aside the sale and ordering a resale of the- premises. Thompson v. Mount, 1 Barb. Ch. 607, 5: 513 456. A resale of mortgaged premises is generally ordered for the purpose of increasing the fund for the payment of the debts of the mortgagor. Farnham v. Cnlton, Clarke Ch. 35, 7; 44 457. Upon an application to open a rleoree for a. sale of mortgaged premises, or for a resale, the whole equities between the parties will be taken into consideration, and the court, in its final order, will be governed by such equities. Waey V. Anga, Clarke Ch. 217, 7:97 458. A purchaserby contract of aportion of mort- gaged premises, and Who has paid the whole pur chas money so as to entitle him to a deed, may nave an order for a resale of the mortgaged premises ■552 MORTGAGE, VIII. a. sold by virtue of a decree under the elder mort- gage, if he has been misled or surprised by an art, ■connivance, or studied concealment of tacts, of the person for whose benefit the sale was made, fVanois V. Church, Clarke Ch. 475, 7:176 459. A resale is not generally ordered for mere in- adequacy of price; but it will be where there has been any surprise produced by the act of the per- sons makiner it, or where the person seeking to -open the sale, having an interest, has been misled by the device or concealment of the person mak- ing the sale. Ibid. 460. A resale of mortgaged premises is only or- dered upon terms; and the proper terms to be im- posed depend upon the circumstances of each case. Ibid. 461. Where a defendant in a foreclosure suit, liable for the deficiency, if any, and who was intending to attend the sale and prepared to bid for his protec- tion, was prevented by accidental causes, although he used resisonable diligence, from attending or be- ing represented at the sale of the premises, where- by the same were sold for one third of their value, leaving a large deficiency against such defendant, — ^the court ordered a resale. Hoppoek V. Conklm, 4 Bandf. Ch. 583, 7: 1817 463. The court of chancery cannot set aside a public sale made by an officer who is not acting under the direction of the court, on the ground of 'the inadequacy of the sum bid by the purchaser, however gross or startling it may appear. March v. Lvdlum, 3 Sandt. Ch. 35, 7: 760 463. Nor is it a ground for relief against such a -sale regularly conducted, that the party chiefly interested in attending upon or preventing it was ignorant that it was to take place, even if the prop- erty sell for a twentieth part of its value. ibid. 464. A Judgment creditor purchased the (arm of his debtor at a sale under the judgment. The farm was worth $:),000, and was subject to a mortgage to the loan commissioners for 8131, executed sixteen years before. The debtor ceased to pay themterest thereon after the sale, upon which tne farm was advertised by the commissioners and sold and con- veyed to L, a neighbor of the debtor, for $146. The creditor, residing in a distant State, was ignorant of the existence of a mortgage until after the sale, as was his attorney, who resided in the county. The sale was advertised according to the commissioners' usual practice. The notice was published in a ne ws- paper which had the greatest circulation in the part of the county where the farm was situated and was to be sold, and the notices were posted in the same part of the county. The attorney lived in a difl!er- ent section, where there were three newspapers of a much larger circulation. There were but five or six persons present at the sale. L went with the •debtor to the sale, and was urged by the debtor to buy the farm. After arriving ne consented to buy It, and borrowed the money for the purpose at the place of sale. After the sale he permitted the debt- or to occupy the farm, the latter taking a lease. There was no proof that L bought the farm for the debtor, or that any of the consideration was fur- nished by the debtor, or that either of them de- terred or prevented others from hearing of or at- tending the sale. On a bill by the creditor to set a£idc the sale for fraud and unfairness,— BeM, that the sale was regular, and that it could not be set aside on the facts established. Held, that after the ■sheriff's sale there was no relation of trust or con- fidence between the debtor and the creditor, nor any duty on the part of the former, which required him to apprise the latter of the impending sale, or precluded him from buying at the sale. Ibid. 465. Where the commissioners, under the Act of 18a7, for loaning certain moneys of the United States, advertised and sold mortgaged premises on the first Tuesday of February, pursuant to the stat- ute, for the nonpayment of the interest due in the preceding October; and some of the terms of the sale were that the premises should be put up at the amount of the mortgage and interest, with the <;osts and expenses of such sale, and sold to the highest bidder, who should forthwith pay 14 per ■ceiit of the purchase money, and the expenses •of the sale, and execute a written agreement to .comply with the other terms of the sale: and the i)erson to whom the premises were struck off re- fused to pay the 14 per cent or to sign the written agreement,— Seid, that the commissioners were authorized to put up the premises for sale again immediately ; and that they were not bound -to wait until the third Tuesday of September, if there was a purchaser present at the resale on the first Tuesday of February who was willing to bid to the amount of the mortgage and interest and costs, and to comply with the terras of the sale and pay the purchase money. Sherwood v. Beade, 8 Paige Ch. 633, 4: 570 466.It was held to be reasonable diligence in def end- am iQ a foreclosure suit, liable for a deficiency, to write by mail to an agent of sufficient pecuniary ability, when the party himself was precluded from attending tne sale, and his previous conversations with the complainant and his solicitor wej e such as to induce him to believe that they would not suffer the mortgaged premises to be sold tor less than the debt and costs. BoppoOi V. Conhlin, 4 Sandf. Ch. 582, 7: 1817 VIII. EeDEMPTION OB DlSAPFIBMAKCE. a. In Oeneral; The Bight 467. The owner of the equity of redemption is not entitled to redeem the mortgaged premises, after the same have been put up and sold under the de- cree, although the mortgagee becomes the pur- chaser at such sale. , „„„ Brown v. Frost, 10 Paige Ch. 243, 4: 96a 468: And asalebythe mortgagee or his executors, under a power contained in the mortgage, pursuant to the statute, is a valid bar to the equity of redemp- tion. Demarest v. Wynkoop, 3 Johns. Ch. 129, 1: 566 469. Where the statute makes no exception, this court will make none, in favor of infants, but their equity of redemption is barred by the sale. Ibid. 146, 1: 673 470. Parol evidence was admitted to show that a mortgage only, and not an ausolute sale, was in- tended, and that the defendant had fraudulently attempted to convert the loan into a sale; and the nlaintfe was therefore held entitled to redeem. Sfrons V. Stewart, 4 Johns. Ch. 167, 1: 808 471. A voluntary deed not delivered to the gran- tee, and kept concealed from the public, tor neiuiy eigiitfien years, during which time the grantor re- mained in possession of the premises as owner, cannot be set up against a third person dealing with the grantor as owner, althoi' 'h he may have heard of its existence at the time Le took his mortgage But the grantee, being the heir at law of the gran- tor, has a right to redeem. PeriJie V. Dunn, 3 Johns. Ch. 508, 1:699 472. Where the heir at law has the right to redeem mortgaged premises,and the wife is entitled to dow- er in the equity of redemption, she has the equlta- able right to redeem her dower, as against the mort- gagee and those claiming under him, upon the payment of such portion of the incumbrance as is ]ust and equitable. Bell V. New York, 10 Paige Ch. 49, 4: 881 473. Although a party who has gone into possession of premises unuur an agreement to purchase the same is, at law, a tenant at will to the bolder of the legal title, yet if he is under a written agreement made by the owner to sell and convey the premises to him, or under a parol agreement which has been so far consummated as to entitle him to a specific performance, he has the same claim to redeem, ex- cept as against huriaJUie purchasers without notice of his equitable rights, as if the equity of redemp- tion had been conveyed to him at the time when his equitable rights accrued under the contract. Lov>rv V. Tew, 3 Barb. Ch. 407, 5: 952 474. Where D, the owner of premises which were subject to the incumbrance of a mortgage given by a previous owner, gave two mortgages to the com- plainant, and afterwardsa Judgment was recovered against U in favor of V H. and the premises were then sold under a, statute foreclosure of the prior mortgage; and Y H afterwards took a conveyance from the purchaser, and then conveyed the premises to S with warranty,— Held, that the purchase of the premises by V H under the statute foreclosure, and the subsequent conveyance with warranty, operated as a release and extinguishment of his right to redeem the premises by virtue of his judg- ment; and that S took the whole legal and equi- table title to the land,8ubject only to the right of the complainant to redeem by virtue of his mortgages, if the amount due thereon was not paid. " Vroom V. Dttmas, 4 Paige Ch. 526, 3: 54S 475. A sale or lease of part of the premises, by a MORTGAGE, VIII. b. 353 morteagee, before foreclosure, does not prejudice or affect the rigljt.of redemption of the mortgagor, nor does it deprive the mortgagee of the right of foT-pclosure. " Wilson V. Troup, 7 Johns. Ch. 25, 8: 809 476. A sale of the premises by the mortgagee does not deprive him of the right of foreclosure under the mortgage ; nor does It afCect the right of the mortgagor to redeem. Ihid. 477. A mortgagee, before foreclosure, can do no act to bind the mortgagor when he offers to redeem. Ibid. 478. Where the plaintiff assigned the lease of a farm to secure the payment of a debt due to tne defendant : aud the parties afterwards entered into an agreement by which the plaintiff, in considera- tion of a sum of money expressed, but not In fact paid, agreed to give up to the defendant one half of the farm; and the defendant entered into pos- session of the premises, and surrendered the lease to the landlord, and took a new lease for an ex- tended term of years,— it was held that the plaintiff was entitled to redeem the whole premises, and, on such redemption, to have the enture benefit of the new lease. Rolridge v. aUlespie, 3 Johns. Ch. 30, 1: 884 479. Contracts made with the mortgagor, to lessen or embarrass the right of redemption, are regarded with jealousy. Ihid. 34, 1 : 886 480. S being indebted to the Manhattan Company, upon a note to the amount of IpJi.uuu, aud also oeiuj; in embarrassed circumstances, upon the application of the directors of the company, in order to secure the amount due to the company, he aligned to them a bond and mortgage for $4,000, which he held upon a house and lot in Poughkeepsle, against F & H. The assignment was made with the express un- derstanding that the surplus, after satisfying the 4ebt of the company, should belong to S. The as- signment stated that S, for the sum of 82,000, as- signed the bond and mortgage to the Manhattan Company, with power to collect the sum of 83,000 for their own use, and contained a covenant on the part of S that 82,000 was due on the mortgage, and that the mortgaged premises should sell for that sum and the Interest and costa. In 1817 the Man- hattan Company foreclosed the mortgage, and caused the mortgaged premises to be bid in for 8700. Previous to the sale S was told by the agent of the company that if the company purchased in the property, it should remain as it then was as to him, S merely foreclosing F & H. S always insisted upon his right to redeem, and in 1825 made a direct appli- i'ch is the snme in equity as at law. Demarest v. WynT«>ap, 3 Johns. Ch. 129, 1: 666 o. Term» and Conditions. 503. A bill filed by a subsequent purchaser of mort- gaged premises to set aside the previous mortgage on account of usury, and, in the event the mort- gage should not be declared usurious, to obtain a reduction of the amount claimed to be due upon a foreclosure by advertisement, cannot be sustained unless the complainant pays, or offers to pay, the amount actually loaned. CoU V. Savage, Clarke Ch. 483, 7: 179 504. A bill for redemption which sets forth a liqui- dation by the parties of the sum payable, and an offer to pay that sum, which was refused, need not contain an offer to pay what may be found due on an account to be taken. Barton v. May, 3 Sandf. Ch. 450, 7: 915 505. Where the mortgagee In possession has sold and conveyed a portion of the lands, the mortgagor coming to redeem may affirm the sale, and require the mortgagee to account for the purchase money; In which event there will be no account of the rents and profits of such portion subsequent to the Borst v. Boyd, 3 Sandf. Ch. 501, 7: 936 506. Where the mortgagee takes possession of the mortgaged premises betore f orecfosure, and occu- pies them himself, he must account for the rents and proUts, at the rate of rent which the premises by ordinary care would have produced exclusive of taxes and repairs. Tan Buren v. Olrmtead, 5 Paige Ch. 9, 3: 605 507. A purchaser of mortgaged premises, which were redeemed within the time allowed by the Ac* of 1837 concerning the sale of real estate by mort- gage, is not entitled to retain the rents and profits mtermediate the sale and the time of the redemp- tion, in addition to the amount of his bid and the 10 per cent interest thereon ; although the owner of the equity of redemption neglected to give the requisite security to prevent the purchaser from taking possession of the property immediately after the confirmation of the report of the sale. Buekman v. Astor, SFaige Ch. 517, 4: 799 S. C. 2 Ch. Sent. 20, 5: 1080 508. A sale and assignment of the equity of re- demption of mortgage premises, where the mort- ?agee is in possession, necessarily carries with it tO' he purchaser the right to an account for the rents and profits of the premises as an incident to the- right of redemption, and as an equitable offset against the amount due upon the mortgage. Ibid. 509. Upon a decree Qf strict foreclosure, where th& mortgagee is in possession of the mortgaged prem- ises, if such premises are redeemed within the tim& allowed by the decree for that pupose, the mort- gagee must account to the owner of the equity of redemption for the rents and profits received sub- sequent to the decree. ibid. 510. A mortgagor whose equity of redemptionba& not been barred has a right to redeem from the mortgagee in possession, upon payment to him of the principal and interest due on his mortgage, after deducting therefrom the rents and profits re- ceived by the mortgagee. And the mortgagee will be enl iUed to a decree that payment of the amount ascertained to be due be made within such time a» the court shall direct, or that the mortgagor's equity of redemption be absolutely foreclosed: or to a decree for the sale of the mor^aged premises, to satisfy the amount so ascertained to be due. Bell V. New York, 10 Paige Ch. 49, 4: 881 511. Where a subsequent judgment or mortgage creditor offers to redeem, the mortgagee cannot tack a debt due to him from the mortgagor, and secured by another mortgagor on other property, or any debt which is not a charge on the premises sought to be redeemed, or of which such subsequent judgment or mortgage creditor was not bound to take notice. Burnet v. Dennixton, 5 Johns. Ch. 35, 1 : 999- 512. Where such subsequent creditor tenders to a mortgagee the full amouut of theaebtauu uituiesc due on the prior mortgage, with the costs and charges, which the mortgagee refuses to accept unless another debt due to him from the mortga- gor, not charged on the premises, is also paid, but proceeds to sell the land under a power ofsale con • tained in the mortgage, such sale is irregular m-l void. Ibid. 513. A mortgagee, or assignee of a mortgagee, in possession, is not to be allowed for his improve- ments in clearing wild land, but only for necessary reparations, etc.; and must account for the rents and profits received by him, except such as have arisen exclusively from his own Improvements. Moore v. CaHle, 1 Johns. Ch. 385, 1: 180- 514. Where the owner of the equity of redemption again mortgaged the-lands to a trustee >n trust to secure the payment of debts due to different per- sons, and afterwards assigned the equity of redemp- tion in trust for the payment of his debts, giving preferences to debts not provided for in the second mortgage, and the premises were afterwards sold under a decree in a foreclosure suit upon the first mortgage, and one of the creditors whose debt was provided for in the second mortgage afterwards purchased the equity of redemption from the as- signees, and redeemed the premises from tbo mas- ter's sale, under the Act of May, 1837, concerning the sale of real estate by mortgage,— if eld,;that as the purchaser of the equity of redemption from the as- signees was under no legal or even equitable obliga- tion to redeem for the benefit of his co-cesUti* q;ue trii&t in the second mortgage, his redemption of the mortgaged premises was neither, at law nor in equity, a redemption for their benefit. KeUoggv. Conner, 10 Paige Ch. 311, 4: 990 515. Held, further, that if the trustee to whom the second mortgage was given had redeemed, his re- demption would in equity have been a redemption for the benefit of himself and all the other creditors whose debts were provided for in that mortgage. ibid. 516. Held, also, that a subsequent offer of the sec- MORTGAGE, VIII. d, IX. SSS ond mortgagee to redeem from the purchaser of the equity of redemption, who had previously re- deemed, guve no rights to the second mortgagee ; as the amendatory Act of April, 1838, gave to the redeeming assignee of the equity of redemption all the title of the original purchaser at the master's sale, without making any provision for a redemp- tion from him by a prior mortgagee, or judgment creditor. Kellogg v. Conner, 10 Paige Ch. 311, 4: 090 617. Where a mortgagee obtains a renewal of a lease, or any other auvaiiLage,in coneegueuoe of his situation as such mortgagee, the mortgagor coming to redeem is entitled to the beneflt thereof. Slee V. Mcmhattcm Co. 1 Paige Ch. 48, 8: 55? 518. Where, undera statute foreclosure, the holder of the leuai eauiDe, or murigagee Uiiuseif, Oecomes the purchaser of the equity of redemption, no deed is necessary to make his title to the premises per- fect. Ikd. 619. Where the widow is entitled to dower in the equity of redemption, and the mortgagee declines to enforce payment of the principal of his debt, she must, as between her and the heir or other owner of the equity of redemption, contribute sufficient from time to time to keep down one third of the interest on the amount due. But where the mort- c^ge money is due and the mortgagee insists upon the payment of his debt, the court wUi not require him to relinquish the possession of any part of the mortgaged premises, and to receive the payment of the proportion of the debt which is chargeable on that part of the premises, in periodical pay- ments, during the life of the party entitled to re- deem. Bell V. New York, 10 Paige Ch. 49, 4: 881 520. And where the mortgagee has taken posses- sion, the wife of the mortgagor, who is entitled, to dower in the premises, and who was not made a garty to the foreclosure suit, cannot redeem her f e estate except upon the payment of legal inter- est upon one third of the amount due on the mort- gage, for the residue of her life ; and possession of one third of the premises cannot be decreed to her without an actual redemption. Ibid. 621. Where a mortgagee in possession has fore- closed the equity of redemption of the person who has the estate in remainder in the mortgaged prem- ises, but not of the owner of the estate for life therein, the latter is not entitled to the possession of the premises during the continuance of his life estate, upon merely paying the interest which be- comes due on the mortgage from year to year for life ; but he must pay a gross sum, to be ascertained, under the direction of the court, upon principles on which the present value of a life annuity is calculat- ed, considering the annual interest on the amount then due on the mortgage as the annuity. And upon the payment of such gross sum he will be permitted to redeem hjs interest in the mortgaged premises, and will be let into possession thereof dur- ing the continuance of his life estate therein ; or the decree may direct his life estate to be sold for the purpose of satisfying his proportion of the debt thus ascertained, and that the surplus arising from the sale be paid to him. Ibid. SIS. The same mode must be adopted to settle the relative proportions which the owner of the Uf e es- tate and the remainderman should pay to redeem the premises, where the morgtage has not been foreclosed as to either. Ibid. 523. On a bill to redeem, further time is not usually given for the payment of the money. Brindkerlwff v. Lansing, i Johns. Ch. 65, 1: 765 6Z4. Nor will the proceedings of the mortgagee, under a power of sale contained in the mortgage, be suspended or delayed until the plaintiffs, who are owners of the equity of redemption in different proportions, have settled the ratable proportion which each is to contribute towards the redemp- tion. Ibid, 525. But tf the plaintiffs pay into court the mort- gage debt, interest, and costs, the suit may be re- tained for a reasonable time, to enable them to proceed against one of the defendants who had an interest in the equity of redemption, to compel him to contribute his proportion of such debt and Interest. Ibid. 556. A subsequent mortgagee who seeks to redeem from the puronaser under a statute foreclosure of a prior mortgage is not bound to pay the costs of such foreclosure, which foreclosure.as to his rights, is wholly inoperative. Vroom V. Dttmas, i Paige Ch. 526, 3: 545 627. Upon the redemption of mortgaged premises- by a judgment creditor, after a statute foreclosure^ he is not bound to pay the costs of the foreclosure. Benedict v. Oilman, 4 Paige Ch. 58, 3: 340 628. The amount which a judgment creditor is bound to pay to redeem mortgagca premises, alter a statute foreclosure, is the sum actually due upon the mortgage, and not the sum bid by the purchaser at the sale under the statute. Ibid. ,< d. Partiea; Praetiee. 629. Where a mortgagee in possession makes an absolute s.ilo aiiU cuaveyaucis of rhe miyn;4-a^ed premises, the purchaser must be made a party to a bill filed against the mortgagee for the redemption of the premises. Dias v. Aferie, 4 Paige Ch. 259, 3:437 530. Where a mortgagee has assigned his whole in- terest, and the mortgagor flies a bill for an auuouut and to redeem, the general rule is that the mortga- gee is not a necessary party. Still, if there are cir- cumstances rendering it proper, the practice is otherwise. Wnlmtt V. Sullivan, 1 Edw. Ch. 399, 6: 186 Whitney v. WKinney, 7 Johns. Ch. 144, »: 849) 531. An affidavit made by the mortgagor of the amount due upon the mortgage is sumcient to en- title the mortgagee to redeem, and for that pur- pose the mortgagor is an agent of the mortgagee. Augwr v. Wimlmi), Clarke Ch. 258, 7: 108 532. Upon a bill to redeem, where the complainant is in possession ot the premises, which are an ample security for the amount admitted by him to be due; and the defendant insists that be is the absolute- owner of the premises, and that the complainant is not entitled to redeem,— the court will not order the- amount admitted to be due to be paid into court, nor appoint a receiver of the rents and profits of the premises pending the litigation, if the insolvency of the complainant is fully denied. Jenkins v. Hinman, 5 Paige Ch. 309, 3: 730 533. A- executes a mortgage to B upon four lots of land, upon which $sM is unpaid and not yet due. A, after having sold one lotto C, sells a second lofe to D with covenant of warranty, and takes back a mortgage upon that lot, upon which $100 is now due. A, by deed with like covenant, conveys a third lot to B and takes back a like mortgage, upon which the like sum of $100 is now due. A after- wards sells the fourth lot to F, which lot is now worth $1,600 without buildings, and $5,000 with the buildings thereon. A becomes insolvent, and makes a general assignment, including the mort- gages of D and E. A bill in favor of D and B, ask- ing to pay their mortgages and have the amount applied upon B's mortgage, will be dismissed. F is a necessary party to such bill. tloag V. Bathbun, C. 12, 7:38 TX. Chattel Mobtgaoes. 634. A chattel mortgage which is not accompanied by an actual and ooutiiiueU ohauge ot possessiOQ of the whole property mortgaged, and which mortgage is not filed in the proper clerk's office, as required by the Act of 1833, is absolutely void as against the creditors of the mortgagor, and not merely void as to so much of the property mortgaged as remained in the possession of the mortgagor. Benedict v. Smith, 10 Paige Ch. 126, 4: 913 S. C. 3 Oh. Sent. 7, 5: 1193 535. A prior mortgagee of lands took further secu- rity by a mortgage of goods, and afterwards took possession of the goods. Held, that he had the op- tion to sell them at auction and credit the proceeds on his debt, or to keep them and account for their market value; and having retained them, he was^ decreed to account for such value. Oraig v. Tavplm, 2 Sandf. Ch. 78, 7: 51S 536. Where a mortgage given upon leaseholds ani3 household furniture, for securing liabilities in-; curred for the mortgagor's accommodation, waaf not filed, pursuant to the Act of 1833, till seven months after it was given, was never renewed ac- cording to that Act, and there never was any change in the possession of the furniture,— HeW, that the entire mortgage was fraudulent and void as against creditors, although as to the leaseholds there was a change of possession. Goodhue v. Berrien, 2 Sandf. Ch. 630, 7: 734 3S6 MORTGAGE, IX. 537. Although the mortgagee has neglected to file a new copy of the mortgage in the manner pre- scribed by the statute of ISlS, that neglect will not vitiate a new mortgage for the same debt and on the same property, if otherwise bona fide. Lee Y. Bunhon, HofE. Ch. 447, 6: lf803 538. W. and C, being indebted to L. and H. on notes for goods sold and for money lent, proposed to mortgage all their present and future stock and goods, in case of a renewal and of a further loan - stating their perfect solvency and the great advan- tage which would accrue to their business by such loan. L. and H. consented, and the mortgage was made out, which assigned all the goods and the stock in trade which W. and C. then owned or which they might at any time before the final pay- ment of the debt own, in whatever store, ware- house or other place the same might be situate; but W. and C. were to keep possession until default. About two months afterwards W. and C. made an assignment to B. of all their goods and stock, in trust f c- creditors, making E. a preferred creditor. BeM, that the mortgage to L. and H. should bold good for so much of the property embraced by the assignment to B. as was in hand or in store at the time the mortgage was given and to such as might have been since purchased and paid out of its pro- ceeds, but no further; and it was declared that so much of the property and of its avails could be fol- lowed. Levy V. Welsh, 2Edw. Ch, 438, 6: 459 539. Where the mortgagee of a steamboat, who had taken the mortgage as surety for the payment of a note indorsed by him, was compelled to pay the note when it became due, and, to save the credit of the drawers, he gave them his check to take upthe note instead of suffering it to be protested,— Sel>{, that the debt for which the mortgage was given wus not extinguished, and that the mortgage still re- mains a valid lien upon the boat for the security of the amount due the mortgage. Rogers v. Traders Ins. Co. 6 Paige Ch. 583, 3: 1111 540. An assignment of a mortgage carries with It all the incidents to its payment. Thus, in the In- stance of infant's mortgage of goods,— ifeW, that an assignment carried the mortgagee's right to an account, and to the chattels mortgaged, as well as to an action for those converted, whether the in- fant affirmed or disaffirmed the mortgage. Ottman v. Moak, 3 Sandf . Ch. 431, 7: 909 Rents; restraining collection by mortgagor 4: 879 4: 683, 5: 256 3: 1005 Editorial Notes. Instrument; when construed as mortgage 5:858,7:915 Contract and conveyance absolute may be 3: 1069 Deed; when deemed to be 1:255, 259, 340, 802, 1061, 2:169, 213. 617, 3: 216, 1053, 4: 415, 6: 1053, 7: 83 Conditional sale as distinguished from mortgage 4: 415, 6: 340, 7: 238 A mere security 4: 882, 5: 580, 6: 712 As collateral security 1:82,2:667 Once a mortgage always a mortgage 3: 314 Title to mortgaged premises 5: 580 An alienation pro tantoot proceeds of prem-. ises 5: 56 As gift may be valid 6: 433 Of future-acquired property 4: 463, 6: 459 To secure advances 1: 382, 785, 5: 906, 6:1094, 7:231, 515, 670 cannot be extended to cover further debt 5: 906 By wife 1:566, 6:671, 7:800 Of lunatic's property 1: 424 By tenant in common pending partition ' 7:533 Delivery up and cancellation 1:466, 2:161, 4:250 Estates of parties 1: 566. 1139, 2: 816, 1041, 3: 617 Rents; right to 4:544, 878, 5:190, 580, 6:923 Mortgagee as trustee as bona fide purchaser right to assignment of judgment 4: 655 not entitled to insurance money except under special agreement 4:498 payment of taxes by 2: 422, 6: 531 right to personal judgment 5: 754 right to acquire equity of redemption; cannot take undue advantage 6: 495 Priorities 2:627,4:879,7:231 between mortgaiies recorded at same time * 5: 707 junior lien subject to contingencies 3: 176 prior incumbrances not to prejudice junior 2: 205 rights of junior mortgagee; foreclosure against 3: 649 Lien attaches to surplus on execution sale of premises 3: 533 Payment not exclusively from husband's interest 4: 667 contribution to burden 1; 196, 3: 618 presumption of 1: 566, 1169 keeping aliye after 2: 161 by third person not discharge 4: 389 not extinguished by renewal of notes 5: 906 new security does not extinguish prior one 3: 1111 Satisfaction; of record ' 7: 395 suit to procure 5 : 46 Assignment of 7: 909 as collateral security 3:557 registry of, not notice 3: 169, 5: 565 rights of assignee 1: 470, 2: 526, 7: 65 priority among assignees 2:526 subject to equities against assignor 4: 171 Cannot be transferred without the debt 1: 1178 Release of part 1 : 196, 3: 889 of personal liability 5 : 1030 Redemption; right of 2: 314, 942, 4: 431 time for 1: 259, 556, 682, 973 tender of money after forfeiture 3: 1112 only remedy of mortgagor 6: 247 who entitled to 3: 341 by judgment creditor 3: 605 by subsequent creditor 1:999 parties in redemption suit 6: 186 by subsequent incumbrancer 3: 342 purchaser a necessary party 3: 427 costs on 3: 546 conditions of 3: 730, 1011, 4: 701, 6:1170 from mortgagee in possession 1: 180, 3: 343 from mortgagee as purchaser 6: 1057 statute to be strictly pursued 4: 110 contribution between coredemptioners 4:882 Conveyance of land subject to 4: 143, 763, 1104, 5: 775, 7: 377, 583 Assumption by vendee 1: 601, 5: 1030 of State mortgage 8: 856 of usurious mortgage 4: 1099 Grantees ; personal liability of 4: 1053, 1104 estoppel of, to deny liability 4: 1053 remedy of creditor against 4; 763, 1053, 1105 equitable right of, to protection 4: 393 MOTION-MUls'lCIPAL CORPORATIONS. 357 Grantees of mortgaged lands; equities be- tween 3:889,4:639,610,656,853 relation of mortgagor and vendee as prin- cipal and surety 7: 669 notice of alienation must be given 3: 889 Foreclosure ; statute 3; 340, 4: 764 strict 3: 340 of mortgage to State 3 : 856 of senior mortgage 5; 45 subsequent action against junior Incum- brancers 3: 341 by junior mortgagee 8:841,546, 5:47, 6:589 of installment mortgage 1:267, 4: 126, 7: 119 default,vrhen payable in installments 4: 143 on failure to pay interest 4: 114, 137 effect of 3:545 effect on subsequent mortgage 5: 46 bill should aver no proceedings had at law 3: 557 foreclosure and suit on bond at same time 2:60 suit on bond 1:686 separate bills not authorized 4: 1088 remedy at law must be exhausted 4: 577 after commencement of suit on bond 4:348 mere commencement of action at law will not prevent 4: 706 allowance of setoffs in 4: 993 who bound by decree 1 : 682 production of bond 7: 734 titles ; claim paramount 3: 1133, 5: 963, 7: 1078 decree authorizing redemption 5:531, 776 litigation of junior liens 7: 153 all liens of complainant to be determined in same suit 5 : 468 charges for expense of opposina; motion 5:469 Parties to foreclosure 1:682,951,968, 2:249,8:404,1133. 4: 268, 5: 915, 6: 335, 739, 7: 246 senior mortgagee 5 : 47 assignee 2:249 assignees of debtor 3 : 1066 guarantor 6: 602 holder of subsequent lien 8:850 mortgagor not necessary, when 3: 1018 persons claiming adversely to mortgagor 3: 1183 intervention to defend 4: 1059 Bale under decree 5: 59, 60. 6: 534, 7: 1217 under power 3: 340 power of court to order 6: 246 controlled by court 1:937, 2: 916. 4:962 description of property 4:143 where portion of debt only is due ; sale of parcel 3:617 resale ; opening biddings 4: 456, 1061, 5: 414, 1081, 6: 534 Deficiency ; decree for 4:617, 748, 1011, 6:840 contingent decree for 4: 511 when person liable for, dead 4: 620 execution for 4: 909 action for 1 : 686 Purchaser ; rights of 3:546 under discharged mortgage 1 : 444 entitled to growing crops and emble- ments 5: 516 Purchaser from mortgagor after di cree pro cojtfeaso 5 : 305 effect of purchase by mortgagee 4: 883 set-off 5: 520 Surplus, claims to 8: 854, 4:523, 882 claim of junior incumbrancers 4; 110, 808 claim of wife 4: 301 retaining amount of prior incumbrance 1:930 Chattel mortgages ; nature and effect of ; bill to redeem, and foreclosure thereof : sale by creditor upon notice 1 : 296-298 must be refiled 6: 1208 KOTION. See also Judgments, etc., 313-345; Pbaoticb, V- EDIT0RI.4L Note. Motion ; renewal of 1:116 MULTIFARIOUSNESS. See Creditors' Bill, 93, 95 ; Husband and Wlpe, 303. 304; Mortgage, 333 ; Pleading, 188, 189, II. c, 483. 73U. MUNICIPAL CORPORATIONS. See also Corporations, 6, 6 ; Highways; Intbb- est. I. f. 1. Section 12 of the Act of April, 1839, relative to the city of New York, only requires that the cosia and charges of the commissioners, attorney, coun- sel, etc., should be regularly taxed before they are paid to the persons who have performed the ser- vices; not that they shall be taxed before the asscss- mentis made and confirmed, which from the nature of the proceedings cannot be done. Wiggin v. New S'nrk. 9 Paige Ch. 16, 4: 591 Z. The corporation of the city of New York, as at present organized in two separate boards, under its amended charter of 1830, has the power to lay out new streets and to alter old ones in that part of the city not embraced in the permanent plan of im- provement, ibid. 3. The passing of an ordinance to authorize the opening of a new street or the alteration of au old one, under ! 177 of the Act of April, 1813, to reduce the several laws relating particularly to the city of New York into one Act, is the exercise of a legis- lative and not of a Judicial power. Ibid. 4. The corporation of New York, for all legislative purposes, is convened in common council when the aldermen and assistants convene in their separate chambers, as directed by the Act of 1830, amending the city charter. Ibiii- 5. it teerm that the provision in the Act of April 1830, relative to the city of ivew York.requiring the ayes and noes in certain cases to be taken and pub- lished, is merely directory, so far as relates to the publication. Ibid. 6. Where a blU was filed to restrain the corpora- tion of the city of New York from prosecuting suita against the complainant for breaches of the or- dinances of the corporation relative to the weigh- ing of anthracite coal,— Held, that the question of the validity of these ordinances did! not proper- ly belong to the court of chancery for decision, as the complainant had a perfect defense at law if the ordinances were invalid, or if they did not render the complainant liable for the penalty. Tfest V. New York, 10 Paige Ch. 539, 4: 1081 7. The city of Brooklyn has power to contract for the grading and regulation of one of its streets at a specified price, to be collected from an assessment made for such improvement., . ,.„ Cumming v. Brooklyn, 11 Paige Ch. 596, 5: -540 8. Where a municipal corporation has made a valid ^358 NAME— NB EXEAT, I. contract for the prndinfr and regulation of one of Ite streets at a certain price, to be paid out of an as- sessment made for such improvement, it is the duty of its oHicers to see that a proper assessment is made, and that the money is collected and paid over to the contractors within a reasonable time after the completion of the improvement. Ibid. 9. In such case, if the oflBoers neglect to compel a proper assessment to be made, the contractors are entitled to payment out of the general funds of the city, which funds are to be reimbursed out of the proceeds of the assessment when made. Ibid. 10. The corporation of the city of Albany has the same general jurisdiction over the pier and basin as over any other part of the territory within its chartered limits, sutiject to such provisions of the Act for the construction of the Albany Baain as are innonsistent with that jurisdiction. Bart V. Mayor, etc. of Albany, 6 Paige Ch. 313 3: lai IL By the Act of Maroh,1808,the jurisdiction of the city of Albany was extended from the western bank of the Hudson Biver to the middle of the main 'Channel. Ibid. 13. The charter of the city of Hudson does not au- thorize the common council of that city to pass an ordinance prohibiting the erection of wooden or frame buildings within the city, or to limit the size of buildings which individuals shall be permitted to erect on their own premises. Hudson V. Thome, 7 Paige Ch. 261, 4: 148 13. Although the corporation of a city is expressly authorized by its charter to prevent or regulate the carrying on of manufactures dangerous in causing or promoting flres, it cannot make a by-law to pro- hibit one citizen from carrying on such dangerous business and to permit others to do so, as all by- laws made by a corporation must be reasonable. Ibid. ' 14. Under the Act of 1817 incorporating the village of Seneca Falls, the street commissioners of thesev- eral wards are the proper persons to superintend the building of bridges ordered by the trustees to be built therein, and to make contracts for mater- ials and labor, subject to the ratification of the Seneca'PWIs v. Matthews, 9 Paige Ch. 504, 4: 793 15. Where the street commissioner neglects his duty, by refusing to superintend the Improvement or to cause it to be made in the manner directed by the ordinance of the trustees; or where he neglects to make contracts for labor or materials, and to submit such contracts to the trustees for their ap- proval,— their remedy is to proceed by indictment for such neglect of duty, or by an application to the supreme court for a mandamus. Ibid. Editobial Notes, Municipal corporations; may abate nuisances 3: 132 May restrain erection of nuisance on public easement 3: 537 Prohibiting erection of wooden buildings 4:148 May take gifts of property burdened witli conditions 5: 182 Street Improvements; power of city under its charter 5: 246 liability of city for costs of 5:247 assessment of owners and occupants to meet expenses of 5 : 246 Abandonment of plan for improvement 2:50 Duty of city officers 5: 247 remedy of taxpayer on breach of 5 : 247 Action restrained by attorney-general; by taxpayers 1 : 415 N. NAME. See also Injunction, I. 1. The word "junior" forms no part of the name of the person to whose name it is usually affixed, but is merely descriptive of the person intended, and is ^usually adopted to designate the son, - where a father and son both have the same Christian name as well as the family name. Padgett v. Laiwrence, 10 Paige Ch. 170, 4: 931 Editorial Note. Name; the word "iunior" no part of 4:931 NATURALIZATION. See Aliens, L Editorial Notkb. Naturalization; record of; cannot be dis- proved 5: 963 NATURAL RIGHTS. Editorial Note. Natural rights; right to use of one's own property 3; 1051, 4: 457, 822 NAVIGABLE WATERS. See Waters and Watercoubses, L NAVIGATION. See Commerce. NE EXEAT. I. Nature of Writ ; Procedure. II. When Allowable. III. Discharqe. Editorial Notes. See also Pleading, 76. I. Nature of Writ; Procedure. 1. The writ of ne exeat is not here a perogatlv« writ. Oibert v. Colt, Hopk. Ch. 496, 2: SOO NE EXEAT, II. 359 2. In a proper case this writ is of right, and not ■discretionary. Ibid. 3. Tiie court determines the amount in which defendant shall be held to bail ; and the sheriff must take a bond in the amount directed as the penal «um. iSid. 4. A writ of ne exeat is not a prerogative writ,but mere ordinary process ot a court of equity, to be used to prevent a party from evading justice by withdrawing himself from the jurisdiction of the -court. aieason v. Biiby, CJlarke Ch. 551, 7:197 5. A ne exeat, at the time of issuing, should be -markea by tne oQicer allowing it, in the sum in which bail is to be taken thereon; and if the writ is actually marked by the clork, it will be presumed .to have been so done in pursuance of the order of the court. ibid. 6. The plaintiff, in his afBdavit annexed to a bill ■for a writ of ne exeat repiibUca, though in a matter of account, must swear positively to a debt or bal- ■ance due from the defendant; but he need not swear to a certain amn, but according to his belief .as to the amount. Thome V. Hahev, 7 Johns. Ch. 189, 8: 264 7. If an answer is put in to the bill in such case, though the time for filing exceptions to it has not expired, the answer may be read on a motion to ilisoharge the writ of ne eaeat. iWd. 8. After the bill has been taken as confessed against the defendant for want of appearance, an application for a ne exeat against the defendant may be made ex parte and without notice to him. Austin V. Figuelra, 7 Paige Ch. 56, 4: 68 9. On application for a writ of ne exeat repuUica, by a wife against her husband, pending a suit for alimony, etc., her alfldavit is admissible, the pro- ceeding being ex parte, and the wife, in that re- ispect, considered as independent of her husband. Denton v. Denton, 1 Johns. Ch. 441, 1: 308 10. The sheriff is answerable for the sufiSciency of .*ne sureties wuicti ne cujies upou a writ of ne exeat. But where he has taken bail upon the writ, if the -defendant leaves the State, the court will allow the sheriff a reasonable time to produce the defendant; -or, in case be cannot be produced, will allow a rea- sonable time to the sheriff to prosecute the bond and to recover the amount which theshcriU' is or- ■ lored to pay. Brayton v. Smith, 6 Paige Ch. 489, 3: 1073 11. A bond given on the issuing of a ne exeat was lost, and a decree had been entered against the de- fendant. Held, that a suit at law might be had as on a lost bond ; that there was no occasion for the sureties to file a new bond, and that the court would not require such sureties either to pay the amount of the decree or bond forthwith, or to bring into court any securities which might have been deposited with them by the defendant. PrancescM v. Marino, 3 Edw. Ch. 586, 6: 771 12. Keason for not producing alBdavits upon ap- plication for ne exeat, Ordronaux v. flelie, 2 Ch. Sent. 69, 5: 1097 n. When Allowable. 13. The writ of ne exeat is in the nature of equi- table bail ; and, to entitle a complainant to such bail, there must be a present debt or duty, or some ex- isting right to relief against the defendant or his property, either at law or in equity. De BivafinoU v. Cor-setti, 4 Paige Ch. 264, 3: 439 14. If the party against whom a final decree is made intends to remove beyond the jurisdiction of the court before the decree can be enforced by ■execution, a ne exeat will be granted. Dunham v. Jackson, 1 Paige Ch. 629, 2: 778 15. A ne exeat is in the nature of equitable bail, -and may be applied for in any stage of the suit. Ibid. 16. JVis exeat not granted for mere purpose of ^holding defendant to bail. Schubert v. Bull, 4 Ch. Sent. 33, 6: 1145 17. A writ of ne exeat is now resorted to merely for the purpose of obtaining equitable bail. Mitchell V. Bunch. 2 Paige Ch. 606, 8: 1049 18. Whenever the defendant intends leaving the State, the complainant, upon producing evidence of such Intention and of his equitable claims against him, has a right to tliis equltahle bail. Ibid. 19. As a general rule, a ne exeat is issued only for an equitable demand. rbid. 20. But in case of a bill filed for an account, it may be granted, although the defendant migtic have been arrested at law, this being a case where the courts of chancery and law have a concurrent ju- risdiction, IbM. 21. A ne exeat may be granted In a suit between foreigners, and iu respect to demands arising abroad. Tbld. 22. Citizens of other States and foreigners are lia- ble to it while they are in this State. Oibert v. c'ott, Hopk. Ch. 496, 3; 600 23. A writ of ne exeat republiea may issue against a foreigner or citizen of another State, and on de- mands arising abroad; but the writ will be dis- charged on the defendant's giving security to abide the decree. Woodward v. Schatzell, 3 Johns. Ch. 412, 1: 666 24. To sustain the writ, sufficient equity must ap- pear on the face of the bill. Mere apprehension that the defendant will misapply funds in his hands or abuse his trust, is not sufficient. Ibid. 25. A surety in a bond cannot have a writ of ne exeat against the principal as incidental to relief. Oibbs V. Mermaud, 2 Edw. Ch. 482, 6: 475 26. On an ordinaryjudgment creditors' bill, where an answer denies property and no proof is had to show any, a ne ej:eat cannot be had. Palmer v. Van Dm-en, 2 Edw. Ch. 425, 6: 454 27. A person who comes into this State for the ex- press ana sole purpose ot giving lesumony as a witness in an action at law, even where he has had no subpena to testify served on him after arrival, cannot be taken on a writ of ne exeat while waiting to give evidence. Duron v. JSly, 4 Edw. Ch. 557, 6: 973 28. In a matter of account of which this court has jurisdiction, a writ of ne exeat repubtica may issue, though the plaintiff has sued the def enaant at law and held him to baU ; and where a defendant, who had been sued at law and held to bail, in a case not of equity jurisaiotion, was aljout to depart from the State with his bail, who had sold his property, the court, from the necessity of the case and to prevent a failure of justice, granted the writ. Porter v. Spencer, 2 Johns. Ch. 169, 1: 335 29. Where a wife had filed a bill for alimony, etc., against her husband, and it appeared that he had abandoned her without any support, and threat- ened to leave the State, the court, on the petition of the wife, granted a writ of ne exeat republiea against the husband. Denton v. Denton, 1 Johns, Ch. 364, 1: 173 Same v. Some, 1 Johns. Ch. 441, 1 : 803 30. A writ of ne exeat may be granted prior to any decree of aUmony. Ibid. 31. And the court, in making the writ, will exer- cise a sound discretion, under the special circum- stances ot the case, having due regard to the rank of the parties and property of the husband, so as to prevent oppression or extortion. Ibid. 32. To entitle a party to a writ of ne exeat his debt or demand must jje satisractorily ascertained; a mere declaration of belief of the existence and amount of his claim is not suffloient. There must also be a positive ailldavit of a threat or a purpose of the party against whom the writ is prayed, to go abroad ; and that the debt would be lost, or at least in danger, by bis departure from the State. Mattocks V. Trenwin, 3 Johns. Ch. 75, 1: 547 33. It seems that a writ of ne exeat would not be granted on petition and on motion only, without a bill previously filed. Ibid. 34. To warrant the issuing of a ne exeat, there must be a debt or duty existing at the time, and so far mature at the time that present payment or performance can rightfully be demanded ; and this debt must be an equitable debt. Oleason v. Bisby, Clarke Ch. 551, 7: 197 35. A ne exeat wUl not be allowed unless it is ap- parent irom the bill that ttie performance ot tiie decree in the suit in which it is applied for can be enforced against the person of the defendant or the party against whom it is asked. Ibid. 36. A ne exeat is proper only for the purpose of detaining the person of the defendant to respond to the decree of the court; and when the cause of ac- tion is such that the person of the defendant cannot be touched under the decree, either by execution or attachment, the writ will not issue. "■''' Ibid 860 NE EXEAT, III. 37. Where the defendant, who was a resident of Cape Breton, as the master of a merchant vessel, executed a bond at Turks Island in the penalty of £1,000 with the complainant as his surety, condi- tioned that the vessel of which he was master should not, upon her departure from Bahama Islands, carry out of the government thereof any slave or servant without leave of the owner or mas- ter; and upon the sailing of the vessel a slave, who had concealed himself without the knowledge of the defendant, was thus transported from Turks Island to New York, whereupon a bill was tiled against the defendant to compel him to indemnify the complainant as his surety in the bond, and for a ne exeat,— Bdd, that the complainant was not en- titled to a ne exeat until he had been actually sued, and a judgment had been recovered against him upon the bond, as such surety for the defendant. Gibbs V. Mennard, 6 Paige Ch. 258, 3:977 38. The complainant is not entitled to a writ of ne exeat, on a bill for the specitlc performance of a contract, previous to the time at which the contract is to be perforLied, and before any right of action has accrued ihereon, either at law or in equity, against the defendant. J)e Bivafinoli v. Corsetti, i Paige Ch. 264, 3: 439 39. To entitle thejcomplainant to a writ of ne exeat upon a bill for aspeciao pertormanoe of a contract, against the vendee, he must show a debt actually due, and must therefore show affirmatively that he is able to make a good title to the premises agreed to be sold. Brown v. Baff, 5 Paige Ch. 235, 3: 699 40. The Act to abolish imprisonment for debt has nut deprived tue court of uDaiiuery of the power to issue a writ of ne exeat, in cases of equitable cogni- zance, where such writ would have been allowed previous to the passage of that Act. But a ne exeat will not be granted on a mere legal demand, upon which the complainant would not have been en- titled to equitable bail in this court before the pass- ing of that Act, although the defendant is about to remove from the State. Ibid' 41. A writ of ne exeat republica will not be granted Where the plaintiff's demand is purely legal, or where the defendant is an executor or adininis- trator, and there is no afBdavit that assets have come to his hands. , „ „ _„ SmecOierg v. Mark, 6 Johns. Ch. 138, 8: 79 42. A writ of ne exeat republica cannot be granted for a debt due and recoverable at law. It is applied only to equitable demands. Seymour- V. Ifazord, 1 Johns. Ch. 1, 1:37 43. And it must not only be an equitable demand, but one in the nature of a debt actually due. Ibid, 44. A suit in this court by a judgment and execu- tion creditor, to reach equitable luterests, thmgs in action, and effects, is an equitable, and not a legal demand; and the defendant may be arrested on a ne exeat therein. EOlnffwood V. Stevenson, I Sandf. Ch. 366, 7: 1136 45. Upon a bill filed against such foreign executor or administrator, if he is about to depart and go be- yond the bounds of the State, he may be arrested upon a ne exeat, and held to equitable bail, as in other cases. Me Nama/ra v. Dwuer, 7 Paige Ch. 239, 4: 139 in. DiSCHAEOE. 46. It is almost a matter of course to discharge a party from a ne exeat, upon his entering into suffi- cient bonds to abide the decree of the court and render himself liable to its process. Gleason v. Bisby, Clarke Cn. 551, 7: 197 47. It is a matter of course to discharge a ne exeat upon the party's giving security to answer the complainant's bill, where a discovery is necessary, and to abide such order and decree as may be made in the cause, and to render himself answerable to the process of the court which may be issued to en- force its performance. Mitchell V. Bunch, 2 Paige Ch. 606, S: 1049 48. Where a judgment debtor has been sued upon the judgment, in the circuit court of the united States sitting within the State, and held to bail in such suit, and a bill has also been tiled against him in the eourt of chancery, to obtain the payment of such judgment, and a ne exeat issued against the defendant, the ne exeat wUl be discharged, unless the complainant elects to release the defendant from his arrest and bail in the circuit court of the United States. „ ,«-, Ibid. 607, «! 1<*51 49. A ne ea;caf will not be discharged upon the mere allegation that the defendant has no inten- tion of leaving the State. . __ Hammond v. Hammond, Clarke Ch. 151, 7: 77 60. A, for a nominal consideration, agreed to sell B a half part in a patent rigui, with a moiety of the profits. A writ of ne exeat had been granted against B upon the bill of" A, who alleged, upon in- formation and belief, that B had made certain sales and received moneys to a certain amount. The writ was discharged, as the case was not for a specific performance involving a moneyed demand. Cowdin V. Cram, 3 Bdw. Ch. 231, 6: 638 51. Where a defendant in a bill for an account and payment of demands founded on contract has been discharged under the Nonimprisonment Act, a writ of ne ca:eaf against him will be discharged. Ashworth v. Wrigley, 1 Paige Ch. 301, a : 65& 52. The writ wUl not be retained on a simple affi- davit that a certiorari has been allowed for the purpose of reversing the discharge obtained under the Insolvent Act. Ibid. 53. This court may hold the insolvent to bail in cases of fraud. Ibid. 54. But whether it would retain a ne exeat on an affidavit of mere irregularity in obtaining the dis- charge,— gwEre. IbtdL 55. On an application to vacate a writ of ne exeat where a defendant has taken the benefit of an in- solvent Act, the court will consider the discharg» under such Act as regular; and not look into sug- gested fraud and informality in the obtaining it. O'Connor v. De Braine, 3 Bdw. Ch. 230, 6: 63 7 56. Where the defendant in a ne exeat cannot pro- cure such security as will satisfy the sheriff, or if he wishes to leave the State before the termination of the suit, his proper course is to apply to the court to discharge the writ of ne exeat, upon his givinsr sufficient security to answer the complainant's bill and to render himself amenable to the process of the court during the progress of the suit, and sucb as may be issued to compel the performance of the final decree. And upon such application the court will take such security as it may deem sufficient, and will discharge the sheriff from liability. Brayton v. Smith, 6 Paige Ch. 489, 3: 107S 57. Where the defendant is arrested on a ne exeat and the complainant takes out a subpcenaand makes a bona flde attempt to serve it, but is unable to do so in consequence of the defendant's departure from the State, the want of service of the subpoena wilt not render the service of the ne exeat irregular, nor afford any ground for dischaitrin^ the defendant from his arrest upon such ne exeut. Georgia Lumber Co. v. BisseU, 9 Paige Ch. 225, 4:67S S. C. 1 Ch. Sent. 47, 5: 106S 58. A defendant, upon being arrested upon a ne exeat, may immediately enter his appearance and demand a copy of the bill, without waiting for the service of a subpcena. Ibid. 59. Where L had been arrested on a ne exeat, and had given the usual bail to the sheriff upon such ar- rest, and afterwards, by an agreement between him and the complainant, the ne exeat was discharged upon his executing the usual bond to answer the bill and abide the decree,— Held, that as L had not in his agreement reserved his right of question- ing the propriety of issuing the ne exeat, he was pre- cluded from moving that the bond be given up and canceled upon the ground that the ne exeat was ..jyio ► idently issued. Jesup V. Bill, 7 Paige Ch. 95, 4: 79 60. The giving the usual security to the sheriff upon a ne exeot does not preclude the defendant from applying upon the bill only, or upon the coming in of the answer, to have the writ discharged and the bond to the sheriff given up and canceled. Ibid.. 61. But where the defendant, for his own conven- ience, applies to the court and gives the usual bond, without asking to reserve the right of applying to cancel the bond, the right to raise the question as to the propriety of holding him to bail originally will be deemed to be waived. Iliii. 62. It is a matter of course to order a ne exeat to t» -.ischarged upon the deleudant's giving security to iiiswer the complainant's bill, and to render him- ,ilf amenable to the process of the court pending; NEGLIGENCE-NEW TRIAL. sei the litisration, and to such process as may be IS' Buert to compel a performance of the final decree. McNamara v. Dioyer, 7 Paige Ch. 239, 4: 139 Editobial Notes. Ne exeat; is writ to obtain equitable ball . 2:1050 Distinguished from arrjst under the Code Allowance of 1: 547, 666, 3: 699 Wheii applied for 3: 778 On what demands 1 : 335, 2 : 264, 8 : 429 In divorce cases ] : 202 Issued against vendee 6:638 Foreigners subject to Tfrit 1 : 666, 2 : 500 AflBdavit for 1 : 548 of wife 1:173 Motion to vacate ; suit on bond 4: 79 Discharge of writ 1 : 666, 4: 140 NEGLIGENCE. Editorial Note. Negligence ; care required of directors of corporations ; liability to account for loss of funds ; degree of negligence 6:229 NEGOTIABLE INSTRUMENTS. See BHiif and Notes. NEPHEW. See Wills, n. c, 4. NEW PROMISE. See Limitation or Actions, VI. NEWSPAPER. 1. A newspaper establishment is a subject of prop- erty and of contract, and the right to it may be pro- tected by this court. Snmoden v. Noah, Hopk. Ch. 347, 8:446 3. A person, haying sold an establishment, has no right to continue a publication as the same ; but he may set up a different rival paper. Ibid. 3. If the question whether the rival paper is the same or different be doubtful, that doubt is a suf- ficient reason to refuse an injunction, and to leave the parties to their remedies at law. Ibid. NEW TRIAL. 1. The Jurisdiction of the court of chancery over trials at law,by compelling the party who has gained a verdict to submit to a new trial or be forever enjoined from proceeding on his verdict, is now very rarely exercised, and never except in a very clear case of fraud or injustice, or upon newly dis- covered evidence which could not possibly have been produced at the first trial. Floyd V. Javne, 6 Johns. Ch. 479, 8: 190 2. Where, after a verdict in a court of common pleas, the inferior court, under the statute, has no Sower to grant a new trial, this court will grant re- ef on the ground of newly discovered evidence, unless the sum in controversy be too small to bear the expense of the remedy. Ibid. 3. But if the party has not used due diligence or all the means in his power to establish, at the trial,- the fact which he seeks to prove on a new trial» this court will not interfere. Ibid. i. Where a court of law has refused a new trial- the party will not be Pilieved in equity, at least upon the same merits already discussed and fully within the discretion of a court of law. Simpson v. Hart, 1 Johns. Ch. 97, 1 : 73- . 6. Wherethe verdict of the jury upon the trial of issues sent to a court of law to be tried is against the weight of evidence, a new trial wiU be granted by the court directing the trial. Laming v. Russell, 3 Barb. Ch. 325, 5: 919 6. Where a defendant in an action at law has not used due diligence in making hia defense, or in ap- plying to this court for a discovery to assist his de- fense at law, if necessary, he cannot, after a ver- dict against him, obtain the aid of this court to have a new trial, Bar/ter V. EZfcins, IJohns. Ch. 465, 1: aio- 7. The rules which formerly governed courts of law in granting new trials, upon the ground of tes- timony improperly admitted or rejected, have nevei been adopted in equity. Mulock V. Mulock, 1 Bdw. Ch. 14, 6: 4,2^ 8. If, from the whole case, there is sufficient to- show the verdict was substantially right, anew trial will not be granted. Ibid. 9. On an application for a new trial of a feignedi issue in a divorce suit, the affidavits brought before the court on both sides are to be taken together to ascertain whether there is a ground for disturbing the verdict within any principles governing courts on the granting new trials in such cases; and if not. then the only consideration for the court is., whether the judge, on the trial, erred in admitting or rejecting testimony or in giving any directions, or in any law points, whereby injustice has been done. Tan Cart v. Tan Cort, 4 Edw. Ch. 621, 6: 99r 10. Although witnesses, on a feigned issue, have been examined to matter foreign to the issue, and they have been excepted to, yet if no use is after- wards made of their testimony, it is to be presumedi that it has not infiuenced the jury and wil} not be ground to disturb the verdict. Ibid^ 11. Chancery will often grant a second, and some- times a third, fourth, and even a fifth, trial of a feigned issue, in cases where a court of law would not disturb a first verdict. Patterson v. Ackerson, 1 Bdw. Ch. 96, 6: T3 12. A motion for a second trial of a feigned issue I .irected by the court to try the validity of a will, made the second term after that in which the nisi :>riit^ record and judge's certificate had been filed, .md upon an ex pa/rte statement of the evidence- riven at the trial, was denied, on the ground of de- lay and the want of the proper documents. Tan Alst V. Hunter, 5 Johns. Ch. 148, 1: 1038- 13. A new trial may be moved for and granted at the final hearing, on the equity reserved. Ibid. 14. Though it is the most usual course to award, a second trial on a feigned issue, in cases toucliing the inheritance, where the verdict is in favor of the- will and against the heir at law, yet it rests entire- ly in the discretion of the court to award a second* trial or not, according to the circumstances and testimony in the case. Ibid. 15. Where the court of chancery directs an action to be brought, although particular directions are given, the parties in other respects are left to their tegal rights; and the application for a new trial, in such a case, must be made to the court of law in which the action is brought, and subject to the- rules which govern such court in other cases. Apthorp V. ComstocK, 2 Paige Ch. 483, »: 997 16. Where an issue is directed, it is to inform the- conscience of the chancellor, and the application for a new trial must be made to this court. ibid Vi. The court of chancery will not direct a new trial of a feigned issue merely on the ground that- Improper testimony was received on the trial, or that the judge rejected that which was proper, if on» the whole facts and circumstances the chancellor is satisfied the result ought not to have been differ- ent il such testimony had been rejected in the one- case or received in the other. Ibid, 18. A new trial will not be granted merely to give a partjr who has gone voluntarily to trial an op- portunity to impeach the testimony of witnesses 363 NEW YOBK— NOTICE, H. of the object of whose evidence he was appraisei; beforehand. Woodworth v. Van BvskerH, 1 Johns. Ch. 483, 1: 199 19. He must at least show that he had since dis- covered testimony of wUch he had no knowledge before the trial. Ibid. 20. A vice-chanceUor has no power to grant a re- hearing unless it is applied for within six months iaf ter the entry of the decree and before the same has been enrolled. Boyd v.Vanderkemp,! Barb. Ch.Zia, 5:383 21. Upon a rehearing, the case is open, as to the fnuty upon whose application the order for a re- icaring was granted, only as to those parts of the decree which were complained of in the petition uiion which that order was founded. Fergwmi v. Kimball, 3 Barb. Ch. 616, 5: 1031 S. C. 5 Ch. Sent. 64, 5:1187 23. A receipt for money subsequently discovered is not alone sulScient to open a verdict, judgment, laward, or decree. 2'odd V. Barlow, 2 Johns. Ch. 553, 1: 487 Editorial Notes. New trial ; in equity Rules for granting 1: 1038, 2:190, 6; 73 5:919. 6:42 NEW YORK. :See Municipal Corporations, 1-6. NEXT FRIEND. VI. g, 349; Ik- See H08BAND AND Wipe, 226- PANTS, 100-102. NEXT OF KIN. See Wills, II. o, 4. NIECE. See Wills, II. c, 4. NON COMPOS MENTIS. See Incompetent Persons. NONIMPRISONMENT ACT. See Execution, U. NORTH RIVER STEAMBOAT COMPANY. .See Associations, 5-7 ; Partnership, 10. NOTICE. I. In Judicial Prooeedinos. II. As TO Eights in Real Property. in. To Agent, Attorney, etc. Editorial Notes. I"or Notice of Appeal, see Appeal, IV. a. •Costs for, see Costs. -See also Attorney and Solicitor, 9; Bank- ruptcy, 81 ; Insolvency and Assignment lOR Creditors, 64, 135 : Lis Pendens ; Mort- gage, V. c, 439; Partition, 38,39; Practice, v.; Real Property, II. o. I. In Judicial PBOOEEDivoa. 1. A notice is not such a ^roceedmg as will be set aside on motion, although irregular. Mutual Safety Ins. Co. v. Robert*, 4 Sandf. Oi. 692, 7: l"*! 2. A defendant who has appeared by a solicitoria e.itkled to nonce ot all tue suusequeuc proceedings in the cause, although he suffers the complainant's bill to be taken as confessed; and a decree taken against him en parte, without notice to his solicitor of the hearing, will be set aside as irregular. Hart v.Sman, 4 Paige Ch. 551, 8:658 3. Where a bill is filed against a solicitor or other officer of the coiirt, if he nerlects to enter his ap- pearance, he will not be entitled to the service of notices, and other papers in the cause, upon him or his agent. But after he has appeared in the suit, he will be entitled to notice of the hearing and of the subsequent proceedings, although he permits the bill to be taken as confessed against him. TFeHes V. OrMfler, 5 Paige Ch. 164, 3:671 4. An order for the publication of a notice must contain the name of the paper in which the notice is to be published. Diefendryrff v. Beath, 6 Ch. Sent. 32, 6: 1803 5. Notice that cause ready for hearing need not contain names of solicitors of defendants against Avhom bill has been ta^en as confessed. Germain v. Beach, 9 Paige Ch. 232, 4: 680 5. C. 1 Ch. Sent. 49, 6: 1066 6. The rule of practice requiring a notice of motion to specify the particular points intended to be insisted on only applies to cases where the opposite party has a right to explain the point ob- jected to, and to cases where the opposite party hsis a right to amend or perfect his defective proceed- ings on proper terms. Hanna v. Curtis, 1 Barb. Ch. 283, B: 378 S. 0. 5 Ch. Sent. 61, 5: 1186 7. Notice of a sale of property under a decree must be strictly in accordance with the order as to time of publication. wakesv. Brisbane, 6 Ch. Sent. 79, 5: 1821 8. Constructive or even parol notice of the entry of an order or decree is insufScient to fix the time for appeal. Oay v. Oay, 10 Paige Ch. 369, 4: 1015 S. C. 3 Ch.Sent. 71, 5: 1183 9. Where the appellant draws and enters the in- terlocutory order appealed from, he is deemed to have had notice of such order from the time it is actually entered by him. North Ameriean Coal Co. v. Dyett, 4 Paige Ch, ZTS, 3:433 10. The party who makes an application to the court, and enters the interlocutory order founded thereon, is not entitled to notice of the entering such order from the adverse party, to limit his right of appealing therefrom. Farley v. Farley, 7 Paige Ch. 4U, 4: 52 II. As TO Bights in Real Property. 11. Where a party has sufficient to put him on inquiry, it is equivalent in equity to actual notice. Pitney v. Leonard, 1 Paige Ch. 461, 2: 715 12. A notice that is to break in on the Registry Act must be such as, with the attending circum- stances, will affect the subsequent purchaser with fraud. Dey V. Dunham, 2 Johns. Ch. 190, 1: 344 13. A notice merely to put the party on inquiry is not sufficient for that purpose. Ibid. 14. A purchaser, wherever be has sufficient infor- mation to put him on inquiry, in equity, is consid- ered as having notice : and in such a case he will not be deemed a bona fide purchaser. Pendleton v. Fay, 2 Paige Ch. 202, 2: 874 15. Where constructive notice is alleged to result from facts or circumstances, the presumption may be repelled. Grtfflth V. Orifflth, Soft. Ch. 153. 6: 1097 16. Notice to affect a purchaser is either actual or constructive. Constructive notice is of two kinds, that which arises from testimony, and that which results from a record. Ibid. 17. What amounts to constructive nottee, to the NOTICE, III.-NUISAXCE3. 8(53 Stmi^^^' °* J""®^""^ conveyances or incum- Stuyvesant v. Hall, 2 Barb. Ch. 151, 6: 698 ^Itl ^^S''6 a purchaser of premises is in the actual possession tliereot. by bis tenant, at the time of the Rivinir a mortgaore thereon to others by the vendor, such possession is oonstruotive notice to tlie raort- ^airees of the eqiiifnl.lo risrl.ts of such purchaser Ot-leara Bank v. Flagg, 3 Barb. Ch. 316, 5i 915 19. Where a person who has an equitable interest m a builruiiK: e'roonjil upon prcmisus beiun),MnK' to another, by bavinp advanced money for the erec- tion thereof, is in possession of the promises, under an asTreomcnt witli the owner, at the time of the ex- ecution of a mortgage thereon to a third person, and oontmues in possession down to the time of llie sale of the premises by a master, under a decree obtained in a suit brought to foreclose such mort- gajre, the complainant in the foreclosure suit and the purohaser at the master's sale are bound to take notice of the equitable rights of the tenant, if any such exist, such possession being constructive nnticeto them of hi« rifrhts. De Buyter v. St. Peter's Church, 2 Barb. Ch. 555, 5: 751 20. Where a deed of premises is given sub.iect to a lease thereof tor a term of years previously (jivcn by the grantor, and subject to the rights of a person to whom the lessor has assigned his interest in the rents reserved in and by such lease, for a portion of the term,— the rights of such assignee appearing up- on the face of the deed,— such deed is constructive notice to the purchaser of the premises, and also to his assigns, of the rights of the assignee of the rent for such portion of the term, although the assign- ment of the rent has not been recorded. Childte V. Clark, 3 Barb. Ch. 52, 6: 814 21. The possession of a tenant is notice to a pur- chaser of the reversion of the actual interest of the tenant ; and the purchaser is bound to admit every claim of the tenant which he could enforce against the vendor. Chesterman v. Gardner, 5 Johns. Ch. 29, 1 : 997 22. If a vendee is in possession of lands, under a contract to purcnase, a suosequeut purcnasor or mortgagee has constructive notice of liis equitable rights, and takes the land subject to his prior equity. Go«uem««r V. JyiABcft, 2 Paige Ch. 300, 8:916 23. Where one contracts to purchase lands de- scribed as conveyed by a Uiaucer in chancery under a foreclosure sale to the president of a corporation, the equitable title only being in the corporation, he is bound to take notice that the deed to the presl- AND Wife ,V. ; Incompetent Peesohs, V. ; In- fants: Injunction, II. a; Moetoaqe, VH. c. VIII. d ; Paetition, II. b, c ; Pleading, I. o, 5,. III. a, 2, b, c; Bestitution, 1; Kevtvob, II. v Specific Peefobmance, I. g. PARTIES. I. Geneeal Hules and Illustbations. n. Kbal Paety in Interest must Sue. m. Tbusts. IV. Assignments. V. Agency; Suretyship. VI. Decedents' Claims. Liabilities, and Estates. a. To Enfor(x Decedent's Contract. b. To Recover Debt. o. To Settle Estate and Obtain Legacies, etc. VII. Insolvent and Partnf.rship Estates. vm. CORPOEATIONS ; Public Officers. IX. Bills of Revivob and Intbbplbadbb ; Supplemental Bills. x. joindee. XI. Befusal to Become; Neglect to MakE' How Brought in ; Effect. I. General Eules and Illustbations. 1. No decree will be made for the distribution, of a fund in court, unless all the parirtes Interested in the fund are brought before the court. De La Vergne v. mertson, 1 Paige Ch. 181, S: 608- 2. All persons having a joint and common interest in the claim set up in a bill must be made parties- thereto, either as complainants or defendants. Boughtxm v. AUen, 11 Paige Ch. 32, 6: ISO- 3. The general rule requiring all jiersons inter- ested to be made parties to the suit is confined to- parties to the interest involved in the issue, and who must necessarily be affected by the decree. Wendell v. Tan Bensselacr, 1 Johns. Ch. 349, 1:168 4. It is a rule of convenience merely, and may he- dispensed with when it becomes extremely difficult or inconvenient. Ibid. Wiser v. Blachly, 1 Johns. Ch. 437, It 201 5. The court can dispense with parties as defend- ants who are insolvent, and where those before the- court cannot be benefited by having them brought in. Van Cleef v. Sickles, 2 Edw. Ch, 392, 6: 441 6. The rule that all persons materially inter- ested in the subject-matter of the litigation shoul<^ be made parties to the suit may be dispensed with when it becomes extremely difficult or incon- venient. HalleU V. HalMt, 3 Paige Ch. 15, 2: 793- 7. But it cannot be dispensed with wliere the- rights of persons not before the court are so insui - arably connected with the claims of the parties liti- gant that no decree can be made without impairing the rights of the fonder. Dnd. 8. Where there are many persons having claims on a fund, and the shares Oi a part cannot be ue- termined until the rights of all the others are set- tled and ascertained,— as in the case of residuary leg- atees, or creditors of an insolvent estate,— all must be made parties , or they must have an opportunity of coming in and substantiating their claims, before any distribution of the fund can be made. ibid. 9. In such cases, if the fund is in court or under the exclusive control of the parties actually before the court, it will be suflBcient for any of the parties having a separate claim upon the fund to fife a bill in behalf of themselves and all others who may elect to come in under the decree. Ibid. 10. Creditors and legatees are exceptions to the- general rule that all persons interested in the fund must be made parties. BrotOTi V. iJicfcet(8, 3 Johns. Ch. 553, 1:714 11. But one creditor or one legatee may sue on behalf of himself and the rest, and the others raay^ come in under the decree. ibid. 12. As a general rule the real persons in interest, must be the parties to a suit in chancery; and whore the complainant, after the commencement of a suit, makes an assignment of his interest, under the in- solvent laws or otherwise, the assignee must be made a party before the suit can be further nro- ceeded in. Sedgwick v. Cleveland, 7 Paige Ch. 287, 4: 139- 13. A person may be a necessary party, within the meaning of the rule requiring all persons interested' to be made parties, although the proper decree can be made, as to the subject-matter of the litigation,. in his absence, in case the defendant makes no ob- jection on that ground. Dias V. Bnuclumd, 10 Paige Ch. 445, 4: 1044^ 14. A person is a necessary party to a suit when^ no decree in relation to the subject-matter of liti- gabon can be made until he is properly before the- court as a party; or where the defendants in the- PARTIES, II.. III. 867 suit have such an interest in having such person before the court as would enable them to make the objection rt he were not a party. Bailey v. Inglee, 2 Paise Ch. 2,8, 2: 905 15. Complainant cannot avoid the necessity of nmKiii(s ►i..iui.ii.ar ijuibuua puicics by wuiviui? all claim agamst them in his bill, where it is necessarv to take an account aRaiust the defendant, and Where he has a right to have other persons who are Interested m the taking of the account before the court, to save the necessity of a future litigation with them. Dart V. Palmer, 1 Barb. Ch. 93, 6: 318 16. In a a suit by the purchaser of land from the heirs o£ a vendee who had a paroJ couuaot to pur- chase the same and had paid the whole purchase price, against the original vendor to compel a con- veyance, such heirs are necessary parties. Lord V. Underdundk, 1 Sandf. Ch. 46, 7: 834 17. To enable the court of chancery to settle the question, in a suit between a mortgagee and a judg- ment creditor, whether an execution has been issued for more than was actually due upon the judg- w "t, the judgment debtor is a necessary partv. Warner v. Paine, 3 Barb. Ch. 630, 5: 1037 18. The judgment debtor is also a necessary party to a bill to set aside an assignment of the judgment upon the ground of its having been made in viola- tion of the statute restraining attorneys, solicitors, and counsellors from purchasing notes and choses in action for the purposes of prosecution. Ibii. 19. One who has actively assisted another in get- ting possession of property for which no value is given is a proper party in a suit by the-owner against the latter to recover possession of the prop- erty. Hays V. Currie, 3 Sandf. Ch. 585, 7: 966 20. In a suit to compel A to transfer stock, on a contract to transfer it if B's note were not paid at maturity, B is a proper party with A. Smedberg v. WhitUesey, 3 Sandf. Ch. 320, 7: 868 21. Where upon dissolution of a firm one partner takes the reai estate for value subject to a first mortgage, the other partner agreeing to satisfy a second mortgage thereon, which he never does; and the first partner subsequently mortgages the prop- erty to a third party, who loses his security by means of the unsatisfied second mortgage, in a suit by such third party against the second partner to compel a payment of the amount which he agreed to pay on such second mortgage, the first partner is not a necessary party. Kinney v. M'CuUough, 1 S. 370, 7: 363 22. If a person has religious scruples against being a party in a suit, he may, it aeema, sue by his pro- ehein ami. Malin v. Malin, 2 Johns. Ch. 238, 1: 361 23. Generally speaking, where a person can be ex- amined as a witness, he should not be made a party. Topping v. Van Pelt, Hoff. Ch. 545, 6: 1839 24. As a general rule a mere witness cannot be made a party defendant. Fulton Bank v. Sharon Canal Co. 1 Paige Ch. 219, 8:683 25. Where the defense to a suit at law is common to all the defendants in such suit, they are all neces- sary parties to a bill for an injunction to stay the proceedings at law. Pateraon v. Bangs, 9 Paige Ch. 627, 4; 843 28. Where some of the plaintiffs became insol" vent, and on a bill of revivor their assignees were made defendants, and it was objected at the hearing that they ought to have been made plaintiffs, it was held that they could not be made plaintiffs against their consent : and having answered as de- fendants, the court might infer their refusal to be plaintiffs, and being before the court as parties, it was sufficient. Osgood V. Franklin, 2 Johns. Ch. 1, 1: 875 27. Where there are several owners of different parcels of land on which a judgment is a lien, an the persons interested in the land bound by the judgment must be made parties, before contribu- tion win be decreed or enforced. Avery v. Petten, 7 Johns. Ch. 211, 8: 871 28. Where several creditors or legatees are entitled to a ratable proportion of a common fund, which is insufficient for the payment of all their debts or legacies, all the creditors or legateesshould be made parties to a bill filed for the distribution of the fund; or the bill should be filed by a part of such creditors or legatees, in behalf of themselves and all others standing in a like situation In reference to the fund. Egberts v. Wood, 3 Paige Ch. 517, 3: 255- 29. Where the subject-matter of a suit Is In rela- tion to a bond or contract in which there are joint obligors, all the obligors ought to be made parties. Campbell v. Western, 3 Paige Ch. 124, 3: 84 80. A person against whom process is not prayed is not a party to the bill. Brasher v. Van CorOandt, 2 Johns. Ch. 245, 1: 368 31. No persons are parties as defendants in a bil in chancery, except tnose against whom process is prayed, or who arc specitlcally named and described as defendants in the bill. Verplanck v. if. Y. Mercantile Ins. Co. 2 Paige Ch. 438, 8:979 32. Where there was no prayer of process against a corporation uy its oorpoiaie name, but omy against the officers thereof, and the corporation was not described in the bill as being a party there- to,— Held, that the corporation was not before tho court as a party to the suit. Ibid, 33. The parties can only be known in the character In which they appear before the court. Therefore if a bill of revivor states the plaintiffs to be the heirs and devisees of the party deceased, though some of them in fact are executors, yet they can only be known in their former character, and not as executors. ^ , ■, ^ ,-.., „» .. „» Trai)i8 V. TTaters, 1 Johns. Ch. 85, 1:68 34. An -administratrix who has been superseded will not be allowed to withdraw from a suit in which she is a defendant. Carom v. MowaU, 1 Edw. Ch. 9, 6:41 II. Real Pabty in Interest must Sue. See also infra, IV. a. 85. Where a bill is filed for relief, it must be prose- cuted in the name of the real party in interest. Oake/y v. Beitd, 3 Edw. Ch. 482, 6: 733 86. In this court it is not allowable to carry on a suit in the name of a nominal complainant for the benefit of a third person not a party to the suit, but the real parties in interest must be brought befoi& the court so as to be bound by the decree. Indiana v. Sherwood, 5 Ch. Sent. 47, 5: 1188 37. A mortgagor of personal property who baa mortgaged the same for its full value Is not a ne- cessary party to a bill filed by the mortgagee, against the underwriters, to recover upon a policy insuring such property on account of whoever it might con- cern as owner at the time of loss, the mortgagee then being the legal owner of the property. Bogersx. Traders Ins. Co. 6 Paige Ch. 583,3: IIH ni. Tbusts. 38. Where the legal title to trust property is in the trustees, so that a decree directing a sale of the property, either by the trustees or by a receiver, will give a good and valid title to a purchaser, if the cesfuis que trust are numerous, or if some of them are unknown, it is not necessary to make them all parties to a bUl to compel the execution of the trust and for an account and distribution, but a part may sue In behalf of themselves and others ; and the court will see that the rights of all to their distributive shares of the trust fund are protected by the decree in the cause. Frisbie v. Farrington, 1 Ch. Sent. 42, 5: 1064 39. Where real estate had been purchased by a ioint fund raised by subscription of above 250 shares or subscribers, and the property was con- veyed to A, B, and C, as trustees, — on a bill for the sale of the premises, under a mortgage made to the plaintiffs by the trustees, it is not necessary that the subscribers or stockholders should be made par- ties ; the trustees sufficiently representing all the interests concerned, for that purpose. Van Vechten v. Terry, 2 Johns. Ch. 197, 1: 346 40. Where a trustee prosecutes a claim for the benefit of the cestui que trust, the latter must be made a party. Fish V. Howland, 1 Paige Ch. 20, 8: S45 41. 2f seems the case of assignees or other trustees of a fund for the benefit of creditors, who are suing PARTIES, IV. for the protection of the fund, or to coliocr moncj-s ■due to the fund from third persons, is an exception ■to the general rule that the cestui (file Iriwt niust be jnade a party to a suit brought bj- the trustee. Christie v. Herrlek., 1 Barb. Ch. 254, 5: 876 S. 0. 5 Ch. Sent. 52, 5: 1183 42. A mere nominal trustee cannot bring a suit in -his own name, but the cestui que trust must be Joined. 21fa!in V. ilfali-re, 2 Johns. Ch. 238, 1:361 43. The objection may be taken at the hearing. IWd. 44. Where the complainant claims in opposition ■to a deed of trust, and seeks to set it aside on the ground of f raud.he may proceed against the fraud- ulent trustee alone, without making the cestuis que trust parties. It is otherwise where the complam- ■ant is endeavoring to enforce a claim adverse to the interests of the cestuis que trust, but which is founded upon the supposed validity of the trust deed. Sogers v. Bagers, 3 Paige Ch. 379, 3: 196 45. Where power was given by trustees of a will to increase an annuity thereby bequeathed, and they had once paid it at an increased rate, it was held that all the parties in being presumptively en- titled to the surplus of the annuity beyond the sum fixed in the will were necessary parties to a suit brought to compel the payment of the Increased annuity. Mason v. Jones, 4 S. 623, 7: 1838 46. In a bill for an account and payment, by chil- dren against a trustee, where, on one of the contin- gencies of the trust, the property might vest in the issue of such children, the issue in esse of the chil- dren are necessary parties. Brewster v. Brewster, 4 S. 22, 7: 1009 47. A proceeding against trustees for a fraudu- Jent breach of trust is an exception to the rule that Jn a suit against trustees all of the trustees must be made parties. Cunningham v. Pett, 5 Paige Ch. 607, 3: 850 48. Where a trustee under a will of real estate has been superseded by withdrawing from the jurisdic- tion and the remaining trustees sell and file a bill for specific performance,— jETeM, that such superseded trustee is not a necessary party, although it may be that the purchaser will not be required, under a de- cree, to take without the superseded trustee Joins in a conveyance. ChampHn v. Pa/rish, 3 Edw. Ch. 581, 6: 769 49. A defendant may In some cases be a proper party to a suit, although he is not a necessary party ; as in the case of a fraudulent assignment of a trust fund, where the cestui que trust may at his election either proceed against the trustee alone, or may join the fraudulent assignee in the same bill. Bailey v. Inglee, 2 Paige Ch. 278, 8: 905 IV. ASSIONMENTS. See also infra, VII. 50. The real par^ in Interest must be a comfplain- ant in the court of chancery, and the assignee of a ^;hose In action is not authorized to file a bill for the recovery of the same in the name of the assignor, who has parted with all his interest in the subject mattei of the suit. Meld V. Maghee, 5 Paige Ch. 539, 3: 881 Bogers v. Traders Ins. Co. 6 Paige Ch. 583, 3: 1111 51. Where there is an absolute assignment of a ■chose in action, and the assignor claims no interest therein, he is not a necessary party to a bill filed to recover the amount due. Ward V. Van Bukkelen, 2 Paige Ch. 289, 8: 911 52. The assignee of a chose in action is now con- sidered the real party to the suit, as well at law as m equity; and the defendant may plead and give in evidence any matter of defense which exists In his favor against the assignee. Ibid. 53. In the court of chancery, the suit upon a chose in action must be brought in the name of the real owner thereof; and if it has been purchased in violation of the positive prohibition of a statute, -the only defense which can be set up in that court, founded upon such prohibition, is that the title to the chose in action did not pass to the complainant :by the Illegal purchase and the assignment to him. Baldwin v. Latson, 2 Barb. Ch. 306, 5: 653 54. Where the assignment of a bond, and the dam- ages to be recovered thereon in the name of the as- signor, i^not absolute and unconditional, but merely as a collateral security, the action must be brought in the name of the assignor; and It cannot be sus- tained if brought in the names of his assignees m bankruptcy, wuo have no interest therein. Ontario Bank v. Mumford, 2 Barb. Ch. 596, 5: 767 55. In this State no provision is made by law au- thorizing the assignee of a chose in aciion to brinic a suit at law in the name of the assignees in bank- ruptcy of his assignor, without their consent. And where it appears that the assignee in bankruptcy of the obligee In a bond refuses to join in a suit for the recovery of the damage consequent upon a breach of the condition thereof, such refusal will Justify the interference of the court of chancery in behalf of the assignee of such bond, if the only remedy of such assignee at law is by an action in the joint names of the assignor thereof and of his assignee in bankruptcy, or in the name of the as- signee in bankruptcy alone. DM. 56. Where the owner of a judgment has assigned It to a third person, the assignee of tne judgment is a necessary party to a suit for a perpetual stay of the proceedings on such judgment upon the ground of equities existing between the complainant and the assignor previous to the assignment. Mumford v. Sprague, 11 Paige Ch. 438, 6: 191 57. If the assignor of the bond is dead, the suit upon the bond may be brought in the name of tne assignee, under the provision of the statute on the subject, in case there is no personal representative nf th"' decedent, or where such representative re- fuses to sue for the damage sustained by a breach of the condition of the bond. Ontario Bank v. Mumford, 2 Barb. Ch. 596, 5: 767 58. Whether, if the adverse party proceeds in the suit after he has a knowledge that it has become defective by reason of an assignment, it will be a waiver of his right to have the assignee made a party,— quaere. Sedgwick v. Cleveland, 7 Paige Ch. 287, 4: 159 59. A vendee who has assigned his contract is a proper party in a suit by his assignee against the vendor for a specific performance; but if he be omitted, and no objection be raised till the hearing, the court will direct a decree, on his executing and filing an assent and agreement, in proper form, to be bound by the decree. Toorhees v. De Myer, 3 S. 614, 7: 976 60. Proceedings in the court of chancery must be instituted and carriea on in the names of the real parties to the litigation; and wher« the complain- ant sells bis whole right to the subject-matter of the suit, either before or after a decree, the pur- chaser cannot carry on the suit for his own bene- fit, in the name of the vendor, if t.here is to be fur- ther litigation therein. Mills V. Hoag, 7 Paige Ch. 18, 4: 41 61. If a defendant voluntarily assigns his interest in the subject of the suit pendeiiM ate, the oom- plainant is not bound to make the assignee a party, unless he thinks proper to do so. Miter, where the assignment is by operation of law, as in cases of bankruptcy or assignments under the Insolvent Acts. Se6ffwUik v. Cleveland, 7 Paige Ch. 287, 4: 169 62. Where a defendant in a suit was ordered to at- tend before a master and to assign ana deliver over his property to a receiver, on oath; and previous to the time appointed by the master's summons the complainant made an assignment 1o a receiver of all his interest in the subject of the suit, under .in order made in another cause,— JJeid, that the suit had become defective, so that the complainant could not proceed therein before the master to compel the defendant to make the assignment, un- til the complainant's assignee was made a party by a supplemental bill in the nature of a bill of re- vivor. jM^ 63. An assignee of an undivided moiety of lease hold premises can maintain an action in his own " name upon a covenant of warranty contained in the original lease. Van Home v. Grain, 1 Paige Ch. 455, 8: 713 64. Whether he could maintain an action upon a covenant to convey without joining with the as- signee of the other moiety,— gucere. Ibid. 65. But if the assignee of one moiety should un- consclentiously refuse to join with his cotenant in any act which would be for the common benefit of their estate, chancery will compel him to join, or to PARTIES, v.— VI. b. !)ermit the cotenant to do It for hlg own becefit, if t can be done without injury tu tbe estate, i/jiu . 66. Where a lessor covenants that in case the prem- ises are divided and the aivisiuns subJoc, iL' itupruv o- tnents ot a certain kind are put upon lots of a speci- fied size he will take the interests of the respective subtenants at the end of the term, at a valuation, the assignee of the lessee's interest is a necessary I>arty to a bill for specillc performance Hied by one of the subtenants, even thouerh the consideration of the assignment of the lease to him was paid by the original lessor. Ostranderv. lAvkigston, 8 Barb. Ch. 416, B: 955 67. If the vendor maJses a subsequent conveyance ■while the fraudulent vendee is in actual possession claiming the land under his prior purchase, the sub- sequent conveyance is Inoperative : and a suit to set aside the first sale must be brought in the name •of the vendor, or of his legal representatives, if ha js dead. I/iuingstonv. Peru Iron Co. 2 Paige Ch. 390, 8: 956 68. The court does not take notice of a purchaser ■of the subject-matter pending the suit. Cook V. Manci'us, 5 Johns. Ch. 89, 1: 1019 69. Where a trustee and his cestui que trust, as plaintiffs, file their bill, and, pendingthe suit, the ■cestui que trust assigns his interest to another, it i^ no objection at the hearing that the latter who tio(, made a party. Ibid^ 70. Where a complamant or appellant In a suit in ■the court of chancery assigns iiis interest in the «ubject-matter ot the suit pendente lite, either abso- lutely or conditionally, and obtains a reassignment thereof before any further proceedings are had in the cause, it is not necessary to bring the temporary assignee before the court by a bill in the nature of s, bill of revivor. Scouten v. Bender, 1 Barb. Ch. 6i7, 5: 530 v. Aoenot; Suretyship. 71. An agent authorized to sue cannot file a bill in his own name. Oakey v. Bend, 3 Edw. Ch. 482, 6: 733 Afl'd, i Ch. Sent. 15, 5: 1139 72. It is erroneous to make a mere agent a party itu a suit for the specific performance ot a contract. If he is made a party, the complainant will not be entitled even to a decree for costs against him, although he suffers the bill to be taken as confessed tor wnnt of an answer. Boydv. Vanderkemp, 1 Barb. Ch. 273, 6: 383 73. Persons cannot be made parties defendant in the court of chancery on the ground of their being the agents of a party interested, where no specific relief is asked against them, and where the bill con- tains no allegation that they acted as such agents in relation to the transaction in question, or that they had any interest in or connection with the subject- matter of the litigation. Garr V. -Bright, 1 Barb. Ch. 1.57, 6:337 74. A factor who delivers goods to a third person, to be sold on account of his principal, may main- tain an action at law, in his own name, against such third person, for the proceeds. Murray v. Toland, 3 Johns. Ch. 569, 1: T19 75. Surety cannot file bill in name of principal to estabUsn defense of usury; the proper course in such case is to make the principal debtor a party defendant. Frlsbie v. Farriiwton, 1 Ch. Sent. 42, 6: 1064 76. Where the principal debtor has been dis- charged under the Bankrupt Act, he is not a neces- sary party to a bill tiled by his sureties to obtain relief from the debt on the ground of usury. Mryrse v. Hovey, 1 Sandf. Ch. 187, 7: 290 77. In a suit by sureties to avoid, on the ground of usury, a promissory note on which suit had been commenced against all the parties thereto, the principal debtor is not a necessary party. Ibid. 78. In a suit by sureties to restrain an action Against themselves and their prmoipal as joint makers of a note, the principal isa necessary r>art" Beggs v. Butler, 9 Paige Ch. 226, 4: 678 S. G 1 Ch. Sent. 52. "L'Jgl Bev'g Clarke Ch. 517, 7: 188 79. He must be joined as a complain ict unless he lias refused to join. Ib^d. 80. Wheretheholderof a-note, without tl e know- Ch. Dig. ledge of the surety, made an agreement with the principal debtor, for a valuable consideration, to extend the time of payment, and subsequently brought suit against the principal and surety joint- ly, the principal was not a necessary party to a suit by the surety against the holder to enjoin the pros- ecution of the suit against him. afiUerv. M!Con,7PalgeCh. 451, 4:887 81. Where a bill is filed by the sureties in a custom- bouse bond, which had been paid by them, to be sub- stituted in the place of the obligees in such bond, and to settle their riglits to a priority of payment out of the estate of the .principal debtor, all per- sons standing in the like situation with tlio com- plainants should be made paitics to The suit; or the bill should be filed in behalf of the complainants and of all others who were sureties in bonds given by the principal debtor for duties, and who had paid such bonds so as to be entitled to be subro- gated to the rights and remedies of the Unitei* btates against the assigned fund. Bias V. Bouchaud, 10 Paige Ch. 445, 4: 1044 VI. Decedents' Claims, Liabilities, and Es- tates. a. To Enforce Decedent's Contract. 82. The heirs of the vendee are necessary parties after his death, in a bill filed by his assignee against the vendoii for a specific performance. iord \. Underdunek. 1 Sandf. Ch. 46, 7; 834 83. The heirs of an intestate who made a contract for the purchase of land, which his administrators assigned to the defendants, are proper parties to a bill filed for the specific performance of the con- tract. Champion v. Brcnm, 6 Johns. Ch. 398, 2: 163 84. Where the vendor is dead, all his heirs at law should be parties to a bill to set aside the sale on the ground of fraud upon the part of the vendee. lAvlngxton v. Peru Iron Co. 2 Paige Ch. 390, 8: 956 b. To Recover Debt. ' 85. A creditor or legatee of the personal estate need only make the personal representatives ot the debtor parties to the suit; and in many cases, where it will be attended with extreme difficulty or very great inconvenience, the general rule wlU be dispensed with. PTfeer V. BZachlj/, 1 Johns. Ch. 437, 1:801 86. But on a bill against the executors of a guar- Uim for a breach ot his tr.idt, the testator having t)y his will made the timber on his land assets for i.he payment of his debts, it was held that the devisee if the real estate ought to be made a party, as the w hole estate might become responsible to the plain- tiff. Ibid. 87. In a suit against the personal representatives Ota deceased del)tor' to recover a debt due from hii^ estate, it is only necessary for the complainant to Ule the bill in behalf of himself and of all other creditors standing in the same situation, when it appears upon the face o( the bill that there will be a deficiency in the fund, and that there are other creditors who arc entitled to a ratable proportion with the complainants Dias V. Bouchaud, 10 Paige Ch. 445, 4: 1044 88. A creditor filing a biU against an executor cannot make a debtor of the estate a party, except where the executor is insolvent, or there is col- lusion between the executor and debtor, or in some other special case. L(mg V. Majestre, 1 Johns. Ch. 30o, 1: 150 89. The heirs at law of the testator are not neces- ■ary parties to a bill to obtain payment of a debt out of real estate upon which it was specifically charged by the will of the testator, and which is the primary fund for the payment of such debt. Smith V. Wyckoff, 11 Paige Ch. 49, 5: 53 90. Several creditors having distinct debts against the estate cannot file a bill for their respective debts, without making all other creditors having a common interest with them parties to the suit, or stating in the bill that it is filed in behalf of them- selves and of the other creditors having a common interest with them. Dias V. Bouchaud, 10 Paige Ch. 445, 4: 1044 91. Where a claim is made against the personal ■state of the decedent, which is adverse to the 24 370 PARTIES, VI. c, VII. rights and interests of his general creditors, it is only necessary to make the personal representative a party; and it is the duty of such representative to defend the estate in his hands against such claims. Ibid. 92. Where real estate has been purchased by a per- son since deceased, for his own use and beneUt, and a conveyance taken in the name of JJ', the latter is not a proper party to a bill tiled by a creditor of the decedent against his administratrix for an account and payment of the complainant's debt out of the personal estate which hadcome to her hands; and the administratrix Is not a proper party to a suitto have complainant's debt paid out of decedent's real es- tate, the title to which is in the name of F. _ „„„ Jackson v. Forrest, 2 Barb. Ch. 576, 5: 760 93. Where real estate is devised charged with the paymentof debts, and the several creaitors to whom such debts are due are named in the will, it one oi such creditors flies his bill to obtain satisfaction of his debt out of the estate devised, he should make the other creditors whose debts are still due parties to the suit. But where the creditors are not named In the will, and the complainant is unable to ascer- tain that there are any other creditors, or who they are, it is suflicient to state that fact in his bill, in the flrstinstance. „ ,„ cl ^n Smith V. Wycltof, 11 Paige Ch. 49, 5: 53 0. To Settle Estate and Obtain Legacies, etc. 94. Whereoueof the executors renounces the exe- cution of the wUl, the other executors may file a bill in their own name; and if it lis necessary to bring the executor who refused to accept the trust before the court, he may be made a party defend- "'^ompson V. Oraham, 1 Paige Ch. 384, a: 686 95. Where an executor Institutes proceedings in his own name to prove a will of personal property, any person interested in proving the will may in- tervene and make himself a party to the proceedings If he thinks proper to do so. Foster v. Foster, 7 Paige Ch. 48, 4: 64 96. All the devisees are necessary parties to a suit against the executors respecting real estate which was devised to them in trust to sell, and was inequi- tably purchased by one of them. „ „_B CampheH v. Johnston, 1 Sandf. Ch. 148, ■?: 875 97. One of tWo devisees cannot file a bUl for an account against one of two executors, where the executors, by the will, have the charge of the real estate, without making the other devisee and exec- °Fa!^lv!ciK!en,l Paige Ch. 166. »: 603 98. An administrator with the will annexedof the decedent is not a necessary party to a bill by leg- atees to compel the personal representatives of the last surviving executor to account for and pay over money belonging to the estate and which was re- ceived by such executor in his lifetime. Goodyear v. Slondgnod, 1 Barb. Ch. 617, 5; 518 99. Although the court may not choose tostay ex- ecutors and trustees from making sales of real es- tate authorized in words by a will on a bill filed by a remainder-man entitled to an unascertained share, yet it can secure the purchase money during a life estate on the principle of Quia timet. But to do so all parties in remainder must be before the court, unless the bill be filed by one on behalf of all having similar rights; as must a trustee who has not ac- counted, as well as a person having a lien upon the complainant's share. Champlin v. GhampUn, i Edw. Ch. 238, 6: 861 100. Where the court has to determine whether, under a will, B. and M. take estates in fee or lor me with remainders, and also whether their children take remainders for life or in fee (out of tha same property), it will be necessary to bring both B. and M's children and their representatives before the court as parties. O'Brien v. Heeney, 2 Edw. Ch. 242, 6: 385 101. Where it is sought to charge lands with a legacy, « seems that the legatee Is a necessary party. Fish V. Howlcmd, 1 Paige Ch. 20, H: 545 102. It is a general rule that a residuary legatee, or other person, prosecuting for a distributive share of the ^tate, should make all the other persons in- terested in the distribution parties to the suit, In orrlftr that only one acronnt ne taken. Pritehard v. Hleks, 1 Paige Ch. 270, 8: 643 103. But this is not necessary where a creditor or legatee prosecutes, who is entitled to a priority of payment. The executor or administrator in suoa cases is the legal representative of the resld uary leg- atees, and it is his duty to protect their rights. Ibia.. 104. Although, on the death of an only brother, his- sister and mother are entitled equally to his rights in personalty, yet they cannot file a bill for an ac- count of it. An administrator should do so. And; where such a bill was filed,— It was held to be demur- rable and not amendable, because the right to ad- ministration would be in the sister only. Cliison V. iaifirence, 3 Edw. Ch. 48, 6:566 105. Though one legatee may sue alone for his spe- cific legacy, yet where he claims also as a resid- uary legatee, all the residuary legatees must be made parties to the suit. Davove v. Fanning, 4 Johns. Ch. 199, 1: 813: 106. Although one legatee may file a bill in favor of himself and all others who might choose to- come in under the decree, yet the bill must state the fact that it is fded in behalf of the complain- ant and all others, etc. Fish V. HowTand, 1 Paige Ch. 20, 8: 545 107. Where there are several legacies given which, are to be increased or diminisned as the estate should increase or diminish, one legatee may file e bill In behalf of himself and the other legatees who may choose to come in, against the executors, for an account and payment. Brown v. Bieketts, 3 Johns. Ch. 553, 1: T'l* 108. But where the bill is for the residue, all the residuary legat-ees must be made parties. Ibid. 109. It seems that one residuary legatee may flle^ abill in behalf of himself and all others standing in the same situation, and that it is not necessary to make them all actual parties to the suit. Rallett V. HalXett, 2 Paige Ch. 15, 3 : 793 110. In a suit by an infant for maintenance, pend- ing a litigation as to tbe validity of a will, she being entitled under the will it valid,' and if not, as heir, all the persons named in the will as executors or trustees are necessary parties. Slice V. TonneU, 4 S. 568, 7: 1312 vn. Insolvent and Pautnership Estates. 111. The assignees of an insolvent, who had ob- tained his discharge under an insolvent Act, must be parties to a bill brought to enforce the execution of an agreement or trust relative to his estate, ex- isting prior to his assignment. Maean v. Hctj/S, 1 Johns. Ch. 339, 1:163 112. Where a bill is filed by one whose debt is pro- vided for in an assignment for creditors, against the assignees, the other creditors of the assignor are necessary parties. Waldo V. Doane. 2 Ch. Sent. 7, 5 : 1081 113. Where a party aligns his property in trust lor Liie benefit of creditors, and new trustees are afterwards substituted in the place of the old ones, who assign their trust (with the knowledge of the original assignor),— JTelrJ, that such assignor cannot file a bill for an account against the first- trustees^ without, at least, joining the last trustees in the suit. It would be dismissed, not being amendable. -M ifcTiell V. Lenox, 1 Edw. Ch. 428, 6: 19T 114. When surviving assigncF-s in bankruptcy are- looked upon as trustees of a fund in their hands, the substituted assignees who are joined with them are so likewise and they should be parties to a suit connected with such a fund. Denston v. Morris, 2 Edw. Ch. 37, 6: 399' 11.5. Where C and H became insolvent and assigned all their property to an assignee in trust to pay debts, and also in trust to reassign tbe surplus, if any, of the assigned property to the assignors, or to hold it upon such trusts as they should appoint,— Held, that the assignors or their representatives were necessary parties to a suit of the creditors of C and H against the executor of the assignee for an account. XMa« V. BoiieTiaud, 10 Paige Cli. 445, 4:1044 116. Assignees in trust for creditors may file a bill in their own names,relative to the trust estate, without making the creditors provided for in the- assignment parties. Wakeman v. Qrover, 4 Paige Ch. 23, 3: 335 117. Where a debtor failed and conveyed all his property to assignees in trust to pay certain speci- fied debts, and to divide the surplus, or so much thereof as should be necessary, among such of his PARTIES, VIII., IX. 371 other creditors as sbould come in under the assign- ment and release him from their debts, and to re- assign the residue to the debtor; and a number of the creditors came in under the alignment and complied with the condition,— it was held that the debtor could not file a biU against his assignees for an account of the trust property, without mailing the creditors who came in under the assignment, and those whose debts were specially provided for and which remained unpaid, parties to the suit. Mitchell V. Lenox, 2 Paige Ch. 280, 8: 907 118. Where, upon application of a mortgagor and his grantee subject to the mortgage, a banker ad- vanced money to sacisty the muix^u^ee, tne gran- tee agreeing to take an asslgnmentoithe mortgage and keep it alive for the banker's beneSt, and he discharges it without the banker's knowledge, and subsequently gives the hanker a morteage on other property, and afterwards assigns it to the banker in trust for several persons, upon the banker's rein- stating the first mortgage against the grantee and a second mortgagee of the property, such second mortgagee cannot enforce his equity against the as- signed property until all the beneficiaries are made, parties to the suit. Kingv.McVicliar,3S.W2, 7: 8»1 119. Whether the Insolvent partner is a necessary party to a bill against the deceased partner's repre- sentatives, to obtain satisfaction of a copartnership debt, out of such decedent's estate,— fla«»re. Butts V. Oenung, 5 Paige Ch.2M, 3: 707 120. Where a debt Is due to a copartnership at the time of tne bankruptcj' of one ot its members, the solvent partners have a right to brinfr suit therefor in the joint names of themselves and the bankrupt's assignee, without the consent of the latter, upon giving hira security for costs. Coe V. Whttbeck, 11 Paige Ch. 42, 5:61 S. C. 4 Cai. Sent. 19, 5: 1141 121. In chancery, the assignee of the bankrupt co- partner is a necessary party to a bill filed to recover a debt due to the firm at the time of the bank- ruptcy, where sueb assignee takes a beneficial inter- est in the partnership effects as a trustee for the separate creditors of the bankrupt copartner, under the proceedings in bankruptcy. Ibid. 122. But where the bankrupt has been discharged from his debts, and it distinctly appears that the copartnership is insolvent, and that the assignee in bankruptcy has therefore no interest in the effects of the firm, and that the solvent partners must of necessity apply the w hole copartnership property to the payment of the partnership debts, and make up the deficiency of such debts out of their individual Eroperty, it is not necessary that the assignee should e a party to a bill in chancery to recover a demand due to the firm. Ibid. 123. Creditors may be joined in abill for account by a person against his former partners, to whom he has transferred his interest subject to debts. Ketchvm v. Dmrkee, Hoff. Ch. 538, 6: 1337 124. Creditors may be joined in a bill for a settle- ment of the concerns of a dissolved partnership. Ibid. VIII. COBPOBATIONS ; PUBLIC OmCEBS. 125. Where there has been a waste or misapplication of the corporate luuds by the utncers or ag-euts ot the institution, a suit to compel them to account for the loss should be in the name of the corpora- tion, unless it appears that the directors of the cor- poration refuse to prosecute such suit, or the pres- ent directors of the company are the parties who have made themselves answerable for the loss. B^ibimon v. Smith, 3 Paige Ch. 232, 3: 186 126. Where the property of a manufacturing cor- poration is all exhausted, U seems, the corporation is not a necessary party to a bill to compel the stock- holders to pay the corporate debts out of their indi- vidual property, although its dissolution has not been judicially declared. MicHles V. Rochester City Bamk, 11 Paige Ch. 118, S. C. 4 Ch. Sent. 37, S: 1147 127. The corporation is a necessary party to a biU in chancery to declare the dissolution of such cor- poration and to have its property and efTects dis- tributed among its creditors and stockholders. J7;i(i. 128. Where the oflSoers and trustees of a foreign cor- poration have assigned its property situated within this State to persons residing here, and the rights of stockholders are thereby endangered, the corpora- tion is a necessary party to a suit for relief. Barctoy V. Afocanlj/, 3 Ch. Sent. 56, 6:1118 129. In a bill filed against the trustees of an incor- porated religious society to restrain them from electing the clergyman from the parsonage and de- priving him of the right to preach in the church, « seems the corporation itself should be made a party to the suit. Lawyer v. Cipperly, 7 Paige Ch. 281, 4: 156 130. Foreign corporation a necessary party to suit for relief in case of assignment of its property with- m this State. Barclay v. Maeanly, 3 Ch. Sent. 56, 6 : 1 1 1 S 131. The rightful trustees of a corporation are necessary parties to a bUl brought to enforce pay- ment of a mortgage executed by usurping trustees In the name of the corporation. Brtndemaglev. German Bef. Chwrch,! Barb. Ch. lOi 3: 881 132. Where the associates or shareholders of a pri- vate association are numerous, a biU may be liled by one of such associates iu'behalf of himself and all the others, against the trustees of such associa- tion, to compel the execution of the trust and for an account and distribution of the funds and prop- erty of the association among the shareholders. Mann v. Butler, 2 Barb. Ch. 382, 5: 675 133. A subscriber to a joint-stock corporation, who complains of an inequitable distribution ol the stock, and who is seeking to reach ttie stock which has been improperly assigned pr apportioned to others, should file his bill in behalf of himself and of all other subscribers standing in the same situa- tion. Wolfter V. Deuereato;, 4 Paige Ch. 229, 3:415 134. After the distribution of the stock, the com- missioners of apportionment are not the trustees ol, and do not represent the interests of, other persons to whom stock has been distributed. It seems the stockholders themselves, so tar as they are known, should be parties to a suit which is to affect their rights, previous to the organization of the company by the election of directors. Ibid. 135. As a general rule, a mere witness cannot be made a party defendant. Fulton Bank v. Sharon Canal Co. 1 Paige Ch. 219, 8: 683 136. But suits against corporations are exceptions to this rule. As they do not answer upon oatb, tiio only means of obtaining a discovery from them is to make their ofScers and agents parties, and to compel such of&cers and agents to answer the bill. IWd. 137. The former, as well as the present, ofBcers qt a corporation, can be made parties to a suit against such corporation, and compelled to make discovery of facts within their knowledge. Ibui. 138. Officer of corporation made party for purpose of obtaininer answer. Many v.Beekman Iron Co. 9 Paige Ch. 188, 4: 661 S. C. 1 Ch. Sent. 40, , 6: 1063 139.County superintendents of the poor should sue in the corporate name given them by the Eevised Statutes, and not in their individual names,descrip- ing themselves as superintendents of the poor of the county. Pomeroy -7. Wells, 8 Paige Ch. 406, 4: 481 140. Where the rights of the State are involved in the decision upon a legitimate claim to relief against a person who has an interest in common with the State, the attorney-general may be joined as a party defendant in a billagainst such person. Varick v. Smith, 5 Paige Ch. 137, 3 : 659 141. Where a public administrator, who is a defend- ant in a suit, has resigned or is removed from oflBce, the complainant may apply to substitute the suc- ceeding public administrator and enter an order to that effect and then insert his name in the title of the suit and in the subsequent proceedings; and such last administrator may, if he thinks proper, apply to amend the former proceedings or to file a new answer and open the proofs, etc. Bitrrosv.ioofcer, 2Bdw. Ch. 499, 6:481 IX. Bills of Revivor and Intkbplbadeb ; Supplemental Bills. 142. In a bUl of revi vor,or a bill in the nature of & bill of revivor, filed by a person who was not a 372 PARTIES, X. party to the original suit, all the surviving parties to such original suit who have any interest in the further proceedings to be had therein must be made parties, either as complainants or as defend- ants. Farmers Loan & T. Co. v. Seymour, 9 Paige Ch. £38, 4: 808 143. Where a suit abates by the death of one of sev- eral defendants, it is not necessary, in a simple bill of revivor by the complainant to revive the suit against the representatives of the decedent, to make the surviving defendants parties t o such bill. And the same principle is applicable to a supple- mental bill, in the nature of a bill of revivor, to re- vive or continue the suit against the devisee or as- signee of one of the original defendants. Ibid. m. Where the personal representatives of a de- ceased party are only entitled to relief against the advei'se party upon the conveyance to him of real estate which has descended to the heirs at law of the decedent, such heirs are necessary parties to a bill of revivor filed by such personal representa- tives. SouOla/rdv. Dias, 9 Paige Ch. 393, 4: 790 145. Where an assignee in bankruptcy, and the payee of a bill of excbange drawn uy the bankrupt, each claim title to the fund upon which the bill is drawn, the assignee of the payee, who has brought euit in his own name to recover the fund, is a g roper party to a bill of inUjrpleaderi'flled by the older of the fund to settle the title thereto. Bell V. Hunt, 3 Barb. Ch. 391, 6: 945 146. Where leave is given to file a supplemental bill, merely to bring in parties, the original defendants need not be parties to it. jaromimv. rerks, 6 Johns. Ch. 450, 9: 18» 147. Where one pendente lite acquires the interest of a party in the suit, and thereupon flies a supple- mental bill, he must make all ihe parties to the or- iginal bill.whether complainants or defendants, par- ties to bis supplemental bill. Borat V. Boyd, 3 S. 5i)l, 7: 935 148. The mortgagee in possession,and his assignee elaiming some rights in the premises, were held to be necessary parties, with such purchaser, in the second supplemental bill. Ibid. 149. Where a supplemental bill is filed for the mere purpose of briuyiiig a ueiv purcy before tUu coui-L upon the original facts before appearing upon the record, it is only necessary to make him a defend- ant in such bill; but if a supplemental bill is filed for the purpose of bringing new facts before the court, all the other parties in the original bill should be parties to the supplemental bill. Tarmera Loan & T. Co. v. Sevmowr, 9 Paige Ch. 638, 4:808 X. Joinder. 150. There is no inflexible rule as to joinder of par- ties in the court of chancery. Yet, as a general principle, several complui.iants hitving* distinct and independent claims to relief against a dcl'eiidant cannot join in a suit for the separate relief of enoVi Murray v. Hau, 1 Barb. Ch. 59, 3: 299 151. Nor can a single complainant having distinct and independent claims to relief against two oi more defendants severally join them in the sami' bill. Ibiil. 152. The court exercises a sound discretion in deter- mining whether there is a misjoinder of parties, under the particular circumstances of each case. Ibid. 153. Persons having adverse or conflicting interests In relation to the subject-matter of the Utigation ought not to be joined as complainants in the suit. Grant v. Van Schoonhoven, 9 Paige Ch. 255, 4: 690 S. C. 1 Ch. Sent. 59, 5: 10H8 154. Persons having adverse or conflicting interests in the suject of the litigation should not be joined as complainants in the suit. piston V. Jones, 3 Barb. Ch. 397, 5: 947 ! 155. It is a fatal objection to a suit that a part of the complainants do not show any title to participate with the others in the relief sought. Cammeyer v. United Qmrnan Jjutheran Chwrches, gSandf. Ch. 186, 7:558 156. Two or more persons having separate and dis- tinct tenements which are injured or rendered un- inhabitable by a common nuisance, or which are rendered less valuable by a private nuisance which is a common injury to the tenements of both, may join in a suit to restrain such nuisance. Murray v. Hay, 1 Barb. Ch. 69, 6: 890 8. C. 5 Ch. Sent. 35, 6:1177 157. All persons as to whom a nuisance constitutes a common injury may Join in a bill seeking to restrain the same. Peck V. Elder; 6 Cb. Sent, as, 6: 1805 158. In such case it Is of no consequence whether he complainants reside on their property or not; it is sutHcient that the nuisance is calculated directly to diminish its value by preventing its being occu- pied by the complainants or by good paying ten- ants, or to destroy the value of the property as building lots. Ibid. 159. Assignees of a bankrupt and his solvent partner must join in a suit at law. Murray v. Murray, 5 Johns. Ch. 60, 1: 1009 160. Two persona owning distinct tenements In severalty, which are injuriously affected by a nui- sance common to both, may unite in a suit to en- join such nuisance. Blunt v. Hay, 4 Sandf . Ch. 362, 7: 1134 161. Where the rights of trustee and cestui qu£ trust are to be brought before the court, they can be joined as co-complainants; but still, where the cestui que trunt is a feme covert, she should also appear by a next friend. Schenek v. Ellingwood, 3 Edw. Ch. 175, 6: 616 162. The complainants purchased of T distinct por- tions in severalty of a lot of land, by contracts pro- viding for their conveyance at a future day. T was in possession under a like contract from the defend- ant, who was seised of the land. Another contract had been given by tlie defendant to M, and he re- fused to convey to the complainants, except subject thereto. Thereupon one of them, W, In behalf of the whole, and fortheir protection, bought M's con- tract. The defendant then brought ejectment against the complainants severally, and they exhib- ited their bill against him, praying for an injunc- tion and a conveyance of the land to W for their benefit. Held, on demurrer, that there was no mis- joinder of complainants, but that T was a necessary party to the suit. TTood V. Perry, 2 S. 7, 7: 48.5 163. A widow who claims dower, and an account, and a share of a testator's estate, should not Join the infant heir and devisee of the residue as a co-com- plainant. He should appear as a defendant. Le Fort v. DelaflOd, 3 Edw. Ch. 32, 6: 560 164. Where a debt is due to two persons Jointly, and one of them is decreed to be a bankrupt, or where one of them makes an assignment under the insolvent Acts, the action for the recovery of the debt, in a court of law, must be brought in the names of the other creditor and of the assignees jointly; and neither can sue in his own name alone. Ontario Bank v. Mumford, 2 Barb. Ch. 596, 5: 767 •165. Nor can tiie suit be brought in the Joint names of the original creditors, in such a case, except where the bankrupt was a mere nominal owner of the debt as trustee or otherwise. Ibia, 166. Where a bill charges that shares of stock have by fraudulent conduct of one person, got into the possession of two, the latter may be proceeded against in one suit, although they each hold a dis- tinct number of shares; and it is also right to make the wrong-doing person a paity. Bank of AmerUxk v. Pollock, 4 Edw. Ch. 215, 6: 866 167. Where the object of a suit is single, different Sersons having or claiming separate interests in istinct or independent questions, all connected with and arising out of the single object of the suit, may be joined as defendants, so that the whole ob- ject of the bill may be obtained in one suit. Boj/d V. Ho)/t, 5 Paige Oh. 65, 3: 689 168. B. M. died intestate and indebted to the com- plainant's testator In a money bond. .1. E. M. ad- ministered on the eftects of E. M., gave the usual bond, with sureties, in the surrogate's office, and committed a devastavit. J. B. M. died; and a bill was filed by the complainant's testator against the administratrix of J. B. M., one of the sureties, and the administratrix of the other sureties, for the pur- pose of fixing them on the ground of this devastavit. The bill was held to be. as to parties, well filed. Carow V. Mowatt, 2 Edw. Ch. SI, 6: 307 PARTIES, XI.. XII. 37» XI. Bevusal to Beoohe ; Neqi.ect to Make ; How Brought in ; Effect. 169. Where two persons have a common interest in obtaiuiuit' I'uIieC auaiust u joint contract, and one of them refuses to join witti tlie other in a bill to ob- tain sucii relief, tiie proper course is to maice him a defendant in the suit, stating such refusal as an excuse for not making him a co-complainant. Miyrse v. Himeii, 9 Paige Ch. 197, 4: 665 170. If an executor or administrator who is a neces- sary party to a suit in cbaucery refuses to Join with his coexecutors or administrators, i>s a complainant in the suit, the proper course of the latter is to make him a defendant: stating the fact in the bill that he refuses to join in the suit as a complainant. Todker v. Oakley, 10 Paige Ch. 288, 4: 980 171. Bills are never dismissed for want of parties, at least where the objeotiou is not taken untilthe hear- ing, except where the court sees that the bill would be dismissed if the parties were before it, or where they have been omitted in bad faith. If the answer raises the objection, it is in the discretion of the court to dismiss or allow nn amendment. Hutchinson V. Reed, Sots. Cb. 316, 6:1157 172. Causes directed to stand OTer it the hearing forparties. Kittle V. Van Dyck, 1 Sandf. Ch. 76, 7: 846 Campbell v. Johnston, 1 Sandf. Ch. 148, 7: iS75 Storm V. Davenport, 1 Sandf. Ch. 135, 7: 868 173. If it is perceived, after a full hearing, that an effectual decree cannot be made, the cause can be ordered to stand over to add partieis. O'Brien v. Heeney, 2 Edw. 2®, 6:385 174. If the defendant does not take the objection of the want of proper parties until the hearing, the complainant will be allowed a reasonable time to bring the proper parties before the court, either by an amendment of the original bill or by a supple- mental bill, unless it should appear that the neces- sary parties were omitted in the bm by the fraud- ulent or willful omission or the bad faith of the complainant. Van Epps v. Van Deuaen, 4 Paige Ch. 64, 3: 344 175. The proper course, where there is a want of necessary parties, is to order the cause to stand over, to enable the complainant to bring the neces- sary parties before the court, or to dismiss the bill without prejudice, so that his right to bring a new suit, making all proper persons parties thereto, will not be barred by the decree. Miller v. McCan, 7 Paige Ch. 451, 4: 83 7 176. Coexecutor refusing to jom as complainant should be made a party defendant. TooKer v. OaMey, 3 Ch. Sent. 27, 6: 1109 177. The manner in which creditors of a corpora- tion are to make themselves parties to a suit com- menced against the corporation to wind up its af- fairs must be substantially the same as that in which creditors of a deceased individual make themselves parties to a suit for the settlement of his debts and credits, by coming in before a master, under a decree, and proving their debts. Judson V. Bossie Galena Co. 9 Paige Ch. 598, 4: 831 178. Where a feme sole who should have been made a defendant marries after the commencement of the suit against the other defendants, she cannot be brought before the court with her husband by an amendment of the original bill, but a supplemental bill will be necessary. Campbell v. Bovme, 5 Paige Ch. 34, 3: 615 179. But if a /emesoZc marries after suit broug ht against her, the suit does not abate ; and it is only necessary to make a suggestion of the marriage, and to obtain an order that the husband and wife be named as parties in the subsequent proceedings. Ibid. 180. A new defendant cannot be added to a suit upon a petition ; it must be by a supplemental bill. Carow V. Mowatt, 1 Edw. Ch. 9, ' 6: 41 18L Where a complainant, at the coming in of the answer of the defendant, is apprised of the interest of a stranger in the subject-matter of the suit, and waits until after a decree in the cause, he will not be permitted to bring such stranger before the court by a supplemental bill. Quaekenbush v. Leonard, 10 Paige Ch. 131, 4: 915 182. The question as to the mode of bringing in new parties is to be governed by the principles ot the court, looking to the rights of all parties; to its doctrine in guarding testimony; and to the most suitable frame of the record. If the omitted party- is in exactly the same relation, such as a residuary legatee or cestui cfue tri/st, he may be made a co- plaintiff. If he appear to have rights adverse to those of the complamant, he should be made a de> fendant. If the rights of a former defendant are affected, he must have an opportunity to file an an- swer either to an amended or supplemental hiU. Hutchinson v. Beed, Hoff. Ch. 316, 6: 1157 183. A person made a party to a suit after testi- mony taken cannot be affected by such proof. Jenkins v. Bisbee, 1 Edw. Ch. 377, 6: 1 78 184. A new defendant is not bound by the former depositions. It seems that the complainant cannot be permitted to go over the testimony again to the same facts even as to the new defendant. He may dismiss his bill without prejudice to a new one mak- ing all Proper parties, and then retake his testi- mony. The new defendant may take evidence to any new matter set up in his answer. But if he does not consent to abide by the testimony already taken to matters before in issue, it seenw the cause must be heard, as to him, on bill and answer. Hutchinson v. Beed, Hoff. Ch. 316, 6: 1157 185. Where a complainant amends his bill by in- serting an allegation tliat it is hied in behalf of him- self and all others standing in the same situation, a third person, as to whom the right to sue was barred at the time of such amendment so that he could not have filed a bill himself, cannot come in and claim relief against the defendant upon the decree made upon such amended hill. Cunninaham v. Pell, 6 Paige Ch. 655, 3; 1141 XII. Objections. 186. A defendant cannot demur to a biU for th& misjoinder of other persons as codefendants. Whitbeck v. EOgar, 2 Barb. Ch. 1C6, 5: 575 187. A defendant in the court of chancery cannot object that another defendant, baring no interest in the subject-matter of the suit, is improperly made a party. Cherry v. Monro, 2 Barb. Ch. 618, 5: 775 188. It is only where the complainant has some ground of relief against each defendant, and where his claims for relief against them respectively are improperly joined in one suit, so as to make the bill multifarious, that each defendant has the right to demur upon the ground that the other defendant is improperly joined with him in the suit. Ibid. 189. Where a guardian has joint rights under a will with an luluut, and the latter is made a joint com- plainant with him and sues by such guardian as a next friend, the court will not sustain an objection taken at the bearing that such infant ought to have been made a defendant, unless it clearly appears that the suit is adverse to her interest. Bowen v. Idley, 1 Edw. Ch. 148, 6: 98 190. Where the owner of a negotiable note, who might have sued in his own name, caused a suit at law to be instituted in the name of a third person for the purpose of depriving the defendant of his testimony, upon a bill tiled against such nominal plaintiff for a discovery and for relief against the suit at law, he was not allowed to avail himself of the objection that the real owner of the note was not made a defendant. Broekway v. Copp, 3 Paige Ch. 539, 3:866 191. It is too late, after a lapse of twenty years, f o' a defendant, who was a trustee tor creditors under an assignment from a debtor, in trust tor him and such other creditors as should come in and execute the deed, to object, on a bill filed against him by a creditor for an account, that the other cestuis que trust were not made parties. Mum/ord V. Kurraj/, 6 Johns. Ch. 1, 3:35 192. The objection of a misjoinder of parties com- plainants should be taken uiLuer by deuiui-rer or in the answer of the defendant; it is too late to urge a formal objection of this kind for the first time ac the hearing. Trustees of Watertown v. Cowen, 4 Paige Ch. 510, 3: 536 Harder v. Harder, 2 Sandf. Ch. 17. 7: 490 193. Objection that assignee of complainant is not a party must be raised by plea or answer. Bathmoay v. Scott, 11 Paige Ch. 173, 5: 96 S. C. 4 Ch. Sent. 47, 5: 1150 874 PARTITION, I. Editorial Notes. Parties; who necessary 1: 362, 3: 905. 4: 532, 5: 1035, 6: 1158 Must be joined in suit 4:327 In equity, all interested to be brought in 1:165,201,714,2:301,976 Peison without interest not necessary or proper 3: 178, 346 Suit must be brought by real party in interest 8:821, 1113, 4:159 Bringing in new parties 6: 1181 neglect or omission not to prevent 6: 913 Suit by one in behalf of himself and others 3: 794, 3: 336, 4: 285 New trustees; when necessary 6: 197 Beneficiaries necessary 3: 196 Legatees as parties 1 : 714 Suit by legatee; who must be joined 3:546,5:974 In suits for distribution 1:813 Mere agent as a party 5: 837, 383 When no standing in court 4: 563 Purchaser pendente lite 4: 160 Nonresidents made parties 4: 837 Proper, but not necessary 2 : 906 Substitution 1: 930, 2: 994, 4: 159 Not in esse; executors and trustees as their legal representatives 3: 675 On death of party; objections for want of; practice 5:317 Trustees as 1 : 346 Striking out complainant to make de- fendant 1: 101 Brought in by supplemental bill 6: 1181 Wife necessary in suit affecting land, when 8:310 Joinder; of plaintiffs 2: 79, 905, 4: 690, 5: 299 of defendants 3: 79, 3: 661 in bill to restrain common nuisance 5:399 of cotenants 5: 948 of husband and wife in suit 4: 690, 941 Personal representatives of deceased 5:63 when joined 4: 597 coadministrator refusing to join may be made to join 4: 980 Corporation; as party ininterest should sue 3:127 an essential party 3 : 851 where directors decline to sue 3: 851 officers of, as parties; practice 8: 970 suit by stockholder; necessary parties 3:850 bringing in corporation and stockholders 6:54 directors or stockholders may be 4: 881 Misjoinder; effect of 7: 490 demurrer for 5:575, 6:855 Defect of, objection for 3: 906, 4: 1145 demurrer for 2:905 Dismissal of bill for want of 6: 1158 Remedy on failure to bring in 8 : 345 PARTITION. I. Eight to Demand. n Pboceedinqs. a. Jurisdiction. b. Parties; Abatement; Bevlval, c. Practice; Ple(Xding ; Proof. d. Beferenoe. 6. Sale or Partition; Mode. t. Effect of Decree; Title of Pwrchasera. e. Relief Oenerally. h. Bights in Proceeds. III. VOLUNTABT PARTITION BY PARTIES; AOEBE. MENTS. Editobiai, Notes. See also Do web, 15: Estoppel, 17; Incompetent Persons, 61 ; /oint Tenants and Tenants IN Common, 10; Judicial Sale, 81; Moet- OAOE, 383, 381; Befebence, 43. I. BiOHT TO Demand. I. Where lands leased for a term of years are owned by several persons as tenants in common both of the rents and of the reversion, a bill for partition may be sustained ; but a sale of the lands, under the decree in iKirtition, must be made sub- ject to the rights of the lessees, who. by the sale, will become the tenants to the purchaser of the rents and reversion. Woodworth v. Campbell, 5 Paige Ch. 518, 3:818 3. Where a lessee of land becomes a purchaser of an undivided moiety of the rent and reversion, the lease and rent as to that portion of the premises is merged and extinguished, and he is not such a tenant in common of the rent and reversion, with the owner of the other half tnereof, as to en- title the latter to a partition of the land during the continuance of the lease. Lansing v. Pine, i Paige Ch. 639, 3: 591 3. If the owner of an undivided moiety of a lo* of land is a lessee of the other half thereof, and the lease has become fotfeited by the nonperformance of a condition subsequent, the landlord must enter for the forfeiture, or otherwise recover the posses- sion of his undivided half of the premises, before he can sustain a bill for partition. Ibid, i. A party who has merely a future contingent interest in an undivided share of real estate cannot sustain a suit for a partition of the property. Striker v. Mott, 2 Paige Ch. 38T, Z: 954 5. A mere reversioner, without the concurrence of any of the owners of the present interest in the premises, has no right to me a bill of partition. ibid 6. Although a tenant in common out of possession flies a bill for partition, and states another to be in possession oftnewhole estate, yet the bill wUl hold ; for the possession of one is the possession of all. Hitchcock V. Skinner, HofC. Ch. 21, 6: 1050 7. Partition can be had of a mere equitable estate. Ibid. 8. The owners of an equity of redemption, as well as tenants in common lor ute or for years, uiu.^ have partition of their interest, as between them- selves. Wotten V. Cope!a»id, 7 Johns. Ch. 140, Z: 347 9. But mortgage and judgment creditors cannot be compelled to joiu lu a om lor a partitiuu; ..or can any relief be prayed against them; nor can their rights be affected by the partition. Ibid. 10. A tenant in common of part is not debarred from bringing a bill of partition individually merely because he is a trustee as to another part. Cfteesman V. r?iome,l Ed w. Ch. 629, 6:371 II. There can be a partition or sale notwith- standing other persons may come In esse and be en- titled. Ibid. 12. A party applying for a partition of lands must not only have a present esiace In tUe premises of which partition is sought, as a joint tenant or a tenant in common, but he must also be actually or constructively in the possession of his undivided share or interest In such premises. Bwrhans v. Bv/rhems. 2 Barb. Ch. 398, 5: 690 IS.The proper course for the court, where the lands of which partition is sought are held adversely to the complainant, is to dismiss the bill as premature- ly filed, but without prejudice to the complainant's right to institute a new suit for the partition of the premises, after he shall have obtained possession of his undivided share or interest therein by a recov- ery in an ejectment suit, or otherwise. Ibid. U. Where abill stated that one of the defendants had been in possession since a certain event, and continued in possession, and the answer claimed the title under certain instruments,— iSeld,thata bill for PARTITION, II. a-o. 375 B partition could not be sustained, although the in- ,«eption of the possession was tiS tenapt in common. Maunewsonv.' Johnson, Hoff.'Oh. 560,; 6: 1844 15. A decree for partlti on or sale of the real estate will not be granted amongst heirs, while the per- sonal property appears to be insufaoient to pay the debt of the ancestor. • Matthews v. Matthews, 1 Bdw. C!h. 365, 6: 348 16. A tenancy by the curtesy initiate is a sulflcien* estate in lands upon which to base a partition suit- R'Oter V. Darke, i Edw. Ch. 668, 6: lOia 17. A suit for partition of lands cannot be main" tallied by an infant, either separately or jointly with adult cotenants in common. Postley V. Kain, i Sandf. Ch. 508, 7: 1189 18. A widow having a right of dower in land is not a tenant in common wita the owner or ownei-a of the laud; and she cannot be made the sole complain- ant or defendant in a suit for partition. Wnnd V. ante, 1 S. 199, 7: 895 19. Although the insanity of a testator is passed uijuu uy u surroK'Ule, and, on an appeal from nls de- cision, the chancellor determines against the will, ■Still it is only conclusive as regards the personal «state. The question whether there is a devise of the real estate or not remains open and can only be set at rest through an issue or a trial atlaw. There- fore, in such a case, no partition can be had pend- ing this question. Bogardua v. Clarke, 1 Edw. Ch. 266, 6: 133 n. Proceedinos. a. Jitrtedietio)!. 20. This court wUl not sustain a bill for a parti- tion, where the title is denied or is not clearly es- tablished ; but the bill will be retained to give the plaintiff an opportunity to establish his title atlaw. WilMn v. wahin, 1 Johns. Ch. Ill, 1: 79 a. The jurisdiction of chancery in awarding par- tition is well established. wnkin T. Wman, 1 Johns. Ch. 117, 1: 81 33. Where the title is suspicious or litigated, It must first be established at law before this court will interfere. Phelps v. Oreen, 3 Johns. Oh. 303, 1; 686 23. When, on a bUl for partition, the legal title is disputed and doubtful, the course is to send the plaintiff to a court of law, to have his title first es- tablished. Ckixe V. Smith, 4 Johns. Ch. 271, 1:837 24. But where the question arises upon an equi- table title set up by the defendants, this court must decide on the title. Ibid. 23. By the Revised Statutes, the court of chancery has concurrent jurisdiction with courts of law in suits for the partition of legal estates. Jenkins v. Va/n Schaack, 3 Paige Ch. 842, 3:136 b. Parties ; Abatement ; Revival. 36. A decree for a partition cannot be made unless -all the persons interested in the premises are made parties to the suit. Bwrham v. Burhans, 3 Barb. Ch. 398, 5: 690 37. Where aU the parties in a partition suit are adults, and have been personally served with pro- cess, the court does not examine the proceedings to ascertain whether all the proper parties are before ■the court, or whether the master has stated their several rights and intereists in the premises correct- ly in his report. Broker v. Devereavx, 8 Paige Ch. 313, 4: 584 38. Where persons are proceeded against in a parti- tion suit as absentees, or[as unknown owners of un- divided portions of the ,^remises, orlwhere the rights of infants are involved, it is the duty of the court to look into the proceedings and see that the rights .and{ interest of such absentees or Infants are cor- rectly stated in the master's report, and that all proper persons are made parties, so that the decree will be effectual to bind their rights as between such persons and the absent or unknown owners or tlie infant defendants. Ibid. 29. If the necessary parties are not before the court in a partition suit, so as to make the decree for partition final and effectual as to all persons in- tr-rpsted in the premises, the defendants who are : vw' -■ ith process should appear and make that objection. Xbicl. 30. Judgment creditors are not necessary oi pro- per parties in partition. Searing v. Mersereau, Hopk. Ch. 501, 8: 508 31. Where an undivided portion of the premises of which partition is sought has been conveyed to a trustee upon a trust not authorized by the Re- vised Statutes, the cestui que trust is a necessary Earty to the suit, to make the decree binding upon is interest In the premises. Braker v. Devereaux, 8 Paige Ch. 513, 4: 584 33. If the absolute title to an undivided portion of the premises is vested in a trustee upon a valid trust, it seems it is not necessary to make the cestui que trust a party to a partition suit in the court of chancery ; but that It will be sufHolent to bring the trustee, who has the whole legal estate In the prem- ises, before the court. Ibid. 33. In a partition suit, where the legal estate in an undivided share of the premises is in a trustee, if a new trustee is substituted in his place pending the suit, by an appointment by the chancellor under the statute, the new trustee must be brought before ' the court by a supplemental bill. King v. Donnelly, 5 Paige Ch. 46, 3: 681 84. A reversioner is a necessary party, where a oill is filed by a person who is owner of an undi- vided share of the reversion as well as of an undi- vided share of the present interest in the property. SM/cer V. Mott, 2 Paige Ch. 387, 8:954 35. The reversioner is also a necessary party where the suit Is brought by the owner of an undi- vided share of the premises for life, or of any other particular estate In the same, and some of the other parties own the residue of the premises in fee. Ibid. 36. Where a partition suit abates by the death of one of the tenants in comm }n, after the appoint- ment of commissioners to make the partition, the suit must be revived, and the rights of the new parties in the premises ascertained, before the com- missioners can proceed with the partition, or make a report that a stile is necessif y. Reynolds v. Reynolds, 5 Paige Ch. 161, 3: 669 37. Where a bill for partition Is filed, and the com- plainant subsequently dies, and his devisee there- upon flies a bill to revive and continue the proceed- ings in the original suit, it is no objection to this last biU that the complainant is an infant, and was therefore incapable of commencing an original suit for the partition of lands. McCosker v. Brady, 1 Barb. Ch. 339, 5: 404 38. Whether a complainant In a partition suit Is bound to take notice of the marriage of a male de- fendant pendente Vie,— quaere. Jackson v. Edwards, 7 Paige Ch. 388, 4: 800 39. If it is proper for a complainant in a partition suit to take notice of the marriage of a male defendant pendente lite, neither a supplemental bill nor an amendment of the original bill is neces- sary to bring the wife before the court; but the proper course is, as in the case of the marriage of a female defendant, to obtain an order that thp further proceedings in the suit be In the name of the husband and his wife as parties. I6id. 40. Real estate was vested in a trustee for a feme covert with power of appointment. The property was sold, and a mortgage taken back in the name of the trustee, who died. She also departed this life without appointing, but left children. Her husband assumed to sell this mortgage, on a bill filed to fore- close it. Held, that the children ought to be before the court. Kortright v. Smith, 3 Bdw. Ch. 402, 6: 704 41. The wife of a husband, tenant in common, is not a necfessary party to a suit for partition. Matthews v. Matthews, 1 Bdw. Ch. 565, 6: 848 43. A lunatic is a necessary party to a bill filed by his committee for the partition of his real estate. Qorham v. Gorham, 3 Barb. Ch. 34, 5: 801 43. The only way in which a legal partition can be made of the real estate of a lunatic or an habitual drunkard, except by an agreement between the committee and the other tenants in common, with the concurrence of thp court, is to make himan 8f^- tual party to the suit for partition. Ibtd, c. Practice; Pleading; Proof. 44. Where partition suits were pending at the time the Revised Statutes went into operation, the sub- sequent proceedings therein must conform to such statutes. _ Larkin v. Mann, 2 Paige Ch. 27, 8: 799 376 PARTITION, II. d, e. 45. Partition suits in this court may be com- menced either by bill or partition : and the course of practice prescribed by the Revised Statutes in relation to proceedings in the common-law courts must be adopted here as Car as is practicable, ex- cept in cases where a different course of practice is authorized or prescribed by law. Ibid. 46. If the suit is commenced in this court by bill, the complainant must take out and serve a sub- poena, as in ordinary suits. Ibid. 47. Where the right of the complainant is not ad- mitted by the answer, he is bouna to make such proof of bis title as would entitle him to a recovery in ejectment. Ibid. 48. If the bill is taken as confessed, the proof of the complainant's title may oe made before a mas- ter, on a reference. But it an issue of fact is joined In the cause, the complainant may make the neces- sary proof, and produce the abstract of the con- veyances, before the examiner. Ibid. 49. The court may in its discretion award a feigned issue to try the question of title, as in or- dinary cases in the court. Ibid. 50. As it is the duty of the complainant in a parti- tion suit to state in His bill the rights and interests of all the parties in the premises, so far as they are known to him, according to his information and be- lief, if the rights of the defendants, as between themselves, depend upon the valldityof a will under which an undivided part of thcpremisesare clnim<>d, or where the nwnershin of an u ndi vided share of the premises is contingent or doubtful, and deipends upon the construction of such will, it is proper for the complainant to state in his bill the fact of the making of the will.and the substance thereof, so far as is necessary to enable the court to understand the rights of the parties. Van Oortlandt v. Beekman, 6 Paige Ch. 492, 3: 1074 51. It is not necessary to aver in a bill for parti- tion that the complainant is in possession of the premises, as that fact is presumed from the allega- tion that the parties are seised in common. Jenkim v. Van Schaack, 3 Paige Ch. 243, 3: 136 52. On a bill for a partition, the court of chancery, being authorized by the statute to decree a Sii.^ where courts of law are authorized, or where the enda of justice require It, may decide on the neces- sity of a sale upon the report of a master, as well as of commissioners ; and where the master report.' that a sale is necessary, commissioners will be ap- pointed to sell and convey. Thompson v. Hardman, 8 Johns. Ch. 436, 8: 176 53. Where a bill in chancery is filed for the parti- tion of lands of which tue uumijlainant is a tenant in common of the legal title, the defendant may set up in his answer, as a defense to the suit, an equi- table title in himself to the whole nremises. German v. Machln, 6 Paige Ch. 288, 3: 990 54. The possession of tenant in common is prima facie the possession of the other; ana it the defend- ant in a partition suit wishes to avail himself of the defense that the premises were held adversely to the complainant at the time of the filing of the bill for partition, the answer must contain a distinct al- legation of the fact. Ibid. 55. But where the defendant in a partition suit, in addition to the defense of the suit and a dismissal of the complainant's bill for partition, wishes tor affirmative relief on his part by a decree for a trans- fer to him of the legal title to that part of the prem- ises which is vested in the complainant, he must file a cross-bill, and must also set up the same matter In his answer as a defense to the original bill of the complainant. Ibid. 56. If there has been an ouster of the complain- ant, or the premises in question are held adversely, that defense should be set up by plea or answer. Jenkins v. Van Scftaacfc,3 PaigeCh. 242, 3: 136 57. Where the rights of the defendants, as between themselves, are stated in a bill for partition, a de- fendant who puts in an answer thereto is bound *o answer as to such rights, either by a general adm: i- Blon that the rights of the several parties are as sta- ted in the bill, or in some other manner. Van Corllandt v. Beekman, 6 Paige Oh. 492, 3: 1074 d. Reference. 68 In a partition cause where the original parties to the suit admit their several titles to the property by their pleadings, If one of them dies and the suit is revived against bis heirs at law by default, the court may declare the right, titles, and Interests of the several parties, without a reference as to the title, and without requiring the complainant to ex- hibit proof of the same, or an abstract of the oon-- veyances by which the title is held. Wilde V. Jenkins, 4 Paige Ch. 481, 3: 68* 59. A reference to a master to examine and report 18 to general liens or incu mbrancee on the undivided interests or shares of the several parties, in a parti- tion suit, is necessary befors a decree for a sale of the premises can be made, and can in no case be dispensed with. Ibid^ 60. An orderforsale cannot be made upon there- port of commissioners that a sale is necessary, after a master has reported that the premises are so situ- ated that an actual partition can be made without prejudice to the interest of the parties. But if the situation of the property or the rights of the parties Luerein have materially changed since the report of the master, there should be a special application to the court for a new reference, to ascertain whether a partition can still be made. Beynolds V. Bej/wolds, 5 Paige Ch. 161, 3: 66» 61. Where a partition suit abates, and new parties are brought before the court upon the revival of the suit, a new reference will be necessary to ascer- tain their rights, before a sale can be decreed. Ibid. 62. If any doubt arises on a bill for a partition, as to the extent of the undivided rights and interests of the parties, the usual course is to direct a refer- ence to a master to inquire and report on them, as the estate and interest of the parties must be ascer. tained before a commission is awarded to make par- tition. Phelps V. Oreen, 3 Johns. Ch. 302, 1: 626 63. A report of commissioners in. partition must be signed by all the commissioners; or, jf not st> signed, it should state the reason of the omission. UnderhUl v. Jackson, 1 Barb. Ch. 73, 5: 305 64. It should also state that all the commissioners met together and consulted, etc., where a sufficient reason is given for its not being signed by all. Ibid. 65. Where a share of premises partitioned is set oti to a lunatic orto an habitual drunkard, the title is vested in him, and not in his committee. ibid. 66. A report of commissioners in partition will not be disturbed, save for causes which at law would allow of a new trial. lAvingston v. Clarhson, 4 Edw. Ch. 596, 6: 988 67. Such a report will be regarded with more re- spect than a verdict, where the commissioners were selected by the parties in interest and with particular reference to their qualification. Ibid. e. Sale or Partition ; Mode. 68. Partition between tenants in common of real property is a matter ot rigiit by the common law as well as by the statute, where both parties cannot, or either of them will not, consent to hold and use such property in common. Smit?i V. Smith, 10 Paige Ch. 470, 4: 1054 69. Where the sale as well as the actual partition of the premises held in common will tte greatly pre- judicial to the owners of such premises, as compared with the use thereof in common, an actual parti- tion thereof must be made, unless the injury to the interests of the owners collectively, in reference to the rights of each in the common property will be much greater by an actual partition than by a sale. IWd. 70. The words "great prejudice," as used in th Revised Statutes in relation to partition, will not justify a decree of sale of the property held in com- mon, where the aggregate amount of the benefits to the parties from a sale, instead of an actual par- tition of the premises, will be small in reference to the value of the property of which the partition or sale is sought. iMd. 71. In deciding whether a sale is necessary in a partition suit, the true question for the considera- tion of the master is whether the aggregate value of the several parcels into which the whole premises must be divided will, when distributed among the different parties in severalty, be materially less than the value of the same property if owned by opf^ person. Clason V. Clason, 6 Paige Ch. 541, 3: 1094 PARTITION. II. f. 37T 73. In chancery it Is not necessary that the shares assigned to the several parties should be exactly equal; as the parties who receive more than their share of the estate may be required to make a pecuniary compensation to those who receive Larktn v. Mann, 2 Paige Ch. 87, 8:798 73. F., the complainant, supposing he has the whole title, improves paits ol real estate ana makes mortgages and sells a portion. Afterwards it turns out that the legal estate to 1-42 is in R's heirs. In a bill for partition,— It toas lield, that the complainant and his grantees should have the improved portion, and that his mortgages should be lien thereon. St. Faix V. Rankin, 3 Edw. Ch. 383, 6: 675 74. Three persons who, under the construction of a will, turned out to be tenants in common with others, and who had expended a large sum in valu- able improvements on the premises, in good faith, supposing that they were the sole owners, were allowed in partition for such amount as the present value of the premises was enhanced by such im- provements. ConWin V. ConWtn, 3 S. 64, 7:771 75. If one tenant in common, who is in possession supposing himself legally entitled to the whole premises, erects valuable buildings thereon, he will be entitled to an equitable partition of the premises, so as to give him the bPneflt of his improvements. Town V. Needham, 3 Paige Ch. 545, 3: 868 76. Where the real estate of which partition is sought consists of a milldam and the lands over- flowed by the millpond, constituting the water- power which is necessary for the use of various mills which belong in severalty to the respective tenants in common of such dam and pond, an actual partition of the water-power should be made, in- stead of a sale thereof, if the whole water-power, in connection with the mill property held in severalty by either party, would not be worth more than the same water-power equally divided by a proper par- tition thereof; the one half to be used with the mills of cflch, in the handB of different proprietors. Smith V. SmUn, 10 Paige Ch. 470, 4: 1 054 Bev'g in part, Hoft. Ch. 506, «: 1284 77. The commissioners appointed to make parti- tiuii uf real property, consisting of a milldam and millpond, creating the water-power which supplies the mills held in severalty by the tenants in com- mon of such mill and millpond, may divide the milldam, and the land under the same and under the waters of the pond, and may make such provi- sion for keeping tne different portions of the dam and of the water-gates and flumes in repair, and such regulations for the use of the water-power, ivhich is not capable of aclual partition without a destruction of Its vsdue, as the parties themselves might make by a partition deed of the same prop- 3rty. ibid. 78. In making partition of real property, the commissioners may assign a portion of the prem- ises held in common to one of the parties, charged with a servitude or easement, for the benefit of another party to whom a distinct portion of the premises is assigned in severalty. Jhid, 79. Various modes stated by the chancellor in which a partition of a milldam and millpond and water-power held by tenants in common may be legally made without a sale. Ibid. 80. Where the plaintiff's right to one undivided moiety was admitted by all the defendants claim- mg the other moiety, but they differed among themselves as to their titles and interest, — some of the defendants claiming the whole moiety in fee, and the others claiming and enjoying separate por- tions of it, and asserting a freehold estate therein, — the court ordered partition to be made beween the plaintiff and all the defendants aggregately; dividing the premises into two equal moieties, so as to give one moiety to the plaintiff in severalty, and leaving the other moiety to be divided between the defendants, on a further application to the court, when their conflicting claims should have been established at law; the plaintiff, in the mean time, to pay his own costs of suit and the expenses of the commission, reserving the question as to the defendants' proportions of costs until such further application. Phelps V. Oreen, 3 Johns. Ch. 302, 1: 686 f . Effect of Decree ; TWe of Purchasers. 8L Under the A.ct for the partition of lands, where the proceedings are in this court, it is not necessary for the parties to execute mutual releases to eaea other, according to the partition; but the final de- cree of the court, that such "partition shall re- main Arm and effectual forever," etc., is sufficient. Foujig V. Cooper, 3 Johns. Ch. 295, 1:684 82. By making a lunatic or an habitual drunkard a party to a suit for partition, his legal title to that portion of the premises which may be set off to the adverse party in severalty will pass without any conveyance, either from the lunatic or the habitual drunkard or from his committee, under the pro- visions of the Revised Statutes relative to the pat^ tttion of lands. Gorham v. Oorham, 3 Barb. Ch. 24, 5 : 801 83. A suit in patltion cannot take away a wife's right tu duwer. tin a partition such right attaches to the husband's severalty share; and it a sale is de- creed, the lands should be sold subject to it, unless she will voluntarily release. The master's deed will not carry it. MatOvews v. Matihews, 1 Edw. Ch. 565, 6: 848 84. The purchaser of premises sold under a decree for partition takes the same subject to the right oC dower of the wife of one of the tenants in common, unless the wife was a party to the suit; but whero an actual partition is made, the wife's dower wiU attach upon the portion of the premises allotted to her husband. Wminsnn v. Pariah, 3 Paige Ch. 653, 3: ISO 85. In proceedings in partition, either at law or in equity ,tlie inchoate rights of dower of femes covert^ whether infants or adults, in the undivided shares of their husbands in the land,— the wives being par- ties to the proceedings,— will be devested by a sale underthe judgment or decree of the court, so as to protect the purchasers against the dower of such femes covert should they survive their husbands. Jackson v. Edwards, 7 Paige Ch. 386, 4: 800 88. Where, after a suit in partition was com- menced, and after notice of the lis vendtna was duly filed, one of the tenants in common married a wife; whether such wife acquired any interest in the premises which were tlie subject of the litiga- tion, and which would not be devested by a sale under the decree, — qucere. VM~ 87. A suit for partition does not embrace the ob- ject of adjusting dormant ciaims, aa verse tiuus, ai^ii real or pretended incumbrances held by other per- sons, none of which can be affected by the decrnp. Sebrimg V. Jlfcrsereau, Hopk. Ch. 501, 8:508 88. The interests of third persons do not prevent a partition, nor are they affected by it. Ibid. 89. Stat. 36 Sess. chap. 100, § 15, directing the court to ascertain the rights of the parties, applies only to the rights of the parties before the court. Ibid. 90. The object of that section was to require such examination of the title in cases of partition at law as was previously required by the practice in chancery. Ibid. 91. Where notice has been given to creditors hav- ing general liens upon the undivided interest of one of the parties in a partition suit, to come in and es- tablish their claims before the master, the lien of such creditors upon the estate will be devested by the sale: a purchaser at the sale under the decree cannot therefore object that the master has decided wrong as to the existence of such a lien. Dunham v. Minard, 4 Paige Ch. 441, 3: 506 92. It is no valid objection to the title, under a decree in partition between the heirs at law of the person who died seised of the premises, that the suit for the partition thereof was commenced with- in the four years allowed by law for proving and recording a will of real estate, unless there is some reasonable grounds for supposing that the decedent actually made a will which lias chemged the course of the descent. Spring v. Sandford, 7 Paige Ch. 550, 4: 270 93. A bill for the partition of lands among the de V isees or heii-s at law ol a testator or mtestate may be filed within the three years allowed by law to the creditors to apply to the surrogate for an order of sale. Ibid. 94. Where the interest of one of the defendants in the premises in a partition suit is sold under u judgment at law against him, subsequent to the filing of the complainant's bill and the notice of the pendency of the suit for partition, the purchaser must come in before the master and prove his claim under the order of reference as to general hens, as 578 PARTITION, II. g, h. his interest In the premises will be devested by a salci ■under the decree. Brid.i 95. All future estates in the premises, both Tested «nd contingent, may be sold under a judgment or -decree in partition, although not embraced within the specific directions of the Be«'ised Statutes ; and in all such cases the court must ascertain and settle the value of such future estates, and must make the necessary order forthe protection of theshares -of the persons who then are or thereafter may be the owners of such future estates. Jaekson v. EdwarOs, 7 Paige Ch. 386, 4: 800 96. It is a fatal objection to the title derived under a decree iu partition, that the complainaut was a fmne covert, and that her husband was not joined with her as a party to the suit; and where it ap- peared, from the allidavits on the part of the pur- chaser, to be a matter of doubt whether the com- plainant was not a married woman, a marriage in fact havmg been solemnized between her and a man who claimed to be her husband, the chancellor re- ■fused to compel the purchaser to take the title un- til the complainant should have established the fact, upon a reference, that the alleged marriage was illegal and void. Spring v. Sandford, 1 Paige Ch. 550, 4: 870 97. The right of an incumbrancer cannot be af- fected by a sale of lands in partition ; neither can lie be made a party to the suit. JIarwood. v. Kirby, 1 Paige Ch. 469, 2: 718 98. If the lands are divided, the lien of the incum- brance, after the division, will be confined to the «hare allotted to the party against whom the in- cumbrance is held. Ibid. 99. If the lands are sold, the purchaser will take the premises subject to the lien of the incumbrance upon the undivided share. Ibid. 100. The Revised Statutes have altered the law on this subject, and have authorized the court to de- cree a sale which will give the purchaser a perfect ■title discharged from all liens and incumbrances. Ibid 101. If a mortgage is given on an undivided share of the estate pending a suit for partition, the uen of the mortgagee will be devested by a sale of the premises under the decree, and the purchaser will take the estate discharged from the inoumbra nee. Sears v. Hyer, 1 Paige Ch. 483, Us 784 g. Belief OeneraUy. 103. Rents or profits of premises sought to be parti- tioned, accruing while the land has been held ad- versely lu the claim of the complainant, even if such rents and profits have been received by one who was a joint owner of the premises witn the complainant, are not recoverable in the court of ■chancery upon a bill for partition. They are more properly recoverable as mesne profits, in an eject- ment suit brought for the recovery of the posses- «ion of the undivided share of the premises claimed hy the plaintiff. Burhans v. Burhana, 2 Barb. Ch. 398, 5: 690 103. Commissioners in partition, who at the same time were admeasuring dower in the same lands under an order of the surrogate, in dividing the lands between three tenants in common, after as- signing dower to the widow, allotted the residue to the owners in such manner that two of them took their shares free from dower; the commissioners intending to set off to the third — an infant — the lands subject to dower, with a small parcel besides; and that arrangement was agreed to by one of the owners who was an adult, and by the guardians cud litem of the two other owners, who were infants. By their report of the partition the commissioners omitted to mention the dower lands, or to allot them to the party intended, but allotted to him merely the small parcel which was free from dow- ers and the report was confirmed, a judgment en- tered thereon, and the error was not discovered till nearly thirty years afterwards, the widow hav- ing survived all the intervening period. The dower lands added to the small parcel made that share equal with each of the other shares allotted in the ll>artition. HeM, although the agreement was in- valid, and there was no sufficient ratification or ac- quiescence, that on the ground of accident a court of equity could grant relief, and could give full effect to the defective partition, according to the original design of the commissioners and the justice of the case. Douglass v. Title, 3 Sandf. Ch. 439, 7: 918 104. Although a bill in partition states that certain property belongs toi husband and wife, and the de- cree follows the bill, yet, as an accounting was con- nected with the suit which justified the making of both of them parties, it was not to be considered that these statements created an estoppel as to the real rights of these parties, and that the husband alone might, notwithstanding, be seised of a fee. Meriam v. Harsen, 4 Bdw. Ch. 70, 6: 801 105. On abiU for partition of a decedent's estate aua an adjustment of rights and claims therein, the executors in trust cannot bring in their com- mission or rents, moneys and disbursements. It iiould seem that they could only get at them through a bill in the nature of a supplemental bill. Torrey v. Shaw, 8 Bdw. Ch. 356, 6: 687 106. A tenant in common who had, by defending a suit, kept the property in the family, allowed lor counsel fees paid. Tenant in common in possession, allowed for substantial and useful improvements, but not for such as are merely ornamental. Mode in which the tenant is to get such allowances. Tenant 'in common in possession charged with an occupation rent. mtehcock V. Skinner, Hofl. Ch. 21, 6: 1050 107. Form of the decree, as to the costs of the guar- dians ad litem of infants in partition suits, where an actual partition is decreed. Tibbits V. TibbiU, 7 Paige Ch. 204, 4: 185 108. In a partition of property where infants repre- sent a share, their separate proportions of it should be severed and set out to them respectively; and it is not enough merely to set aside, for them collec- ti-"lv. the share of their ancestor. Hond]/ V. ieauif t, 3 Bdw. Ch. 239, 6:637 109. If the rights of infantsin the premises appear upon the face of the master's report as to title in a partition case, the court will correct an error into which the master has fallen as to the extent of their interests in the premises, although no formal excep- tion lias been filed to the report by their guardian ail lUem. Safford v. Safford, 7 Paige Ch. 259, 4: 147 h. Bights in Proceeds. 110. If the master improperly rejects the claim of a creditor coming in under the notico in a partition suit, as to his lien upon the premises, the claimant must except to the master's report, if he wishes to preserve his lien upon the purchase money for which the premises are to be sold under the decree. Dunham v. Minard, 4 Paige Ch. 441, 3: 506 111. Where a Judgment is recovered against the husband, during the pendency of a partition suit against him and his wife for the partition of lands of which he holds an undivided share in right of his wife, a subsequent sale of the lands under the decree in partition devests the legal lien of the judg- ment creditor upon the husband's legal estate in the lands, and converts it into an equitable lien upon the husband's interest in the fund produced by the sale, to the same extent as the legal liens. Ellsworth V. Cook, 8 Paige Ch. 64ii, 4: 575 112. A mortgage executed by a tenant in common of lands, pending a suit in this court for their par- tition, becomes a lien on his interest in the lands. Westervelt v. Haff, 2 Sandf. Ch. 98, 7: 583 113. If the suit terminates in a decree for a sale,aad a sale ensues at which the mortgagor oecomes the purchaser of a part of the lands, and on receiving a deed is allowed towards the amount bid, for his share of the proceeds of the whole premises, and omits to pay off the mortgage, it still continues to be a lien as against such mortgagor, upon the land bought by him at such sale. Ibid. 114. In a partition suit, where the present value of a contingent or inchoate right of dower of a mar- ried woman is ascertained under the decree, pursu- ant to the Act of April 28, 1840, such value repre- sents the present worth of the woman's dower right in the premises, and the sum paid or reserved in re- spect of the same is her absolute property, without condition or contingency. Bartlett v. Van Zandt, i Sandf. Ch. 396, 7: 1147 115. A sale under a decree in partition operating as a statutory conversion, the sum payable to a mar- ried woman for the value of her contingent dower is personal property, which belongs to her husband, subject to her claim for a settlement, and on her death without asserting such claim, it will be paid iver to him. Ibid, PARTITION, III.; PARTNERSHIP. 379 116. Where the oomplainaats in a partition suit crave a bond and inoii,(i.wu upon tiieir intert'et in the land of which partition was sought, during the pendency of the suit, and the premises were after- wards sold under an order of sale made in that suit, it seems that the holder of such bond and morticage cannot apply, by a petition in that suit, to which he is not a party, for the payment of the part of the pro- ceeds of the sale which, by the decree, are directed to be paid to the complainant, but that he must 'Seek bis relief by bill. Ellis V. Meservie, 11 Paige Ch. m, 8: 800 117. The shares of infant defendants in the proceeds ot tbe sale of premises in a partition suit ought not to be paid to their guardians ad litem, but should be brought into court and invested for the benefit of -such infants. Carpenter v. Schermeirhom, 2 Barb. Ch. 314, 6:656 118. The court of chancery has no jurisdlction,upon petition, to order a portion of a fund iu court arising from the sale of real estate in a partition suit, which portion belongs to an adult heir of a deceased party to such suit, to be paid out to the creditors of the ■decedent. Cassidy v. Cas$idv, 1 Barb. Ch. 467, 5: 458 S. C. 6 Ch. Sent. 12, 5:1 196 III. VoiiUNTAKT Partition bt Parties ; Agreements. 119. A voluntary partition of the interests of several persons in lands, without warranty, will, as between fluch persons, only give to each one the rights and in- terest, either vested or contingent, which he and the others then have in the lands set ofC in severalty. Carpenter v. Scltermerhom, Barb. Ch. 314, 5: 656 120. A further interest in the land set off to others' ■which one of the parties afterwards acquires as the lielr at law of some of his children who had a re- imainder in fee in the premises, not being either a vested or a contingent interest in him at the time •of the partition, but a mere chance of his succeed- ing to the same as an heir at law of his children, does not enure to the benefit of the other parties to the iiartition in respect to the lands set off to them. Ibid. 121. Where six children, one of whom was an idiot, inherited a lot of land as tenants in common, and for the purpose of making partition it was agreed -that A, one of the children, should purchase the shares of two others and have the east half of the lot for his portion thereof, and that E, another of the -children, should purchase the share of one of the others, and should also take the share of the idiot in consideration for supporting such idiot for life, «tna tnat be should have the west half of the lot for his portion thereof; and conveyances were exe- •«uted by all the children except the idiot, convey- ing the premises accordingly; and A afterwards sold the east half of the lot to T.— Held, that as E obtained no title to the idiot's share of the lot, ■there was no consideration for this agreement to -support the idiot; but that T was entitled to an equitable partition of the premises, in which the share of the idiot should be assigned to her out of the west half of the lot conveyed to E by the other heirs. Teai V. Wondvxyrfh, 3 Paige Ch. 470, 3: 835 122. Commissioner in partition who at the same time were admeasuring dower in the same lands under an order ot the surrogate, m dividing the lands between three tenants in common, after as- -signing dower to the widow, allotted the residue t" the owners in such manner that two of them took their shares free from the dower; the commission- -ers intending to set off to the third, an infant, the lands subject to dower, with a small parcel besides; and that arrangement was agreed to by one of the owners, who was an adult, and by the guardians ad litem of the two other owners, who were infants By their report of the partition, the commissionerf ■omitted to mention the dower lands, or to alloi them to the party intended, but allotted to him merely the small parcel which was free from dow- ..«r: ?nfi the report was confirmed, a iudgment en- tered thereon, and the error was not discovered till nearly thirty years afterwards, the widow having survived all the intervening period. The dower lands adde^ to the small parcel made that share equal with each of the other shares allotted in the partition. Held, that the agreement between thp adult and the guardians was invalid, and tha the occupation by the two -who received their full shares, and the sale of such shares, were not a rati- npatlpn of such agreement, or an acquiescence in the third owner's right to the dower lands. Douglass v. VUle, 3 Sandf . Ch. 439, 7:918 Editorial Notes. Partition ; jurisdiction in 1: 626, 837, 2: 247, 502, 799, 7: 295, 1189 transferred to supreme court 3: 137 At common law, writ of 8: 311 Riglits between tenants in common 3:269.460,4:1054 Of lands leased 3; 812 Incumbrances not a bar 6:1029 Of decedent's estate, not granted, when 6:248 Contingent interest not give right to 2: 954 Title cannot be tried in . 3: 136, 990 Only between those in possession 3: 137, 5: 690 Objection to want of possession 5: 691, 1038 Title first established at law ; dispiites among defendants 1 : 626 Cotenant seelsing, must do equity 3: 115 Retaining bill pending trial at law ^ 1: 79, 626 Defense in answer 5: 691 Parties necessary 4: 201 joinder of 3: 247, 4: 524 Binding upon parties not in ease 6: 271 Owelty in 4: 1055 Allowance for improvements 6: 675, 7: 771 Equitable distribution 3 : 235 Sale 2:176, 7: 820 effect of sale in 3: 525, 4 : 201 purchaser at sale 3:506 Decree ^0 confesso 4: 51 Relief granted 1 : 79 Protection of dower right 6: 249 Report, equivalent to verdict of jury 6: 988 Voluntary, not binding on holders of exist- ing liens 7: 523 PARTNERSHIP. I. Creation ; Nature ; General Eules. II. Powers of Partners ; Liabilities as to Third Parties. III. Eights of Creditors. a. j™ General; Priorities. b. Power of Partners to Qive Preferences. c. Individual 0> editors and Indebtedness. d. Remedies against Estate of Deceased Part- ner. IV. Partnership Eeal Estate. V. Eights and Liabilities as between Part- ners. a. Iti General ; Compensation. b. Settlement; Accounting. 1. In General. S. Items; Effect; Opening; Claim against Estate. VI. Dissolution ; Change. a. What Constitutes or Justifies. b. Assignment of Interest. c. Bankruptcy of Partner. d. Winding up ; Surviving Partners. VII. Actions. VIII. Limited or Special Partnerships. Editorial Notes. See also Associations ; Doweb, 54 ; Injunction, 23, 385; INSOLVENGT AND assignment for Creditors, I. d, 105-113: Interest, U; Par- ties, Vn. ; Eeobivers, 1. b, 2 ; Sale, 31. S80 PARTNERSHIP, 1., II. I. Cbbation ; Natueu ; General Bulks. 1. In this State no written articles are necessary to constitute a copartnership which is to take effect immediately. Smith V. Tartton, ZBaib. Ch. 336, 6: 665 2. Even where t here is a parol agreement to enter Inio a cdparcuei'suip at u lutureuay.aud specifying the terms of such copartnership, it seems that, if the parties go into copartnership at the prescribed time without agreeing upon any new terms, the for- mer parol agreement will be presumed to constitute the terms upon which such copartnership was en- tered into and carried on. Ibid. 3. A copartnership which is entered into and com- menced immediately is not inyalid although one of the declared objects of the copartnership is to pur- chase real estate for the purposes of the firm and aa a site for the transaction of its business. Il/id. li Where A B, being the owner of several farms, in 18^7, uuLerea lato uixiuies ol agreement with three of his sous and Ins son-in-law, wherein it was a^rreed that the three sons and son-in-law should work and carry on the farms owned by A B for the term of five years, in such manner as might be thought by A B most discreet and prudent, and should put on the same all such implements of husbandry as they owned; and A B agreed to put on the said farms, for the use thereof, all such teams and implements of husbandry as he owned; and it was further agreed that other teams and Implements of husbandry which might be necessary should be purchased from the products of the farms, and that each of the parties should have his proper living and expenses out of such products; and A B also agreed that, at the expiration of the said term of five years, his said ^.h^'^o °""»i nnd bl'^ snn-in-lnw should linvo t.ho one half of his personal property and one half of the groducts of the farms ; and A B further agreed, 1 case the three sons and son-in-law faithfully performed the said agreement on their part, that he would convey to them by deed in fee simple one half of all such farms ; and at the time of making the agreement A B owned considerable personal property ; and his son-in-law was then in Ul health, and remained in such ill health, and unable to work, until his death, which took place a few weeks thereafter,— Heid, that the articles of agreement did not constitute the parties thereto copartners, so as to entitle the representative of the son-in-law to a share of the property, although by the act of God it became impossible for the decedent to per- form his part of the agreement. Chase v. Barrett, i Paige Ch. 148, 3: .38i 5. A person who contracts for a share of the prof- Its of a particular trade or business, as profits, is a partner as to third persons, and is liable for the debts of the partnership. ibid. 6. Whether a partnership exists, as to creditors, between a merchant and a mere servant or agent of his, who contracts with the merchant for a share of the actual profits as a reward for his ser- vices, and who is not held out to the world as a partner,— Quosrc. Ibid, 1. To constitute a partnership, as between the parties thereto, there must be a joint ownership of the partnership funds and an agreement, either ex- press or implied, to participate in the profits or loss of the business. Ibid. 8. Where three persons executed a bond and mort^ gage on leaseiiuid propeity, tiie principal value oi which consisted in a white-lead manufactory, with steam-engine, machinery, and other fixtures, with which the persons conducted business together,— SeM, that the persons, from, the nature of the prop- erty and the business conducted and their joint in- terest, were to be deemed partners ; and one part- ner will be bound by the other partner's transfer of a policy of insurance upon the property, and all its consequences. Day V. Perkins, 2 S. 359, 7: 626 9. Where a feme covert entered into a written agreement witn ;her eon to form a copartnerehiji with him, which agreement provided tor a copart- nership in fact, and for a continuance of the same for a period beyond the death of the husband ol such feme covert, and such copartnership com- menced under such written agreement during the coverture of such feme covert, and continued after the death of her husband for upwards of eix years, to the time of her own death,— HeW, that such copartnership related back to the time ol the exe- cution of such written agreement so as to give both parties the same benefit which they would have leen entitled to if the feme covert had not be« trade for an infant partner. Ihomvson v. Brown, i Johns. Ch. 619, 1: 9S7 11. Powers or Pabtnebr ; Liabilities as to Third Parties. 12. The acts of a majority of the partners of a firm bind the rest. Kirk V. Hodgson, 3 Johns. Ch. 400, 1: 66)i 13. As a general rule, each one of the members of a copartnership has an equal right to the posses- sion of the partnership effects, and to collect and apply them in satisfaction of the debts of the firm- ioic V. Ford, 2 Paige Ch. 310, 8: 981 14. Where two persons eire joint proprietors of certain patent-rights andprivUeges,— as, for navi- gating vessels by steam,— one of them, on the mere ground of such joint interest or concern, is not re- sponsible tpr any special contract or undertaking entered Into by the other with any assignee of sucu right or pHvilege not connected with the enjoy- ment and exercise of their common privilege under the patent. Lawrence v. Dale, 3 Johns. Ch. 23, 1: 639 15. Prior to the statute of 1833, a confession by one partner, sui-vcd wiiuuuc s^rviceot process upon tue others, would only have bound the one at law. Since the Act the judgment and execution bind the joint property at law. But the appointment of a, receiver in a suit for the winding up of the affairs of a firm is equivalent to an assignment in this, court, whether followed by anactualassignmentor not, and arrests the right to prefer. Waring v. RoUnsmi, Hofl. Ch. 524, 6: 1231 16. To render valid an appointment by one partner of a. trustee to collect auu aistribute the partner- shi,< funds as that partner shall determine, the as- sent or subsequent ratification of the other part- ner must be shown. Hitchcock V. St. John, Hofl. Ch. 511, 6: 128» 17. One partner can bind another in the settle- niuut, uUjutiUijeut una cuuipuuuuiug of a debt due to them jointly, without the. knowledge or express assent of the other; and when such power is exer- cised in good faith and in relation to a matter with- in the scope of the partnership, he cannot be re- sponsible to the other for error of judgment, o» anvthing short of a dereliction of duty. Oimningham v. LitOefieW, 1 Edw. Ch. 104, 6: 76 18. Where a bond and mortgage executed by the members of a partnership were put into the hands- of one of the partners to raise money thereon, and he delivered them to a third party as security lor ., loan of stocks, if the partners ratify such act the ratification will extend to making them liable for an advance which the third party is compelled to make to another party to whom the partner had given a prior equitable claim on the bond and mort- gage. Dav V. Perkins, 3 S. 359, 7: 685 19. On the dissolution of a partnership, both pait- ncrs signed a paper intended for publication and published.that one of them— B— was thereby author- ized from thenceforth to collect the debts due to the firm, and would payits debts, and would use the name of the firm in liquidation. Held, that this wiia evidence of an agreement that I; nloue was author- i.-^ed to settle the business of thi .ito partnership. Haijes V. Heyer, 4 S. 485, 7: 1180 20. Where a retiring partner, upon a distribution! of the partnei-ship effects, agrees to bear a portion of the loss upon a note taken by the other partners toward their distributive share of the effects, if it cannot be collected of the drawer, he stands in the situation of a surety for the drawer pro tanto, and will be discharged from his liability if the holders of the note take a new security from the principal debtor and extend the time of payment, -without the assent of such retiring partner. Wilde V. Jenkins, 4 Paige Ch. 481, 3; 584. PARTNERSHIP, III. a. 881 21. When- a former customer of a partnership, 'having .no notice of its dissolution, deals with one ■of the partners on thn credit of the firm, all the partners will be liable to such customer on the con- •traot. Briaban v. Boyd, 4 Paige Ch. 17, 3: 323 23. But if the customer was informed of the disso- lution, immediately after a sale to one of the for- mer partners on the credit of the Arm, and before the goods were delivered, a court of equity would hot permit the vendor to recover the price of the .goods against the former partners of the vendee. Ibid. 33. After the dissolution of a partnership, one partner cannot bind the other by the acknowledg- ment of a debt which Is neither legally nor equita- bly due, or by giving a note for the same, although at the time of such acknowledgment or of the giving of the note the supposed creditor had no iknowledge of the dissolution. Ibid. III. Rights of Creditobs. u. In Oeneral ; Priorities. 34. A private debt, without the express assent of the creditor, may , by the understanding of partners, 'become payable out of partnership funds. Colt v. Wilder, 1 Edw. Ch. 484, 6: 819 25. The partnership effects are to be flrst applied to the payment of the debts of the fli'm, and to equalize the claims upon the different copartners in relation to the fund. Buchan v. Sumner, 2 Barb. Ch. 165, 5: 599 26. The separate creditors of individusil partners ■idve no equitable right to any part of tbe partuor- «hip property until the debts of the firm are pro- vided for, and the rltrhts of the partners, as between themselves, are (ully protected. Ibid. 27. If one of the copartners has paid more than hisshare of the partnersoip debts, he hasa claim up- on thepartnershijp property, which in equity is par- amount to the claims of the separate creditors of nis copartner. Ibid. 38. Where an association is formed, and an asso- ciate advances money in aid of the proiect,equity, on a sale of the concern, should give a preference to such advances. Coster V. Clarhe, 3 Edw. Ch. 405, 6: 705 39. The lien of a partner for capital brought in is only inter se, and is unavailing between his creditors and the creditors of the Arm. Ketchum v. Durltee, Hoff. Oh. 538^ 6: 1337 ^. Where one partner brought all the stock into the firm, for which he was indebted to another per- son, and it was agreed that the appraised price of it should upon a dissolution be refunded with in- iterest, the partner is not constituted a creditor, nor has he such a lien as authorizes him to transfer it to bis creditor. He has a lien inter se, but not as against the creditors of the firm. The question al- ways is, whether the debt, which originally was separate, has been; adopted -as the debt of the.flrm. The mere fact of the goods coming to the use of the firm is not sufficient. Money borrowed on the 'mere security of one partner though applied to the use of the firm, is not enough, even if the other knew from whence It came. But if money is bor- rowed without any separate contract, and so ap- plied, it is prima facie evidence of a partnership debt. Ibid. 31. If persons comprising a firm are insolvent their Joint creditors are entitled to a payment out of the partnership effects in preference to separate creditors; and in case of the death or bankruptcy of ■one so that his separate estate cannot be reached at law for partnership debts,hi8 separate creditors have a corresponding right to priority In payment out of such separate estate. Payne v. Matthews. 6 Paige Ch. 19, 3: 881 33. The rule of eauiiy is uniform and stringent that the property of a copartnership shall be applied to the partnership debts to the exclusion of the ■creditors of the individual members of the firm; and the creditors of the latter are to be first paid out of the separate effects of their debtor. „ _ ^ Jaekson v. Goraell, 1 Sandf. un. o-^o, 7: 354 Deveau\. Fowler, 3 Paige Ch. 400, S: 961 Wilder v. Keeler, 3 Paige Ch. 167. 3: 101 Itnbb V. Stevenx, aarke Ch. 191, 7: 89 Egberts v. Wood, 3 Paige Ch. 517, 3: 355 «m«h V. Jaehsan, 2 Edw. Oh. 28. 6: 395 33. The rule, however, is for the benefit of part- ners and tiiose who represent them or claim title through the medium of one of the partners, as by exomition. death, assignment, or bankruptcy Bobb V. Stevens, Clarke Oh. 191, 7; 89 34. Creditors of a partnership have no specific lien upon the partnership property tor the payment of their debts. The partnership property and the in- dividual property of each partner is liable for the payment of such debts, if it can be reached in due course of law. Ibid. 35. A creditor of a partnership firm who has ob- tained juagmcnt against such firm after a sale by one partner to the other cannot, before execution issued, sustain a bill for the partnership property, and have it applied to the payment of the partner- ship debts. He must issue an execution upon his iudgment, and file the ordinary creditors' bill. TMd. 26. Where a partnership is dissolved by the death of one of the copartners, or where one or both of the copartners become bankrupt, or they are dis- charged under the Insolvent Acts, so that their property is placed in the hands of the assignees ap- pointed by law to make distribution thereof, it is administered, in courts of equity, by applying the copartnership funds, in the first place, to the pay- ment of the debts of the firm; and the individual lundsof the several copartners to pay their indi- vidual 4ebts respectively, before paying joint debts out of the same. Kirby v. ScTwonmaker, 8 Barb. Ch. 46, 5: 809 37. But where the copartners are administering iheiT own funds, the copartnership creditors have no specific or preferable lien upon the joint funds nor have the individual creditors any lien or prior ity of claim upon the separate property. Ibid. 38. It is only where neither the joint nor the sep- arate creditors of the persons composing the firm can reach the property of their debtors, so as to obtain satisfaction by execution at law, that the equitable principle is applied of paying joint credi- tors out of the partnership property, and individ- ual creditors out of the separate property of their debtors, where there is not enough to pay both. IMd. 39. There is an equity existing between the mem- bers of an insolvent copartnership, by virtue ol which any of them may insist that the copartner- ship effects shall be applied to the payment of the debts of the firm in preference to the payment of the private debts of the individual partners; and this gives to the creditors of the firm a quasi equi- table lien upon the copartnership effects, if the members of the firm, or any of them, choose to give effect to such lien by working it out for the benefit of the joint creditors. Ibid, 40. But this equity of tbe members of the firm as between themselves does not ueprive them of the right to apply the partnership effects to the pay- ment of their joint and separate debts as they please, provided no injustice is done to creditors. Ibid. 41.trpon the dissolution of a copartnership by the ideath or bankruptcy of one or bath of the copart- ners, the creditors of the firm obtain a quasi lien up- on its property and effects, which the court of chan- cery may work out for them in administering the equities between the copartners or their represen- tatives. Ketchum v. Dwrkee, 1 Barb. Ch. 480, 5: 464 43. But where there has been a bima fide sale of the copartnership effects from one partner to an- other, upon the voluntary dissolution of a solvent firm, and without reserving any lien thereon for any purpose, the creditors of tbe copartnership have no equitable lien upon such effects as against the claims of creditors of the partner to whom such sale was made. Ibid. 43. And where creditors of the partner to whom the sale of the effects of the firm was made have obtained a legal lien upon such effects by the levy of an execution thereon, they are entitled to retain their lien as against tbe vendor and the cred- itors of the copartnership. Ibid. 44. Upon the death of one of the partuers, a joint creditor of a partnership has no claim for the pay- ment of his debt out of the separate estate of the deceased partner until all the separate creditors of such partner have been paid their demands out of hi A PRt'At'6 WHder v. Keeler. 3 Paige Ch. 167, 3: 101 45. Creditors of a partnership can claim tnoir en- tire debt out of the partnerehip fund, although 383 PARTNERSHIP, III. b. they have a security from third persons who sus- tain the character of sur 'ies for the partnership. 46. The sureties in such case have an equity that the creditor should, for their indemnity, prove his demand, and collect it, if possible, against the estate of the principal debtors. Ibid. 47. Where some of the creditors of a partnership have obtained satisfaction ot part of tlieir (Jbulo out of the joint estate, they will not be permitted to come in upon the equitable assets belonging to such estate, ratably with the other creditors, who have received nothing', until the last-mentioned creditors have received sufBcieut out of the estate to put them all upon an equality. ibid. 48. Whero one of several partners is not only jointly liable for a joint debt, uut is also separately liable as indorser for the firm, his separatee estate as to such debt is to be considered as legal assets, and must be applied in payment thereof, in prefer- ence to the joint debts due the other creditors ; but the joint estate being primarily liable, that must be first applied towards the payment cf such debt. Ibid. 49. Where a bank had given credit individually by discounting an individual note, ic was not ailoiveii to prove this debt in a copartnership suit (althougb the drawer and indorser were two of the partners) even on strong allegation that the note was made for and was applied to partnership purposes; nor could the drawer have this benefit, especially as he had submitted to a decree and report; in the cause, whereby the indorser was recognized as having as- sumed the note individually. Coster V. Clarke, 3 Bdw. Ch. 411, 6: 708 50. Where on the dissolution of a copartnership existing between D and F, D agreed with V that F should take all the stock and effects, and pay all the debts due by the firm; and afterwards F became in- solvent and threatened to dispose of all the part- nership property, and appropriate the same to his own individual use, leaving the debts unpaid,— upon a bill filed for that purpose, an injunction was granted restraining Ff rom diisposing of the part- nership property in a different manner from that stipulated in his agreement with D. Deveau v. Fowler, Z Paige Ch. 40O, 2: 961 81. Where the administrator of a deceased partner assigned all nis mterest in the partnership effects to the survivor, under an agreement that the latter should discharge all the debts of the firm.— it was held that this assignment and agreement did not destroy the Hen or equity which existed in favor of each partner, on the dissolution, to have the part- nership property applied to the payment of the partnership debts. IbM. 52. Where the general partners in a limited co- partnership, after the time flxea for the termination of such copartnership, continued to give and take notes in the name of the firm, and some of the notes thus given were transferred to bona fide holders who were not aware that they had hot been given for debts due from the firm,— Held, that the holders of such notes were not entitled to come in with the creditors of the firm and participate ratably in the assets of the limited copartnership, and that thu creditors of the firm were entitled to a preference in payment out of such assets. Haggerty v. Taylor, 10 Paige Ch. 261, 4: 969 53. Held, also, that if the special partners had made themselves personally liable to the holders of th« notes, by allowing the general partners to continue business in the name of the firm after the tim° limited for the expiration of the partnership, the remedy of the holders of the notes was by an action at law against the general and special partners, to charge them personally. IMC 54. Where a creditor has separate judgments against each of two partners, the partnership prop- erty will be bound to the same extent as ft the amount of both judgments had been included in n joint judgment for the whole against both part- ners. Brinkertioff v. Marvin, 5 Johns. Ch. 320, 1: 1096 55. A, in New Orleans, and B, in New York, en- tered into an agreement by which A bought cot- ton and shipped to B on joint account, paying its price with the proceeds of discounted bills of ex- change drawn by A and accepted by B. The bills were protested, and B failed, and assigned all his property for the benefit of his creditors, including half the cotton so shipped by A. Held, that A was entitled to have the proceeds of all the cotton ap- plied to the discharge of the acceptances. • AddUon v. Burchmyer. 4 S. 498, 7: 1185 56. Where, on a dissolution of copartnership, one partner assigns all his rights in its stock and prop- erties to the other and the latter covenants to apply such stock and properties to the debts of the firm, its creditors may follow it for that purpose, notwith- standing the receiving partner makes divers trans- fers of it in fraud of the creditors, and even though both parties are applicants under the Bankrupt Law. The effects become a trust fund for the cred- itors under the covenant. M^ildes V. Chapman, 4 Bdw. Ch. 669, 6: 1013 57. Where a partnership is dissolved by the death of oneof thecopartners.tiie effects of the firm must be applied in payment of the partnership debts in preference to the debts due by the individual mem- boifl of the firm. Hutchinson v. Smith, 7 Paige Ch. 26, 4: 45 58. Where a firm consisting of three persons be- came insolvent and assigned the effects of the co- partnership for the benefit of their creditors, who agreed to release the two junior members of the llrm; and the senior member covenanted with the creditors to pay their debts out of another fund if the assigned property was found to be insullicient for that purpose,— Held, that the release and cove- nant operated as a novation or extinguishment of tiie original debts as to all the copartners; and that upon the death of the senior member of the firm all the creditors must claim as specialty creditors against his estate under the covenant, although some of them had recovered judgments against the firm previous to the execution of the release and covenant. Hosack v. Rogers, 8 Paige Ch. 229, 4: 41© b. Power of Partners to Give Preferences. See also Insolvency and Assionment fob Cred- itors, I. d, 105-113. 69. Copartners may assign their individual proper- ty, as weU as tneir partuership property, to pay the joint debts of the firm, thereby giving the creditors of the firm a preference in payment out of the sej)- arate estate of the assignors, over the separate cred- itors. Kirby v. Sehoonmaker, 3 Barb. Ch. 46, 5: 809 60. Each copartner, with the assent of the others' has the corresponding right to give his individual creditors a preference in payment out of the share of the effects of tlie firm which, as between him and his copartners, and without reference to the debts for which they are all jointly liable, is legally his own property. Ibid. 61. Copartners may make an assignment of their respective interests in the partnership property to trustees, giving a preference in payment to the in- dividual creditors of each copartner, out of hisshare of the partnership funds. Hot a partner who is in- solvent and unable to pay the debts of the firm has. no right to assign his share of the partnership ef- fects to pay the individual debts ot his copartner, tor which neither he nor his property is legally or equitably liable. Ibid. 62. it seem^ that one of the partners, during the existence of a copartnership, may, without the consent of his copartners, make a valid assignment in the name of the firm, of all or any of the part- nership effects, directly to a creditor of the firm, in payment of his debt. mgberts v. Wood, 3 Paige Ch. .517, 3: 355 63. Whether one partner can, without the con- sent of his copartners, assign the partnership effects to a trustee for the payment of the partnership debts, and can in such assignment give a preference- to one set of creditors over another,— qucBre. IBM. 64. The property of a copartnership, upon the in- solvency of the firm, is considered, in equity, as a trust fund for the payment of the partnership creditors ratably. jbicL 65. But either of the partners before the dissolu- tion of the copartnership, or all the partners after- wards, may apply the partnership funds to the payment of one creditor in preference to another. - Ibid. 66. The appointment of a receiver in a suit for an account and dissolution, or stating a prior dissolu- tion, prevents one partner giving any preference among the creditors, although it appears that a mere injunction would not be suflBcieut. Such ap- PARTNERSHIP, III. c— IV. 383. polntment does not prevent a creditor obtaining a preference by adverse proceedingp. Waring v. Bottinaon, Holt. Ch. 524, 6: 1«31 67. If partners dissolve and fraudulently turn the copartnersbip property to tlie payment of private debts,— it seems that a simple-contract creditor of the partnership may flie a bill to restrain them. Lcmton V. Leixy, 2 Edw. Ch. 197, 6: 366 68. The surviving partner has no right to assign the partnei'Ship effects for the payment of his in- dividual debts, and to leave the debts of the flrss unprovided for. Hutchinson v. Smith, 7 Paige Ch. 26, 4: 45 o. Indivickuil Creditors and Indebtedness. See also supra, III. a. 69. The interest of each partner in the partner- ship property is his share in the surplus, subject to partnership accounts, etc. Nicoll V. Mumford, i Johns. Ch. 522, 1 : 983 70. And that interest alone is liable to the sepa- rate creditors of each partner, claiming either by assignment or execution. Ibid. 71. An assignee, therefore, or separate creditor, of one parmer, is entitled only to the share of such partner after a settlement of the accounts, and after all the just claims of the other partner are satisfied. ibid. 73. Owners of the freight and cargo of a vessel are partners or joint tenants; and the assignee or separate creditor of one of them takes his interest, subject to an account between him and his copart- ner in the voyage. Ibid. 73. 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 whole proceeds, cannot retain the share so assigned, to satisf jr claims which he may have against the other, arising from former and distinct voyages or adventures in which they have been concerned together in the same or other vessels ; they not being general partners in trade, and there not being any connection between the different voyages and adventures. Ibid, 74. The interest of one partner in the partnership property may be taken and sold under an execu- tion at law on a judgment against such partner for his separate debt; and equity will not stop such execution or sale by injunction, until the partnership accounts are taken and liquidated. Moody V. Payne, 2 Johns. Ch. 548, 1: 484 d. Remedies against Estate of Deceased Patrtner. 75. If the surviving partners are insolvent, the joint creditors can, in chancery, claim satisfaction out of the separate estate of the deceased partner after payment of the debts due to his separate creditors. WUdery. Keeler. 3 Paige Ch. 167, 3: 101 76. Where one member of a copartnership firm dies, a creditor of the firm cannot sustain a suit in chan- cery against the representatives of the deceased co- partner, to recover his debt out of tbe decedent's estate, without showing in the bill that tbe surviving copartner is insolvent, or stating some other sulB- cient reason for not proceeding at law against the surviving copartner. Leake a: W. Orpha/n House v. Lawrence, 11 Paige Ch. 80, 5: 63 S. C. 4 Ch. Sent. 17, 6: 1140 SMter V. Carroll, 2 Sandf . Ch. 573, 7: 708 77. This may be established by proof that the survivors are insolvent and have no visible prop- erty or assets liable to execution. Slatter v. Ca/rroll, 2 Sandf. Ch. 573, 7: 708 78. Where a debt is due from a copartnership, and one of the copartners dies leaving the other copart- ner surviving and perfectly responsible; and the creditor neglects to pursue his remedy against the survivor until tlie cause of action is barred as against him by the Statute of Limitations,— it seems that such creditor cannot afterwards come into a court of equity to obtain satisfaction out of the estate of the decedent, although the surviving copartner has then become insolvent. ieofce A W. Orphan House v. Lawrence, 11 Paige Ch.80, S:63 S. C. 4 Ch. Sent. 17, S: 1140 79. This court gives relief against the representa- tives of a deceased partner who has left assets, iC the survivor be insolvent ; and tbe defendants can^ not object a want of due diligence in the creditor,, in not prosecuting the surviving partner before in- solvency. HamersVy v. Lambert, 2 Johns. Ch. 508, 1 : 46 T 80. No delay, in this respect, or lapse of time, or dealing with the surviving partner, or receiving from him a part of the debt, will amount to en waiver or bar of the claim on the assets of the de- ceased partner ; for it Is a joint and several debt,, and the assets of the deceased partner remain liable until the debt is paid ; besides, the discharge of the- surviving partner under the Insolvent Act is a good plea in bar to a suit against him. Ibid, ly. Partnebship : Beal Estate. 81. Beal estate purchased with partnership funds- for the use of the hrm, although tbe legal title is in the member or members of the firm in wh6se naine the conveyance is taken, is in equity considered as the property of the firm, for the payment of its debts and for the purpose of adj usting the equitable claims of the copartners as between themselves. Smith V. Tarltan, 2 Barb. Ch. 336, 6: 66S. Buchan v. Sumner, 2 Barb. Ch. 165, 5: 599 Delmmiico v. GuiUaume, 2 Sandf. Ch. 366, 7:687 82. It is the general rule in England that real es- tate belonging to a copartnership, unless there is something in the partnership articles to give it a different direction, is to be considered in equity as personal property; and upon the death of one of the copartners, and after the debts of tbe firm have been paid, and the equities have been adjusted be- tween the several members of the firm, it goes to the personal representatives of the deceased part- ner, and not to his heirs. Buchan v. Sumner, 2 Barb. Ch. 165, 5; 59»' 83. The American decisions in respect to real es- tate purchased with partnership funds or for the usv- of the firm establish two principles: (1) that such real estate is in equity chargeable with the debts- of the copartnership, and with any balance which may be due from one copartner to another, upon- the winding up of the affairs of the firm; (2) that,- as between the personal representatives and the heirs at law of a deceased partner, his share of the surplus of the real estate of the copartnership- which remains after paying the debts of the co- partnership, and adjusting all the equitable claims- of the different members of the firm as between, themselves, is to be considered and treated as real estate. ibid. 84. Although a court of equity considers and treats- real property as a part of the stock of tbe firm, it leaves the legal title undisturbed, in this State, ex- cept so far as is necessary to protect the equitable- rights of the several members of the firm therein. Ibid. 85. Where parties buy real estate with joint f unds^ for partnership purposes, there is no right of sur- vivorship in the lands. Upon the death of one part- ner intestate, his share descends to his heirs. Smith V. Jackson, 2 Edw. Ch. 28, 6: 895 86. There are instances, however, of lands held for partnership purposes which will be considered in- equity as personalty and be applied accordingly. Thus, it may be agreed by the partners themselves- to be so considered; and this agreement will work the change; and the same will go as personalty on the death of one partner. But if a purchase be made and a conveyance taken to partners as tenants in common, without any agreement to consider it- as stock, although it be paid out of their joint funds and to be used for partnership purposes, it will be ijeemed real estate. Ibid. 87. As respects the rights of joint creditors of a- firm, it is immaterial whether land assumes the char- acter of real or personal estate in becoming part- nership property. In either case, it is liable to tb& partnership debts. But it will not be considered as partnership property liable to copartnership debts by the mere taking a deed in the joint name of two- persons who are partners. It must be done by.some express act or understanding. ioio. 88. J and McJ were partners as merchants. They bought in a house and lot upon a mortgage sale, with a view to securing a debt due their firm; they bought other real estate upon speculation, paying for it out of partnership funds and debiting it to- "merchandise account;" and they also took up money upon mortgage of the properties, which was pui 884 PARTNERSHIP, V. a, b, 1. Into the same account. They failed In business. Then J. (one of the partners) died, intestate. The surviving partner, McJ., conveyed to trustees all his rights in the above real estate for the benefit of the creditors of the flrm. Foreclosures upon the mortgasres executed by the partners had been car- .ried through, and a balance of the funds remained in court. It was hdd, that the real estate was to be ■considered as copartnership property and the funds in court liable to partnership purposes. Ibid. 89. As the rule is well established that the joint property of the partneitihip must lust be applic'diu the payment nt the joint debts, therefore the ad- ministrator of J. was not entitled to any part of the funds in court for the benefit of the separate credit- ors or next of kin. The right to any balance would ibe in the heir at law of J. Ibid. 90. When real estate was purchased by two part- ners, with the funds and for the business ot tne co- partnership, and one of them died leaving the flrm without personal property sufficient to pay its debts, — Held, that the real estate was in equity to be treated as personal property, and the surviving partner had an absolute right to dispose of it as such, for the navment of the debts of the flrm. Bdmonico v. GuiMaume, 2 Sandf. Ch. 366, t: 6S7 91. As it respects the partners and their creditors, t?sal estate belonging: to the partnershipiaia equity subjected to the same general rules as personal property. ibid. 9Z. A farm was purchased by two partners In their joint names, for the partnership business, was used in that business, and paid for out of the funds of the flrm. At the dissolution by the death of one of the partners,thp ^ebts of the flrm exceed- ■«d its personal assets, and the survivor entered into a contract to sell a part of the farm. On a bill filed by him against the purchaser, for a specific per- formance, to which the heirof the deceased partner was a party,— ifcid, that the survivor was entitled to sell the property, and porfortaance was decreed, with a direction that the heir should join in the CO- vance. ihkl. 93. A leasehold is in equity subject to the incidents •of the personal property of a partnership. Day V. Perkins, 2 Sandf. Ch. 359, 7: 685 94. Five persons purchase real estate for joint benefit and sign an agreement that it shall be rwnich it is) taken in the name of one who is to hold and receive avails for joint account, until a sale and con- version into money. A bill is filed for partition, sale and account; and the executors ef one of the five, who had died, were made parties. An objection that his heirs should have been made parties was overruled— the court deciding that his share lost its quality of land and went to his representatives. Also decided, that his widow was not a necessary party, she having no right of dower. Coster V. Clark, 3 Edw. Ch. 428, 6: 714 95. Although there may be a partnership in the use and working of land there cannot be one in the buying and selling of real estate, so as to carry with it the rights, powers, duties and responsibilities of partners under the law merchant. Patterson v. Brewster, i Edw. Ch. 353, 6: 908 96. Where real estate is conveyed to copartners in their individual names, for the use and benefit of ■the flrm, or is so conveyed to them in payment of debts du e to the partnership, the legaltitle vests in the grantees thereof, as an ordinary conveyance of real estate. Buehan v. Sumner, 2 Barb. Ch. 165, 5: 599 97. Under the statutes of New York relative to joint tenancies, the several copartners to whom .-such a conveyance was made would become tenants in c9inmon of the legal title ; and upon the death of either, the undivided portion of the legal title thus vested in the deceased partner would descend to his heirs at law without reference to the equita- ble rights of the several partners in the land as a part of the property of the flrm. aid V. Eights and Liabilities as between Pakt NEBS. a. In General; Compensation. 98. Joint owners or partners are not entitled to oharge each other for services rendered in the care sand management of the joint property, unless there lis a special agreement for that purpose. Franklin v. Robinson. 1 Johns. Ch.l58, 1: 98 99. One joint partner is not entitled, asagatnst the others, to a compensation for his greater or more valuable services in regard to the common con- cern, unless there be a special agreement to that efFect. Bradford v. Kimberly, 3 Johns. Ch. 431. 1 : 673 100. But where the several joint owners of a cargo appoint one of the part owners their agent to re- ceive and sell the cargo, and distribute the proc^ds, he is entitled, under such special agency, to a com- mission or compensation for his services as a factor or agent, in the same manner as a stranger ; and as such factor or agent, he may retain the goods or their proceeds as security, cot only for his advances, disbursements, or responsibilities in regard to the particular property, but for the balance of his gen- eral account. ibid. 101. Partners are not entitled to charge each other or the flrm of which they are meiiiUHrs, for their services in the care and management of the business of the copartnership, unless there isaspecial agree- ment to that eifeot. or unless such an agreement can be implied from the course of business between the copa^ners. Caldwell v. Leiber, 7 Paige Ch. 483, 4: 840 102. In the management of the copartnership business, each partner is attending to his own In- terest therein as weila^to'the interest of his copart- ner; and the law implies no agreement to compen- sate either of them for their various and unequal duties and services in the management of the busi- ness of the firm; but one of the copartners may be answerable to the other for an injury which the company has sustained by his fraudulent miscon- duct in violation of his duty as a partner. Ibid. 103. Where, during the existence of the copart- nership, one of the copartners received a deputa^ tion from the postmaster of the village in which the business of the firm was carried on, to enable him to do the business of the postofBce; and the oSace was kept at the store of the firm, where the business was done by the copartners and their clerks, and the accounts of the oflice were kept in the books of the company; and the moneys received for postages went into the funds of the copart- nership; from which funds the sums due to the gen- eral postofBce were also paid,— fleW, that the part- ner who had the deputation was not entitled to the whole profits and commissions arising from the postofflce business, but that they belonged to the copartnership. ibid. 104. A copartner is not liable for a loss occasioned by an order given by him to the clerks of the flrm, in good faith, although in direct hostility to the directions which had been given by his copartner, and though the loss occurred in consequence or such contradictory order. Ibid. b. Settlement: Accounting. 1. In General. 105. Where the articles of copartnership require one of the copartners to make an annual statement of the copartnership accounts, upon the books of the firm, and he makes such statement accordingly, the other copartner will be deemed to have ac- quiesced in the correctness of the statement, if he does not object to it within a reasonable time there- after. Heartt v. Orming, 3 Paige Ch. 566, 3:276 106. In taking an account between partners,entries on the partnership books to which both parties had access at the time the entries were mad!e are to be considered as ■prima facie correct, but subject to the right of either partner to show mistakes or errors in the account. Ibid, im.lt a partner in a single partnership transaction receives from the other partner a statement of the account between them, and is silent for thirteen years afterwards, it amounts to an acquiescence Atwater v. Fowler, 1 Edw. Ch. 417, 6: 193 108. Unless there is a valid severance of stock in a joint-stock operation, there can be no trust in rela- tion to the shares in the hands of one partner. Ibid 109. Where A and B carried on trade as nartners! with the funds of A.in the name of B ; and, without any dissolution of the partnership, or rendering an v account to A, B afterwards, without the consent of A, entered into a partnership with C, and carried into the new concern all the funds of the former partnership ; and A, on the death of B, filed a bSl against his administratrix and C,his surviving part- PARTNERSHIP, V. b, 3. 385 ner, Tor a discovery and account,— It was held that ho was entitled to an account from C of the trans- actions and profits of the partnership between him and the intestate, and of tne personal estate of the intestate in his hands. Long V. Majestre, 1 Johns. Ch. 305, 1: 150 110. On the dissolution of a partnership between persons residing at ditlerent places, it Is ihe duty of each partner to furnish to the other all their ac- counts, and to endeavor to adjust them and ascer- tain tiie balance: and when the same is ascertained, thfi one indebted must pay such balance. Beacham v. Eckford, 2Sandf. Ch. 116, 7: 531 HI. This is especially the duty of the partner at the place where the principal business has been trans- acted, ibid. 112. tTpon the death of a copartner, this duty be- comes imperative upon the survivor, and it he neg- lect it, he will lose interest on the balance which may subsequently appear to have been due to him. Ibid, 113. E in New York and B in Baltimore were part- ners in building a frigate in Baltimore, and subse- quently in condU(!tin>f a shipyard there. B made the advances on building the frigate and received the price, and in 1827, three years before the disso- lution, was aware in general terms that in a settle- ment of their accounts there would be a large bal- ance due to B, but he did not know what such bal- ance was. There never was any settlement made between the partners. The accounts were kept at Baltimore, and there were extensive transactions afterwards, so that at the dissolution, in 1830, though E might have well inferred that he owed B, he had oo means of ascertaining what was the true balance. E, in 1827, applied to B for an account, which! B promised to send from time to time, but it was never sent. And B neglected to furnish his ac- counts to B when requested. E died in 1832, and there was no accurate statement of the accounts made out until 1837, after a suit was commenced by B's assignees against B's executors, for a settlement. Such statement was then made known to the exec- utors, and it thereby appeared that there was a bal- ance of more than $27,000 dufe from E to B in 1830. Held, that both parties had been remiss in their duty; that B should have furnished his accounts sO as to put E in default; that B's executors should not be charged with interest from the date of the disso- lution on the balance afterwards found to have been then due from E; but that they were liable to pay interest from 1837, the date when they were authen- tically informed of the extent of such balance, be- cause, although the suit was then in prosrress, they might have paid the ascertained amount into court for the benefit of B's assignees. Ibid, 2. Items; Effect; Opening; Claim agaimt Estate. 114. A partner who goes abroad on his personal affairs is not entitled to charge his personal ex- penses to the copartnership. Mumford v. Murray, 6 Johns. Ch. 1, , 8:35 115. Where articles ot copartnership stipulated that the capital and profits of the company should re- main in the house and be employed, during the co- partnership, for the benefit of the concern, each party being at liberty to withdraw from the Joint f un& so much only as was necessary for his private -expenses,— it was held that neither party had a right to withdraw from the funds money to purchase plate, household furniture, carriages, horses, etc. but only for family expenses and the reasonable •education of children, etc. Sttmahton v. Jjynch, 1 Johns. Ch. 467, 1:311 116. And where the partner lived in his own house< a charge for house rent was disallowed. Ibid. 117. If one partner withdraws or uses the partner- ship funds in his own private trade or speculations, he must account, not only for the interest on the moneys so withdrawn, but for the profits of that "trade. JWd 118. A partner who draws out money from the co- partnership funds is not chargeable with com- found interest, but with simple interest only, on he sums drawn out, unless it appears that he has traded or speculated with the money, and made a profit on it, and refused, on being called on for the purpose, to disclose the profits. Stoue/iton V. ij/icTi, 2 Johns. Ch. 209, 1:351 119. Whether the practice prevailing among mer- chants in settling their accounts,to state an interest account, in which interest is charged on each item ■Ch. Dig. of principal on the debit side, and credited on each item on the credit side,of the account,and a balance of such Interest account struck, and added to the balance of principal, is to be adopted in the settle- ment of accounts between merchant and merchant, —qucere. ttM. 120. But where a master, under an order of ref- erence to him, in stating an account between the parties, who were partners in trade, adopted this mercantile usage, the account was allowed to stand, there being evidence before the master, from the books of account and otherwise, that the parties themselves had followed this usage,and the calcula- tion was so made by an eminent merchant to whom the accounts were referred, with the consent of the parties, who did not question the statement when it was brought in to the master. Ibid. 121. In stating an account between partners, the true dates, as furnished by the books of account themselves, ought to be assumed. ibid. 123. The period of the dissolution of partnership is the proper time to make a rest and adjust the bal- ance of the partnership account ; and the partner against whom the balance is found is chargeable with interest thereon. ibid. 123. An association for carrying on a manufacture, having failed wnile their ouiidings were in progress, one of their partners and cestuis que trust made advances, without the consent of the others, to pre- serve the buildings, which were afterwards sold for the common benefit. Held, that he could not be credited for these allowances, in taking the ac- counts of the concern. Skinner v. WMte, Hopk. Ch. 107, 8: 359 124. Where a party in a joint speculation pays for goods and sells them bono fide, he cannot be charged with a loss arising from the failure of the pur- chaser; but he is entitled to be reimbursed one naif of the money advanced for the original purchase; and this will be so, even although he may have de- clared the debt secured and afterwards accepted of a compromise without the consent or knowledge or the other iparty, provided there was no deceit as misleading. Cunningham v. Littlefield, 1 Edw. Ch. 104, 6: 76 125.The plaintiff and defendant being partners,the de "endant, while in Europe, obtained an order from their debtors, In favor of himself and his copartner, on a house in London, but suffered the moneys re- ceived under it to be blended with other moneys received by him under a trust deed to him and C, and part of 't to go into the hands of C, his oo- trusfee; and the plaintiff, without knowledge of the f actSt'afterwards joined in a release of C. Held, that the defendant, who wrongfully kept the plain- tiff in ignorance of the existence of the order and of his nghts under it, was accountable to him for his interest in the whole moneys received under the Milord V. Murray, 6 Johns. Ch. 1, 452, 8: 35, 188 126. Whatever remains after the payment of the debts of a partnership audits capital stock is a sur- plus to be divided between the partners. Tddings v. Bruen, 4 Sandf. Oh. 223, 7: 1084 127.1t is immaterial how the debts arose,if they are copartnership debts when paid ; or whether they were compromised or paid in full. ibid. 123. If either partner apply his individual funds to the compromise ofa debt of thefirm,he becomes Its creditor for the amount paid,not for the amount of the debt. ibid. 129. T, being indebted in his mercantile businass over 82,00u,0U0, took li into paitueisuip, uiiuer an agreement by which the debts of T were to be paid through the new firm. T had a large real and per- sonal estate in possession but was insolvent. B had no capital. T & B conducted a very large and prof- itable business, and the new firm paid aU the mer- cantile debts of T. This was effected to the extent of over 8800,000, by funds raised through credits given to the new firm, in the course of its business. T & B failed, owing more than 81,500,000, and assign- ments were made of their assets and of the real es- tate of T. At this time, by means of the payment of T's debts by T & B, T was a debtor to the firm in upwards of 8800,000 beyond what B owed the firm. After some years, a debt of the firm amounting to $800,000 exclusive of interest was compromised for $200,000, which was raised and paid out of the real estate of T. Held, that in adjusting the accounts between T & B the debt compromised was to be re- 25 PARTi^ERSHIP. VI. a— d. garded as the debt of the firm, and that T was to be credited only the 8ii00,000 paid for its liquidation. Ibid. 130. Where copartnership accounts have been stated and settled between the parties up to a par- ticular period, and such settlement has been acqui- esced in for several years without objection, the evidence of error or mistake must be strong and conclusive to authorize the opening of the account. WHtle V. Jenkins, iTaige Ch. 4S1, 3:584 131. The practice of opening accounts which have been adjusted by the parties themselves, who could best understand them, is not to be encouraged ; and it should never be done upon an allegation of error, supported by doubtful or even probable testimony only, where no fraud has been practiced by one pai'ty upon the other. Ibid. 133. The balance due to a surviving copartner on account of the copartnership transactions is an unliquidated demand of the fourth class of debts due trom the estate of the decedent, according to the order prescribed by the Kevised Statutes for the payment of debts by executors and administra- tors. Payne v. Matthews, 6 Paige Ch. 19, 3: 881 183. Where, upon the death of one of the members of an insolvent firm, the surviving copartner, who was solvent, was obliged to pay the debts of the firm out of his own property, and the separate es- tate of the decedent was insufScient for the pay- ment of all his debts,— ITeid, that the balance dfle from the estate of the decedent to the surviving copartner, on account of the partnership transac- tions, must be paid ratably with the other debts of the decedent of the same class, according to the provisions of the Kevised Statutes. Ibid. VI. Dissolution; Change. a. What Constitutes or Justifies. 134. Even where a period is prescribed for the du- ration of a pai-tuersiiip, it seems uuubtfui whether either partner may not dissolve it upon due notice. At any rate very little can be required to justify this court in interfering. Violent disputes and dis- sensions which entirely prevent the beneficial effects of a connection, are sufficient. BisTiop V. Breckles, HoCP. Ch. 534, 6: 1835 135. Mere dissatisfaction is not enough to author- ize the filing of a biU by one partner for the dissolu- tion of a copartnership. Benn v. Walsh, 2 Edw. Ch. 129, 6: 336 136. If there be any breach of covenants by one partner which, in its consequences, woulu be bu i,,,- joortant as to authorize the party complainiUK to call for a dissolution before the copartnership could be dissolved by the efflux of time, the complainant may then have an injunction. Ibid. 137. Whether one partner, who has been proceeded against by his copartner as an absconding debtoF under the provisions of the Kevised Statutes, cap^ after the appointment of trustees, file a bill for the settlement of the copartnership concerns,— yuceJ'e. Buyler v. Westervelt, 7 Paige Ch. 155, 4: 104 b. Assignment of Interest. 138. One partner cannot transfer to a third person any greater interest in a non-negotiable partner- ship claim than he himself has. Price V. Jackson, 3 Ch. Sent. 26, 5: 1108 139. An assignee of one partner is entitled only to his share after a settlement of the accounts of the partnership and all the just claims of the copart- ner arc satisfied. Rodriguez v. Heffeman, 5 Johns. Ch. 417, 1:1187 o. Bankruptcy of Partner. 140. Where a debt is due a partnership at the time of the bankruptcy of one of the members of the firm, the legal title to his share of the debt vests in his assignee by operation of law. Coe V. Whitheck, 11 Paige Ch. 42, 5: 51 141. The action to recover a debt due to a partner- ship at the time of the bankruptcy of one of the members of the firm must be brought in the joint names of his assignee and the remaining members of the firm. Ibid. 142. The assignees of a bankrupt partner, under a separate commiFSion, are tenants in common witb. the solvent partner; and where the assignees have- got possession of the partnership f und», thesolvent partner cannot call them out of their hands, or compel them or partnership debtors who have set- tled with them, to account. Murray v. Murray, 5 Johns. Ch. 60, 1:1 00* 143. The solvent partner is entitled, as against his- copartner, only to his share of the surplus after the partnership debts are paid. Ibid. 144. The solvent partner and the assignees of the- bankrupt must join in a suit at law. Ibid.- 145. The assignees of the bankrupt have higher equities in such case than ordinary tenants in com- mon, for the purpose of an equal ratable distribu- tion of the joint funds, etc. Ibid. 146. Where the assignees of a bankrupt partner brought a suit to recover property in the huuus o^ trustees, to which suit the solvent paitner was made a party, and demurred to the bill on tho ground that the funds of the partnership oughtnut to be paid to the assignees of the bankrupt, which demurrer was overruled, and after answer, an ac- count was taken, and the trustees settled tho amount with the assignees,— fleltf, that the solvent partner was concluded by the decree and settle- ment in that suit, and could not reassert bis claim in a collateral action. ibid, d. Winding ud ; Surviving Partner. 147. Where, on a dissolution of a partnership, it is- consented that two of the partners shall have cnai-gc of its properties and wind up the concern, their pos- session is not to be lightly interfered with. There must be palpable breach of contract or duty or act amounting to fraud or an endangerment of prop- erty or rights of the withdrawing i>artner. The lat- ter cannot Intercept their proceedings under mere- apprehension of loss or because he may think they have not acted discreetly or judiciously. TTofter v. Trott, 4 Edw. Ch. 38, 6: 79ft- 148. Where a partnership, in conducting an insane hospital and an emigrant lazaretto, was broken up- bi coiitroveisies becwoeu the partners, who com- menced cross-suits in equity, and could not agree which of them should continue the establishment, the court appointed a receiver, with directions to sell immediately the lease of the premises occupied, the movables, and the goodwill of the businnas, and" restrained the parties, except those who migiit pur- chase at the sale, trom conducting the same busi- ivc ss, directly or indirectly, in the city where th& partnership had been carried on. U'lmams V. Wilmn. 4 S. 379, 7: 1141 149. The goodwill of a ti—dedoesnotsurvivcbutis- partnership property. The court cannot compel the continuing partners to take the lease and good- will at a valuation. It not disposed of by consent, the lease and goodwill must be sold like other part- nership effects. Dougherty v. Van Nostrand, HofT. Ch. 68, 6: 106» 150. General principles of the court in settling a partnership concern, as to extra allowances, inter- est, and commissions. A leasehold interest is to be disposed of as other property. Ibid. 161. A surviving partner has the legal right to the partnership effects. Case V. Abeel, 1 Paige Ch. 393, 8: 6S» 152. But in equity he is considered merely as a. trustee to pay the partnership debts, and to dispose of the partnership property for the benefit of him- self and the estate of the deceased partner. Ibid. 153. He cannot derive any exclusive profit from the use of the partnership funds. Ibid. 151. Where one of several pai-tuers dies, the legal- Hue to Luu debLS anu ciiuoucs i.i .t,.. iwii ueiungiijg nt tlie copartnersliip vests in ttie surviving partners as Joint tenants : and they alone are chargeable at law with the payment of the partnership debts. Egberts v. IFood, 3 Paige Ch. 517, 3; 855- 155. And such surviving partners, without the as- sent of the personal representatives of the deceased- partner, can appropriate the partnership property to the payment of the partnership debts, and may K-ive such preferences in the payment of debts as They may think proper. Ihid. 156. The representatives of the deceased partner have the right to insist that the partnership effects- shall be applied to the payment of the partnership- debts, lb la. PARTNERSHIP, VII., VIII. 387 IST.UpC.n the dissolution of a copartnership by the death of one of the copartners, the survivor is enti- tled to close up the affairs of the firm. Evam V. Evans, 9 Paige Oh. 178, 4; 658 S. C. 1 Ch. Sent. 40, 6: 1063 158. And the residence of the survivor In a foreign country forms no ground of objection to his con- tinuing to discharge the trust cast upon him by operation of law under the copartnership agree- ment, if he is perfectly responsible, and is closing up the affairs of the copartnership with reasonable diligence by a competent agent. IMcJ. 159. Upon the dissolution of a partnership by the death of one ot the copartners, the representatives of the deceased member of the Arm are entitled to have the stock on hand sold and converted Into money, so that the share of the copartnership funds belonging to them may be realized without any un- necessary delay. Ibid. Vn. Actions. 160. One partner may file a bill against another for an account of the funds, and a proper appropria- tion, even after a full transfer by nlm to his co- partners, but subject to the debts. Creditors may be joined in such a bill. Ketohum v. Dv/rkee, Hoft. Ch. 538, 6: 1337 161. After a dissolution of a partnership, and as- signment by one partner to the other, one partner may file a bill for a settlement of the partnership concerns, and may unite in such a bill (except where a demurrer for multifariousness will lie), an impeachment of a transfer of property. Ibid. 162. Creditors may be joined in such a bUl. Ibid- 163. Where one partner releases to another aU the partnership effects and dues, in consiueration of an assumption of the debts, he may still unite with creditors in preventing or redressing an improper application of the funds. Ibid. 164. Equity has not an exclusive jurisdiction be- tween copartners in matters of account. Duncan v. X/yon, 3 Johns. Ch. 351, 1: 644 165. An action of account lies at law, by one partner, against his copartner ; and it seems that there is no good reason why" that action is not sometimes resorted to, instead of a bUl in equity, IMd. 186. An action of covenant at law lies by one partner against another, where the articles contain a covenant to account. IMd. 167. And an assumpsit wUi also lie, on a promise in writing by one partner to take part of goods bought, in which they were to be equally con- cerned as to profit and loss. VM.3SZ, 1:649 168. In the absence of fraud, the next of kin can- not file a bill for account against surviving part- ners, one of whom is administrator to the deceased partner. Hyer v.Bitrdett, 1 Bdw. Ch. 335, 6: 158 169. Upon a bill to foreclose a mortgage against two defendants wno as copartners have a joint judgment against the mortgagor which is a lien upon the mortgaged premises, one of such de- fendants has no right to admit service of tlie sub- poena upon his codefendant, upon whom it has not been served. And the latter, upon showing that he has a meritorious defense to the suit, is entitled to have the default against him founded upon such admissions set aside, if he applies immediately after he is informed of the irregularity. Tripp V. Vincent, 8 Paige Ch. 176, 4: 390 170. Where a partnership is admitted, an account can be had, notwithstanding tne defendant dojues there is anything due to the complainant, and even though tbe answer alleges that the latter is indebted to the former. And where, on the taldng of the accounts, an indebtedness appears (i. e. by the complainant to the defendant) the defendant ca:: have a decree for the balance. Scott V. PinJcerton, 3 Edw. Ch. 70, 6:574 171. Where the plaintiffs brought an action at law against two persons, as partners in trade under the firm of R & M, and recovered judgment, but for which they were unable to obtain satisfaction out of their joint property or the separate property of M, the other partner not having been brought into court on the mesne process ; and the plaintiffs af- terwards discovered, for the first time, that N, L. and P, three other persona, were dormant partners with M and M, and jointly interested in the transaction out of which the plaintiff's right of action arose,— Held, that this court had no jurisdiction to afford relief against the dormant partners. Penny v. Martin, 4 Johns. Ch. 666, 1: 93» 172. One partner who has purchased of his copart- ners their interest lu tlie ni'ui lioias, after suun jnir- ohase, the property as his individual prope. ty. The' selling partners may file a bill to enforce the per- formance of the agreement of sale, if the purchas- ing partner agreed to indemnify them against the partnership debts; but creditors of the firm, with- out the aid of the retiring partners, cannot, by bill in equity, compel an application of the partnership property to the povmnnt of tho partnership rlohfei. Rribb V. Stevens, Clarke Ch. 191, 7: 89 173. Such creditors must resort to the ordinary mode of collecting their debts by judgment, execu- tion, and creditors' bills. IMd. VIII. Limited on Special Partnerships. 174.The statute having required the terms of a spe- cial partnership, and the time of its continuance, to- be published at the commencement of its business, no formal notice of the dissolution of the firm at the end of the limited period is necessary to pre- vent the general partners from charging the copart- nership with new debts contracted after that time. Haggerty v. Taylor, 10 Paige Ch. 261, 4: a69 S. C. 3 Ch. Sent. 29, 5: 111* 175. Persons who subscribe for shares in joint stock companies and pay deposits, but do not compIy^ witb the full conditions of the association and never become entitled to profits, are not liable for debts^ unless they are active in contracting them or hold themselves out as partners. The same principle will apply, as far as it can, to a suggested limited ]'■ ■ 'n"r«hip not carried throngb. West Point Foundry Asso, v. Brow i, 3 Edw. Ch. 284, 6: 65» 176. Jf would seem that there can be a limited part- nership in the running of a steamboat. Ibid Editorial Notes. Partnership; how constituted 8: 381 Who deemed in 3; 38t Agreement need not be in writing 5: 665 Articles of; authority of partner not im- plied 3: 613 Management by majority 1 : 602 Either partner may terminate 2: 931 Interest of partner in firm assets 1:938, 5:811 Execution against partner's interest 1: 484, 5: 811 Partners; authority of individual 3: 356, 5: 810, 6: 1236, 1231 restriction on authority of 3 : 614 general; power to assign for creditors 3: 1109 equities between 3: 881 after dissolution one cannot bind another 3: 333 general and special 3: 356 judgment against part only; effect of 1: 98S power to bind firm by confession of judg- ment; right to file bill for distribution of property 6: 1231, 12oi compensation of, for services 1:98, 6Y3, 4:240 Dealings between partnerships 7; 8i> Assignment of effects of 6:1226, 7: 89, 1180 Use of funds for private purposes 1 : 311 Assets a trust fund for payment of its debts 4:284 Equitable rule as to assets 3: 256, 4: 45 388 PART PERFORMANCE— PAYMEJTT, I. Joint and separate creditors; riglits of 1: 467, 484, 1009, 2: 961, 8: 881, 4: 45 5:464,603,812,6:319,7:89,354 Land of; when considered partnership prop- erty 5: 599, 7: 637 as personalty ; doctrine of conversion 5: 600 disposition of; liability for partnership debt; dower right 6; 395 surplus considered as real estate 5: 601, 7: 637 agreement to buy land; real estate, how held 6: 903 holder of legal title to real estate a trustee 5: 600, 7: 627 Partners as tenants in common 7: 173 Lien of partner 1: 1137, 5: 602, 811, 6: 1337, 7: 1185 of creditors 5: 811 Dissolution; by court 6:790,1335 equitable distribution of partnership prop- erty 5: 809 effect on interests in real estate 7: 638 Agreement by one partner to assume debts 2: 961, 5: 810, 6: 1337, 7: 363 Accounting between partners 1:351, 3:833,6:574, 1066 Continuance of, on behalf of infant heir 1:957 burviving partner; rights of 4: 46, 5: 356, 601, 7: 638 power of 3: 689, 4: 658 judgment against 5: 63 as trustee 3 : 357 Estate of deceased copartner; remedy against 6: 63 Bankruptcy of partner; effect of 1:1009 PART PERFORIIANCE. See Contracts, I. b, 4, PARTY-WAIiL. See also Contribution, 7, 8. A party-wall agreement by which one about to bulla is authorized to place half his wall on bis neighbor's lot, and the latter is at liberty to use such wall for the support of buildings he may erect on his lot, on paying naif its cost, does not restrict the latter from extending his buildings, on his own land, farther than such party- wall, towards either the front or the rear. Wolfe V. Front, i Sandf . Ch. 78, 7: 108 7 Editorial Notes. Party -wall; defined Right to use Contribution to expense 7: 1037 7: 1027 2:41 PATENTS. For Land, see Publio Lands. See also Assionment, 13 ; Courts, 3&-41, 1. If the speciflcation annexed to a patent is suf- ficiently explicit to enable a skillful machinist, without any other aid, to construct the patented invention, the patent will not be void, although some of the minor details of the machine should not be set forth at large. Burrda v. Jewett, 3 Paige Ch. 134, 2; 845 a. But the patent is void if the machine will not answer the purpose for which it was intended. without some addition, adjustment, or alteration which had not been discovered or Invented at the time the patent was issued. Ibid. 3. Where a patent is granted for an improvement in machinery, a drawing of the improvement, as well as a specitication, is required. Ibid. i. The drawing may be referred to for the pur- , pose of aiding a specification which otherwise would be imperfect. Ibtd. 5. It may also be referred to as evidence to show that the machine claimed under the patent is not the one for which the patent issued. Ibid. Editorial Note. Patents; jurisdiction of suits concerning 3:845.4:372 PAUPERIS FOROIA. See Costs, I. f . PAYMENT. I. What Constitutbs ; Manner ; SurFiciENor. n. To Agent, Trustee, etc. III. Application. IV. Pending Suit. EDiTOBiAii Notes. By Executors and Administrators, see Executors AND Administrators, IV. See also Evidence, II. h; Mortgage, 539; Plead- ing, III. e, 6; Religious Societies, 4. I. What Constitutes; Manner; SuFncxENOT. 1. A note given for interest is not payment. Lovett V. Dimond, 4 Edw. Ch. 22, 6: 785 2. The acceptance of the drawee's check which proves to be of no value on presenting a sight draft is not a payment as between the drawee and the holder, unless there was an agreement to re- ceive the check in payment. The giving up the draft is not evidence of such agreement. Kobbl V. UnderhiU, 3 Sandf. Ch. 277, 7: 851 3. Where a pnrty claims a set-ofC and yet settles a debt without further steps to establish his right, this amounts to a voluntary payment. Morton v. Ludlow, 1 Edw. Ch. 639, 6: 275 4. Where a creditor accepts the dentor's bond and mortgage in payment, it is asto third persons equivalent to an actual payment. Semble. Bawmn v. Copland, 2 Sandf. Ch. 251, 7: 58S 5. An agreement by a creditor to accept from his debtor a part of his debt in full satisfaction for the whole is without consideration and void, unless the agreement is in writing, and is also under seal, which imports a consideration. .Acker V. PTiosnii;, 4 Paige Ch. 305, 3:447 6. Where the president of a bank had hypothe- cated his private stock to secure the repayment of a loan to himself , and for the purpose of redeem- ing the same took from the funds of the bank of which he was president a sum of money, without authority of the board of directors, which he offered to the mortgagee of the stock in payment of the debt,— Held, that the taking of the funds of the bank for such a purpose was a fraud upon the bank, and that the mortgagee of the stock acted correctly in refusing to receive the money thus embezzled l)y the president of the bank, in the re- demption of the stock. Beedv.BanhofNewb\i,rgh,6Va,igeCh.33ir, 3: loil 7. Where the complainant was sued tor false im- prisoiunent lorau a>;i. uoiie b> i,iiii,iii Lueuiai;i,ar-ii of bis duty as a police officer in the city of New York, and afterward recovered a Judgment for costs against the plaintiff in that suit, which costs were subsequently paid to the complainant, by the corporation of the city, as a gratuity,— fleld, that inch payment was no bar to a suit, by a creditors' bill in this court, to recover the costs out of the property of the plaintiff in the original suit, Blealdey v. Tfnvtte, 4 Paige Ch. 654, 3: 59S PAYMENT. II., III. 8. Payment by a stranger, between whom and f.he defendant there is no privity, cannot be pleaded by the latter in bar of a suit for his own debt. Ibid. 9. Where the receipt and payment of money is to take place at tliu Haniu lui.u .ma uot^vuiiu L.iusaiiio parties, and the payment is to be made out of the fund which is to be so received, one sum should be allowed to compensate the other, without an actual receipt and pnvment Mortem v.lMdlow, 5 Paige Ch. 519, 3: 8X2 10. Where the clerk of a court holding a mortgage, on the application of the mortgagor for a new loan of the same fund on other property, acceded to it, received a new mortgage on such property for the same amount, and canceled the former,— Heid, that the transaction was not a payment of the first mort- gage, as between the mortgagor and the owners of the fund. Walworthv. Farmers Loan&T. Co.4S.51, 7: 1019 11. Where one purchases at a great discount, with his own f undSiJudgments against a bankrupt firm, at the instance ot one of luo puL-tiiers unu on hib promise or assurance that he will immediately re- place the advance, and the partner pays him on ac- count a greater sum than he paid for the judgments, such payment does not operate to extinguish the judgments or to satisfy them beyond the amount of the payment. Draper V. Gordon, 4 S. 210, 7:1079 12. Where a loan is to be repaid by an investment in merchandise for the lender, the merchandise must be estimated at its actual cost in specie, or other cir- culating medium which is a legal tender at the Slace of payment, and not at its nominal cost in a epreciated or fictitious currency. Colton V. Dunham, 2 Paige Ch. 268, a: 901 13. Where no place of payment is specified in a bond and mortgage, the debt is payable at the residence of the mortgagee, . or to the mortgagee personally wherever he may be found. WiUiams v. Hance, 7 Paige Ch. 581, 4: 283 14. Where a party contracts with his debtor for the payment of a sum in gross, with interest, the debtor cannot compel him to receive a part of his debt, leaving the residue unpaid. Lawrence v. Murray, 3 Paige Ch. 400, 3: 206 15. But when the creditor attemps to enforce pay- ment of his debt by a legal proceeding, the collec- tion of a part under the process of the court will be a payment pro tantn; and interest upon the part so received cannot afterwards be collected. Ibid. II. To Agent, Trustee, etc. 16. If one holding a mortgage as trustee receives money wiilcu ii la uis uutj u> apply ihereon, the law will make the application, it the money has not been misapplied by him with the concurrence and' consent of those making the payments. Hadleu v . Chapin, 11 Paige Ch . 245, 5:124 17. Where grantors of property agree to pay off all incumbrances thereon, and permit the grantees to retain a portion of the purchase money until it is done, if such portion comes to the hands of one o( the grantors who is also the trustee of a mortgage upon the premises, it oeoomes his duty to apply it in satisfaction of such mortgage. Ibid. 18. A solicitor or agent who is employedto pro- cure the assignment of a bond and mortgage, or to Invest mouey upon such securities, is not thereby authorized to receive either the principal or inter- est, when his client or constituent takes and retains the possession of the securities. _ __ WiUiams v. Walker, i S. 325, 7: 611 19. When, in such cases, the solicitor or agent is expressly authorized to collect the interest, the debtor is not warranted in inferring that he is au- thorized to receive the principal debt. ibid. 20. The debtor is authorized to infer that the solici- tor or agent is empowered to receive both Inter- est and principal, from his having possession of the bond and mortgasre. ibid. 21. So, if he have the possession of the bond, with- out either the mortgage or the assignment. IMd. 22. But snnii inference, being founded upon the custody of the securities, ceases whenever they are withdrawn by the creditor; and it is incumbent upon the debtor who makes payments to the solici- tor or agent, relying upon such inference, to show that the securities were in his possession on each occasion when the payments were made. luui. 23. The authority thus i mplied from the possession of the securities is not limited to a receipt of the whole principal in one sum. It is like the authori- ty of an attorney employed to collect a debt, who may exercise a discretion as to receiving it in par- tial payments. Ibid. 34. Where a solicitor who had effected a loan on bond and mortgage received a part o' the principal debt while he had the possession of the securities, and subsequently received the whole debt after they had been withdrawn from him, but never paid to the lender any part of the principal, though he continued to pay her interest on the entire sum, as if it were collected from time to time on the bond and mortgage,— Held, that the payments of princi- pal received by him while he held the securities were valid, and that those paid afterwards did not impair the bond and mortgage: and that the mortgagor was not entitled to be credited towards the debt the interest which the solicitor paid out of his own funds to the lender previous to the discovery of his fraud, upon that oortion of the nrincioal which was discharged by the payments held to be valid. 25. A will gave C. F. two thirds of a farm and left to executors the remaining one third on a trust, subject to a widow's life estate; and directed C. F. and the executors to pay S. P. a legacy of $800 (and two small legacies) in proportion to the shares of land devised. Also, that if C. F. neglected to pay his proportion, the executors were to sell sulHcient to pay. And there was a provision for partition on the mutual consent of widow, executors and devi- sees. The partition took place; and C. F., at the in- stance of the acting executor, gave his bond and mortgage (to such executor) on the twn thirds of mnd set apart to him, to secure as well the widow her share of the life as the proportion of legacies payable to him by the next of kin of C. F. (the lega- tee who had died). After thisthe widow died: and, then C. P. paid the executor his proportion of the legacies and the mortgage was canceled. At this time there was no legal representative Of 3. F. and his only child and next of kin was a minor. The executor became insolvent and the legacy was lost. Heid, that it was competent for the executor to take the bond and mortgage, and that the payment to him under them was sumcient payment, by C. F., of his proportion of the legacies. Piost V. Frost, 4 Edw. Ch. 783, 6: 1036 III. Application. 26. In the application of payments made before the lii'iucipal of the debt becomes due, if interest Is due Lhe money must first be applied to it, and the residue to that part of the principal which will first become due and payable. If no interest is due, the money should be applied to extinguish principal and inter- est ratably, so as to extinguish a part of the princi- pn' nnd the interest which has accrued on it, Jencfcs V. AXexanditr, 11 Paige Ch. 619, 5: 255 27. In the absence of any aa-reement, a creditor receiving a partial payment of a debt has the right of applying it first to the satisfaction of the interest then due, before it is applied to the discharge of any part of the principal. Hort V. Bewev, 2 Paige Ch. 207, 2: «77 28. Where about two thirds of the sum secured by a mortgage was paid at a time when a small itmountwas due for interest, and when no part of . I lie principal (which was payable in ten annual in-t Mallnionts) was actually due; and there was no ■liivctinri given by the debtor, nor any actual ap-, plication of the payment made by the creditor, it .vas held that the law must make the application, and that, after discharging the interest due, the balance must bo applied ratably to the exoneration of all and each of the uistallments of principal se- cured by the mortgage. Bighter v. StaU, 3 Sandf. Cli. 608, 7: 974 29. Where a creditor of N holds as his security , for .1 .speoiflc debt, a mortgage of N against H, which, 'J.V an agreement between themselves, N is bound :6 discharge; and N makes a payment to his cred- itor on the sppciflo debt, such payment enures to the benefit of Jf in respect of the mortgage, and t.he creditor cannot retain H's mortgage by sub- icquently making an application of the payment on other debts due to him from N. ' N. Y. JAfe Ins. LS and accumulations for remote posierity- Fublic trust;3 and charitable uses were not within the intention of the Legislature, or the spirit and object of the enactment. aiuitweU V. Mult, 2 S. 46, 7: 501 2. A bequest for the use of the poor of the town, and one to an uidncorporated religious association for the use of its poor ministers, are not within the provisions of the statutes against perpetuities. Ibid. 3. Where, by the rules of the common law or by the provisions of a statute, an estate or interQst of a particular character would, if valid, have the ef- fect, either directly or indirectly, of suspending the absolute power of alienation of land beyond the limit^'prescribed by law, such estate or interest can- not legally be created. Ifrrillard v. Coster, 5 Paige Ch. 172, 3: 674 4. A devise of the rents and profits of land, which are to accrue and be received after the death of the testator. Is subject to the rules of the Revised Stat- utes in relation to future estates in land; and every disposition of such rents and profits, either through the medium of trustees or otherwise, which, if valid, would have the effect of suspending the power of conveying an absolute fee in possession of the land for a longer period than is allowed by law, is a suspension of the power of future aliena- tion by means of a future estate, which renders such a disposition invalid, so far as it would have that effect. Ibid. 5. The Revised Statutes restrict the suspension of the power of alienation of real estate and of the ab- solute ownership of personal estate to lives, and au- thorize a limitation upon life only. FieM V. Field, 4 Sandf. Ch. 528, 7: 1197 6. They do not admit of such suspension for a term of years, however short, or upon a limitation dependent in part upon life and in part upon a fixed period of time. Ibid. 7. A trust for an absolute term of twenty-one years, during which the property cannot be parti- PERPKT CITIES, I. 891 *ionea or sold, Is void as unduly suspending abso- lute ownership. Oraig v. Hone, 3 Edw. Ch. 554, 6: 501 8. An absolute limitation of a trust term for •twenty-one years In gross, during which time the income of the property is to form a general fund for payment of an annuity to testator's widow, with "division of the remainder equally among children and their representatives, makes an unlawful sus- ?ension of tne power of alienation for more than wo lives in being at testator's death. Hone V. Van Schatclc, 7 Paige Ch. 321, 4: 138 9. A provision in a will, directing the accumula- tion of the income of bank stock for the term of ■twenty-flve years, is void. Daytnn v. Conklin, 2 Ch. Sent. 54, 5: 1093 10. If by the trusts in a will the absolute power of alienation may, and on the most probable cunse- rovisi<")u of the wilL . Irving v. De'Kau, 9 Paige Ch. 521, 4: 800 S.C. 2 Ch. Sent. 17, 5 : 1 085 20. An estate which is inalienable for an absolute iterm, and which is not so limited as to be certalnlj ■determinable at the expiration of not more than two lives in being at the death of the testator. If void in its creation. Ibiil. 21. Where real estate is devised to a trustee upon a valid trust during the continuance of two lives 4n being at the death of the testator, with a further limitation In trust which would have the effect, if executed as a trust, to susnend the power of aliena- tion beyond the time allowed by law, the last limit- ation as a trust is void, and the estate of the trustee will cease when the valid trusts shall have been ex- ecuted. And as the particular Intent of the testa- tor in continuing the estate in the trustee for a longer period cannot take effect, the legal title must thereafter vest In the cestui que trust, if con- sistent with the general intention of the testator in relation to the disposition of his property; or if it cannot so vest consistently with his Intention, it will belong to the heirs at law of the testator, or to other devisees under the will. Parks V. Parks, 9 Paige Ch. 107, 4: 687 22. The words "dying without issue, "or "dying with- out leaving issue, " in a devise with a limitation o ver, meant, prior to the Revised Statutes, an indefinite failure of issue, and therefore made the contingent limitation void for remoteness. But this rule is changed oy the Revised Statutes. Ferris v. Gibson, i Edw. Ch. 707, 6: 1087 Macomb v. Miller, 9 Paige Ch. 265, 4:695 Van Veehten v. Pearson, 5 Paige Ch. 512, 3:809 Harman v. Osbom, 4 Paige Ch. 336, 3: 460 23. A valid limitation over may be made of an annuity upon the failure of issue of the annuitant. Bradhwrst v. Bradhurat, 1 Paige Ch. 331, 8: 668 24. A limitation over,in case of the death of a resid- uary legatee, and of all her children without issue. where the gift was first to her and her children forever, is vold,because tooremote,astoany after- born children of the residuary legatee. Hannan v. Osbani,, 4 Paige Ch. 336, 3 : 460 25. A succession of accumulations is not objection- aoie if they are all made to terminate within tue prescribed limits as to time in respect of the sus- pension of the power of alienation. Mason v. Mason, 2 S. 433, 7: 653 28. Trusts for the accumulation of surplus income arc valid where, as to all the oeaeficlanus, the uucu- mulations are to commence within two lives in be- ing at the death of the testator, to continue during the minority of the respective beneficiaries, and to terminate as to each when he becomes of age. Ibid. 27. In trusts of personal property or of money, a suspension of the absolute ownership of a part of the property or fund, beyond the time allowed by law, will not render the trust void as to another part of the property or fund which can be sepa- rated therefrom. Van Veehten v. Van Veghten, 8 Paige Ch. 104, 4: 368 28. Every limitation of a future interest or use in any particvUar portion of a personal fund which would have the effect of suspending the absolurn ownership of that part of the fund for a longer period than is allowed by law is absolutely void; but the limitation of other interests in that part of the fund may still be valid, if they are in the nature of different and distinct estates therein. Ibid. 29. If personal estate is vested in trustees upon CiiilUUS tl'USlS, UUtiio ul ftuluii LiaSUi aie Vttua .... 1 1 lie others void, the court will sustain such as are legal and valid, if they can be separated from those which are illegal and void. Ibid. 30. The exchange of one piece of land for another by trustees, iinder a valid power for that purpose, is not an alienation of the trust property, within the intent and meaning of the provisions of the Re- vised Statutes against rendering real estates in- alienable for more than two lives in being at the creation of the estate; and the insertion of such a power in a will devising the testator's estate to trustees will not render the devise valid, if the rights or interests of the cestuis Que trust are in- alienable, beyond the period allowed by law. Hawley v. James, 5 Paige Ch. 318, 3: 734 31. The devise of a trust term depending upon mi- norities, which term can in no event continue long- er than during the actual minority of two or more Infants in being at the creation of such term, and who have a beneficial interest therein,is valid under the provisions of the Revised Statutes, although such trust term is not made determinable upon the deaths of any two of such infants. But no contin- gent remainder can be limited upon such a term, unless the nature of the contingenoy upon which it is to vest is such that the remainder must vest in interest, if ever, during the continuance of not more than two lives in being at the death of the testator, or at the termination of such lives. Ihid, 393 PERPETUITIES, II. n. iLIiUSTRATIONS. 32. A devise of real estate to, and for the benefit of, four minor cnUdreu. nut t case of the death ot either niece in the lifetime of the other, leaving issue, the children of the de- ceased niece should have her moiety of the income of the estate, after they had arrived at the age of twenty-one if males, and at the age of twenty if females; and that the executors should supportand educate them out of such income in the mean time; and should also support their father out of the same if necessary; and having also directed that in case of the death of both nieces, only one of them leaving issue, a similar disposition should be made of the whole income until the children of the niece who left issue should arrive at those ages, and then that the whole fund, with the income thereof, should be transferred to such children,— Held, that these limitations to the children of the deceased niece, and to her surviving husband, in the events contemplated by the testator in his will, might have the effect to suspend the absolute power of aliena- tion for more than two lives in being at the death of the testator, and that these contingent limita- tions in the income of the estate were therefore void; but that the ultimate limitation of the prin- cipal of the fund to the children after they should become of age was valid, as their right to the prin- cipal of the fund would vest in interest, at the furthest, at the death of the second niece. Goft V. CooTc, 7 Paige Ch. 521, 4: 85ft 55. The testator having also directed that In case- of the death of both nieces leaving lawful issue, the whole trust fund, after providing for the payment of the annuities, should, upon the death of the sur- viving niece, he immediately divided by the execu- tors among the children of the two nieces, one moiety to the children of each,— Held, that this con- tingent limitation to the children of the testator's nieces was valid, as it could not suspend the abso- lute power of alienation, or the absolute ownership of the fund, beyond the lives of the two nieces who were in being at the time of his death. Ibid. Editorial Notes. Perpetuities; prohibition of; suspending- power of alienation 3: 1135, 4: 132,257, 862. 5; 282, 7; 652, 119T Leases in perpetuity 4: 478' PERSONAL PROPERTY. 1. Limitations of future or contingent interests' in personal property are subject to the same rules which are prescribed by the Revised Statutes in re- lation to future estates in lands ; and a bequest ot an interest in the income of personal property, to accrue and be received after the death of the testa- tor,is a limitation of the future interest, within the- meaning of the Revised Statutes on this subject 594 PETITION-PLEADING. and in analogy to the provision relative to the rents and profits ot real estate to accrue and be received after the death of the testator. 3(me V. Van Sehaieh, 7 Paige Ch. 231, 4: 138 2. Whether a legacy to a trustee, payable out of the personal estate of the testator, upon a secret and undefined trust which has been communicated ■by the testator to the trustee, but not specified in the will or in any other instrument referred to in the will, is valid under the provision of the Revised Statutes,— ^ucere. Ibid. 3. Limitations of contingent remainders in per- sonal property made previous to the Revised Stat- utes are valid, provided the absolute ownership of the property is not suspended beyond the period .allowed by law. Bryan v. KnixHterhackir, 1 Barb. Ch. 409, 5; 435 S. a. 6 Ch. Sent. 3, S: 1193 PETITION. See also Pleading, II. 1. Petitions must be sworn to. ^IriOnj/moiis, Hopk. Ch. 101, S: 357' 2. A petition in a court of chancery must be sub- scribed by the party swearing to the same. It is ■not necessary that an ordinary petition should be signed by counsel. The signature of counsel is re- quired only to petitions of appeal or petitions for rehearing. flatftateow V. Scott, 11 Paige Ch. 173, 5:96 S. C. i Ch. Sent. «, 6: 1150 3. Cause petitions, or those relating to some suit ■or proceeding pending in the court, should be enti- tled in the suit, or at least should distinctly refer thereto. But this is not the case with petitions which do not relate to proceedings in a suit in -court. De Zeng v. Mann, 4 Ch. Sent. 22, 5: 1142 4. When, by reason of new facts, additional and auxiliary provisions are requisite to carry the de- cree into eifeot, after disposing of the points re- served, such facts may be brought forward by pe- tition, and the court will hear the petition, with the cause itself, on the further directions. Butl&r V. Halsey, 4 Sandf . Ch. 354, 7:1131 5. The same course may be pursued when there has been a change of parties or the accession of new parties in interest, since the decree, but not of -such a character as to require a formal revivor. Ibid. 6. On an application to the surrogate, by a person interested in the estate of the decedent, to compel ■the executor to give security, upon the ground of bis pecuniary irresponsibility, the petition must state such particulars as to the situation and value of the estate of the decedent, and the pecuniary oircumstances of the executor, as prima faele to •render it probable that the estate of the testator will not be safe in the hands of the executor. Golegrove v. Horton, 11 Paige Ch. 261, 5: 188 7. The petition is InsufBcient where the petitioner only states therein generally, in the language of the Kevised Statutes, that, according to his information ■and belief, the circumstances of the executor are so precarious as not to afford adequate security for the due administration of the estate. ibid. PEWS. See EELiaious Societies, 117, 118. PLACARD. •■See Injunction, 5; Nuisances, 1. PLAINTIFF. •See Parties. PLEADING. I. In Generai,. a. Certainty; Suffldeney: Mistakes. b. Du/pKcitv ; Inconsistency. c. Impertinence. d. Conclusions. e. What Belief may be Given under. f. Waiver of Objections ; Time of Making. g. Admissirjns by Pleadiny or Failure to Plead. h. Signature. i. Filing; Service; Copies Served. J. Time for Serving. k. Verification. 1. In General. 2. Waiver of Oath. 3. Jwrat ; Form of Oath, i. On Information and Belief. 1. Bill of Particulars. m. Exhibits; Copies; Accounts Annexed. n. Pleading Statute. o. Amendment. 1. In General. 2. Practice; Terms. 3. To Correct Mistakes, Omissions, etc 4. Changing Cause of Action. ' .5. As to Parties. 6. Answering Amended BUL p. Suyplemental Pleadings. 1. .Bars. 2. Answers. q. Withdrawal ; Striking out. II. Bills. a. Capacity to Sue; Description of Parties. b. Statement of Came Generally; Negation of Defense. c. Multifariousness. d. Suits on Contrasts, etc.; Miscellaneous Cases. e. On Mortgage Foreclosure. III. Fleas, Answers, and Defenses. a. In General ; Bules and Principles. 1. What Pleading Proper qr Necessary ; Choice ; Using Tum or More. 2. Who may Answer, etc. 3. Plea Generally. 4. Duty to Answer. 6. Answer in Support of Plea. 6. Plea to Stand as Answer. 7. Sufficiency and Extentof Answer. 8. Suffldeney of Denial; Information and Belief. b. To Jurisdijition ; Bight to Sue. c. Defect of Parties ; Nonjoinder. a. Other Suits; Puis Darrein Continvanee. e. Special Pleas and Defenses. 1. On Contracts; Miscellaneous. 2. Cases of Fraud; Bona Fide Purchaser. 3. Usury. 4. Statute itf lAmitations; Advers Pos- session. 6. Former Judgment. 6. Payment ; Discharge. IV. Exceptions. a. In General. b. Form; Beguisites. c. For Impertinence. d. Fur Insufficiency. e. Time. f. Answer; New Exceptions; Time for. V. Cross-Bills. VI. Replication. Vn. Demurrer. a. Generally ; Form ; Sufficiency. b. Demurrer Ore Tenus. c. When Proper Grounds. 1. In General; Statement of Cause of Action. 2. Jurisdiction; Former Suits; lAmi- tatinns. 3. IrregvlaHtiies; Matters about Par' ties. a. Decision upon; Pleading Over. Editorial Notes. For Costs of, see Costs. See ako Bankruptct, 68, 67; Creditors' Bim, ™K Vv ^^V' Disclaimer; Evidenob, IV. b. vV?'/V' iNJ^iNCTiON, II. a ; Mortqaoe. m, VII. d ; Partition. II. o ; Petition. ^ ^ PLEADING, I. a, b. 39& I. In Qenerai.. a. Certainty ; Sufflciency ; Mistakes. 1. A very highly colored description of the nox- ious effect of coal dust, in a sworn bill in chancery, althoujfh somewhat poetical, cannot be treated by "the court as a mere poetic fiction. Barrow v. Richard, 8 Paige Ch. 351, 4: 457 2. An allegation in the bill that the defendant re- isides in a place specified relates to the time of filing the bill, and not to a prior period. Wheder v. Heermans, 3 Sandf. Ch. 597, 7: 970 3. Whatever is essential to the right of the par- 'ty, and is necessarily within his knowledge, must •*e positively and precisely alleged. Frost v. Beekman, 1 Johns. Ch. 302, 1: 149 4. It is enough if the assignee sets forth the as- sig'LiiiibUt, ana buuws the uuuiur can have no n^iiii to property in his hands until the trusts of the as- .signment are satisfied, without giving a more par- ticular statement of the property than is shown by ■the assignment itself, if it be fair upon its face. Ou/nningham v. Freeborn, 1 Edw. Ch. 38, 6: 47 5. Bill for discovery and an account, among other things, of moneys received of K. 'i'lie answer sta I ed In substance that the moneys- received of K were paid over by the defendant, but did not sjiecif y the amount, which amount was subsequently proved "by E. Held, that upon taking the account before a master, this allegation of the defendant is such ah answer to the Inquiries of the bill as must be re- -ce'verl, there being no opposing testimony. Methodigt Church v. Jaques, Hopk. Ch. 453, 9: 486 6. But in relation to other items, where the state- ments of the defendant's answer were vague and general, he was not allowed to discharge himself by such answer^ the receipt of the money appearing by other testimony. Ibid. 7. The provision of the Revised Statutes direct- "jng that mistakes in stating any day, month, or year in any pleading or record, which could be amended Tjy the court after verdict, in any cause, shall be dis- regarded upon the trial, unless the mistake or va- riance b3 calculated to surprise or mislead the ad verse party and to prevent his preparation for a full answer on the merits, applies to a mistake in set- ting out the date of the deed or instrument which is the foundation of the suit. Ontario Bank v. Schermerhum, 10 Paige Ch. 109, 4:907 S. C. 3 Ch. Sent. 2, 5:1100 8. The principle of this provision is applicable to the court of chancery ; and in that court, if the ad- verse party could not have been misled by a mistake in a date, the complainant's bill should not be dis- missed or the defendant's defense rejected by rea- son of a mere clerical mistake of this kind, where upon the face of the record the variance will not render the complainant's claim to relief, or the de- fendant's defense, bad in substance. Ibid. 9. But at the request of the adverse party, and to I remove all danger of his being made liable a second time, the original pleading on file will, at the hear- ingvbe amended by conforming it to the true date. IWd. 10. Ignorance of rights and fraud and conceal- ' ment will prevent the operation of the statute : but a party must set these up distnctly in his pleading. An averment that the complainants had not been '■in a situation to call the guardians or their repre- sentatives to an account" is too indefinite. BerMne V. VoT^n, IBdw. Ch.343, 6:165 b. Duplicity; Tnconsistfncy. 11. A bill with a double aspect may be filed where •the complainant Is in doubt whether he is legally entitled to one kind of relief or another, upon the facts of the case as stated in the bill; in which case his prayer should be framed in the alternative, sn ■that, if the court decides against him as to one kind ■of relief prayed for, he may still obtain the proper relief under the other branch of his alternativi- iprayer. Lloyd V. Brewster, i Paige Ch. 537, 8: 551 CoKon V. Boss, 2 Paige Ch. 396, 8 : 959 McCosker v. Brady, 1 Barb Ch. 329, 5: 404 12. So, also, where the complainant is entitled to (relief of some kind against the defendants, upon -the facts stated in his bill, if the nature or kind ol >relief to which he is entitled depends upon th. existence of a fact of which he is Ignorant, he may allege his ignorance of such fact, and may frame his prayer for relief in the alternative, so as to ob- tain the appropriate relief according to the fact as it shall appear at the hearing of the cause. Ibid. 13. Where the case made by the bill entitles the complainant to one of two kinds of relief, but not to both, the prayer should be in the disjunctive. Colton V. ifo8S, 2 Paige Ch. 896, 8: 959 14. So, if it be doubtful whether the facts of the case entitle him to the specific relief prayed for, or to relief in some other form, his prayer.concluding for general relief, should be in the disjunctive. Ibid. 15. Where a bill for partition alleged that a pre- tended will under which the defendants claimed title to a part of the premises was invalid, and prayed that it might be annulled and canceled and declared void: or, in case the same should be de- creed to be valid, then that the complainant might have a partition of the premises,— the prayer for a partition was inconsistent with the case made by 111" cniiipjainattt's bilJ. McCosker v. Brady, 1 Barb. Ch. 329, 5: 404 16. In such case if the complainant was ignorant whether the alleged devise to the defendants was valid or invalid, the statements in the bill, as well as the prayerf or relief, should have been so framed as to present the case in a double aspect. Ibid. 17. Frame of a bill with a double aspect, and a praj'er for relief in the alternative, as the facta may appear. Ibid. 18. The court may permit a defendant to plead double under special circumstances : as, where he could not make his defense by answer without set- ting out a long account, which would be unneces- sary if the defense sought to be made by plea was valid. Van Hook v. Whitlock, 4 Paige Ch. 410, 3: 809 19. Two distinct pleas in bar, different in their nature,— as, a plea of the Mtatute of Limitations, and a discharge under the Insolvent Act, — cannot be pleaded together without the previous leave of the court. Saltua V. Tobias, 7 Johns. Ch. 214, 3: 873 20. The defendant cannot plead double, but must reduce his defense to a single point ; for he may put all the facts on which his defense rests together in his answer. Ibid, 21. A defendant in a suit in chancery cannot put in several distinct defenses by plea, to the whole of the complainant's bill, or to the same part of the bill, without the special leave of the court; nor can he set up two distinct defenses in the same plea without rendering such plea bad for duplicity. Didier V. Dairisom, 10 Paige Ch. 615, 4: 1078 S. C. 3 Ch. Sent. 93, 5: 1130 22. The statute authorizing the defendant in any action to plead as many several matters as he shall think necessary for his defense does not apply to suits in the court of chancery. Ibid. 23. Where great inconvenience will result to the defendant in a suit in chancery by compelling him to answer the complainant's bill, the court, upon special application, may give him permission to plead two separate pleas in bar. Ibid. 24. But the court will not allow a defendant to plead double upon an alSdavlt merely snowing that he has several defenses of which he might avail himself by plea, if permitted to do so. ibid. 25. The cases in which the court allows the de- fendant to make several aefenses by pleas to the complainant's bill are those in which the making the defenses by answer would render it necessary for the defendant to set out very long accounts, or where the discovery sought by the Dill would be productive of injury to the defendant in his busi- ness or otherwise. Ibid. 26. A plea of the Statute of Limitations, setting up two matters, either of which establishes that de- fense, is not for that cause a double plea. Didier v. Davison. 2 Sandf. Ch. 61, 7: 508 27. M. H., by plea, set up that he was, with the knowledge of the complainants, a surety on the note of J. W. H. and J. A. M.; that, after the Judg- ments against him and them obtained by the com- plainants on the notes, the latter, by written agree- ment with the said J. W. H. and J. A. M. and with- out his (M. H's) consent compromised for 830,0iK) (including the Judgments), giving upwards of four PLEADING, I. c. years within which to pay, and covenanting not to sue them in the mean time, and also, during; such time, receivinsr 85,000 in part of the $30,000. Hdd, that the mention of the J5,000 did not render the plea bad for duplicity: and that such plea was pood. Daaplaine v. BitcTwoek, i Bdw. Ch. 321, 6: 893 28. On a bill filed in the name of a company and J. JB. and L.O. B., and the bill statint; that the Icitter were the assignees of the company, a plea was in- terposed, denying that they were assignees and setting forth mafter showing that, in a decree in another suit, their assignment was set aside and the property of the company was in receivers* hands. Held, that this showing did not amount to duplic- ity. lAfe Insurance & T, Co. v. Davia, i Bdw. C!h. 588, 6: 985 29. A plea is not rendered double by the mere in- sertion therein of several averments tnat are neces- sary to exclude conclusions arising from allega- tions which are made in the bill, to anticipate and defeat the bar which might be set up in the plea. Bogardus v. Trinity Church, i Paige Ch. 178, 3: 394 30. To a bill against a guardian, filed for an ac~ count and satlsiacLiua lur lu,.- irtiUL« ut iiis war,! which came to his hands, and to set aside a releasf obtained from the complainant on the ground ol' fraud, the defendant cannot plead the release in bar of the account, and at the same time insist by his answer that he has fully accounted with the complainant for the property and effects which came to his hanfl<5 as cuardian. Ffeft v. JlfiUcr, 5 Paige Ch. 26, 3:613 31. The defendant in a suit in chancery may, in his answer, set up as many defenses as he thinks proper, although he cannot do so by plea. But iu B sworn answer he cannot set up two distinct mat- ters which are so inconsistent with each other that it is impossible that both of them can be true. Hopper V. Hopper, 11 Paige Ch. 46, 5: 58 S. C. 4 Ch. SenC 18, 5:1140 32. The defendant may deny the allegations apon which the complainant's claim to relief is oased, and may at the same time set up in his answer |ny other matters notwholly inconsistentwith such Jenial, as a distinct or separate defense to the suit w to some part of the relief claimed by the bill. Ibid. 0. Impertinence. See also Infra. IV. o. 33. Pleadings should consist of averments or alle- gations of facts, stated with as much brevity and precision as possible; not of inference or argument. flood V. Inman, 4 Johns. Ch. 437, 1:894 34. Impertinence in pleadings consists in setting- forth what is not necessary to be set forth; as stu f- flng them with recitals and long digressions as to matters wholly immaterial. IMd. 35. Generally the biU and answer ought not to set forth deeds «n iicec »er»a," but eomuch of them only as is material to the point in question ; nor ought they to be argumentative or rhetorical. Ibid. 36. The best rule to ascertain whether matter be impertinent is to see whether the subject of the al- legation could be put in issue or be given in evi- dence between the parties. Woods V. Morrell, 1 Johns. Ch. 103, 1: 76 37. An answer ought not to go out of the bill, to state what is not material or relevant to the case stated in the bill. ibia 88. Long recitals, stories, conversations, and in- sinuations tending to scandal, are impertinent. Tbid. 39. So, facts not material to the decision are im- pertinent, and, if reproachful, are scandalous. Ibid 40. But if the plaintiff will put impertinent ques- tions, he must take impertinent answers. It will depend, however, on the reason of the thing and the nature of the case, how far a general inquiry will warrant an answer leading to particular de- tails. Ibid. 41.1f the complainant in amortgage case unneces- sarily sets out the rights of the several defendants at length, his bill may be excepted to for Imperti- nence. Union Ins. Co. v. Van BeTWseloer, 4 Paige Ch. 85, 3:353 42. The complainant, in his bill, may state any matter of evidence, or any collateral facts, the ad- mission of which by the defendant in his answer' may be material in establishing the allegations or the bill as a pleading, or to ascertain the nature, extent, and kind of a relief to which the complain- ant is entitled, or which may legally influence the court in determining the question of costs. HawUy v. Wolverton, 5 Paige Ch. 522, 3: 813 43. In determining whether an allegation or state- ment in a bill is relevant or pertinent, the bill must not only be regarded as a pleading to bring before the court and put in issue the material al- legations and charges upon which the complain- ant's right to relief rests, but also as an examina^ tion of the defendant for the purpose of obtaining evidence to establish the complainant's case, or to counterprove or destroy the defense which the de- fendant may attempt to set up. Ibid. 44. The master should not allow an exception on account of a few unnecessary words, except where they will lead to the introduction of improp- er evidence, by putting in issue matters which are foreign to the cause,or where such words may em- barrass the defendant in answering the complain- ant's bill. Ibid. 45. A repetition of the same allegations in differ- ent parts of a bill renders one of such allegations impertinent. Norton v. Woods, 5 Paige Ch. 260, 3: 711 Waring v. Suydam, 4 Bdw. Ch. 426, 6: 988 iMUjrence v. Lawrence, 4 Edw. Ch. 357, 6: 904 46. An exception for impertinence will be over- ruled if the expunging of the matter excepted to will leave the residue of the clause which is not covered by the exception either false or wholly un- intelligible. Mclntyre v. Trustees of Union College, 6 Paige Ch. 239, 3: 970 47. Separate exceptions to the same matter, the one for scandal and the other for impertinence, cannot be allowed, as nothing in a pleading can be considered as scandalous which is not also imperti- nent. Ibid. 48. Where pertinent matter is so mixed up with that which is impertinent and irrelevant that they cannot be separated, the whole may be rejected as impertinent. Norton v. Woods, 5 Paige Ch. 260, 3: 711 49. Where exceptions for impertinence would mutilate the answer of the defendant unnecessari- ly, it allowed, by breaking up sentences or clauses which ought to stand or fall together, the excep- tons should be disallowed. Franhlin v. Keeler, 4 Paige Ch. 382, 3: 479 50. A defendant cannot be allowed to introduce irrelevant matters into his answer, tor the iJui,j~.,!,j of discrediting the witnesses, who, as he supposis, may be called by the complainant to sustain the suit. Norton v. Woods, 5 Paige Ch. 260, 3: 711 51. If the matter of answer is relevant, or can baveanyinfluencein the decision of the suit, either as to the subject-matter of the controversy, the particular relief to be given, or as to the costs, it is not impertinent. Van Bensseluer v. Brice, 4 Paige Ch. 174, 3: 398 52. A clause in an answer,although somewhat ar- gumentative and prolix, will not be deemed imper- tinent where it may have a bearing on costs. Warinfi v. Suydam, 4 Edw. Ch. 426, 6: 928 53. A statement in an answer introduced to show the temper with which a bill is filed, and the oppres- sive course pursued by a complainant, is not im- pertinent; it may have an effect upon the costs. Desplaces v. Goris, 1 Edw. Ch. 350, 6: 168 54. The practice of taking exceptions for imper- tinence to trivial matter is not to be encouraged. Ibid. 55. Ashort sentence isnot impertinent, although it contains no fact or material matter, and may only be inserted in answer from abundaut caution. Ibid. 56. Where th" insou-enrv of defendant L. is posi- tively alleged, it will amount to impertinence for defendant R. to undertake to show the contrary by hypothetical statements and the opening of lone settled accounts and adjusted balances. Junes V. ituwe* w, 4 jcuw. *^ii. uix, 6:993 57. Matter in an answer complaining of acts ot PLEADINa. I. d, e. S97 tha pomplainant, but which cannot avail the de- fendant in the suit, is impertinent. Kepetltlon Is impertinence. Lawren the insertion therein of a separate and distinct claim', upon which the complainant is not entitled to "Ok for either discovery or relief. Varick v. Smith, 5 Paige Ch. 137, S: 659 306. Where a bill is filed in relation to alleged frauds in aparticular matter, the complainant may charge contemporaneous frauds by the defendant in which the complainant has no interest ; and this has to be answered. A demurrer will not hold to it. Biitem v. Bruen, 4 Edw . Ch. 640, 6:1003 307.Bill to foreclose mortgage is not rendered mul- tifarious by joining guarantors. Curtis V. Tyler, 9 Paige Ch. 432, 4: 762 S. 0. 2 Ch. Sent. 3, 5: 1080 308. Where two assignments are made f orthe ben- efit of creditors,— the one to two assignees, the other to oite of them only,— a bill by both to settle the rights under the respective assignments is not mul- tifarious Piatt V. Varick, 2 Ch. Sent. 16, 5 : 1084 309. If a joint claim against two or more defend- ants is improperly joined in the same bill with a PLEADING, II. d, e. 407 reepavte claim against one of the defendants only, in which the other defendi^nts have no interest,and which is wholly unddnneoted with theolalm ai^aibst' them,— all or either of the defendants may demur to ^he whole bill for multifariousness. Swift V. EcHford, 8 Paiee Ch. 32, 3: 888 Boyd V. Hoyt, 5 Paige Ch. 65, 3: 689 310. A bill by one partner against another and an '•a^sij^aee to wuom tue iaiter uau pnvateiy assigneu the effects, asking to set aside the assignment and to wind up the concern and talte the accounts, ie .not multifarious. Say&a v. Heyer, 4 S. 485, 7: 1180 311. A demand against the defendant as adminis- trator cannot be Joined in the same suit with one ^against him individually and personally. Latttng v. Lattmg, i Sandf. Ch. 31, 7: 1018 312. Hehl.acccyrdmgly, that a bill for an account for rrents and profits received and waste committed by one tor whom the defendant was administrator, and to whom as heir he had succeeded in the pos- seasion of the property, and for an account for irenta and profits received by the defendant after his HBucceasion as heir,— could not be sustained. Ibid. 313. There is a misjoinder of causes of suit where ttie parties to tlie cases made or uiaims asserted by the bill are the same, but the claims are of distinci and independent matters unconnected with eaol other. jhiii 314. Where a bill is filed against the representatives 'Of a deceased partner, to obtain satisfaction of a copartnership debt out of the estate of the dece- dent, the joining of the surviving partner, who is 'insolvent, with them as a defendant, does not ren- • der the bill multifarious, or authorize such repre- sentatives to demur. Butts V. Qenung, 5 Paige Ch. 254, 3: 707 315. Where S assumed the payment of E's debt to an incorporated company, and conveyed lands by absolute deed to one of the officers of the company, but the conveyance was only intended as a mort- gage to secure the payment of the debt to thecom- pany; and the land was afterwards conveyed by the , grantee to another officer of the company, who knew the object for which the first conveyance was made,- -iJe/d, that the claim of S against the per- -sonal representatives of E, to be repaid the debt thus assumed, was separate and distinct from his claim against the holder of the legal title to the land and the company to redeem the mortgage; and that the joinder of both claims in one suit ren- dered the complainant's bill multifarious. It would have been otherwise if E had agreed to pay the ■debt to the company,or indemnify S against liabil- ity on the mortgage. Swift V. Eckfard, 6 Paige Ch. 33, 3: 888 316. The complainant was vested with the title to • cer tain real estate in trust for the benefit of himself and various other persons owning: unequal and dis- tinct, but undivided, shares therein. He was to em- ploy an agent or substitute to manage and sell thi property, and he was not required to act taimseli further than to execute conveyances, and was to be •liable only for gross misconduct or neglect. On a bill filed to settle the accounts of the trustee, sell the property, reimburse his advances, and wind up •the trust, all the other shareholders were made de- feudants, together with two persons who had suc- cessively been agents or substitutes of the trustee, and whose accounts had never been adjusted. These persons were also original shareholders, and the bill sought to have their accounts settled and closed. A demurrer to the bill for multifariousness waf ■ overruled. Kent V. Lee, 2 S. 105, t- SZ~, 317. A person havingajudgment of $400 against L, wno suDsequently died, filed a bill against r and tim administratrix of his deceased debtor, for the pur- , pose of reaching certain real estate which, as the bill alleged, L had purchased and taken a convey- ance for in the name of F, but in fact for his own use and benefit. The bill also alleged that L in hie lifetime confessed a fraudulent judgment to F, which was prior to the complainant's judgment, . and that the administratrix of L bad paid or applied his personal estate, amounting to $10,000, to the pm ment of the judgment of F, knowing that sue judgment was fraudulent. And the complaiuHn . prayed for an account, against th&administratrj. ' of the administration of the estate of L, and for ii account, against the defendant F, of the mone.\ and property which he had received from the at. • ministratrix in payment of the fraudulent juds • ment; and that the defendants, or one of tbei. might pay the amount due on the complainant's ludgment, with costs. Held, that the bill was mul- tifarious. Jachnon v. Forrest, 2 Barb. Ch. 576, 5; 760 d. Suitg on Contraett, etciMixcellaneoua Cases. 318.1f the complainant states in his bill the making of a contract, wiluouc uliegiug tnat U was by pax'ui, the court will presume that the contract was in writing and duly executed, where the nature of the contract Is such that It would not be valid unless it was in writing. ChampUn v. Parish, 11 Paige Ch. 405, 6:1 78 319. Where a lessor covenants that in case the prem- ises are divided and the divisions sublet, if improve- ments of a certain kind are put upon lots of a spe- cified size the lessor will take the interests of the subtenants at a valuation, at the end of the term, a bill by one subtenant tor a specific performance, which shows that other lots of the specified size were leased, but does not state to whom, or whether any buildings were erected thereon, is so defective that no relief can be granted to complainant. Ostrander v. lAvingston, 3 Barb. Ch. 416, 5: 955 320. An averment of the execution of a deed or writing imports delivery as well as signing. Brinckerhoffv. Lawrence, 2 Sandf. Ch. 400, 7: 640 321. An allegation. In a bill, that a person died In- solvent, does not imply that he died entirely desti- tute of property, but only that his property was not sufficient to pay all his debts In full. Dart V. Palmer, 1 Barb. Ch. 92, 6:318 322. The proper allegation In a bill, where it is sought to excuse the complainant for not making the representatives of a deceased person parties to the suit, is that the decedent died insolvent and without leaving any assets for the payment of his debts. ItM. 333. An allegation of deficiency of assets, and of other creditors entitled to a ratable proportion with complainant, is not necessary in a bill by a creditor to recover a debt from decedent's estate, where the answer shows the estate to be Insolvent and that other creditors will have an interest in the fund. . Bias V. Bauchaitd, 10 Paige Ch. 445, 4: ] 044 324. A party who files a bill to correct a mistake in a written agreement, in a case where the court has the power to make a correction therein, must not only state in his bill the agreement as it ought to have been reduced to writing.but also the substance of the written agreement itself. Coles V. Bovme, 10 Paige Ch. 526, 4: 1076 325. A bill filed to set aside a contract on account of usury must distinctly state the usury ana corrupt agreement, and the terms of the usurious contract, aud the amount of usurious Interest, or proofs of usury will not be admitted. Cole V. Savage, C. 361, 1: 143 336. A. bill stating that n mnrf p-a o-e wn*^ n^i-pouted for $3,700, and that but $1,700 was aavanced by the mortgagee thereon,if it does not state also that there was a corrupt agreement, either upon the execu- tion of the papers or the advance of the money, does not state a sufficient case to admit proof of usury, even though the bill afterwards denominates the transaction as a corrupt and usurious agree- ment. Xhld 337. Though a bill cannot be sustained as a bill to set aside a mortgage on the ground of usury, yet where it is alleged that the money advanced was much less than the amount of the mortgage, and proceedings were had under the power of sale claiming the whole amount of money specified in the mortgage, the bill may be retained to adjust the amount actually due upon the mortgage. Ibid. 328. An averment that certain acts in the court of chancery were a fraud upon the court Is not equiv- alent to a charge that they were in fraud of the bankrupt law or of creditors. Williams v. Yermevie, 4 S. 388, 7: 1144 e. On Mortgage Foreclogwre. 329. A bill to foreclose a mortgage need not allege an indebtedness for which it was given, and, if alleged, it need not be proved. Day v. PerWn«, 2Sandf. Ch. 359, 7:686 330. If the complainant in a foreclosure suit omits to state in his bill whether any proceedings have ueen had at law for the recovery of the debt se- cured by the mortgage, or if he states the recovery 408 PLEADING, III. a, 1, of a Judgment at laf^ for the mortgrage money, without also alleging that an execution has been issued on such Judgment and returned by the sheriff unsatisfled, the defendant may demur to North Biver Bank v. Bogera, 8 Paige Ch. 6^, 4: 577 S. C. 1 Ch. Sent. 17, S: 1056 331. The bill set forth a mortgage given to the clerlt of the court, for a part ot a sum paid into court to secure the dower of H pursuant to a de- cree, the date and title of whicn were stated at large; and that the clerk had no Interest in the fund except by his office. By the decree read in evidence it appeared that the suit was in partition. Held, that the bill was sufficient to put in issue the fact that the money was paid into court in a suit for the partition of lands, as well as the fact that it belonged to the parties thei-ein. Walworth v. Farmers Loan & T. Co. i Sandf .^h. 332. Where a person holding a mortgage less than tlOO in value against defendant's property, and also aving a judgment against him suDsequent m date to the mortgage, flies a bill for foreclosure and to obtain payment of the judjfment, the question whether the judgment is a lien upon the premises and is entitled to be paid out of the surplus pro- ceeds of the sale is one which is necessary to be de- cided In a suit for the foreclosure ot the mortgage, and such claim is proper to be made in the bill for Wheelar v. Van Kurm, 1 Barb. Ch. 490, 6: 468 333. Where a person executes a mortgage upon premises which ne bas previously contracted to seu to another, and the mortgagees .file a bill to fore- close such mortgage, making the purchasera party thereto, if they mean to insist that they are entitled to a preference over such purchaser, as buna fide mortgagees without notice, the bill should state that such purchaser claims an interest under a con- tract, ora pretended contract, to purchase, prior to the mortgage; and it should also allege that if he had any such interest the complainants had no no- tice thereof at the time they took their mortgage; and the bill should show the other facts which are necessary to entitle the complainants to protec- tion as bona fide purchasers. Orleans BanJt V. PZoflp, 3 Barb. Ch. 316, 5:915 331. In a foreclosure suit, if it appears from the complainant's bill that he has recovuiuu ajudti-imiit for the mortgage debt, or that the mortgage was given as a collateral security for a demiind which was already in judgment, the complainant must show that he has exhausted his remedy upon the Judgment at law, or the defendant in the foreclos- ure suit may demur to the bill, or may raise the ob- jection in his answer, _ . „„„ Shufelt V. Shufett, 9 Paige Ch. 137, 4: 639 III. Pleas, Answers, and Defenses. a. In General ; Bvles and Principles. 1. What Pleading Proper or Necessary; Choice; Usinfl Two or More. 335. A defendant cannot plead and answer, or plead and demur, as to the same matter. Sovzer v. De Meyer, 2 Paige Ch. 574, 8: 1035 Clark v. Phelps, 6 Johns. Ch. 214, 2: 104 336. If defendant answei's as to any matters covered by his plea, he overrules the plea. Bolton V. Gardner, 3 Paige Ch. 273, 3: 151 Souzer v. De JIfeyer. 2 Paige Ch. 574, 2: 1035 OarH V. Phelps, 6 Johns. Ch. 214, »: 104 337. So if a plea and demurrer are to the same part of the bill, the demurrer is overruled. Souzerv. DeMeyer, 2 Paige Ch. 574, 2: 1035 ClarK V. Phelps, 6 Johns. Ch. 214. 8: 104 338 A defendant may plead, answer, and demur to the same bill : but these several defenses must each refer to and in terms be put in as a defense to aseparate and distinct part of the bill. Leacraft v. Demprey, 4 Paige Ch. iZi, 3:371 339 If an answer commences as an answer to the whole bill, it overrules a plea or demurrer to any particular part of the bill, although such part is not in fact answered. Ibid. 340. If the defendant is willing to gi'e the discov- ery sought by the bill, and has a defense which might be pleaded In bar, he will have the full bene- fit of such defense, if he sets it up and Insists upott it in his answer. Styuzer v. De Meyer, 2 Paige Ch. 574, 8: 1035- aarft V. Phelps, 6 Johns. Ch. 214, 8:104 341. Where the complainant sets up equitable cir- cumstances in his bill, in uuucipaLiv,ii oj. u. pieu ai..i to defeat the same, the defendant must support lus plea by an answer as to those equitable circum- stances, in addition to the general denial thereof i i the plea. Hiid. 342. If the answer admits, or does not fully deny, such equitable circumstances, they may be used on the argument to falsify the plea, JWd^ 343. And if they are denied by the plea and the answer, the complainant may take issue on the plea and prove the same. Ibid, 344. If the plea is falsified by the proofs, the com- plainant will be permitted to examine the defend- ant on interrogatories, it a discovery is necessary. Ibid, 345. A defendant cannot make his answer a mere demurrer or plea In bar, and thereby avoid answer- ing fully. He may take the same ground of defense in an answer as by a demurrer or plea; but even where he does so (and where no plea or demurrer covers any part) he must answer the whole of the t)ili. This is a salutary rule and subject to very fo"' (^xopptions ChampUn v. Champltn, 2 Edw. Ch. 362, 6: 430> 346. When a bill sets forth a contract in writing, alleging it to be signed by the defendant or bis au- thorized agent, a plea, averring that there was nO' writing subscribed by him or his authorized agent, is i nadmissible— such a defense is the province of an answer. Baileyv. ie Soj/, 2 Edw. Ch. 514, 6:487 347. If a supplemental bill is filed without any sufficient grounds, the defendant must make the objection by plea, answer, or demurrer. iatore»ice v. Bolton, 3 Paige Ch. 294, 3: 1 59 348. A plea cannot, in a court of chancery, be substituted in place of a demurrer. Evertson v. Ogden, 8 Paige Ch. 275, 4:427 349. The general rule of the court of chancery is that if k deiendant wishes to set up more than one defense to the complainant's bill he must do it by answer; and to justify the court in departing from this gpjeral rule the defendant must make out a speeal case of hardship and inconvenience to him it he should be required to make his several de- fenses by answer. Didier \. Davison, 10 Paige Ch. 515, 4: 1072 350. Where an answer which accompanies a plea covers any part of the relief embraced by such plea, it will overrule the plea. Bangs v. Strong, 10 Paige Ch. 12, 4: 866 351. Upon a bill for discovery and relief, the de- fendant may answer and make the discovery sought by the bin, and may demur as to the relief only. Brownell v. Curtis, 10 Paige Ch. 210, 4: 948 S. C. 3 Ch. Sent. 18, 5:1105 352. And in cases where the complainant is entitled to the relief sought by the bill, butwhere he hasnot the right to a discovery from the defendant of the tacts upon which the claim for relief depends, be- cause tne discovery may criminate the defendant or subject him to a forfeiture, or will be a breach of confidence which some principle of public policy- does not permit, the defendant may answer as to the relief and demur as to the discovery sought by the complainant. Ibid. 253. But where the same principle upon which the demurrer to the discovery of the truth of the alle- gations contained in the complainant's bill is at- tempted to be sustained is equally applicable as a defense to the relief sought by the bill, the defend- ant cannot demur to the discovery only, and an- swer as to the relief. Ibid. 354. After a plea has been overruled, the same de- fense may be insisted on by way of answer. Ooodrieh v. Pendleton, 4 Johns. Ch. 551, 1: 9S» 355. Where a plea to the bill has been overruled on the merits, the same matter cannot be set up in the answer as a bar to the suit, without the special permission of the court. Townsend v. 9}wnseni, 2 Paige Ch. 413, 2: 968 356. After a plea of the Statute of Li mitations to a bill for an account and discovery, with an accom- panying answer, has been overrided, and the de- fendant ordered to put in a full and perfect answer, he is not allowed to repeat, in his second answer. PLEADING, III. a, 2-4. 40» the same matter oontained In tlie plea which had been OTerruled, but must make a full and perfect answer on the merits. Coster V. Murray, 7 Johns. Ch. 167, 8:867 357. If the defendant has a defense which will ex- cuse him from the discovery as to the whole or any material parts of the bill, be must make such de- fense by plea or demuiTOr. Cuyler v. Bogert, 8 Paige Ch. 186, 3: 1 09 i. Who may Answer, etc. 358. A person not a party to a supplemental bill cannot file an answer to it. American L. Ins. & T. Co. v. Bayard, 3 Barb. Ch. 610, 5: 1089 S. C. 5 Ch. Sent. 47, 6: 1181 35». In what cases it is proper for several defend- ants who appear by the same solicitor to put in separate answers. Pente V. HawXey, 2 Barb. Ch. 552, 6: 750 360. Where several defendants have answered the original bill separately, they cannot put in a joint answer to an amendment subsequently filed. Bard v. ChamherUn, 5 Ch. Sent. 73, 5: 1191 361. Where new parties are brought before the court, either by aineuuinuut. or uiuerwise, who ■should have been made parlies to the original bill, such new parties may avail themselves of an.v valid defense which they had, under the Statute of Limi- itations, or otherwise, at the time they were actually made parties to the suit. Campbell v. Bovme, 5 Paige Ch. 34, 3: 615 36S. In a biU of discoverv ajr/iin tion. Fish V. MiUer, 5 Paige Ch. 26, 3: 618 373. Where a plea to a bill in chancery contains several distinct averments or allegations of fact, all the allegations must be supported by the proofs, or the plea will be overruled as false. Dows V. McMiehael, 6 Paige Ch. 139, 3: 931 874. To a bill to set aside an award for corruption the defendants joined in answering and in pleading the award. The answer preceded the plea and com- menced as a general answer, and had no saving as to the plea: nor did the latter appear to be other- wise than a pleading to the whole of the bill. Held, that the plea was bad. Summers v. Murray, 2 Ed w. Ch. 205, 6:370 37.5. A defendant cannot plead any matter in bar of the discovery only sought by the complainant's bill, where the matters thus pleaded would be equally available as a defense to the relief also. Brownell v. Curtis, 10 Paige Oh. 210, 4: 948 376. Where a plea sets up the same facts already appearing on the bill, it will be overruled. The de- fense should be by a demurrer. Phelps V. Garrow, 3 Edw. Ch. 139, 6: 601 377. Where the complainant states a variety of matters in his bill which, if admitted to be true, would be evidence to counterprove the allegations- of the plea, it is necessary to negative such matters by general averments in the plea, and to support the plea by an answer as to such matters, Bogardus Y.flYinity Church, 4 Paige Ch. 178, 3: 394 378. Where issue is taken upon a plea, if the truth of the matters pleaded is established, the suit will be barred so far as the plea extends. Ibid. 379. Where fraud or other circumstances are charged in the bill, to avoid a release, the defend- ant pleading the release must, by proper negative averments in his plea, deny tne allegations of fraud, etc., and must support his plea by a fuU answer and discovery as to every equitable circumstance charged in the bill in avoidance of such release. Bolton V. Ga/rdner, 3 Paige Ch. 273, 3:151 380. Where a plea does not go to the whole bill, it muse distinctly set out tbe part of the discovery or- rclief intended to be covered by it, either in the- words of the bill or by such a description that the court will not be obliged to look into the whole hill to ascertain the part thereof which is covered by the plea. JaaT}is V. Palmer, 11 Paige Ch. 650, 5: 867 381.But where a plea is overruled upon this ground,, the defect being merely formal, it will be overruled without prejudice to the defendant's right to insist, upon the same matters in his answer, as a defense to the suit pro tantn. Ibid. 882. A plea is a special answer ; and the defendant may therefore put in a plea to the bill, under the usual order for further time to answer. Heartt v. Coming, 3 Paige Ch. 566, 3: 876- 4. Duty to Answer. 383. A defendant is not bound to answer so as to subject himself to a penalty or forfeiture. Ldvingston v. lompkins, 4 Johns. Ch. 432, 1: 898 384. A defendant cannot be compelled to answer a charge in the complainant's bul, which, if true, would subject him to an indictment or a criminal prosecution. Leggett v. Postley, 2_ Paige Ch. 599, S: 1046 385. Where the widow ot a deceased partner filed a bill against the executors of her husband, for a dis- covery and account of the copartnership estate and effects; and the surviving partner demurred to that part of the bill which sought a discovery, al- leging that it might subject him to penalties under the revenue laws of the United States, but without showing how or for what cause he should incur a penalty by a discovery, the court overruled the de- murrer ; such a general allegation not being suf- ficient to bar the discovery in the first instance. Sharp V. Sharp, 3 Johns. Ch. 407, 1: 664 386. Where an auctioneer has the avails of a fraud- ulent sale in his hands, he cannot protect himself from answering by a demurrer, upon the ground! of his being a witness. Schmidt v. Dietericht, 1 Edw. Ch. 119, 6: 81i 410 PLEADING, III. a, 5-7. 387.1f defendant in a judgment creditors' suit gives the written consent under Kule 191 within the twen- ty days, he cannot be compelled to answer the bill, ■although the complainant, within the twenty days, applies for and obtains the usual order for the ap- pointment of a receiver. NesmeOi v. Hoisted, U Paige Ch. 647, 5: 266 388. Where an answer on oath to amendments ha^ been waived, there is no necessity of putting in new .answers, nor is it necessary to report all the matters of former answers in the new answer, to entitle ei'^^or partv to take testimony. Bard v. Ghamberlin, 5 Ch. Sent. 73, 6: 1191 6. Answer in Support of Plea. 389. Where the complainant waives an answer on oath, no discovery or answer is necessary in sup- ?ort of a plea which covers the whole relief sought or by the bill. Fish V.Miller, 5 Va.lgeCh.Z6, 3:612 Heortt V. Coming. 3 Paige Ch. 566, 3:876 Weed V. SmaU. 1 Paige Ch. 573, 4: 280 390. Where the bill waives an answer on oath, a plea of bona fide purchaser, etc., need not be ac- companied by an answer denying the matters ■charged by way of notice. Tompkim v. Antrum, 4 Sandf. Ch. 97, 7: 1039 391. A naked negative plea denying partnership is not sufBcient. It must be supported by an answer. /nne« v. Evans, 3 Edw. Ch. 454, 6: 723 392. A defendant who puts in a plea denying the existence of a copartnership must support it by an answer and discovery as to every circumstance charged in the billas evidence of the copartnership. Everit v. Watts, 10 Paige Ch. 82, 4: 895 S. 0. 2 Ch. Sent. 71, B: 1098 Afl'g 3 Edw. Ch. 486, 6: 736 6. Plea to Stand as Answer. 393. A plea which sets up no valid defense to any part of tne matter it professes to cover will be over- ruled absolutely,and will not be permitted to stand for an answer. Orcutt V. Orms, 3 Paige Ch. 459, 3: 231 394. The court may permit a plea to stand for an answer, if it contains matter which, if pijt in the form of an answer, would have constituted a valid id, u. Far Imvertinenee. 562. An exception for impertinence must be sup- ported in toto ; and if it includes any part of the answer which is relevant and proper, the exception must fail altogether. Van Rensselaer v. Brift, 4 Paige Ch. 174, 3: 392 Degplaces v. Ooris, 1 Edw. Ch. 350, 6: 168 Balcom v. New York L. Ins. & T. Co. 11 Paige Ch. 454, 5: 196 S. C. 4 Ch. Sent. 84, 5: 1163 563. An exception for impertinence, which covers more than should be expunged, makes the whole exception nugatory. Waring v. Suydam, 4 Edw. Ch. 426, 6: 928 564. If an exception for impertinence embraces matters of the answer which are responsive to alle- gations in the complainant's bill, as well as matters which are Impertinent, the whole exception must be disallowed. Curtis V. Masten, 11 Paige Ch. 15, 5: 39 565. If the whole of a sentence or clause in an an- swer is impertinent, and depends upon the same principle, the complainant cannot except to a part of the sentence only, where the allowance of such exception will wholly change the meaning of what remains, or make it unintelligible. Franklin v. Keeler, 4 Paige Ch. 882, 3: 479 566. Where the court itself directs an affidavit to be referred to a master, who is to report whether there be impertinent or scandalous matter in it, there is no occasion to go into the master's office with exceptions embracing the parts supposed to be impertinent or scandalous. Powell v. KaiUi, a liuw. t^n. 450, 6: 463 567. If the defendant, in his answer, sets up a dis- tinct matter by way of avoidance, which is not called for by the bill, the same, if irrelevant or im- material, may be excepted to for impertinence, or the complainant may have the benefit of the ob- jection upon the hearing. Spencer v. Tan Duzen, 1 Paige Ch. 555, 2: 750 568. An exception to an answer containing a refer- ence to schedules annexed should embrace only the schedules and so much of the answer as refers to it if the schedule alone is impertinent. If part of the an- swer also is impertinent, only one exception should oe filed, embracing both the schedules and the im- pertinent part of the answer. Seymour v. Brewster, 2 Ch. S( nt. 63, 6- 1095 PLEADING, IV. d, e. 417 fi69. The complainant cannot except to a part of the defendant's answer, as impertinent, which re- ters to and explains the meaning of a schedule an- nexed to such answer, without excepting to the flchedule itself as impertinent. Mclntyre v. Trvsteen of Union College, 6 Paige Ch. 239, 1:970 d. For Insufflcieney. 570. An exception for insufflcieney of the answer ■will not lie on account of a mere neglect of the de- fendant to answer as to the correctness of a sim- ple arithmetical proposition which is stated in the ■complainant's bill. Melntyre v. Tnisteea of Union College, 8 Paige Ch. 239, 3: 070 571. Exceptions to an answer for insufficiency can only be sustained where some material allega- tion, charge, or interrogatory in the bill is not fully answered. Stafford v. Brnvm, I Paige Ch. 88, 3: 355 573. Exceptions should not be taken to an answer for insufficiency, unless the discovery required would have some bearing upon the point in contro- versy. Fay V. Jewett, 2 Bdw. Ch. 323, 6: 4l6 573. Material and necessary matter must be ex- plicitly met in an answer; but exceptions founded upon verbal criticism, slight defect , and omission qf immaterial matter, will be invariably disallowed and treated as vexatious. Baggot v. Henry, 1 Edw. Ch. 7, 6: 40 574. Where a disclaimer is accompanied by an in- sufficient answer, the proper course is to except to the answer for insufficiency. Ellsworth V. Curtis, 10 Paige Ch. 105, 4: 905 575. Where the bill charges a matter to be within the personal knowledge ot the ueiendant, so tLat his neglect to answer the allegation in the bill would, under the 17th Rule of the court of chancery, be deemed an admission of the fact for all the pur- poses of the suit, the complainant cannot except to the answer for insufflcieney. on the ground that the matiier thus stated in the bill is not answered. CiMte V. Bool, 8 Paige Ch. 83, 4: 353 576. Where the matter of the bill is fully an- swered, and the defendant sets up new matter which is irrelevant and forms no sufficient grounds of defense, the complainant may except to the an- swer for impertinence, but he cannot except to it for insufficiency. Stafford v. Brown, i Paige Ch. 88. 3: 355 577. Where a plea or demurrer is accompanied by an answer to any part of the bill, and such plea or ■demurrer is overruled, the complainant, .if he wishes a further answer or discovery as to the mat- ters attempted to be covered by the plea or de- :murrer, must except to the answer already put in, for insufficiency. Kuypers v. Bef armed Dutch Church, 6 Paige Ch. 570, 3: 1106 578. Upon exceptions taken to an answer to a bill for discovery as to property assigned by an alleged f raud,f or insufficiency, the question for the court is whether the defendan*-- has sufficiently answered as to the consideration upon which the assignment was made, and as to the debts which it was intend- ed to secure, and the particulars of the property assigned. Cunningham v. S^eebom, 1 Edw. Ch. 28, 6: 47 579. Where the defendant demurred to a part of the complainant's biU and answered the residue, and the demurrer was overruled, and the complain- ant's solicitor inserted, in the order overruhng the demurrer, a provision that the complainant have leave to except to the answer already put in, if he wished to obtain a further answer to that part of the bill attempted to be covered by the demurrer, —Held, that the insertion of this provision in the order did not deprive the complainant of the right to except to the answer to that part of the bill which the demurrer did not profess tn cover. Siffkin V. Manning, 9 Paige Ch. 222, 4: 676 580. A complainant who neglects to except to the answer to his original bill, or whose exceptions thereto have been overruled, cannot except to the answer to his amended bill, for insufficiency, upon the ground that the original bill was not fully an- swered. Chazournen v. Mills, 2 Barb. Ch. 466, 5: 717 581. Where the complainant, after excepting to •Ch. Dig. 27 the answer of the defendant and submitting to the master's report thereon, iiies an amended bill asking for a discovery, without making any new case enti- tling him to a further discovery, the proper course for the defendant— if the discovery sought is not wholly immaterial, so as to make it a proper subject of demurrer— is to answer the amended bill without reference to the discovery sought. And then, If the complainant excepts to his answer for insuffi- ciency upon that ground, he may move to take the exceptions off the flies for. irregularity; or he may insist before the master, upon the reference of the exceptions, that such exceptions relate to the mat- ters of the original bill onl^, or that the principle upon which the discovery is sought has been de- cided against the complainant, upon the reference of the exceptions to the original answer. Ibid. 583. Where an answer on oath is not waived if a simple plea to the whole bill is allowed to eiaua im an answer, without giving to the complainant lib- erty to except to the same; and where the plea is not accompanied by an answer, so as to entitle the plaintiff to except without special leave,— the order of the court necessarily implies that the plea is deemed sufficient as an answer, although not neces- sarily a full and perfect defense. McCormicli v. Cnarnberlin, 11 Paige Ch. 543, 6: 889 S. C. 5 Ch. Sent. 3, 5: 1165 583. Where the complainant in such a case is al- lowed to except to the answer for insufficiency, the order allowing the plea to stand for an answer, with leave to except thereto, only implies that the plea contains matters which, if put in the form of an answer, would have been available as a defense to the whole or a part of the matters which it profess- es to cover, and that the complainant is permitted to except to it as an answer because he is entitled to a further discovery in reference to the matters of the bilL ibid. e. Time. See also imfra, IV. f . 584. Where an answer accompanied a plea and the latter was overruled, the complainRnt was allowed twenty days to except to the answer. Summers V. Mun-aj/, 2 Edw. Ch. 205, 6:370 585. Where a complainant, after the defendant has submitted to answer some of the exceptions, amends his bill by inserting matter which also re- quires to be answered, he has twenty days under the 50th Kule to ille new exceptions toafurther an- swer for insufficiency as respects the amendment. Van Wagenen v. Mmray, 1 Edw. Ch. 319, 6: 156 686. Where the defendant's answer is accompanied by a plea or demurrer to a part of the discovery sought by the bill, if the complainant excepts to the answer before the plea or demurrer has been dis- posed of, he admits the validity of the plea or de- murrer. SiffMm V. Manning, 9 Paige Ch. 222, 4: 676 587. If a plea or demurrer which is accompanied by au answer to any part of tiie bill is overruled, the complainant should not take an order for a further answer, but merely an order overruling the plea or demurrer, with costs; and under this order, if the answer is impertinent, or if he wishes a further answer, he may at any time within twenty days file exceptions to the answer already put in, for insuf- flcieney, or for impertinence, or for both, so as to obtain a full and proper answer to the whol'i bill. Ibid. 588. In case he does not except within the twenty day8,or within such further time as may be allowed by the court for that purpose, the answer already put in will be deemed sufficient. Ibid. 589. And where exceptions are filed in such a ease, they must be submitted to or referred wituia the same time and in the same manner as excep- tions to an ordinary answer. Ibid. 590. The same course of proceeding must be adopt- ed, to obtain a full and pertinent answer to the part of the bill not covered by the plea or de. murrer, where such plea or demurrer has been al. lowed. Ibid, 591. A chamber order, under the 125th Bule,allow- ing further time to file exceptions to an answer, does not extend the time within which exceptions must be filed to prevent an application to dissolve an injunction. „ „.„ Wakeman v. QiUespy, 5 Paige Ch. 112, 3: 649 418 PLEADING, IV. f. 692. An extension of the time required by the 38th Rule, within which exceptions must oe fliea to pre- vent an application for the dissolution of an injunction, can only be obtained upon a special ap- plication to the court, and on due notice to the ad- verse party. Iota- 593. The provisions of the 39th Rule as to motions before exceptions are disposed of are not appli- cable to the case of an answer to which the com- plainants cannot except for Insufficiency. lArringntonv. lAvingslon, i PaigeCh. Ill, 3: 365 594. Where a demurrer to a bill is accompanied by an answer, although such answer merely denies combination, and the demurrer is overruled, if the complainant wants a further answer he must file exceptions ix) the answer already put in. JHarij/v.Beefc?n desirous of availing himself, by means of set-off, of a judgment re- covered since he has pleaded, the course is to file a bill in the nature of a supplemental cross-bill and not to set it up by way of further plea. WhiU V. Bvllocic, 3 Bdw. Ch. 453, 6: 723 630. It seems that a cross-bill may set up addition- al facts not alleged in the answer in the original suit, where they constitute part of the same de- fense relative to the same subject matter. Underhill v. Van CorUandt, 2 Johns. Ch. 355, 1: 407 631. A cross-bill which seeks no discovery, and makes no defense which was not equally available by way of answer to the original biU, will be dis- missed, with costs. Weed V. Smull, 3 Sandf. Ch. 273, 7: 850 633. Where a trust deed, made by a banking asso- ciation with a view to protect the holders of its cer- tificates, is set aside, and a holder was induced to take some of them and give up bonds and mortgages which the association had before transferred to him as security for indebtedness, and this was done at the request and upon the earnest assurance of the association of the validity of such trust deed and certificates, and an opinion of counsel was shown by way of furtherinducement,— jEfdd, that the bold- er was, through his answer, entitled to have the bonds and mortgages restored to him without the necessity of filing a cross-bill. Learnt v. Yates, 4 Edw. Ch. 134, 6: 888 633. The proper time for filing a oross-blU, when such a bill is necessary, is at the time of putting in the answer to the original bill, and before issue is joined by the filing of a replication to such answer. Irmng V. De jEii)/, 10 Paige Ch. 319, 4:993 S. C. 3 Ch. Sent. 55, 5:1117 634. A cross-bill must be filed before publication passed in the original cause. Gouvernem- v. Elmendurf, 4 Johns. Ch. 357, 1:867 Stem/ V. Arden, 1 Johns. Ch. 62, 1:60 635. It is not too late to file a cross-bill after the proofs in the original suit are closed, if the coui« plainant in the cross-bill is willing to go to a hear- ingon bill and answer as to the cross-suit. White V. Balnid, 2 Paige Ch. 164, 2: 857 636. A cross-bi'l cannot be filed after publication! passed in the original suit, unless the plaintiff in the cross-bill go to a hearing on the proofs already published. Field V. Sehieffelin, 7 Johns. Ch. 250, 8:38* 637. And if a cross-bill is filed after publication, testimony taken in the cross-cause cannot be read or used. Ibid. 638. The court may sometimes, at a hearing, direct a cross-bill, when it appears that the first suit is in- sufficient to bring before the court the rights of the parties, and the matters necessary to a full and just determination of the cause. Ibid, 639. All the coniplainants in a cross-bill must join In the application to stay the proceedings in the original suit until the complainants therein hav» answered the cross-bill: and, to entitle the com- plainants in the cross-bill to such an order, the mat- ters stated in the cross-bill must be sworn to by some person who knows the facts. Talmage v. Pell, 9 Paige Ch. 410, 4: 75* 640. Matters of defense which existed at the time the answer was put in, but which were not discov- ered until afterwards, cannot be set up in the cross- bill only. Ibid. 641. Where the surviving complainant is insolvent» tbe detenaant, wno uau aciu tius uguiusc the de- ceased and surviving complainants jointly, will be permitted to file a cross-bill in the nature of an oiigi- nal bill, against the surviving complainant and the personal representatives of the deceased complain- ant, and the proceedings in the original suit will be stayed untu the cross-suit is in readiness for a bearing. Brawn v. Story, 2 Paige Ch. 594, 3: 104* VI. Beplication. See also supra, I. j. 642. If the complainant wishes to prove any fact on the hearing not admitted by the answer, he must file a replication to the answer. Mills V. Piltman, 1 Paige Ch. 490, 2: 7aft 643. Where one of two defendants denies in his answer all knowledge of the tacts alleged in the complainant's bill, the complainant, in order to give such detend&nt an opportunity to litigate his rights, must file a replication to his answer. Elliott V. Pell, 1 Paige Ch. 263, 2: 640 644. Where the complainant replies to a plea, he admits its sufficiency ; and if the truth of the plea is established, the bill wfil be dismissed. Douis V. McMiehael, 2 Paige Ch. 345, 2:937 645. Upon a replication to a plea, nothing is in is- sue except what is distinctly averred in the plea ; and if it be established by the proofs, it is a bar to so much of the bill as it professes to cover, whether the matter pleaded be applicable to the same or not. Tompkins v. Anthon, 4 Sandf. Ch. 97, 7: 1039 646. If the defendants, or either of them, deny the allega\i -is in a bill of intei-pleader, or setup dis- tinct facts in bar of the suit, the complainant must reply to the answer, and close the proof/s in the usual manner, before he can bring his cause to a hearing. City Bank v. Bangs, 2 Paige Ch. 570, 2: 1033 647. But where the defendants admit the facts stated in the blU, and on which the right to file the bill of interpleader rests, and set up no new facta, as against tne complainant, or in bar of his suit, it seems to be sufHcient for him to file a replication, and to set the cause down for a«decree to interpleirl, without waiting until the proofs are taken as bp- tween the defendants. Ihld. 648. Where an answer expressly avers a new prom- ise within six years, and no replication is filed, the debt will be treated as revived. Mvrray v. Mechanics Bank, 4 Edw. Ch. 567. 6: 97S 649. To render it necessary to file a replication to an answer, so as to enable the parties to take proofs of usury, the answer should contain a distinct alle- gation of usury; and an answer in which the de- fendant states in general terms that she believes the transaction was tainted with usury is not suffi- cient for that nurnoRP. Suydam v. Barfle, 10 Paige Ch. 94, 4: 901 420 PLEADING, VII. a-c, 1. 650. Where an original bill was filed by D and W against P, to obtain a conveyance of real estate, and a replication was filed to the defendant's answer to such bill; and after the filing of such replication D purchased the interest of his co-complainant in the subject^niatter of the suit and afterwards died; and the heirs at law of D thereupon filed a supplemen- tal bill, in the nature of a bill of revivor and sup- plement, to continue the proceedings in their names; to which bill the defendant put in an an- swer without oath, denying the allegations in the supplemental bill,— HeW, that such heirs at law should file a replication to the defendant's answer to the supplemental bill, and proceed to take proof of the matter put in issue by that answer, in con- nection with the proofs of the matters in issue upon the original bill; leaving the question as to the right of the complainant to nave the benefltl,of the origi- nal bill, and of the subject-matter of the same, to be finally decided at the hearing.upoa the proofs in the cause. Day V. Potter, 9 Paige Ch. 645, 4: 851 651. A complainant may file his replication to a plea which Is allowed to stand as an answer, and proceed to take proofs as to all the material facts charged in the bill, in the same manner aB if the de- fense set up in the plea had been originally set up in an answer. MeCormUik v. Chamberlin, 11 Paige Ch. 543, 6: 339 652. Where a replication is filed and a cause set down for hearing, without any rule having been entered to produce witnesses, it is a waiver of the replication: and the defendants are entitled to the benefit of their answers, as if the cause had been set down on bill and answer. Wiser v. BlcuMy, 1 Johns. Ch. 607, 1: 863 653. Upon a replication to a plea, nothing is in is- sue except what is distinctly averred in the plea, and if that is established at the hearing, the plea is a bar to so much of the bill as it professes to cover. Fish V. Miner, 5 Paige Ch. 26, 3:613 654. The use of special replications has been dis- continued. And 11 a complainant wants to avoid the effect of matter pleaded in bar, he must apply to amend the charging part of his bill. This charg- ing part, containing the alleged pretenses of a de- fendant and the complainant's denial of them, amounts, virtually, to a special replication. Storms V. Storms, 1 Bdw. Ch. 358, 6: 17 1 655. A special replication to a plea, filed without leave, ordered to be stricken off. Ibid . 656. But if a replication is filed, and no proof taken, such answer is the only ground for a decree, being sufBcient to raise the issue. And if the complain- ant cannot sustain his case by it, his bill must be dismissed. Dimham v. Gates, Hofl. Ch. 185, 6: 1110 VIL Demubbgb. See also supra, UL a, 1. a. Generally ; Form ; Sufflcienay. 657. Where a demurrer put in an answer Is not re- strictive in its heading, it is bad; therefore where the caption was: "The demurrer and answer of G. W. B. and J. B. B., defendants to the blU, etc.,"— Held, bad in form. Brtienv. Brueii, i Edw. Ch. 640, 6: 1003 658. Where the demurrer does not go to the whole bill, it must clearly express the particular part which it is designed .to cover, so that upon a refer- ence of the answer to the residue of the bill, upon exceptions for insufficiency, the master may be able to ascertain precisely how far the demurrer goes, and how much of the bill remains to be answered. Jarvisv. Palmer, U Paige Ch. 650, 5: 867 659. A demurrer cannot be allowed in part where It covers too much: and if any part of the matter covered by the demurrer is also covered by a plea or answer, the whole demurrer is overruled by such plea or answer. Ibid. 660. Upon a demurrer to an amended bill, if any part of the discovery covered by such demurrer ap- pears to be material and proper, for any purpose of the suit, the demurrer wUl be overruled. And the defendant cannot, upon the argument of the de- murrer, insist that the discovery caUed for is con- tained in his former answer. Chazoarem v. Mills, 2 Barb. Ch. 466, 5: 717 661. A demurrer which is attempted to be sustained by an averment of a fact in the answer is in the nature of a speaking demurrer, and is therefore not aided by such averment. . Kuupers v. Reformed Dutch Church, 6 Paige Oh. 570, 3: 1106 662. A demurrer which is bad in part is bad in ixfto. But where a demurrer to the discovery is overniled because it covers too much, or upon a point of form merely, the defendant, upon exceptions to his an- swer lor insufficiency, may raise the question as to the materiality of the discovery sought by such ex- ceptions. Ibid, 663. A speaking demurrer is one which introduces some new fact or averment which is necessary to support the demurrer, and which does not appear distinctly upon the face of the bill. Brooks V. Otbbom, i Paige Ch. 374, 3: 476 664. The objection that the lunatic himself is not made a party complainant in a suit brought by his committee in relation to personal estate cannot be raised merely by a general demurrer for want of equity. Gorham v. Gorham, 3 Barb. Ch. 24, 5: 801 665. Where a defendant obtains an order for fur- ther time to answer the complainant's bill, he can- not demur, unless authorized by the court to do so. Laicenn v. Ftelden, 11 Paige Ch. 644, S: 865 666. Where the complainant upon the whole case, as stated in the bill is not entitled either to discov- ery or relief, the defendant should demur to the re- lief as well as to the discovery. Kuypers v. Reformed Dutch. Church, 6 Paige Ch. 570, 3:1106 667. Upon a general demurrer to a bill for relief upon the ground of fraud, it is not necessary to In- quire whether some grounds of relief stated in the bill do not appear, upon the face thereof, to be barred by the lapse of time. If that question is sought to be raised on demurrer, it must be done by a separate demurrer to those particular parts of the bill. Radcliff V. Rowley, 2 Barb. Ch. 23, 5: 548 668. After a defendant has obtained a chamber order from a vice-chancellor granting him further time to answer, he cannot put in a demurrer to the blU without special leave of the court. Bedell v. Beddl, 2 Barb. Ch. 99, 5:671 S. C. 6 Ch. Sent. .57, 5: 1818 669. But this principle does not apply to a case of the extension of the time by the voluntary stipula- tion of the complainant's solicitor. Ibid. 670. If, however, under a stipulation extending the time to answer, a defendant puts in a demurrer which is clearly frivolous. It will be taken from the files. Ibid. 671. Upon a general demurrer to the whole bill, the defendant cannot raise the objection that some of the allegations and charges in the bill are unne- cessary and impertinent. Beach v. Beach, 11 Paige Ch. 161, 6: 98 b. Demurrer Ore Temis. 672. A demurrer ore tenus will be allowed upon payment of the costs of the demurrer on the record ; but liberty will be given to the complainants to amend. Bobimon v. Smith, 3 Paige Ch. 222, 3: 186 673. Causes of demurrer may be assigned ore tenus at the bar. Brinkerhoff v. Brovm, 6 Johns. Ch. 139, 8: 79 674. Where a general demurrer to the whole bill is overruled for want of equity, the defendant may demur ore tenus upon the ground that the suit is brought by a feme covert In her own name, when she should have prosecuted by her next friend. Garllck v. Strong, 3 Paige Cn. 440, 3: 883 675. Where a mere formal objection to the bill was made by demurrer ore terms, the complainant was permitted to amend. Ibid. 676. A party availing himself of the right to de- mur ore tenus must pay the costs of the demurrer on the record. IIM. 0. When Proper; Grounds. 1. In General ; Statement of Came of Action. i 677. A demurrer to a bill of equity must be found- PLEADING. VII. c, 2. m ed upon some dry point of law, which goes td the absolute denial of the relief sought. Verplank v. Uaines, 1 Johns. Ch. 57, 1: 58 678. If a bill for discovery and relief be good as to the discovery, a general demurrer to the whole bill IS bad. lAvingsUm v. lAvingston, i Johns. Ch. 294, I: 845 Wood-v. Hathaway, 2 Ch. Sent. 12, 6:1083 Higlnbotham v. Burnet, 5 Johns. Ch. 184, 1: 1050 679. Upon a general demurrer to the whole bill, if the complainant is entitled to any relief what- ever upon tlie case stated in his bill, the demurrer will be overruled. Stuyvesant v. New Tlaint says, etc." Bruen v. Bruen, i Edw. Ch. 640, 6: 1003 734. A case is not In readiness for final decree up- on disallowance of plea or demurrer, but an answer may be put In. Bowman v. Marshall, 1 Ch. Sent. 27, 6: 1059 Editorial Notes. Allegations not denied must be taken as true 3; 895 Amendment ; when permitted ; scope of 8: 503, 882, 6: 54 Allowance upon terms 5: 401 ■of answer 1: 873 of bill 1: 107, 671, 804, 2: 585, 698, 815, 3:552. 6:331, 1148 •of bill after replication 1 : 435 to replication 1 : 869 'bringing in necessary parties 3: 345 after answer 3: 894 of supplemental bill 2: 616 pending injunction 6: 1148 of bill after injunction dissolved 2: 619 effect upon injunction 7: 1214 new defense on 3: 637 discretion of the court 3:210 Answer ; requisites of 1: 848, 624, 1072, 2: 631, 3: 109, 5: 120 supplemental 1: 873, 2: 330, 8: 503, 4: 554, 754, 6: 339 ■denial of facts circumstantially 2: 831 to matter after bill filed 6: 329 -when too general 6: 372 fliust be complete 6: 154, 480 ■by favor of court restricted 5: 270, 679 must be equitable 5:471 ■separate 5:317 ty corporation 1:178, 2:553, 6:201 must be signed 1: 362 light to require answer authenticated 8: 1141 oath to, may be waived as to one or more defendants 8:820 joint and several answer to be sworn to by all defendants 2: 920 as evidence and as a pleading 2: 273, 3: 538, 6: 201 extension of time for 2: 931 objection waived by 4: 754 mistake or inadvertence In, remedied 4:696 Bill ; in equity ; double purpose of 3: 292 objection to, for defect in parties 8: 345 fact alleged in charging part of 8: 473 false allegations in, fatal 4: 577 must aver facts to take case out of Statute of Limitations 4: 195 nonjoinder of necessary party vitiates ■ 4:892 •defendants must be specifically named 4:754 must be signed by counsel 6 : 863 statements in 6: 680 ■confessed, taken as true 2: 491 Prayer for relief 8 : 5.52 general 5: 312 what relief may be given on 1 : 79 Supplemental ; when proper and when not proper 3: 615, 6: 380i Bill; supplemental; to bring in new parties 2:182, 6:1181 rule of diligence 3 ; 118 in nature of bill of review 3: 117 leave to file ; notice 8: 159 to set up payments 2:947 in nature of bill of revivor 4:851 By consent cannot be modified 3: 532 Charges of fraud must be met in 3: 894 Cross-bill 1:401, 867. 2:1044 practice 2: 857, 4; 993 what matter may be introduced in 2 : 838 when to be filed 1 : 60, 2: 284 form of prayer 6: 119 dismissed where subject is matter of de- fense 7: 850 Defense of Statute of Frauds ; when agree- ment admitted 8:239 when agreement denied 3: 239 Demurrer ; when good 1:58 too general, when 1: 1050 general, to bill for discovery and relief 1: 686, 845 for want of equity 3: 139 to part of bill 5 ; 267 general, to whole bill 3:1106, 5: 184 ore tenus 3: 128, 224, 4:683 whatmay be shown on 4: 195 Defense of Statute of Limitations taken by 3:476, 5:979 bill must show action barred 5 ; 979 for misjoinder 3:538 for lack of signature 7 : 1 1 50 for multifariousness 3:630.882, 6:855, 1181 by the parol 6: 1107 overreached by answer 8: 1030 Different modes of defense in equity 5: 731, 7: 62 Disclaimer;, when filed without answer 6: 429 sufficiency of 6: 112 Double pleading 2:272, 957, 1035, 3: 371, 4: 1072 May demur to discovery and answer as to relief ' 8: 262 "Duly;" effect of word 6: 641 Duplicity 3: 394 Exceptions to defendant's answer 8:855, 4:354, 6:40 for impertinence 3 : 365, 893 for insufficiency 3: 1106, 5: 229, 6: 416 to immaterial matter in answer 8: 479 to plea 2: 855 Extending time to answer 5: 571, 6: 155 Piling replication after expiration of time limited 8: 628 Formal defects in; how taken advantage of 8:276 Impertinence; test of 1: 76 in bill 3. 292 in answer; what is 6: 168 schedules annexed; when impertinent 6:176 Indefiniteness 3: 970 Issue joined on plea 3: 931 Multifariousness 3: 660, 4: 662,666, 5: 299,961, 6: 885,1181 Objection to jurisdiction 1:842, 2:1009, 3: 169, 350,372 to answer; too late 6: 556 Omission to plead discharge in action of debt; effect of 5: 340 Particulars; bill of 3- 98 434 PLEDGE AND COLLATERAL SECURITY. Plea; must be perfect in Itself 1 : 983 ordered to stand for answer 3: 331 effect of taking issue on 3: 395 practice when found not to be true 3: 937 Replication ; waiver of 1:363 Signature to affidavit in petition 5: 96 Striking out; of answer 4: 193, 5: 817 of demurrer 3; 811 of impertinent matter 1:76, 3: 393,635, 813 Taking ofl file for irregularity 3: 153 Uncertainty of bill as to parties 3: 531 Waiver of objection to jurisdiction 1: 401 PLEDGE AND COLLATERAL SECURITY. See also Accounting, 13; Banks and Banking, 57; Payment, 6. 1. A factor cannot pledife the goods of his princi- pal, though the creditor has no notice of his being a factor. Rodriguez v. Heferman, 5 Johns. Ch. 417, 1: 1127 2. A bill may be filed in this court to redeem personal property pledged for a debt. Hart V. Ten Eyck, 2 Johns. Ch. 63, 1:896 3. But the creditor holding goods in pledge may sell them without a bill for foreclosure, on giving reasonable notice to the debtor to redeem. Zbid. i. AlUer, in case of a mortgage of real estate, which can never be sold without a bill for fore- closure and a decree for a sale. Ibid. 5. A pledgee may file a bill to obtain a sale of the pledge for the payment of bis d 3mand,and although the demand be for unliquiuated damages, it is not necessar>- to assess such damages at law before proceeding in equity for a sale. Vauvell V. Woodward, Z Sandf. Ch. 143, 7: S4z 6. Where stock is pledged, and no stipulation en- tered into as to the right to sell upou a default, the pledgee must give reasonable notice of a sale. But ft it has been sold bona fide, without such notice, it teems it cannot be pursued into the bands of a bona flde holder, without notice of the pledge. lAtUe V. ifuii.er, auiT. (Ju.4«7, 6: 1218 7. Where the principal security is manifestly in- adequate, the collection of the collateral security will not be postponed until the former has been exhausted. VTestervelt v. Haff, 2 Sandf. Ch. 98, 7: 583 8. A person who receives bonds and notes as a collateral security for a debt is bound to use duo diligence; and if they are afterwards lost through bis negligence, by the insolvency of the makers, ne is chargeable with the amount. Barrow v. BWndander, 3 Johns. Ch. 614, 1: 735 9. Where K received a bond from P as collat- eral security for a debt, and the obligor offered to pay him the amount of the bond in land at a cer- tain price, as the only means of payment In his power, which E refused to accept, although re- quested to do so by P, and the obligor afterwards became insolvent, whereby the bond was wholly lost, B was held chargeable with the amount of the value of the land so offered bim in payment, and which he unreasonably refused to accept. IbUl. 10. The defendants, being stock and exchange brokers in New York, in February, 1818, in the course of their business, received from the plaintiff 430 shares of the stock of the Bank of the United States ; and it was agreed between them that the defendants should hold the stock as collateral se- curity for the payment of a promissory note of the plaintiff, given for moneys advanced by the defendants to him, and payable Jan. 10, 1819 ; and the defendants were to retransfer the whole 430 shares of stock to the plaintiff on payment of the note ; but if the note was not paid the defendants were at liberty to sell the stock, accounting for the surplus. If any, and the plaintiff to be responsible for any deflcienoy. The shares of the plaintiff were not marked or identified as his particular property, nor was there anything agreed upon between the parties for that purpose ; but the shares remained in the names of the defendants, and were blended wirh a large mass of shares of the same stock held by them, belonging to themselves or in trust foi others. The note not being paid, the defendants sold the stock Jan. 25, 1819, and, the proceeds not being sufficient to pay the note, they brought aa action at law against the plaintiff to recover the balance. Held, that as the defendants at all time* after the date of the note were possessed of shares of stock, standing in their names and under their absolute and rightful control, to an amount far exceeding the number of shares so received of the plaintiff, and were ready and able at any time to transfer to him the 430 shares on payment of the note, there was no breach of trust on their part, nor were they bound to account to the plaintilT for the stock at a higher price than what it was actually sold for by them. „ ,„ Nowae v. Prime, 7 Johns. Ch. 69, 8: 88* 11. Where a bond and mortgage are assigned as se- v'L. ..> lor a U.O., a ftuitScqueriL assiguee takes the same subject to tiie Ti^rht of the original assignor to redeem the securities upon paying the amount of the loan for which such bond.and mortgage were rj|"lired. w'th interest. Sweet v. Van Wyck, 8 Barb. Ch. 647, 5: 1043 12. A creditor to whom his debtor has assigned property as security for advances and responsiblh- lies, with an agreement that, if the property is not redeemed within a certain time, the assignee may sell it to pay and indemnify himself, may, after the expiration of the time limited, sell the property for his indemnity, and may, with the assent of the debtor, become the purchaser thereof, and of all the equitable or residuary interest of the debtor, at a fair and adequate valuation ; and such purchase, iC made bona flde and without intent to injure or defraud creditors, will be valid, not only against the debtor or cestui que tnat, but against all other persons. _ HendrUHtson v. BoMnson, 2 Johns. Ch. 283, 1: 380 13. Where F, a debtor In embarrassed circum- stances, made an assignment (absolute on its face» of personal property to W, a creditor, as security for a new loan of money and for existing claims, and also for his indemnity against existing and future engagements, especially all such as should arise in the management of the property assigned; and W, for the purposes of the assignment, ef- fected a loan of money from F, on condition of guaranteeing to him a debt due to him from F, to be paid out of the proceeds of the property so as- signed,— it was held that P, by lending his money to W on this guaranty, acquired an equitable lien on, and was entitled to be paid his debt out of, the pro- ceeds of the property m the hands of W, in prefer- ence to other creditors. TbUU 14. A judgment or other security may be taken and held for further advances or responsibilities. Brinkerhoff v. Marvin, 5 Johns. Ch. 320, 1: 109ft 15. But it seems that advances made or responsi- bilities incurred after a subsequent judgment wilt not be covered by such judgment security. Ibid. 16. Collateral securities to creditors are considered as trusts for the better protection of their debts ; and equity will see that their intention be fulfilled. Moaes v. Murgat/royd, 1 Johns. Ch. 119, 1 : 83 17. A holder of a note is entitled to the benefit of a collateral security given by the maker to the in- dorser for his indemnity. Phillips V. Thompson, 2 Johns. Ch. 418, 1: 43» 18. A security taken for a specific purpose can l)eappliedby the holderto that precise object only, and no other. Ibid. Editokial Notes. Pledge; nature of; redemption; sale by cred- itor upon notice 1: 39ft by wife of her separate estate 4: 667 Pledgor of mortgage may foreclose 6 : 58ft Pledgee liable for depreciation after tender of debt 6: 467 Purchase of pledged property 4: 853 Collateral security; creditor entitled to bene- fit of; rights and obligalions of sureties holding mortgage as 1 : 82 application to debt 7: 542 rights of holder of negotiable paper as 1:1007 POLICE— POWER, III. 42a Collateral security; shares of stock; when to be returned 1:911, 2: 235 followed into hands of lona fide purchaser 6: 1218 POLICE. See Bewabd. POOR PERSONS. See also Costs, I. f ; Equity, 47 ; Husband and Wife, 28 ; Parties, 139. 1. The superlnteuaents of the poor are not author- ized to receive paupers into the county poorUouse, to be supported at the expense of the county, un- less an order to that effect has been made by the overseers of the poor, or a warrant has been issued for the removal of the pauper to the county poor- house as a lunatic. Pomeroy v. Wells, 8 Paige Ch. 406, 4: 481 2. Where a lunatic is merely to be supported as a pauper, either in or out of the county poorbouse, the overseers of the poor of the town where such Junatic pauper resides must inquire into the cir- cumstances and make an order for relief, as in the case of other indigent persons; and then the super- intendents of the county may, in their discretion, provide for the support of such lunatic pauper out of the poorhouse, if they think proper to do so. Ibid. 3. Where It appeared that all the estate of a lu- natic had been expended in his necessary mainte- nance, the court, on petition of the committee and report of a master, ordered the lunatic to be deliv- ered over to the overseers of the poor of the town. Be M'Farlan, 2Johns. Ch. 440, 1:440 Editorial Note. Suits by superintendents of poor 4:481 PORT WARDENS. See Master and Wardens of the Port or New TOBK. POSSESSION. See EvniENCE, 11. g, 3 ; Notice. IL POSTOPFICE. See Assignment, 14. POWER. I. Creation ; Validity. n. Construction. ni. Revocation : Subyival. rv. Execution. V. Power or Equity over. Editobial Notes. Bee also Devise and Legacy ; Executors and Administrators; Husband and Wife, IV. g; Mortgage, VII. 1, Z ; Principai, and Agent ; Trusts, 138, 140, 192 ; Wills, 25. I. Creation ; Validity. 1. A power may be given to a feme covert to con- vey a future as well as a present fee in lands, for her own benefit and support during coverture. But a deed of appointment by a feme covert, under a power, must be acknowledged in a like manner as other conveyances executed by femes covert. Jackson v. Edwa/rds, 7 Paige Ch. 386, 4: 800 2. Where real estate was conveyed to a marrie* woman for her separate use during coverture, witii power to appoint by either deed or will, and in de- fault of appointment to her children or heirs, under the provisions of the article of the Revised Statutes relative to powers, such power to dispose by ap- pointment of the contingent remainder limited to her children, so as to prevent their taking the estate in the event of her death, was valid, and her appoint- ment would convey the whole estate in fee to tli" appointee. lUiil. 3. Where a power In trust to executors to lease the real estate of the testator until it can be sol* would have the effect to suspend the absolute power of alienation in such real estate beyond the time allowed by law, it is void. But the power in trust to sell, in such a case, will still be valid; and the real eitate, in equity, will be considered as converted into- personalty immediately, where such a conversion is necessary to carry into effect the will of the testator and to prevent injustice to any of the objects of his- Intended bountv. Hcatun v. Coise. 2 Barb. Ch. 506, 5: 733 4. Where a devise is void as an express trust, it cannot be maintained as a power in trust. AmoU V. Gilbert, 3 Sandf. Ch. 531, 7: 946 B. In a devise to executors in trust for various purposes, in which the principal trusts were ad- judged void, a trust to mortgage was held valid as a power in trust for the benefit of legatees; but the real estate having descended to the heirs, and a. partition being sought, the trust power was di- rected by the decree to be extinguished, ona suita- bleprovision being made for the legatees. Thompson v. Clendenlng, 1 Sandf. Ch. 387, 1: 369 II. Construction. 6. In the construction of powers of sale, the in- tention of the testator is much regarded. Osgood V. FranJtUn, 2 Johns. Ch. 22, 1: 28» 7. The court, in considering the extent of powers, looks to the end and design of the parties, and to the substantial, rather than the literal, execution of them. Wilson V. Troup, 7 Johns. Ch. 25, H: 809 8. And in support of such intention, a power lim- ited in terms has been deemed a general power, and a power general in terms has been reduced to- a particular purpose. Ibid, 9. A power to mortgage includes a power to exe- cute a mortgage contaming a power to the mort- gagee to sell the premises in default of payment ; it being one of the usual remedies of a mortgagee,, known in law and regulated by statute. Ibid. 10. One of the constituents was a trustee under su marriage settlement by which he was authorized to grant, bargain, sell, alien, and convey in fee simple any of the real estate, and to invest the pro- ceeds in stocks, etc., whenever the beneficiaries were minded to have it done. Held, that this did not authorize the trustee, with their assent, to mortgage any part of the estate to raise money for its improvement. _ Gumming v. WiTliamson, 1 Sandf. Ch. 17, 7: 881 11. Power of the sole acting executor to sell the real estate under the will. Davoue v. Fanning, 2 Johns. Ch. 254, 1: 369 ni. Revocation ; Survival. 12. A naked power to executors to sell does not at common law survive. Osgood V. Franklin, 2 Johns. Ch. 19, 1: 881 13. But if executors having power to sell th© real estate are vested with any interest, legal or equitable, in the estate, the power survives. Ibid.l, 1:3 ''8 14. So, if the executors are charged with a trust relative to the estate and depending on the power to sell, the power survives. ibid. 1.5. A power to executors, and to the major part of them, their heirs or executors, vests, it seems, solely in the last survivor and his representatives. Ibid. 16. Power of sale in mortgage survives death of the mortgagor, when it is coupled with an interest.. Knam> v. Alvord, 10 Paige Ch. 205, 4: 946 S. C. 3 Ch. Sent. 21, 5.- 1106- 436 POWER, IV.— PRACTICE, I. IV. Execution. 17. By the Revised Statutes, where a power In -trust is vested in several persons, all must unite In its execution. But If, previous to such execution, one or more of such persons dies, the power may be executed by the survivor or survivors. Be Tan Wyck, 1 Barb. Ch. 565, 5: 496 18. None of the pro visions of the Revised Statutes authorize a part of the executors to whom a joint power is given by the testator to execute the same, so as to transfer a good title to the purchaser, where one of those to whom such joint power was .given has been discharged from his trust by the -court of chancery, after he had accepted the trust «nd had duly qualified as executor. ibid. 19. A will of personal property, made by an infant feme covert previous to tne Revised Statutes, is a good execution of a power of appointment under a marriajre settlement authorizing her, at her decease, to dispose of the capital of the fund in such manner -as she might by will direct, although her death did not take place until after the Revised Statutes went into operation. Strong V. WilMn, 1 Barb. Ch. 9, 5: 877 20. Under the article of the Revised Statutes rela- tive to powers, a married woman may execute a power.either by grant or by devise, according to the authority given by such power. IhiA. 21. Where a power is given to executors to sell an •estate or certain parts of 11!, It is a personal trust and confidence, and they cannot sell by attorney. Berger v. But, i Johns. Ch. 368, 1: 870 32. Thus, where A authorizes his executors, B and C, to sell certain lots of land if, under the circum- stance of the times, they should deem it prudent ; and C, having gone abroad, sent a power of attorney to B, his coexecutor, to sell the land on such terms as he should deem expedient, —Held, 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. urn. 33. A feme eovert may execute, by will in favor of her husband, a power given to nor while sole, over her real estate. Brodisft V. Gibbs, 3 Johns. Ch. 536, 1:709 24. Where a person takes by the execution of a power, he takes under the instrument containing the power. ibid. 550, 1: 713 25. A husband, in regard to a devise to him by his wife in execution of a power, is not a volunteer. Ibid. 26. A will made in execution of a power contained in an antenuptial contract still retains all the prop- erties of a will, and is revocable at the pleasure of the wife. Ihid. 551, 1: 713 27. Though the will does not refer to the ante- muptial contract, yet it is a good execution of the power, if it can have no operation without the jpower. Ferine v. Dunn, 3 Johns. Ch. 515, 1: 701 28. The heir at law will be decreed to convey the (legal estate to the devisee. Ibid. 29. A will executed by a wife under a power need not refer to it. Heyer v. Burger, Hoff. Ch. 1, 6: 1043 30. Where a person takes by execution of a power, he takes under the authority of the power equally ■&s if the power and the instrument executing the power were incorporated in one deed. DooUttUv. Lewis, t Johns. Ch. 45, %: 815 31. A power of sale in a mortgage of lands in this . State, to a person residing in another State, may be lawfully executed by an administrator appointed by a court in another State where the mortgagee died. IIM. 32. A probate of a will is not necessary to an exe- • cution of a power to sell land, contained in the will. ItM. 33. A defective execution of an appointment,made *or a valuable consideration, is not wholly void. It ^amounts only to a defective execution, and equity will supply it. . Schenck v. ElUngwood, 3 Edw. Ch. 175, 6: 615 V. Power op Equitt over. 34. The testator directed the bulk of the estate. both real and personal, to be sold by his exeoutorg, at such time. In such proportions and manner, and on such conditions, as in their judgment should be best for those interested, if an equal, valid, and sat- isfactory division thereof In ptirt or in the whole could not otherwis'' be made. Held, that the neces- sity for a sale was loft to the judgment of the exec- utors, and could not be controlled by the court, 11 exercised in good faith. Bunner v. Storm, 1 S. 357, 7: 358 35. If a conveyance of real estate Intrust to lease the same and to pay and apply the income to such persons and for such uses and purposes as a cer- tain married woman should in writing appoint, and in default of appointment then to her proper hands, were deemed to create a valid power in trust, in- stead of an express trust, liabilities in the nature of debts created by such woman would not be enforced against her interest, under the provision of the lievised Statutes for compelling the execution of powers in favor of the creditors or the beneficiary. Rogers v. lMdlov>,a 8. 104, 7: 788 Editorial Notes. Power ; special authority to be strictly pur- sued 1:638 Execution of 4: 200,267, 7: 221 Given with no express limitation is given with all means to make the gift effect- ual 5: 888 Survivorship of 1:275 Of appointment ; validity 6: 572 Given by will 4: 200, 5: 567 Conveyance under unlawful suspension of power 7: 652 In trust ; performance of 7: 946 POWER OF ATTORNEY. See Principal and Agent. PRACTICE. I. In General. II. Time fob Objections ; Waiver. III. Papers in General ; Service op. IV. Stipulations. V. Motions Generally ; Notice op. VI. Trial and Disposition op Cause. a. Calendar. b. Taking Bill as Confessed; CompeUimg Ap- pearance. o. Setting Aside Order TaMng BiU as Con- fessed. d. Taking Proof. 1. OeneralXy. 2. Time for; Closing Proof. 3. Notices ; Names of Witnesses. 4. Re-examination of Witnesses. 5. Passing Publication, 6. Examining Party, e. Feiffned Isxue. f . Hearing ; Argument. f. Rehearing. . Stay of Proceedings, i. Dismissal. Editorial Notes. See also Pleading. I. In GeneraIo 1. The court of chancery is authorized to correct tht! eriois auu lo supply lUe omisBiouB ul lis icgis- ters, clerks, and other ofBcets, when it can be done without detriment to the rights of third persons, and where substantial ji'ot.iee req"irp been put in denying a material allegation in the bill, only applies to cases where the bill has been taken as confessed, or where the cause is In readiness for hearing upon bill and answer, but does not authorize 430 PRACTICE, VI. c. the complainant to apply for a decree upon a motion day, where a plea or demurrer .a- the bill has beeu fliPrt in g-ood faith. Bowman v. MarsJiaU, 9 Paige Ch. 78, 4: 615 S. C. 1 Ch. Sent. 27, 5: 1059 85. Where the defendant in a foreclosure suit put^ In a frivolous pjea or demurrer, the complainant may apply, upon a motion daj', to overrule such plea or demurrer, and for a final decree in the cause ae upon a bill taken as confessed; but to entitle the complainant to such a decree, he must pive special notice to his adversary that he intends to move for an order to overrule the plea or demurrer as frivol- ous, and to take the bill as confessed, and for a final decree thereon. Ibid' 86. Where the complainant, after answer, obtained a special order for leave to amend, and that the de- feuiiant should auswtr tlic amended bill withinforty days after service of the amendments and a copy 01 the order, or that such amended bill be taken as confessed; and the defendant, upon beinj? applied to by the complainant's solicitor, refused either to put in a further answer to the amended bill or to consent that his former answer should be considered as an answer to such amended bill, so as to enable the complainant to put the cause at issue by filing a replication to the answer,— Held, that the com- plainant was regular in enterinir an order to take the amended bill as confessed after the expiration of the forty days from the time of the service of the amendments and of the order to answer the same. Trust & Fire Ins. Co. v. Jeiiklns, 8 Paige Ch. 589, 4; 554 87. Upon an amendment of course, after answer, where there is no order for leave to amend, and the complainant does not intend to waive a further an- swer, he may enter the usual order of course, that the defendant answer the amended bill within the forty davs, or that it be taken as confessed or that an attachment issue, etc., as the case may be. Ihid. 88. If an absentee nesrleots to appear, and an order is subsequently enteied to take the bill as eonfeSBed against him, it is an order to take the bill as con- fessed in the state it is then in, including the amendments. Bond V. Hoiuell, 11 Paige Ch. 233, 5:119 89. The practice is the same where the complain- ant amends his bill after the personal service of a subpoena upon the defendant, who neglects to ap- pear in the suit; and the servi.'>e of a new subpcena upon such defendant is not necessary to authorize the entry of an order to take the amended bill as confessed. Ibid. o. Setting Aside Order Taking Bill ax Confessed. See also Judgments, etc., VII. u. 90. Chancery will not set aside a regular order taking a bill as confessed, to enable a defendant to set up an unconscientious defense. Quiney v. Foot, 1 Barb. Cn. 496, S: 471 91. Whether a regular default will be set aside to let in the defendant to set up his discharge under the bankrupt Act,— quoere. KingsLani v. Spalding, 3 Barb. Ch. 341, 5: 985 92. Where a defendant has had an opportunity to sec up his Uisuharge uuuer the Uaukrupt ^cc, as a technical defense, and has neglected to do so, the court will not open a regular default for the pur- pose of enabling him to set up such discharge. Freeman v. Warren, 3 Barb. Ch. 635, 5: 1039 93. Defaults not opened as mere matter of favor to let in technical objections. Goav.Oas, SCh.Sent. 71, 5; lliis 94. After a bill had been regularly taken as con- fessed for more than nine years, and after a regular decree had been made against all the defendants for more than five years,— JTeid, that it was too late for a part of such defendants to apply to be let in to answer the bill and set up a meritorious defense. Boyd V. VanderTiemv, 1 Barb. Ch. 273, 5: 383 95. Itseemx that where a bill is taken as confessed against a defendant before nis death, ana after his death the suit is revived against his heirs or his per- sonal representatives, they must apply to vacate the order taking the bill as confessed, if they wish to controvert the allegations in the bill, or to set up any defense except such as has arisen since the entry of such order. Christie v. Bishop, 1 Barb. Ch. 105, 5:316 96. Where a party, by a slip, has lost the opportu- nity to set up a mere teohniril or unconscientious' defense, and comes to the court for a favor, whicli it is necessary should be granted to enable him to* set up such a defense, the court of chancery will re- quire him to do equity, as a condition of grantinie th" favor asked. Hartson v. Davenvort, 2 Barb. Ch. 77, 5: 563 S. C. 6 Ch. Sent. ^, 5: 1»11 97. Chancery will not open a regular default t* enable a defendant to set up usury as a defense, ex- cept upon the condition that he waives the for- feiture, and only insists upon the defense of usury to the extent of the usurious premium paid or agreed to be paid. National F. Ins. Co. v. Saekett, 11 Paige Ch. 660, 5: 87» Quiney v. Footi 1 Barb. Ch. 496, 5:471 Waft V. TFaft, 2 Barb. Ch. 371, 5: 67» 98. Where a decree has been taken against a de- fendant for want of appearance, after a persona! service of the subpoena, the court is authorized ta> impose such terms as it thinks proper upon the de- fendant, as a condition of opening the decree. Gerard v. Oerard, 2 Barb. Ch. 73, 5: 561 S. 0. 6 Ch. Sent. 55, . 5: 1211 99. It may require the husband, in a suit against him by his wife for a divorce, to give security for the payment of ad interim alimony to her pendente^ lite, as well as an allowance for the necessary ex- penses of her suit. Ibid, 100. If the bill is taken as confessed against the de- fendant as an absentee, without an actual service of the subpoena, thecourthasno right to require pay- ment, or security for the payment, of anything be- yond the necessary costs and expenses of the suit,, as a condition of letting him in to defend, pro- vided he makes bis application within the time prescribed by the statute. Ihid. 101. After a default has been regularly entered in at foreclosure suit.it will not be opened for the purpcjse of enabling the defendant to set up as a det'euse that the mortgage was given in violation of the restrain- ing law, except upon the terms of paying the mon- eys or property actually received from the morcga- Bard v. Fort, 3 Barb. Ch. 632, 5: 103* 102. Where a part of the mortgaged premises i» claimed by a, feme covert as her separate estate, the court will not set aside a regular default in a fore- closure suit, to enable her husband to set up an un- conscientious defense to the whole suit, but will make such an order as will protect the wile's claim, to her separate estate In that portion of the prem- ises. Ibid, 103. The party who wishes to set aside a regular default or decree on the ground that he has a meri- torious defense must state the substance of such, defense in the affidavit on which his application is founded, or must show the facts, upon oath, insom.& other form, so that the cpurt may see what the al- leged defense is, and be able to form an opinioa whether the defendant has a meritorious, or only a mere technical defense, or whether he has any de- fense whatever to the suit. Winshiv v. Tewett, 1 Barb. Ch. 173, 5: 343- 104. It is not a matter of course, in the court of chancery, to set aside an order taking the bill a» confessed, merely upon an afiSdavit of merits, even before a decree in the cause. And where a final de- cree has been entered, if the defendant applies to set aside his default and open the decree, he must, upon the motion, produce the answer he proposes, to put in, so that the court may be satisfied as to- the sufficiency thereof, and be apprised of thr na- ture of the defense. Wells V. Oruger, 5 Paige Ch. 164, 3: 671 105. The court of chancery does not open an or- der to take the bill as confessed in a foreclosure suit, or in any other case in which the defendant has an interest to delay the proceedings, on a mer& affidavit of merits, although the default is excused. But the sworn answer which the defendant intends to put in must be produced, or he must state in his alhdavitor petition to open the default, the nature of his defense, and his belief in the truth of the mat- ters constituting such defense. Hunt V. Wallis, 6 PaigeCh. 371, 3: 102S 106. The affidavit of the soUoitor, showing a meri- torious defense and the nature thereof, is not suffi- cient unless he is himself acquainted with the facts; and even then a sufficient excuse must be shown for not producing the affidavit or sworn answer of the defendant. Ibid^ PRACTICE, VI. d, 1, a. iSl 107. Where a default has been entered contrary to a verbal asrreement entered into between tlie sulio- Itors for the respective parties, the court cannot take such agreement into consideration in deciding- upon the regularity of the default, if the objection is insisted upon that the agreement was not in writing, or in conformity to the 121st Sule. Wager v. StiA^le, 3 Paige Oh. 407. 3: 308 108. The court will, however, take Into considera- tion the fact that the solicitor relied upon such verbal agreement, when that fact is set up merely as an excuse, to enable the party to have the de- fault set aside upon the merits, and upon the usual terms. Ibid. 109. Where the defendant's default is sufBciently ao counted for, and he has a valid defense to the suit if the answer sworn to by him is true, it is erroneous to require, as a condition of letting him in to defend, that he should stipulate to stay the proceedings upon a j udgment which he has recovered against the com- plainant, without security, when the effect of such stipulation will be to discharge a surety who is al- ready liable for the debt if it cannot be collected of the complainant. Mumford v. Sproffite, 11 Paige Ch. 438, 6: 191 d. Taking Proof. 1. Generally. See also Pboduction and Inspection of Books. 110. One defendant cannot enter a rule to pro- duce witnesses until the cause is in as f orw£ird a state as to the other defendants. VermiUya v. Odetl, 1 Edw. Ch. 617, 6: 867 111. It is the duty of the examiner to inform a witness of his legal rights. Taylor v. Wood, 2 Kdw. Ch. 94, 6: saa 112. Counsel have no right to advise a witness who is before an examiner, that he is not bound to answer a particular question. Ibid. 113. If the witness objects he should demur. Ibid. 114. Where the defendants in a suit have conHiot- Ing claims arising out of the subject-matter of the suit, as to which the decree will be conclusive, they should be permitted to take proofs, to establish the facts as against each other, as well as between them- selves and the complainant. IVebh V. Pai, 3 Paige Ch. 368, 3:191 HP.' ■Proofs rannot resrnlarly be taken as to one of the defendants In a cause, to whose answer a repli- cation has been filed, until the answers of the other defendants have been put in, or the bill has been taken as confessed against them. yermillyea v. OdeK, 4 Paige Ch. 121, 3: 370 116. Where, at the hearing of a cause, and after the argument had been finished in part, an objec- tion was made to the competency of a witness whose deposition, taken before an examiner, had been read, the court allowed the plaintift to prove the exeoutiou of a release, by the witness, of all his interest, by the examination of a witness viva voce. without any previous order or notice for that pur- pose. Barrow v. Bhinelander, 1 Johns. Ch. 559, 1: 345 117. A witness may be examined viva voce, at the hearing, for a particular purpose; as, to prove exhibits which had not been proved before the examiner. Ibid, 118. But the regular way is to sei-ve a previous ■ order for that purpose, or notice, on the opposite party, four days before the hearing. Ibid. 2. Kme for ; ClOBlng Proof. 119. Where notice of the order to produce wit- nesses has been served upon the agent of thesolici- tor for the opposite party, each party has double the usual time to produce his witnesses. James v. Berry, I Paige Ch. 647, 3: 786 120. If the adverse party wishes to shorten the time, he must obtain an order upon his part, and serve notice thereof upon the opposite solictor, either peiBonally or by leaving the same at his of- fice. Ibid. 131. When a party knows that a particular witness upon the other side will be examined, and knows what the substance of his testimony will be, and has had an opportunity to examine his own wit- nesses as to the same facts, but neglects to ex- amine them, the order for examination of wit- nesses will not be extended to enable him to intro- duce testimony to explain or avoid the effect of the testimony of such witness after it has been/ taken. JeweU. V. Albany City Bank, C. 57, 7: 50- 12S. Where one of the i)arties has obtained a spe- cial order enlarging the time to produce witnesses beyond the forty days limited by the original or- der, the 86th Rule does not preclude the adverse party from s.pplying ex parte for a similar order, at any time before the time limited by the extended order hns aotunlly expired. Osgood V. Joslin, 3 Paige Ch. 195, 3: lis 123. If one party obtains an order to extend the time to produce witnesses. It operates as an en- largement of the forty-day rule; and both parties have a right to take testimony during the extended time. Ibid. 134. Where an ordertoproduce witnesses had been extended by the agreement of the parties, it was held that an order to extend the time to produce witnesses, obtained upon an applicallon ex parte to the chancellor, after the time limited in the first order had expired, but before the expiration of th& time as enlarged by the agreement, was regular. Fitch V. Hazeltine, 2 Paige Ch. 416, 3: 969 125. But where the agreement to enlarge the time to produce witnesses contained a stipulation that the defendant should have fifteen days to produce testimony on his part, after the examination of a witness named on the part of the complainant had closed, — it was held that this f alct should have been stated in the affidavit presented to the chancellor upon the ex parte application, in order that a simi- lar provision might nave been inserted in the order granted by him. It was also held that the affidavit should have stated that the time to produce witness- es had been once extended by stipulation, that the chancellor might have taken this circumstance inta consideration in deciding upon the propriety of granting further time. Ibid. 126. On a motion to open the proofs and Introduce further testimony after the hearing of a cause, it is necessary that the party shall depose to his igno- rance of the existence of the testimony at the time of the hearing. The solicitor's affidavit to that point is insufficient. Bogardus v. Trinity Church, 4 S. 369. 7: 1137 127. Where a commission to examine witnesses has not been returned, it will be necessary to make an app'ication to the court to extend the time for clos- ing, me proofs; otherwise, they can be closed as in ordinary cases. Bamelt v. Pardow, 1 Edw. Ch. 11, 6: 41 128. Under an order to produce proofs, the right to close the proofs at the expiration of the time limited by the practice of the court is reciprocal in the re- spective parties. And where an order requiring the defendant to produce proofs within forty days after service of notice thereof is served on the de- fendant's agent, neither party can enter an order to close the proofs until after the expiration of ei-'htv days. Johnson v. Quacfcenbusft, 1 Barb. Ch. 293, fi 390 S. C. 5 Ch. Sent. 56, 5: 1184 129. Where an orderextends thetimefordoingan act for a certain number of days, without saying after service of the order, the time for doing the act is restricted to the number of days mentioned therein, whether the order is served personally, or is served by mail, or upon the agent of the adverse solicitor. ibid. 130. After the proofs in a cause have been closed ex parte affidavits cannot be received for the pur. pose of proving that a release of awitness's interest was executed and delivered to the witness previous to liis being examined. Utica Bank v. Mersereau, 3 Barb. 528, 6: 998 131. Affidavits taken ex parte, after a cause has been set down for a final hearing, are inadmissible. Minuse v. Cox, 5 Johns. Ch. 441, 1: 1 135 133. The court of chancery will not open a regular order to close the proofs, and a decree founded thereon for the enforcement of an award, for the purpose of allowing defendant to prove the defense that the arbitrators were not sworn. Winship v. Jewett, 1 Barb. Ch. 173, 5: 343 133. Where the complainants entered an order to produce proofs, and served It on the agent of the defendant's solicitor, and the defendani , (n the last day allowed by the rule for that purpose, applied for and obtained an order extending the time to take proofs for sixty days, which order was served 433 PRACTICE, VI. d, 3—5. on the register as ' the agent of the complainants' 'SOllcitoT; and about forty days after the expiration of the sixty days allowed by this order, the defend- -«nt entered an order to close the proofs,— fleW. that such order was regular. Johnson v. QttacfcenZnwft, 1 Barb. Ch. 292, 6: 390 S. C. 5 Ch. Sent. 56, 6: 1184 134. An order to close proofs will not be extended unless upon good cause shown. Jewett V. Albany City BarUt, Clarke Ch. 57, 7: 50 135. Examination of witnesses after expiration of time to take testimony may be allowed, if ne- ■cessary, to continue, where it had been begun in time. Qreme v. TFTieeler, 2 Sandf. Ch. 60, 5: 1094 136. Where a written agreement set out in the bill was admitted by the answer of one defendant, but was not admitted by the other defendants, who claimed through him; and the complainant's coun- sel, under a misapprehension of the law, closed the prco.'s and brought the cause to a hearing without making formal proof of the written agreement; and the objection being taken at the hearir-g, that the .agreement should have been proved, as against those defendants who had not admitted its execu- tion,— Heid, that the court might suspend the argu- ment, and give the complainant an opportunity to prove the agreement in the usual way before an ^examiner. Desplaces v. Goris, 5 Paige Ch. 252, 3: 707 137. Where a point has not been fully gone Into before the hearing, and a case of suspicion or doubt arises, the court will sometimes put the matter in a tniiu for further inquiry. But, in general, the par- ties must abide by the evidence taiken upon points iHjt in issue. Morton v. Budson, Hoff. Ch. 313, 6: 1166 138. If opposing counsel suggest suspicious cir- cumstances, and ask for an opportunity to impeach a document produced at the hearing, it will oe al- lowed. Cogswenv. Burtis, Hofl. Ch. 198, 6: 1114 139. Where evidence is documentary, and a slip has occurred, it is the usual course to allow the igent, as well as for other purposes, the agent had a power coupled with an interest, which survived upon the death of the cabinet maker while he was abroad, and authorized the agent to sell the prop- erty, for his protection and indemnity, after such death. Knapp V. Alvord, 10 Paige Ch. 205, 4 : 946 3. Held, fmther, that this equitable mortgage of tne property being accompanied with an aoiual de- livery of the property to the agent, aud a oomi n uod possession in him, it was not necessary to flip it us a chattel mortgage to make it valid. Ibid. 438 PRINCIPAL AND AGENT, II.— III. b. 4. The agent of a corporation Is not the agent of the individual stockholders, so as to vitiate a sale of stocks on account of his frauds to which the seller was not privy. Moffat V. Wimiow, 1 Paige Ch. 124, 4: 9» 5. The authority created by the delivery of ao; oommodation indorsements to a person, to biuti Lue iuuui-rter to purtsuus wiio receive the securities in good faith on the credit of the indorsements, is a mere naked power revocable by the constituent. All such powers are annulled by the death of the constituent. Smith Y.Wyckoff, 3 8. 77, 7: 777 II. Power of Attoenbt. 6. A power of attorney to assign a mortgage seems not to be a power to convey lands under the 39th section. (Vol. 1, Kev. Stat. 762.) The statute, how- ever, does not make it necessary to record a letter of attorney to convey lands to make a deed under it, if registered, prevail against purchasers; but only renders it evidence, even if recorded but in one county, though it embrace lands in many. Wmiams v. Btrbeck, HofC. Ch. 359, 6: 117!: 7. A letter of attorney, to sign, seal, and deliver a mortgage, etc., anu lu ao auu penurm all lUiiigb necessary and lawful for obtaining a title to land, and securing the consideration money, therefore gives authority to do everything incident to a mort- gage which the party creating the power could him- self do. WHsm V. Troup, T Johns. Ch. 25, 2: a09 8. Where the owners of water lots executed a power authorizing their attorney to fill up and re- claim the same, and to raise money by mortgage of the premises that might be necessary to accom- plish that object, or for the improvement of the estate; and the attorney in 1836 contracted for the filling of a part of the lots, the work to be paid for in cash, from time to time, as it progressed; and in 1840, after the work was done, the attorney, being unable to raise money by mortgage of the premises to pay the balance due to the contractors, mort- gaged a part of the premises to the contractors, to secure the payment of such balance,— Held, that the mortgage was a valid eicecution of the power. Cumming v. Williamann, 1 S. 17, 7: 881 9. One of the constituents was a married woman and discribed in the power as residing in this State, The power was executed by her in Scotland, and in the mortgage her residence was stated to be in Scotland. She was in Europe when her answer was put in, and it did not appear that she had been in this State since the date of the power. Held, that she was a resident of Scotland, and the power valid under the Act of 1835 relative to powers executed by nonresident married women. liHd, 10. A power of attorney is terminated by the death of the principal. OppenJieim v. Leo Wolf, 3 Sandf. Ch. 571, 7: 961 11. It seems that the rule of the civil law, that a power does not expire until the death of the prin- cipal, has not been adopted in the English law. Stlrrwrmaun V. Cowing, 1 Johns. Ch. Z!5, 8:892 12. Where a power of attorney authorizes the person appointed to appoint an attorney under him, and to revoke such appointment at his pleasure, the death of the principal attorney necessarily re- vokes the power of the substitute. TTatt V. Wait, 2 Barb. Ch. 371, 5: 679 13. A power of attorney not coupled with an inter- est to revocable at will merely. The general rule Is that a revocation takes effect, as to trie attorney, from the time that it is communicated to him, and as to third persons, from the time they have notice of it. But the question. What shall amount to such notice? is unsettled. It is 'not necessary that per- sonal information should be brought home to the party. If, with the exercise of ordinary caution, lie would have been led to a knowledge of tlie revo- cation, it will be sufficient. All that is necessary is to put the party upon inquiry. Wniiams V. liirbeck, Hoif. Ch. 359, 6: 1178 14. Where the power is to collect debts, notice to the debtor is in general requisite. Direct notice to the agent, or publication, and a reclamation of the securities should follow, and are the proofs of a rev- ocation. iiM. 15. Under the Registration Act, the note made by the county clerk of the time of delivery for regis- try, and made upon the Instrument, is equivalent to the full certificate subsequently indorsed. A party dealing with an agent or attorney to bound to know the extent of his power, and to bound to inspect the instrument conferring It, especially where there is but one transaction between them. One dealing with an agent is chargeable with notice of the time when the power of attorney was record- ed. ^iM* m. Agent's Authority ; Liability of Pbin- OIPAIi. a. In OeiwrdL 16. No written power to necessary to authorize one as agent of the holder of a morticage to receive a conveyance of the property from the mortgagor and discharge his personal liability upon the bond. Beed v. Marble, 10 Paige Ch. 409, 4: 1031 17. Where the assignee of a bond and mortgage authorized his assignor to deliver them to the mort- gagor upon receiving from him a conveyance of the mortgaged property, if such exchange was con- summated before either the a«ent or the mortgagor knew of the revocation of the agency by the as- signment of the bond and mortgage, the mortgagor was discharged from hto personal liability on the bond. Ibid. 18. Where a bill is filed against a principal on the agreement of an alleged agent, and the answer de- nies such agency, while the testimony tends to sup- port the denial, an advertisement on the premises, which gave a reference to the agent, as well as to the principal, will not be a sufficient implication of a power to make the sale. Morttwer v. Cornwell, Hoff. Ch. 351, 6: 1169 19. A general agent cannot bind hto principal per- sonally for a debt chargeable on the land descend- ed to his principal. Duke of Cumberland v. Codrington, 3 Johns. Ch. 274, 1: ei6 20. Where discretionary power to expressly con- ferred on subordinate agents, it must prevail, and nothing less than fraud will vitiate its exercise. Meads v. Walker, Hopk. Ch. 587, 8: 533 21. Where the power of such agents is raised by implication, it to subject to the supervtoiun of law, both for fraud and for error. IMd. b. As to Contracts OemraUy. 22. Written authority from the vendor to not re- quired to enable the agent to make an executory contract for the sale of land. ClumipUn V. Parish. 11 Paige Ch. 405, 5: 178 23. The authority of an agent to sign an agree- ment for sale of real estate need not be in writing. But the testimony should very clearly establish the authority to make the contract substantially as made. Mortimer v. Cornwell, Hoff. Ch. 351, 6: 1169 24. Where the supercargo and agent of a mer- chant here delivers goods to a merchant abroad, for sale, and the agent settles with the merchant abroad, according to the account stated by him, with full knowledge of all the facts, without any fraud or imposition, the principal here to bound by the act of his a^ent, and is concluded from any f ur- t^ier claims against the merchant abroad, especially after having kept the account for several years, without making any objections to It. Mwrray v. Tolamd, 3 Johns. Ch. 669, l! 719 25. An agen t for a State, who to authorized to bor- row money upon a sale of Its stocks, cannot, with- out an express authority from the State, sell such stocks on a credit. State V. Delafleld, 8 Paige Ch. 527, 4: 589 26. As a general rule, an agent for a sale must sell tor cash, unless he has an express authority to sell upon credit ; but an authority to sell on credit may be implied where, from the general usages of the trade in which the agent to employed, it to the cus- tom to sell on credit. Ibid. 27. Where the agents of a State have made an un- authorized contract for the sale of its stocks on credit, or below their par value, to a purchaser who IS chargeable with notice of the want of authority on the part of such agents to make such sale, the State may repudiate the contract. Ibid. 28. Where goods were consigned by •* person PRINCIPAL AND AGENT, III. c-IV. c. 439 abroad, to a firm or copartnership bere, which was, «t thf time, dissolved, but that fact unknown to the conslKnor, wbo directed them to be sent to C, and one of the firm received the bill of ladln(r. took (Possession of the goods, and transferred them to H, under color of a sale, in payment of his own debt,— Helti, that the Arm being diaaolved at the time the bill of lading was signed and the ?oods shipped, they never came into the possession of the con- signees named ; and that the individual partner took them, not as a member or authorized agent of the firm, but as an agent or trustee of the consignor ; land, having no right to pledge or sell the goods for the security or payment of his own debt, the trans- 4:er to H was fraudulent and void. Stimermaun v. Cowing, 7 Johns. Ch. 275, 8: S98 0. Representations. 29 The declarations and representations of a sup- posed agent are not admissiole to piovB the fact of agency as against the alleged principal. So ?ielij where, upon a negotiation for a loan upon bond and mortgage, one represented himself as agent of the borrowers, and obtained a bond and mortgage from them to himself by fraud, which be assigned to the 4ender. EUts V. Messervle, 11 Paige Ch. 467, 5i 800 d. Ratification; Ad(yption. 30. Where a person without authority assumes to act as an agent of another, the one for whom he as- sumes to act cannot claim the benefit of his agency to part and reject It as to the residue of the same transaction. Benedict v. Smith, 10 Paige Ch. 126, 4: 913 IV. BiOHis, Duties, and Liabilttt or Agent. a. In General. 31. A bailee or agent who baa received property as fluch is at all times at liberty to show that his bailor i« purchaser or mortgagee, before any loss has accrued, the agent has no lien upon the insurance money, as against such assignee, for a general balance due from the assignor, Bogers v. Traders Ins. Co. 6 Paige 583, 3:1111 65. Where a person was entitled to a share of the personal estate of an intestate, and the agent of other persons entitled also to portions of such es- tate had received all the proceeds of the same, and remitted the whole to his principals, and afterwards there came into his hands a portion of the proceeds of the real estate which belonged whoUj' bo his prin- cipals, — it was held that such person, whose share of the personal estate had been so paid by such agent to his principals, had an equitable claim upon the proceeds of the real estate in the hands of the agent Duffy V. Buelumnan, 1 Paige Ch. 453, 9: 718 56. The agent is not liable for the payment to his principals of the share of the personal estate which did not belong to them, having paid the same with- out notice. Ibid. 57. The remedy of the person entitled to the share of the personal estate so paid by mistake to the prin- cipals is against such principals or the personal representatives of the intestate. Ibid. 58. The pi aintiff and others formed an association for manufacturing cotton yam and cloth, and ex- ecuted articles of agreement as to the mode of man- aging and conducting their business. Held, that the company could only act by a resolution of the board of directors, or by a general agent duly ap- pointed according to the articles of their associa^ Hon ; and that the plaintiff, who had been elected president, and was ex officio a director, having en- tered into a contract, under his hand and seal, in behalf of the company, without such authority from the board of directors or the consent of the members, it did not bind his associates, but the plaintifE was personally and individually liable. Skinner v. Dayton, 5 Johns. Ch. 351, 1: 1106 69. Where the ijlaintifl, who had so entered into a contract with the defendants, for machinery to be- made for the company, afterwards gave notice to the defendants that the company would not pro- ceed, and that the contract was abandoned on their part,— Held, that the defendants were entitled to recover damages for the work done and materials- furLLished by them pursuant to the contract, and- also for the loss and injury actually sustained by them in consequence of the abandonment of the- contract by the plaintiff ; and that the^ were not to be delayed in their right to have their damages assessed and levied by judgment and execution, un- til the question of contribution between the plain- tiff and his associates was settled. Ibid. 60. But {t seems that the plaintiff in such nase, having acted without authority of the directors or of the members of the association, was not entitled to call on the company or his associates to contrib- ute to the damages. Ibid. Editobiai. Notes. Relations between 3: 869' Lien of agent 6:39» Agency presumed to continue 3: 1018 Power of agent, coupled with an interest, cannot be revoked 4: 94ft Delegated authority; ^buse of discretion: court may interfere to prevent 5: 490' Notice to agent is notice to principal 3:873, 6: 109T Person acting for another cannot deal with subject of the agency 1: 184, 189, 3: 1018, 4: 683, 859, 7: 173 Agent cannot act adversely to his principal 7:770i Agent of corporation; authority presumed 3:89& Powers and liabilities 1 : 580 Principal's liability 2:578 Principal bound by acts of agent 4: 913 Purchaser presumed to know authority of agent 1: 63& Protection of principal against agent's frauds 2:595. Agent bound to deliver to principal 5: 74 Recovery from agent of money imoroperly invested * 6: 989i Following funds embezzled by agent 6: 'JIO Demand ta put agent in default 2: 148 Factors not bound to insure goods for bene- fit of consignor 3: 332 Authority given by parol to sell property 4:559' Discharge of principal discharges agent 1: 688 Solicitor or agent; when authorized to col- lect debt 7: 611 PRINCIPAI. AND ST7RETY. I. SuBETTSHip; Liabilities ov Surety. a. Who is Surety. b. LiabiUties a/nd Defenses. c. Release. II. Rights and Eemedies of Surett. a. In General; Against Principal. b. .4.8 to Creditor and Third Parties. Editoriai, Notes. See Bills and Hotes, 18 : Bonds, 6, 10 ; BxECt- TION, 39; HtrsBAND AND Wife, 153-155; In- junction, 133; MORTOAGE, 415; Parties, Vj. Partnership, 20 ; Subrogation, n. I. Suretyship; LiABiLirrEs of Surety. a. Who is Surety. L Kothing short of a written agreement can ten- PRINCIPAL AND SURETY, I. b, c. Ul der one liable a£ surety for the payment of anoth- er's debt, under the provisions of the Statute of Frauds. Pheliis V. Oarrow, 8 Paige Ch. 3Z3, 4: 445 2. A mortgagor Bold the mortgaged premises to one wliu Hssuuied tae pay luetit ol tue mort^aKe, anu he sold them to another who assumed the payment In the like manner. Held, that the mortgagor is not by these transfers made a surety to the mortga- gee without his assent, but as to such purchasers the mortgagor is to be regarded as their surety. Mann V. Pike, 1 S. 210, 7: 899 3. 'Where one of two persons who had purchased certain premises and given a joint bond and mort- gage to secure the payment of the purchase money thereof conveyed to the other his portion of the premises subject to the payment of the mortgage, and took a bond of indemnity against the same; and the latter conveyed the premises, with covenant against incumbrances, etc.; after which be became insolvent and left the State without paying the mortgage,— the land was the primary fund for the S payment thereof, and the remaining obligor on he bond was a mere surety therefor. Clwrry v. Mmiro, 2 Barb. Ch. 618, 5: 775 4. Where an agent purchases land in his own name upon the requesc and for the benefit of his principal, pays part of the consideration, and gives his mortgage for the residue, with a bond in which bis constituent joins, the asrent is a surety for his constituent in respect of such bond; and equit.v will decree that he be paid. his advance and indem- nified against tbe bond and mortgage, on his con- veying the title to the principal. Mrifiawh & H. R. On. v. Cnntigan. 2 S. 306, 7: 604 5. Where one takes property subject to a mort- gage which he assumes and firees to pay, as be- tween him and the mortgagor the latter becomes bis surety in respect to the mortgage debt. Blyer v. Monhollaiid. 2 Sandf. Ch. 478. 7: 669 b. Liahilitiea and Defenses. 6. A surety of a mortgage is not entitled to any notice or demand before making him a party with a view to Ux him. Bvshmore v. MiUer, i Edw. Ch. 84, 6: 806 7. A note payable in buUding and building mate- rials was made by A.with B and u as his sureties,to D, the building and building materials to be furnished after receiving thirty days' notice, which notice was to be given within one year. D transferred the note to E, with guaranty. E employed A to erect a house for him, to be paid in six monthly payments, the three first payments in cash and the note was to apply upon the last. A proceeded with, but did not finish, the building. E paid him the three first pay- ments, in cash, about the value of the work done, when A failed, within one year from the date of the note, and did not complete the building. Beld, that B and C were, notwithstanding, liable upon the note as the sureties of A. Blossom V. Famham, C. 158, 7: 79 8. All defenses available to the principal are gen- erally available to the surety. Bullock V. Boyd, Hoft. Ch. 294, 6: 1148 9. Where a party is attempted to be fixed as a principal in a money bond and the defense is ttial he was a surety only and had required the obligei to sue the other party as principal and such obligee had neglected to do so, this is new matter, and, when put in issue, must be made out distinctly ami beyond all reasonable doubt. A full and explicii notice or request from the surety to the creditor, ti. proceed without delay to collect the amount fron. the principal debtor, must be proved; and, in order to exonerate the surety, it must also appear thai the creditor has improperly refused or neglected to do so, and, by such refusal or neglect the means oi recovering the debt of the principal have been lost by intervening insolvency or from some other cause. Valentine v. FarringUm, Z Edw. Ch. 53, 6: 305 10. The principle of the rule, that where a person Becomes a surety in a note to be used for a partic- ular object, the principal cannot divert it from that object without the surety's assent, applied as be- tween the principal's administrator and the surety, in favor of the latter, to the proceeds of such a note remaining in the principal's hand at his death. Lee V. Bigtaand Bank. 2 S. .311, 7 : 600 11. The rules for the relief of a surety are the same at law as in equity, when the facts are the same. Kino V. Baldwin, 2 Johns. Ch. 554, 1: 489 12. And where a surety who has been sued at law makes his defense, which is overruled as insuflft- clent, he cannot afterwards, on the same facts only, obtain relief in equity. Ibid. 13. A surety, when the debt becomes due, may come into equity to compel the creditor to sue for and collect his debt of the principal. Ibid. 561, 1: 40i» c. Release, 14. An agreement between a creditor and his prin- cipal debtor to extend the time of payment of the debt, without the knowledge or consent of tlie sure- ty,is a discharge of the surety, although the surety has sustained no damage by such extension. Miller v. McCan, 1 Paige Ch. 451, 4: 887 15. A valid and binding agreement by a creditor with tbe pniicipal uebcui', lo stay the proceeding's upon a judgment against the latter, if made with- out the consent of a surety, will, in equity, dis- charge the surety from any further liability to the creditor. Boughton v. Orleans Bank, 2 Barb. Ch. 458. 5: 714 16. If one of two joint sureties assents to such agreemeui; lor a stay of proceedings against the principal debtor, he thereby becomes liable in equi- ty for the payment of the whole debt, as between him and his cosurety, if it cannot be collected of the principal debtor. ibid 17. Any valid and binding agreement between the creditor and the principal deljtor, or other active interference of the creditor, whereby the surety- may be injured or subjected to increased risk, or be deprived of or delayed in the assertion of his equitable claim to pay the debt and become subro- gated to the rights and remedies of the credit^T against such principal debtor, if it is made or done without the assent of such surety, — will in equity discharge him from his liability. Bangs v. Strong, 10 Paige Ch. 11, 4: 866. 18. But mere delay, or a promise of delay, not founded upon a new consideration, or the taking of a collateral security from the principal debtor without any stipulation to extend the time of pay- ment of the original debt, will not discharge the surety. . Ibid.. 19. Although the agreement with the principal debtor is executed by only one of two joint credi- tors, and without the consent of his cooreditor, it will nevertheless operate as a discharge of the sure- ty if it has the effect to prejudice the right of such surety to substitution without his assent. Ibid. 20. But where such agreement is obtained from the creditor by the principal debtor upon the false representation of the latter that the surety had au- thorized him to make it, and the surety afterwards- refuses to assent to the agreement, the creditor will be at liberty to repudiate it ; in which case the sure- ty will not be discharged unless the creQitor pro- ceeds to act under the agreement after notice that it was entered into without the authority of the- surety.and that such surety had refused to assent- to the same. ibid. 21. The creditor may, without impairing his right- against the surety, stipulate with the principal debtor to give him time of payment upon condition thatthe surety assents to the same ; and in such case, if the surety refuses to asseat to the agreement,, such agreement will be inoperative. Ibid. 23. An agreement with the principal to extend the- time of payment, which will have the effect to dis- charge his sureties, must be an agreement which, the principal can enforce as a binding agreement between him and the creditor, and must be founded upon a sufficient consideration. Vilas V. Jones, 10 Paige Ch. 76, 4: 898 23. Where the creditor agrees to give time of pay- ment to the principal debtor, in consideration that he will pay a part of the debt, where the whole is payable immediately, or that he will pay interest on . the debt when he was by law previously bound to pay interest,or in consideration of a parol promise which is void by the Statute of Frauds, or in con- sideration of an executory promise to pay a usu- rious premium at a future time,— such agreement to extend the time is not founded on a sjjfBcient consideration to support it, and will not discharge- the sureties ; but an agreement with the principal debtor to extend the time of payment, without the- consent of the sureties, founded upon a usurious premium for the forbearance, which premium is 442 PRINCIPAL AND SURETY, II. ft, b. ■actually paid to the usurer at the time of maklQg the agreement,— is a sufficient consideration to sup- xiort the agreement, and will discharge the suretgr. Ibid. 24. Where the creditor, without the consent of the surety, makes a valid and binding contract with the principal debtor to give him further time of payment, the surety is discharged. SaiUy V. Elmore, 2 Paige Oh. 497, »: 1004 25. So, be will be discharged by any arrangement between the principal uoutor auu tne creuitur, which operates as a fraud upon the surety ; as, where the money has been offered to the creditor, and he, without tne consent of the surety, requested the debtor to retain it longer. So, where the cred- itor fraudulently colludes with the debtor to con- ceal from the surety the fact of the nonpayment of the debt, until the debtor becomes insolvent. Itrld. 26. But a mere consent of the creditor to a delay because the principal debtor has not the ability vo make immediate payment, and without any new ■consideration, does not discharge the surety. IJrid. 27. Where the creditor, without the consent of Tthe surety, makes a binding agreement with the .principal debtor to extend the time of payment of the debt, the surety is discharged ; and this rule - -extends to those cases where the surety only pledges his property for the debt of the principal, as well as to those in which the surety becomes personally bound. Neimoewiiiz v. Oahn, 3 Paige Ch. 614, 3: 395 38. Whether a mere extension of time which does not injure the surety will discharge him or his estate, in cases where the rights and duties of the parties are not regulated by contract between them,— gucBre. Ibid. 29. if a creditor, without the consent of the ;surety, relinquishes a subsidiary security which he holds against the principal debtor or his estate, he discharges the liability of the surety pro Umto. Ibid. 30. But if the fact of suretyship does not appear upon the face of the contract, the liability of a surety will not be discharged, either by extending indulgence to the principal debtor, or by the re- linquishment of other securities, if the creditor at -the time of the act complained of did not know that he stood in the situation of a surety. Ibid. 31. When a holder of a note with sureties has given time to the principal or maker for payment, without the assent of the sureties, such indulgence discharges the sureties. Holmes v. Vole, Clarke Ch. 71, 7: S4 32. Mere delay of the creditor to call on the principal debtor for payment will not discharge the surety. Kirig v. Baldwin, 2 Johns. Ch. 534, 1: 489 33. But if the creditor, by express agreement with the principal, varies the terms of the con- tract by enlarging the time of the performance, without the assent of the surety, the latter is dis- charged. Ibid, 34. Although the UablUty of a surety is reduced to a judgment agrainst him, yet his rights of subroga- tion and substitution continue; and the creditor cannot give time to the principal without discharg- ii^ the surety. Delaplaine v. HitcTicoek, 4 Edw. Ch. 321, 6: 898 IL Eights and Remedies op Surety. a. In General ; Against Frinci-pal. 35. A person who pays money as surety for an in- solvent corporation is entitled to be paid ratably with other creditors, although he is not compelled -to pay the claim tor which he became liable as sure- ty, until after the appointment of the receiver. Be Orotun Ins. Co. 2 Barb. Ch. 360, 5: 674 36. Where an indorser of a note discounted by the Utioa Insurance Company, not being an incor- porated banking association, 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 unincorporated banking associations (2 N. R. L. 235, Sess. 36, chap. 71), the bond and judgment were deemed valid; and the court refused to Interfere, at the instance of a pur- chaser under a sul)sequent judgment, to prevent the indorser from obtaining payment of the judg- ment to him, he having been sued as indorser and ■a judgment recovered acainsthim. Parker v. Rochester, 4 Johns. Ch. 329, 1:856 37. Where there is a judgment on a bond against co-obligors, one of theui ueing a surety, the bond merges in the judgment and the surety can have no redress back against the principal obligor under such bond or on the judgment. Davis V. Perrine, 4 Bdw. Ch. 62, 6: 798 38. As surety for one who has purchased land and assumed ptiyiueut of a mortgage theivou, alUsr the debt has become due, the mortgagor may come into this court and compel the purchaser, as the princi- pal debtor, to pay the debt. Marsh v. Pike, 1 S. 210, 7: 899 39. As the mortgagee could in equity recover any deficiency in his mortgage money from either or ' the subsequent purchasers, the mortgagor, on pay- ing up the mortgage, would be entitled to enforce it m his own name against those purchasers. Ibli. 40. Whether a surety for a debt which is secured by a mortgage of lanus of the principal can compel the creditor to foreclose his mortgage when due, before calling upon the surety, — ctuwre. Ibid. fL In an ordinary case of suretyship for a debt which is justly due, if the principal debtor neglects to pay it at the time stipulated in the contract, the surety may file a bill against such debtor and the creditor, to compel the former to pay the debt and the latter to receive it, and thus to relieve the sure- ty from further liability. But this principle of equity is not applicable to the case of a surety in a bond to the government, where a breach of the condition is a forfeiture of the whole penalty of the bond J as the court of chancery will not iendits aid to enforce a forfeiture or penalty against the principal in the bond before the surety has become absolutely fixed with the payment of the penalty by the recovery of a judgment against him as such surety. 00)68 V. Mennard, 6 Paige Ch. 258, 3:977 42. A surety cannot sue the principal debtor for his indemnity or discharge before the debt is due. Campbell v. Macomb, i Johns. Ch. 538, 1: 989 43. As, where a mortgagee, holding a mortgage as a trustee for others, was also a guai'uui.y or surety for the debt, and the mortgaged premises were in a state of ruin and decay from storms, and the security thereby rendered precarious, yet he cannot file a bill for the sale of the property, the debt not being due or the mortgagor in default. 16m!. 44. A surety who is entitled to be subrogated to the rights and remedies of tiie creditor as u^uinst tlie principal debtor may, if he does not actually pay or discbarge the debt, make a valid agreement with the creditor that the latter shall proceed by a cred- itors' bill against the principal debtor to collect the debt from him, and thereby to relieve him as sure- ty; although the arrangement between the creditor and surety is such that the suit upon the creditors' bill is substantially for the benefit of the surety, and for his indemnity. Speiglemyer y.OranJford, 6 Paige Ch. 254, 3: 975 b. As to Oredttor and Third Parties. 45. In the absence of fraud or failure of title, a surety who guarantees notes given on the purchase of lands, cannot be relieved on the ground of hard- ship, inadequacy of consideration, or extravagance of price. Oister V. Griswold, 4 Bdw. Ch. 364, 6: 907 46. Sureties upon a usurious note joint and sev- eral in its obligation may file a bill asainst tne usu- rious lender, to discharge themselves from their obligation upon the note, without making their principal a party to the suit. Beqgs v. Butter, C. 517, 7: 188 47. Where a surety takes a mortgage from his prin- cipal to secure hiiusell^ agaiust liauility as surety, and includes in such mortgage a debt due to himself, as well as the indemnity against the principal's debt for which he is surety, as between himself or his voluntary assignees, and the creditor for whose debt he stands as surety, the latter is entitled to be first paid out of the proceeds of the mortgage. Ten Eyck v. Homes, 3 Sandf. Ch. 428, 7: 907 48. Where a surety took a confession of judgment for his indemnity from the maker of two notes which he had undersigned, sold the maker's proper- ty on an execution thereon, and received the pro- ceeds in the promissory notes of the purchasers of such property,— Held, that he was in equity a trus- tee of the last-mentioned notes for the holder of the obligations upon which he was surety: and that PRIORITIES-PROCESS. 443 on his transferring such notes in payment of a pre- cedent debt of his own, or as security for such a 4ebt, the transferee could not retain them as against the prior equity of the principal creditor, on the . faith of whose debt they had been realized. The latter has the prior and superior equity, and it must •prevail over the legal title. Clark V. Ely, ZB.im, 7:550 49. This was held in the case of a bank which dis- counted the trust notes, and applied the piooeeus ■on a subsisting Indebtedness, but without relin- quishing any security or property. And also In re- spect of a judgment and execution creditor who re- ceived such notes in payment, without notice of the trust, but who did not discharge his Judgment or execution, or prove that he relinquished any lien or security in the transaction. Ibid, 50. As between the principal debtor and his surety, the property ot the former is primarily liable, and sliould be first resorted to, for the payment of the debt. And where the sheriff, with a full knowledge of the facts, willfully violatestheprinciplesof equi- -ty in this respect, the court of chancery, upon a ' bill filed for that purpose, will relieve the surety, if the surety cannot obtain satisfaction for the injury by an action upon the case against the sheriff. Brmghton v. Orleans Bank, 2 Barb. Ch. 458, 5: 714 51. Whether one of the defendants in an execution who is a mere surety for his codefendant, has any remedy in the court of chancery against a sherllf who has an execution against both, and who, with the knowledge of the fact that one of such defend- ants is primarily and equitably liable for the whole debt, neglects to sell the property of the principal debtor, whereby the same is lost, and where such sheriff Is subsequently proceeding upon the execu- tion against the property of the surety.—iittBre. Ibid. 52. Whether the surety can compel the creditor to resort first to the principal debtor, and exhaust bis remedies against him before resorting to the -surety,— OMCBre. Hays V. Wa/rd, 4 Johns. Ch. 123, 1: 786 53. Where the surety apprehends danger from the delay of the creditor, he may compel the cred- 'itor to sue- the principal debtor; at least, on in- demnifying the creditor for the consequence of risk, delay, or expense. Ibid. 54. A creditor in New Jersey, where all the par- ties resided, took from the maker of a promissory note indorsed by the plaintiff, a bond and mort- gage, which was ample security for the debt, and, instead of resorting to the mortgage or the princi- pal debtor, sued the plaintiff (who was transiently m this State) at law. This court granted an injunc- tion to stay the suit at law, untU the creditor had pursued his remedy on the mortgage in New Jer- :sey. Ibid. Editorial Notes. Jurisdiction of equity 1 : 487, 3 : 1004 Mortgagor and purchaser of equity of re- demption as principal and surety 7: 299 Defenses of surety 6: 907 relief from usury 4 : 393 Rights of surety whose property only is bound 3:396 Remedies of surety 7: 899 may resort to his immediate principal 1:856 action against principal 7: 399 right to sue for his indemnity 1 : 938 equitable right to compel collection by creditor 1:487 may file bill for relief from liability 8: 977 of cosurety 3: 886 contribution between 1:190,936, 6:798 JJischarge of obligation of surety 3: 1004, 6: 305, 7: 393 by reli^ase of principal by a ward after ma- jority 3: 113 aftQr judgment 5: 714 by extension granted to debtor 1: 487, 3: 396, 4: 337, 866, 893, 7: 800 Discharge of surety by changing contract with principal 1:487,4:866 by releasing securities 4: 867 by release of fund 3 : 396 by taking new security 8: 296, 635 by taking collateral securities 4: 867 Joined with principal in suit on bond 3:640 All rights of parlies determined in one suit 3: 1086 PRIORITIES. B Cbeditoks' Bill, VIII. : Debtor and Credi- tor ; Execution, I. f ; Executors and Ad- ministrators, IV. a, 3; Insolvency and Assignment fob Creditors, I. e, IT. bj JUDQMUNTS, ETC., III. b; MOBTQAQE, H, Editorial Notes. Priority; where equities are equal, that which is prior in time prevails 4: 613, 637, 5: 776 Interest to which equitable doctrine does not apply 6: 681 PRISONER. See Execution; Sheriff. PRIVILEGE. See Pleading, in. a, 4; Witnesses, IL PRIVILEGED COmmUNICATIONS. See Evidence, IX c. PROBATE, See Executors and Administrators; gates ; Wills, I. f . SUBBO- PROBATE COURTS. See also Subrogates. l.Upon appeals from surrogates, under Act March 21, 1828, this court is to proceed as tue late court of probates might have proceeded, and as right and jufltice shall require. Vanderheyden v. Beid, Hopk. Ch. 408, 8: 467 2. There are no records of the late court of pro- bates showlug wbat course that court would or might have taken, in the case of a contested and doubtful question of the sanity of a testator. Ibid. 3. Both the court of probates and the prerogative court of the colony were formed upon the model of the ecclesiastical courts of England, as to the subjects of their jurisdiction ; but it does not ap- pear that they were bound to follow the practice of those courts. Ibid. 4. This court, having the like jurisdiction, may exercise it by such methods of proceeding as are usual and not forbidden by the Constitution and laws. Ibid. PROCESS. See Aeeebt ; Assistance, Wbit of ; Execution ; Injunction; Writ and Process. 411 PROCHEIN AMI— PRODUCTION AND INSPECTION OF BOOKS, ETC. PROCHEIN AMI. See Husband and Wife, 226-228, 349: Infants* 100, 102. PRO CONFESSO. See JnuOMENTS, etc., I. a; Practice. PRODUCTION AND INSPECTION OF BOOKS AND PAPERS. See also Contempt, IS, 16 ; Discovert : Befer- ENCE, 36. 1. It is the practice of the court to order dee(]s and papers contested as false and fraudulent to be brought into court for inspection. Aptliorpe V. Comstock, Hopk. Ch. 143, H: 372 2. It is a matter of course to allow the complain- ant to Ind. ect the books and puperg ot tne uexcua- ant, referred to in his answer, and thus made a part thereof. And the defendant may be compelled to produce them within a reasonable time, although they are in the hands of his agent in a foreign country. Eagar v. Wtewial!, 2 Paige Ch. 369, 2: 947 3. A party is not entitled to copies of deeds or other exhibits referred to in the interrogatories of the opposite party, until publication. Exhibits, however, ou^ht to be sufficiently described in the interrogatories, 80 as to enable the adverse party to know what is intended to be proved, and to put him on all due inquiry. Troup V. Bai^ht, 6 Johns. Ch. 335, 2: 142 4. Where a bill is filed by an executor for a set- tlement of his accounts, and for disclosures as to distribution, etc., the defendants are not entitled, on petition, to an inspection of the accounts and vouchers of the executor, to enable them to an- swer the bill. Denning v. Smith, 3 Johns. Ch. 409, 1: 665 5. To entitle the plaintiff, before hearing, or publication, or issue joined, to call for tue inspec- tion of papers, accounts, etc., it is notsufflcient that there has Deen a general reference to them in the answer, or in the schedule annexed to it. They must be described with reasonable certainty in the answer, or in the schedule annexed to it, so as to be considered, by the reference, as incorporated in the answer, whicn must admit them to be in the posses- sion or power of the defendant; and it must appear that the plaintiff has an interest in the production of the papers, books, or instruments sought after. Watson V. Renwick, 4 Johns. Ch. 381, 1: 875 6. Where the Intention of the court is to permit a party to produce or deliver over books and papers, or any other thing, on his own ex parte affidavit merely, he is directed to produce and deliver the same on oath generally. Hallett v. HaUett, 2 Paige Ch. 432, 8: 976 7. But where it is referred to a master to super- intend the production or delivery, or the party is directed to produce and deliver on oath before a master, or under the direction of a master, all par- ties interested in the production or delivery may examine such party as to the fact whether the order of the court has been fully and fairly com- plied with. Ibid. 8. In such cases the master should allow a reason- able time to inspect the books and papers delivered, and to prepare interrogatories for the examination of the party if necessary. ibid. 9. Previous to a final hearing of a cause, the court only orders the production of books and papers upon two principles,— security pending the litigation, and discovery or inspection for the pur- poses of the suit. Watts V. iMwrence, 3 Paige Ch. 159, 3:97 10. In ordinary cases the complainant cannot be compelled, upon motion, lO sudiuic his books, or other documentary evidence in his possession, to the inspection of the defendant, to enable the latter to answer the bill and make his defense in the suit. But if the complainant, upon request, refuses to permit the defendant to Inspect such books or doc- uments, he cannot afterwards object that the an- swer is insufficient in not stating their contents. And where the books or documents of the com- plainant are material for the defendant's defense ot the suit, the defendant must file a cross-bill against the complainant for the discovery of them. Kaiv V. Eckford, 5 Paige Ch. 648, 8: 82# IL The rule Is different as to partnership books and papers, to the inspection of which boLU pai'Uc6 liave an equal right, but which are in the hands of one of the copartners, or of his assignees or repre- sentatives. In such a case, upon the application of either party, and in any stage of the suit, the ad- verse party will be compelled to deposit the part- nership books and papers, which are in his posses- sion or under his control, in the hands of an officer of the court, for the inspection of the party mak- ing such application, and that such party may tp.kc; copies thereof, if necessary. Thiil, 12.1n courts of law it Is a matter of course to com- pel a party who has the possession of a docuiuui.c belonging equally to both, to produce the same fui- the inspection of his adversary, for the purposes of the suit. . Ibii'. 13. Where books and pa,per8 in the hands of a third person are wanted as evidence upon a reference to a master to appoint a receiver, the proper course is to compel the person in whose possession they are, by a subpoena duces tecum, to attend before the mas- ter with such books and papers, and to give evi- dence in relation thereto Morley v. Qreen, 11 Paige Ch. 240, 5: 122 S. C. 4 Ch. Sent. 59, 5: 1154 ' 14. But neither the master nor the court would, in that case, have the right to compel the delivery of the books and papers to the master for any other purpose than as evidence on the reference. IbicL 15. Where the complainant wishes to obtain the custody of books and papers in the hands of a third person, the proper course is to make such person a party defendant. Jbid. 16. Where a deed or instrument which a party wishes to prove as an exhibit is in the hands of a third person who will not produce it voluntarily for that purpose, the proper course is to compel him to produce it by a subpoena duces tecum. ^ikinv.JMartin, 11 Paige Ch. 499, 5:212 S. C. 5 Ch. Sent. 6, 5: 1166. 17. A witness who is required, by asubpcBna dtjces tecum, to atteud betuit: au exanimer ana producu a paper in his possession as evidence in a cause, is not bound to produce such paper until he has been sworn as a witness, to enable him to state upon oath the reasons, if any there are, why he should not be compelled to produce the paper in evidence. Ibul. 18. But if the reasons thus stated by the witness upon Ills oath are uuuideU by tne examiner to ho insufficient, the witness mustproduce the paper in evidence, or the court will compel him to atteud again before the examiner, and produce the paper, and pay the costs occasioned by his former refusal, if the decision of the examiner is found to have been correct. Ibid. 19. A party at law, who wants the production of booKs, accounts or letters to aid him, should (un- der the statute) apply to the court in which the ac- tion is brought. As such court can order the pro- duction of theiti . equity will not entertain a bill of discovery for tuC purpose. Fitzhugh v. Everingham, 2 Bdw. Ch. 605, 6: 520 20. The production of documents by the defend- ants on motion, for the purpose of aiding the com- plainant m sustaining ijis suit, is in tne nature ot an exception to the defendant's answer: and where an exception would not be sustained if the bill had called for a full statement of the document in the answer, a motion for its productibn will not be granted, although the answer admit its custody. Carpenter v. Benson, 4 S. 496, 7: 1184 21. Such production will not be ordered, theref orCv where an answer on oath is waived. Ibid. 22. In respect of documents belonging to the com- plainant which may be material to him on a refer- ence, and which are withheld from him by the- defendant, the court will order their restoration, with a provision that no use be made of the order, or the fact of restoration, or any circumstance con- nected with it, by way of evidence in the cause. Thin. 23. A rule to produce certain bonds before the examiner, for the inspection of the opposite party- will not be granted where the existence of one of the bonds is denied, and the other is denied to have PROMISSORY NOTES— PUBLIC POLICY, PRINCIPLES OF. 445 been received by the plaintiff for the purpose al- leged by the defendant ; but a oross-bul or bill of ■discovery is the proper remedy. iMpton V. Johnson, Z Johns. Ch. 439, 1: 436 24. In suits against a guardian, he is not com- pellable to produce before the master his boolis of account containing entries of his private oonoernB. CUwlacm v. De Peyster, Uopk. Ch. 424, 8: 473 25. Where a defendant seeks the production of documents or accounts In the complainant's pos- geaslon, be cannot (unless in the case of requiring them before he can answer and where they are wanted for safe custody) get at them by a motion, but must file a cross-biii. Thus, an executor had filed a bill to settle the trusts of a will; B. and wife answered; a replication was filed, and the taking of ■testimony commenced. B. and wife then applied to have the books and papers left with the exam- iner for the use of witnesses and counsel. Denied ; and the parties were left to a cross-bill. Bngert v. Bogert, 2 Edw. Ch. 399, 6: 444 26. An order for the production of copartnership books which belong equally to both parties may be obtained as matter of course. Brush V. Anderson, 2 Ch. Sent. 71, 6: 1098 PROMISSORY NOTES. See Biixs AND Notes. PROOF. See Evidence ; Pbactice, HI. d; Witnesses. PROPERTY. See Pebsonai. Property ; Real Property. PROVISIONAIi REMEDIES. See also Attachment ; Injunction ; Ne Exeat ; Receivers. An injunction, a receiver, and a writ of ne exeat may all be resorted to in the same suit, to aid the court in doing justice between the parties. Kirby v. Kirby, 1 Paige Ch. 261, 8: 639 PROXY. See Corporations, 62, 63. PUBLIC ADMINISTRATOR. See Executors and Administrators, 10-12. PUBLICATION. See Practice, VI. d, 5. PUBLIC CHARITIES. See Charitable Uses and Trusts. PUBLIC IMPROVEMENTS. See Assessments. PUBLIC LANDS. See also Indians, 6. 1. A settler on lands of the United States entitled to pre-emption has no title or estate in the land, which he can sell or incumber. He has simply a right to become a purchaser at the minimum price of the public lands, in preference to all others; and the right is forfeited if, when the land is offered for sale, he is unable or unwilling to pay that price. Craig v. Tappin, 2 Sandf. Ch. 78, 7:515 2. In grants of land by the colonial governors, they did not act as mere private attorneys or agentr of the sovereign. They were e.tecuting the sover- eitrn power, as viceroys or representatives, in the name of the King and In the same forms as if they bad beep executed by him. Bugardus v. Trinity Church, 4 Sandf. Ch. 633, 7: 1235 3. Letters patent of land are emanations from the sovereign power, the evidences of the pleasure oj bounty of the government, and are attested by the governmental authorities as public Acts. Ibid. 4. Being alienations by matter of record, letters patent do not require the sifrtiature of the sovereign or the governor to render them valid. The grant is of record in the government offices; the letters patent are a transcript of the grant, authenticated by the great seal. jbM. 5. The goodwill of the State to give to actual set- tlers the benefit of their inlprovements, and the pre-emptive right to purchase the lands upon which they have settled, is a fair subject of contract; and such contracts are governed by the same principles as contracts respecting the goodwill of the renewal Armmr v. Alexander, 10 Paige Ch. 571, 4: 1095 6. Interests in such goodwill are treated by the court of chancery as valuable interests, and are protected accordingly. Ibid. 7. Where the owner of the pre-emptive right to a portion of a lot in a tract of State lands sold the same with the knowledge and consent of the owner of the balance of the lot; and the grantee'was un- able to obtain title to his portion because the owner of the balance of the lot neglected to pay his share of the amount due the State; and the latter after- wards obtained the passage of an Act by the Legis- lature giving him the right to purchase the whole lot, which he did,— the Act enured to the benefit of the grantee as to his portion, and he could claim title thereto upon payment of his just proportion of the purchase money. Ihid. 8. The Act to settle disputes concerning title to lands in the county of Onondaga is constitutional and binding as an Act of Limitations in relation to disputed titles; and an award of the commissioners made under it is conclusive as to the legal title, unless a dissent was entered withm two yeai-s from the date of such award. Ootoder V. HbpMni, 10 Paige Ch. 183, 4:937 9. Such dissent was necessary to prevent the award from being a bar to a claim of title in any other person than the one in whose favor the award was made, although no person was in possession of the land when the award was made. Ihid. 10. The patent to William NiooU, of June 4, 1688, of certain islands on the south side of Long Island, does not extend to Captree Island, Oak Island, and NicoU V. Trustees of Huntington, 1 Johns. Ch. 166, 1:101 11. A deposit of a conveyance of military bounty land, pursuant to the Act of January 8, 1794, is equivalent to a registry of it, and operates as a notice to subsequent purchasers. Wadsworth v. Wendell, 5 Johns. Ch. 224, 1:1 064 12. A deed of military bounty lands, executed in June, 1797, does not come within the operation of § 5 of the Act of February, 1798, in relation to the re- cording of deeds of military lands, being executed after May 1, 1797. And if such deed was executed and acknowledged according to the Act of January, 1794, prior to December, 1797, it was exempted from the operation of the Act qjf February, 1797, by the supplementary Act of February 23, 1798. Crowder v. HopHins, 10 Paige Ch. 183, 4: 03 7 PUBLIC OFFICERS. See Officers. PUBLIC POLICY, PRINCIPLES OP. See Contracts, III. 4'46 PUBLIC TREASURY— RAILROADS. PUBLIC TREASURY. PURPRESTURB. See Money in Public Treasubt. ^ . See Injunction, I. f. PURCHASER. e BiiiiiS AND Notes ; Execution ; Bxeoutoks AND Administbatobs ; Guardian and Ward; Judicial Sale ; Mobtqaqe ; Notice ; Ven- DOB and FUBCHABEB. Editokiai, Notb. Purpresture on rights of State 1:413 Q. QUESTION OF LAW OR FACT. See Tbial, 2, 3. QUIA TiniET. See also Pabties, 99. 1. A bill quia timet, upon a contract for peisona services to te perlormud at a future time, can act be filed for the purpose of obtaining equitable bail, although there is danger that the defendant may leave the State before the time for the performance of the contract arrives. De BivajmoH v. Corsetti, i Paige Ch. 264, 3 : 489 2. Although the court may not choose to stay ex- ecutors and trustees from making sales of real es- tate authorized in words by a will on a bill filed by a remainder-man entitled to an unascertained e.iare, yet, it can secure the purchase money during a life estate on the principle of g^tia timet. ChampUn v. Champlin, 4 Bdw. Ch. 228, 6: 861 3. Where the owner of four lots, after executing a mortgage thereon, conveys them to four ditCerent persons, and afterwards becomes insolvent without Saying the mortgage, a quia timet bill will not lie 1 favor of purchasers of the lots first alienated, unless the danger to them is certain or Imminent; such bill cannot be maintained where it appears that the lot last alienated is more than sufficient to satisfy such mortgage. Wyag v. Rathbun, C. 12, 7: 38 4. Where a purchaser covenants and makes a pledge that the lands he sells shall, within a certain period, command a certain price, and this is shown to have been impracticable, and he becomes in- solvent and his pledge inadequate, an equity arises In favor of the buyer, as well as of his surety, on notes given for the purchase money, so long as such notes remain In the hands of the seller on a bill miia timet. But, if an absolute assignment of the notes, in good faith, has taken place, for con- sideration, before causes for filing the biU arise or a right of set-off attaches or other equitable claim occurs, the assignee can hold irrespective of any after accruing right or equity. In such case, the court secures the equities which the debtor had against the original creditor up to the time of the assignment. And such equities are not lost by a mere pledge of the notes by the seller; they continue up to anrt until a hnvn flde assigr-nent as aforesaid. Cotter V. Ortswold, 4 Edw. Ch. 364, 6: 90» QUO WARRANTO. 1. A uDon a determinable freehold estate In lands. Potidv. Bergh, 10 ValgeCh-liO, 4:919 2. By the term "land" in a deed,a remainder or re- version in lands will pass; and, by the Revised Stat- utes, any future estate in lands dependent on a pre- cedent estate may be created oi trausiurred by the name of a remainder. Ihid. 3. Andthe word "tenement" embraces not only -what may inherited, but whatever may be holden In tenure. Ihid. 4. Under the provisions of the Revised Statutes a mere possibility, coupled with an interest In real ■estate, is capable of being transferred at law as well as in equity by a mere quitclaim deed. Ibid. 5. A provision that a devisee shall not dispose of the estate until his eldest son comes of age ia in- valid as repug-nant to the nature of the estate. Roosevelt v. Thurnan, 1 Johns. Ch. 220, 1: 119 b. Rule in Shelley's Case ; Estates TaM. .Bee also Wills, 264, 266, 364. 6. The rule in Shelley's Case only applies to a Ilm- Itatiou OI a I'emamaer to the heirs or the heirs of the body of the first taKer; and a limitation of a re- mainder to the issue of the first taker, to take effect at his death, is valid, and the issue take the re- in'iindpr Hspurnhnsers. Cushney v. Henry, 4 Paige Ch. 345, 3: 464 T.The rule in Shelley's Case is not applicable to the CAtitf oi ixu uxecuLur> Lrust, wuich is to be carried into tiifuct by a conveyance from trustees of the legal estate, and where it is apparent, from the will ■or instrument creating the trust, that the testator or donor only Intended to give a life estate to the first taker, and that the heirs of sach first taker should have the remainder in fee as purchasers. And in such a case the court of chancery will direct such a conveyance to be made as will most effeotu , ally carry the testator's intention into effect, so far as it" can be done consistpntly with legal rules. Wood V. Burriham, 6 Paige Ch. 513, 3: 1082 8. After an express limitation to a man for life, in a devise of lands, it the remainder is given or limited to his sons or bis children, and their heirs, or the heirs of their bodies, he takes an estate for life only; and the sons or children, and not the father, take the residue of the estate by way of re- mainder. Be Sanders, 4 Paige Ch. 293, 3: 448 9. The term "children," In Its natural sense, is a wuia of puruuasu, aud it is to be taken to have been used as such, unless there are other expressions in the will which show that the testator intended to use it as a word of limitation only. Itrld. 10. Where, by the the terms of the will, an estate is given lo a man uuu uia ciiuuren, if he lias children at the time of the devise, he takes a joint estate with the children: but where there are no children ill esse at the time of making the will, the term "chil- dren," in such a devise, may be construed as a word of limitation merely. Ibid. 11. Where S devised lands to Bfor life, remainder to C in fee, but, if he died without an heir, then to D in f ee,— ifeld, that the devise over could not take effect as an executory devise, but created an estate tail, which, by the statute, was turned into a fee simple absolute. Burnet v. Dennlston, 5 Johns. Ch. 35, 1: 999 12. A testator bequeathed to his daughter (who was unmarried at the time of his death) during her life, the rents, i3sues,and profits on one equal fourth part of all the residue and remainder of nis estate, real and persocol, to be paid on her own receipt and free from any husband's control: and, on her death, he gave and devised such fourth part unto the "lawful issue of his said daughter, his, her and their heirs, executors, administrators and assigns forever, equally to be divided among them share and share aUke," Held (under the law prior to the Revised Statutes), that the daughter took an estate tail, which the statute converted into a fee simple. Kingsland v. Rapelye, 3 Edw. Ch. 1, 6: 649 u. Estates for lAfe or in Fee. See also Wills, XI. e. . 13. Where there is a direct devise of real estate to the devisee, although without words oi perpotuliy, he is entitled to a fee under the provisions of th« Revised Statutes; and In such a case a subsequent provision for an annual allowance, during the life of the devisee, to keep the property in repair, is not evidence of an intention to limit the devise to a life estate merely. But where the devise of the estate even for life is by Implication merely, that implica- tion does not necessarily give the devisee an estate in fee without words of perpetuity. Fuller v. Fates, 8 Paige Ch. 325, 4: 446 14. A devise of a farm to four persona in fee, to be equally divided between them, and in case either of them died without issue living at his death, then the share devised to him to be equally divided be- tween the survivors and their heirs forever, creates a vested estate in fee in each of the four devisees In an undivided fourth of the farm, determinable as to each on his dying without issue living at his death; and the devise over is a valid future estate in expectancy, or executory devise. Davison v. De Freest, 3 S. 456, 7: 918 15. A personal charge upon a devisee for the pay- ment of legacies is sufficient to give him an estate in fee in the premises devised, without words of perpetuity,inaependently of the Revised Statutes. McLachlan v. MeLaeKUm, 9 Paige Ch. 634, 4: 805 d. Remainders. See also Wills, EC. f, 364, 382. IS. A remainder is vested in interest where the person is lu ueiug and aacortaiuea who will, if he lives, have an absolute and immediate right to the pussession of the land upon the ceasing or failure jf alUhe precedent estates, providedthe estate lim- ited to him in remainder continues to exist; that is, tvhere the remainderman's right to an estate in possession cannot be defeated by third persons, or contingent events, or by the failure of a condition precedent, if he lives and the estate limited to him uy way of remainder continues until all the pre- cedent estates are determined. Hawley v. James, 6 Paige Ch. 318, 3: 734 17. The remainder is contingent, although the re- .aaiudermaa Is lu being uuu uscertuiueU, so louef as .c remains uncertain whether be wifl be entitled to the estate, limited to him in remainder, if he lives, 'Hd such estate continues until all the precedent states have ceased. But the existence of a power .u appoint the remainder among a class of persons, ■/ho are known and ascertained, which remainder IS limited to the whole class in default of such ap- pointmeut,does not render the remainderto the class contingent; the remainder is vested in the class, subject to be devested, as to some of the class, by the execution of the power of appointment. Ibid. 18. Where the testator did not Intend to vest the estate in any of the remaindermen until the pow- er of appointment in their favor was executed by bis trustees, but made the whole right of the r^ inaindermeu absolutely dependent upon the de- cision of his trustees in their favor, as to their moral characters and merits, at the time appointed by the testator for the vesting of the remainders in possession,— Held, that the remainders were con- tingent during the coniinuanco of the precedent ;.'State. ibidi. 19. A contingent remainder may be limited upon a term in gross, or upon a remainder which Is limited upon such a term, if the contingent remainder itself is so limited that it must necessarily vest in interest, if ever, within the period of two lives in being at the creation of the estate, or at the term'-ia- tlon thereof. -I™*. 20. When the person to whom a remainder after a life estate Is limited is ascertained and the event upon which it is to take effect is certain to happen. It is a vested remainder, although by its terms it may be entirely defeated by the death of such per- son before the termination of the particular estate. wmiamimn v. FieM. 2 S. 533, 7: 698 21. It is the uncertainty of the right of enjoyment which renders a remainder contingent, not the un- certainty of its actual enjoyment. Ibia. 22. The present capacity of taking effect in posses- sion, if the possession were to become vacant, dis- tinguishes a vested from a contingent remainder ; not the certainty that the possession ever will be- come vacant whUe the remainder continues. IMd. 23. A contingent remainder may be limited on • term of years, provided the nature of the oonttn- REAL PROPERTY, I. e, f. 449 «rency upon whloh It is limited is such that the re- mainder must vest in interest, if ever, durlnir the oontinuanoe of not more than two lives in beinK at the time of the creation of such remainder, or up- on the termination of not more than two lives then in being. Butler v. Butler, 3 Barb. Ch. 304, 5: 910 24. A contingent remainder in fee cannot be 11m- 'ited, in eenerai terms, to take eUect upon the death of one who takes, under a prior contingency, from the person to whom the first remainder in fee is limited. It must be restricted to the happening ■ot an event at or before the determination of the iflrst remainder in fee. Tern pie v. HawUy, 1 S. 153, 7:877 25. T and J S executed to A and D two instru- ments. By one the title to cenain premises was vested in fee m A and D to hold for the use ot A during her life, and after her death to the use of her two children during their lives and that of the survivor of -them, with remaindor to the errantors, their heirs or assigns. The second recited the first dn full, and then, in consideration of love and affec- tion for A and her offspring and of 81. they cov- enanted for themselves, their wives and heirs, with A and D absolutely to convey by good and suf- ficient conveyances and assurances the same prem- ises to the lawful issue of the two children of A. Held, that the contingent interest in the grandchil- ■dren of A is good as a contingent remainder. Hayes v. Kershmo. 1 S. 258, 7: 321 26. Where an estate is devised in fee in remainder :if ter the termmatlon ot a particular estate m toe premises, with an executory limitation over to the issue of the devisee in case of tlic death of such devisee, such dying is to be construed to apply to the time when the remainder is limited to take effect in possession, and not to the time of the death of the testator; ana tue rerm "issue, ■ ' lu such a case, 4s a term of purchase and not of limitation. ChampUn v. HiigJjt, 10 Paige Ch. 274, 4:976 27. Where the testator, by his will, devised to his grand-daughter a house and lot of land from and immediately after hisyoungest grandchild, named in the will, attained the age of twenty-one, to hold the same to the grand-daughter for life, with re- mainder in fee ix) such child or children as might be bom of her body : and devised other real estate, in like manner, to nis other grandchildren for life, with remainder to their children in fee ; and by a subsequent clause of his will directed that if any of his grandchildren should die without leaving law- ful issue at the time of their death, the devise to ■such grandchild so dying without issue should vest in the other grandchildren, their heirs and assigns f ore ver,—HeW, that the grand-daughter took a con- tingent estate for life in the house and lot, which became vested in possession when the youngest grandchild of the testator arrived at the age of twenty-one ; and that such of the children of the grand-daughter as were then in existence, or if inone were then in existence, then 'those who were bom afterward, at their birth, took a remainder in fee, subject to the contingency of their dying with- out leaving issue living at the death of their mother, and subject also to open and let in af ter- 'bom children. Be Sanders, 4 Paige Ch. 293, 3: 44S c. OmcHtUmg; Interests of Successive Takers. See also Conditions. 28. Where the condition which is to devest an •estate becomes impossible by the Act of God, the condition is discharged. McLachlan v. McLcuMan, 9 Paige Ch. 534, 4: 805 29. A devise of a farm to a son for eight years subject to the payment of an annual rent to a grandson, and tnen giving the farm to the latter •on condition that he settles and resides upon the farm, gives the grandson a vested interest^ on tes- tator's death, and which is not devested by non- performance of the condition subsequent as to set- tling and residing upon the farm. Ibid. 30. Where a testator devised his residuary estate to be equally divided among tne cnuaren or his two brothers and his sister, when they should severally become of age,— BeW, that the children of the brothers and sister in esse at tlie death of the testii- tor took immediate vested estates in possession, iis tenants in common, and that the vesting of the ps- tnteof each didnotdepend upon the contingency of his or her arrivinir fit tho age of twenty-one Hor!e V. Hoxie, 7 Paige Ch. 187, Ch. Dig. 31. Beal estate was conveyed in trust for the sup- port of a woman during life, and as to the residue uf the income and the principal, for her children and their heirs, and. failing issue, then for her brother's children. The fund was fraudulently devested from the trustee, with the concurrence of the mother. Held, that the children had existing vested interests under the trust deed, which entitiea them to file their bill during their mother's life to have the fund restored and properly invested. Wrinht v. MUler, 1 S. 103, 7: 856 f . lAmttatiom Over ; Executory DevUes. 32. Where the first limitation oyer in a devise Is executory, all the suosequent limitations Will also be executory until the first limitation vests in pos- session, although in their nature the subsequent limitations are contingent remaindei-s. But the moment the first limitation over vests in possession, the subsequent limitations will be changed from executory devises to remainders, provided they can take effect as remainders. Fedder v. Evertson, 3 Paige Ch. 281, 3: 154 83. If the first limitation over is not of such an es- tate as will support the second as a remainder, aud such second limitation over can only be valid as an executory devise, the nature of the second limita- ' tion will not be altered by the vesting of the first limitation in possession before the happening of the contingency upon which the second limitation de- pends. Xbid. 34. When a limitation over can be supported as a contingent remainder, it will never be construed as an executory devise. ibid. 35. Where the testator, subsequent to the adop- tion of the Uevlsed Statutes, devisea a nouse and lot to J and B and their heirs and assigns forever, provided they both attained the age of twenty-one, and to the survivor if only one of them attained that age; and further directed that, if they both died leaving no child or children, the house and lot should go to L, and heirs and assigns forever,— Held, that J and E took determinable estates In fee in their respective moieties of the house and lot, subject to be devested in favor ot the survivor if either died unijer age, and subject to be determined in favor of L in case J and E should both die without leaving issue, before or after they attained the age of twen- ty-one. Held, further, that such contingent limita- tions over of the house and lot were both valid, un- der the provisions of the Kevised Statutes. Maurice v. OraJiam, 8 Paige Ch. 483, 4: 512 36. Where an interest in property is given to a per- son, with a limitation over of the same interest to his children, or others upon his death before the time appointed for such interest to vest in posses- sion, the death of the first devisee or legatee in the lifetime of the testator does not produce a lapse of the limitation over to the substituted objects of the testator's bounty. MowaU V. Carmo, 7 Paige Ch. 328, 4: 175 37. Where the testator by his will devised his real estate to his wife during her widowhood, with re- mainder to his six sons in fee, and bequeathed cer- tain personal estate to his daughter, and then directed that iC any of his sons or his daughter should die without issue, the survivors should have what was given by the will to the son or daughter so dying, — Held, that the limitation over to the sur- vivors was good as an executory devise, and took effect upon the death of one of the sons without issue, although such son survived his mother. Vedder v. Evertson, 3 Paige Ch. 281, 3: 154 38. A testator devised all his real estate to his wife to be at her entire disposal, but if any pa t thereof remained unsold at the time of her death, he devised the same to his children and grandchil- dren. He died before the Revised Statutes. Held, that the wife took the entire fee simple, and that the subsequent limitation over, being repugnant to the gift, was void. It cannot be upheld as a re- mainder, because, as the law then was, a remainder could not be limited on a fee, nor as an executory devise, because it was defeasible by the act of the first taker, contrary to the essential principle of fiuch fl (l6vifi6 M' Donald v. Walgrove, 1 S. 274, 7: 327 jv» Tj^hi^ye, A hvTiia will flprlspd the usc ot his farm to his son and nephew for three years, and directed his executors at the expiration of the term to sell the farm and divide the proceeds among his five children ; and also declared in his will that if any one of his children died before him, leaving no 4: 13 8 children, or should die after his decease, leaving no 23 .it50 KEAL PROPERTY, II. a, b. children, without having disposed of his or her share, that the share of such child should go to the survivors; hut if any of the testator's children should die leaving children, then such children were to have the share of their parent in the same manner as such parent, if living, would have taken the same; and the son died within the three years leaving children,— it was held that the children took under the will, and not as heirs of their father; and that their mother was not entitled to dower in the farm; and that the creditors of the son had no claim upon that share of the estate for the pay- ment of their dehts. The death of the son before the expiration of the three years, and before the^ executors were authorized to sell, devested his in- terest, ,and the executory limitation over to hi» children immediately took effect. Adanw v. Beekmah, 1 Paige Ch. 631, S: 779 II. Becords. a. In General ; What should he Recorded. 40. A statute requiring all deeds of real estate exe- cuted previous to the passmg of the statute to be recorded within a limited period, and declaring them, if not so reuorded, to be invalid as to subse- quent bona fide purchasers, is binding upon the grantees of such deeds as were in existence and' in a situation to be recorded subsequent tb the passing of the Act and within the time prescribed. Varicli V. Briggi, (5 Paige Ch. Baa, 3: 1006 41. The whole object of the recording Acts is to protect subsequent purchasers and Incumbrancers against previous deeds, mortgages, etc., which are not recorded, and to deprive the holder of the pre- vious unregistered conveyance or mortgage of the right which his priority would have given him at the common law. Stuvveaant v. Hall, 2 Barb. C!h. .151. S: 698 42. The record of a deed recorded before delivery, or which is recorded as a deed when it is intended as a security, becomes valid upon a complete deliv- ery or a purchase of the equity of redemption, and is from thence operative against subsequent pur- chasers and incumbrancers. Warner v. WinsUm, 1 Sandf . Cai. 430, 7: 385 43. [t is the policy of our laws to facilitate alien- ations of land. The recording Acts pursue thispol- icy, regulating alienations only so far as to afford security to purchasers and iuctimbranoers. Those Acts should not be so construed and refined upon as to thwart or impede the great design of their en- actment. Ibid. 44. Under the Registration Act the note made by the county clerk ol the time of delivery for registry and made upon the instrumentJs equivalent to the full certificate subsequently indorsed. Waiiams v. Birbeek, Hoff. Cli. 359, 6: 1178 45. Where by statute a resolution of the board of directors of a corporation is necesssry to authorize an assignment of corporate property by the ofHcers of such corporation, a certificate of proof before the acknowledging oificer, that the corporate seal was affixed by the officer entrusted with such seal by the corporation, is not alone sufficient to authorize such assignment to be recorded, or to be read in evi- dence without further proof . „^ _ ___ Johnson v. Bush, 3 Barb. Ch. 207, 5: 875 46. Under the recording Acts, as between a pur- chaser from the fraudulent grantee and one obtain- ing title under the fraudulent grantor, the priority of their conveyances depends upon the times when they were respectively recorded. Ledyard v. Butler, 9 Paige Ch. 132, 4: 63 7 47.'Where two mortgages upon the same premises are recorded at the same time, and each mortgagee is cognizant of the giving of the other mortgage at the time that he takes his own, the recording Acts have no application to the case in respect to the question of priority. Jones V. Phelps, 2 Barb. Ch. 440, S: 707 48. Priority of registry is of no avail against a previous notice of an unregistered mortgage. Berry v. Mutual Ins. Co. Z Johns. Ch. 6()3, 1: 508 49. Under the provision? of the Revised Statutes, the principles of the recording Acts are extended to an assignment of a mortgage of an Interest in real estate; and the reootd of such an assignment is constructive notice thereof to all subsequent as- signees of the mortgage who purchase the mortgage from the assignors. And unless such assignment is recorded, it will be invalid as against a subsequeni assignee or purchaser of the mortgage in good faith and without notice, whose assignment shall be first 4uly recorded, vanaerhemp v. Shelton, 11 Paige Ch. 28, 5: 45 50. Where an absolute deed is accompanied by a written defeasance, contained in a separate instru- ment, showing that the conveyance was only in- tended as a mortgage, the deed and defeasance must both be recorded in the book of mortgages, to pi u- teot the holder of such security against the claim* of subsequent bona fide purchasers from the moit- liBscor. GrtmOone v. CaHer, 3 Paige Ch. 431, 3:814 51. It seems that a letter of attorney to assign a mortgage need not be recorded, nor, hence, a revo- cation. WilHams v. Birbeck, Hoff. Ch. 359, G : 1 1 72 62. Where a deed absolute on the face of it is re- corded as a deed, and afterwards the grantee ft,\e- cutee a defeasance, which is not registered or re- corded, the defeasance, connected with the first deed, is considered as a mortgage, and must bo regiOTered as such, to give it priority over a subse- quent deed to a bona fide purchaser. Dey V. Dunham, 2 Johns. Ch. 182, 1: 340 53. The record of the absolute deed, as such, is no notice to a subsequent purchaser. ibid. 54. It must be such a notice as, with attending circumstances, will affect the subsequent purchaser with actual fraud. Ibid. 55. A notice, enough merely to i)Ut the party on. inquiry, is not sufficient to break in upon the Be- gistry Act. Ibid. 56. A deed absolute on its face, if intended only as a mortgage or security for the payment of mon- ey, whether accompanied by a written defeasance or not, must be recorded as a mortgage, in order to protect the holder against a subsequent bona fide mortgagee or purchaser of the premises. White V. Moore, 1 Paige Ch. 551, 8: 74» 57. If no written defeasance was executed, the holder of the mortgage may comply with the re- quirement of the statute at any time afterwards by executing a defeasance according to the terms agreed upon by the parties, and then recording both instruments together aa a mortgage. liiid. 58. Bona fide purchasers without notice, who hav* actually paid the purchase money, cannot be dis- turbed in their title to the premises purchased, where'i^e deed intended as a mortgage is absolute on its face. Whittick V. Kane, 1 Paige Ch. 202. 8: 617 59. In such case the remedy of the mortgagor is personal against the mortgagee and his legal rep- resentatives, for the moneys received on the sale of the mortgaged premises. Ibid. 60. A deed executed by an attorney may be re- corded,upon his acknowledgment before the proper officer, or upon due proof that such deed was exe- cuted by him, without proving the power under which the attorney acted in executing such deed. Johnson v. Bush, 3 Barb. Ch. 207, 5: 875- b. Effect of FaUwe to Becord. 61. Where one purchases land after a satisfaction, piece for a former mortgage upon it has been exe- cuted by the mortgagee, wiio uas assigned the mort- gage, the assignment being unrecorded, he has the superior equity over the assignee by his purchase and payment for the land, and entering into its. possession before the assignment was recorded and without notice of its existence. Warner v. Winslow, 1 S. 430,- 7: 386 62. Under the Recording Act of January, 1794, rel- ative to conveyances in the military tract, and the Act of 1801, concerning mortgages, the bona fids purchaser of a military lot is protected against a claim under a prior unregistered mortgage, al- though such mortgage is afterwards registered be- fore the recording of the deed. Hawley v. Bennett, 5 Paige Ch. 104, 3: 646 63. A second mortgagee who neglects to have his mortgage registered will not be relieved against a prior unregistered mortgage, unless he shows, from nondelivery or possession, or other circumstances, that imposition has been,or might be, practiced on him, by or with the concurrence of the first mort- gagee, which could not be detected or guarded against by the exercise of ordinary diligence. Berry v. Mutual Ins. Co. 2 Johns. Ch. 603, 1: 608- REAL PROPERTY, II. c. 451 84. A subsequent bona ^e purchaser is expressly protected by the statute, against prior unrefjistered iDCumbraaces ; but a mortgagee Is not a purchaser within the meaning of the statute. ibid. 65. He may, however, protect himself by a regis- try, against a prior unregistered mortgage, without notice.' ibid. 66. The statute does not make a registry indis- pensable. The omission to register only exposes the mortgagee to the hazard of losing his lien in case of a subsequent bona fide purchaser, or to the postponement of it to a subsequent mortgage regis- tered. Ibid. 67. The registry of a mortgage is a substitute for the deposit of the title deeds. ibid. 611, 1:511 68. An unregistered mortgage has still (since the Revised Statutes) a preference over a docketed judgment. SehimiOt v. Hbj/f, 1 Edw. Ch. 652, 6: 879 69. S conveyed land to K H W by an absolute deed, lis security for a loan, subject to a murcguife tu D. The conveyance was recorded as a deed. A few days thereafter, and after the loan was paid up, K H W purchased the land from S, and, on 8 procuring a satisfaction piece from D duly recorded, W paid to S the entire price of the land. B had long before assigned the mortgage to J R W, but the lattor had . neglected to record the assignment. D receivea no payment or consideration for the discharge. U H w bad no notice of this fact, or of the assignment to J it W. MM, that the land in the hands.of K.H W and of purchasers from him was discharged from the mortgage. Warner v. WinsUm, 1 Sandf. Ch. 430, 7: 385 70. If the assignment had been recorded wliile the deed stood as security for S's loan, the mortgage wou.d have bound the land in B H W's hands. Ibid. o. As NntUx ; Effect of Record. 71. Notice by the recording Acts is not retrospec- tive, so as to affect existing vested rights ; and the recording of adeed or mortgage is not notice of its existence to a prior mortgagee. Siuyvesant v. J3one, 1 Sandf. Ch. 419, 7: 381 72. It is the duty of a subsequent purchaser or in- cumbrancer to give to such mortgagee actual no- tice of his rights, in order to affect the latter. Ibid. 73. An incumbrancer, on releasing from his lien a part of the lands subject thereto, acquires no new interest in the residue. He is not a purchaser, and does not in this respect fall within the purview of the recording Acts. Ibid. 74. The registry of a mortgage is notice to subse- quent purchasers. Frost V. Beekman, 1 Johns. Ch. 298, 1: 148 Parkigt v. Alexander, 1 Johns. Chi 394, 1: 184 75.Tbe recording of a mortgage is not notice of its existence to a prior mortgagee. King v. McTickar, 3 Sandf. Ch. 192, 7: 821 76. The recording of a second mortgage is not constructive notice to a mortgagee of a first regis- tered mortgage. Wheelwright v. Loomer, 4 Edw. Ch. 232, 6: 863 77. The registry of a mortgage is notice only to the extent of the sum specified in the registry. Frost V. Beekman, 1 Johns. Ch. 299, 1: 148 78. So, the registry of a mortgage given to secure £3,000, but, by the mistake of the clerk, registered for 8300, is notice to subsequent bona ^e purchas- ers to the extent only of the sum expressed in the registry. Ibid. 79. An unauthorized registry of a mortgage, or one registered without any previous proof or ac- linowledgment, would not, it seems, be notice to a subsequent purchaser. ibid. 300, 1: 148 80. The mortgagee is not bound to inspect the rec- ord, and see that the registry is correct ; this is the exclusive business and duty of the clerk. Ibid. 81. it seems that the registry of a mere equitable mortgage or incumbrance is notice to the subse- quent purchaser of the leg£il estate, so as to entitle such mortgage to a preference. Parkigt V. Alexander, 1 Johns. Ch. 394, 1 : 184 82. When one having the equitable right to the conveyance of lands contracted to sell the same to persons who took possession under their contracts, the recording of a subsequent mortgage of the same property is not a constructive notice to the pur- chasers of the giving of such mortgage. Farmers Loan & 2. Co. v. MaXtby, 8 Paige Ch. 361, 4:46» 83. The recording of a deed or mortgage is only constructive notice to those who have subsequently acquired some interest or right in the property un- der the gTantor or mortgagor. Sluyvesant v. HaU, 2 Barb. Ch. 151, 6: 59* 84. The recording Act makes the record of an as- signment of a mortgage notice to subsequent pur- chasers or subsequent Incumbrancers; and sucl) subsequent purchasers must hold subject to such notice. Vanderkemp v. Shetton, Clarke Cb. '321, 7: 131 85. The registry of an assignment of a mortgage is not notice to a mortgagor, so as to render pay- ments by him to the mortgagee, in his own wrong ; but it is effectual notice to a subsequent purchaser or mortgagee. James v. Johnson, 6 Johns. Ch. 417, 8: 169 86. The recording of an assignment of a bond and mortgage is not construciive notice to the mort- gagor of such assignment, but is only constructive notice to subsequent assignees or purchasers from the original assignor. Beed v. Marble, 10 Paige Ch. 409, 4: 1031 87. S sold and conveyed a lot of land to H, and took a mortgage to secure part of the purchase money. The mortgage was duly recorded in the county of Onondaga, where the land was situated ; but Hineglected tq have his deed recorded, pursu- ant to the statute. The defendants, having pur- chased the claim of a person in possession without title, procured a release and quitclaim from S for the consideration of JIO, though the lot was worth £6,000, and had it recorded before the deed of H. Held, that the subsequent release and quitclaim by S was fraudulent, the record of the mortgage being sufficient evidence that S had then no title; and th& defendants were decreed to release all claim to H^ so as to quiet his title. Lupton v. CojneiJ, 4 Johns. Ch. 262, 1: 83* 88. If a power to convey is recorded, an instrument of revocation, also recorded in the same county, appears to be sufficient notice. ■ Williams v. Birbeck, Hoff. Ch. 359, 6: 11 7» 89. A purchaser of A, a trustee.is not chargeable with notice of the trust, bj means of the registry of a deed from H to B, reciting that A had execut- ed a declaration of the trust. Frost V. Beekman, 1 Johns. Ch. 302, 1: 149' Murray v. Ballou, 1 Johns. Ch. 566, 1:847 90. The record of the assignment of a mortgage is constructive notice to subsequent mortgagees of the assignor, who afterwards purchases the premi- ses at a foreclosure sale under a prior mortgage to which the assignee was not a party, that his title was not good as against such assignee. Vanderkemp v. Shelton, 11 Paige Ch. 28, 5:45 91. The recording of a master's deed of premises sold by him under the decree in a foreclosure suit is constructive notice to all subsequent purchasers from any of the parties to the decree, that the rights which such parties had in, or the liens which they had upon, the mortgaged premises at the time of the decree, were cut off by the master's sale. De Peyster v. Eildreth, 2 Barb. Ch; 109, 5: 576 92. Where a mortgage is executed and delivered grior to a general assignment for creditors which is rst reoorded.whether a subsequent recording of the mortgage is constructive notice to a hnna fide Eurchaser of the premises from the assignees, who ad no actual notice at the time he obtained his rtppd 0UEBV6 Wyckoff V. Bemsen, 11 Paige Ch. 664, 5: 23.1 93. Where charges were imposed on Ian'' by re- corded deeds and mortgages thereon, executed liy those through whom a purchaser derived his title actual notice to him was of no consequence. Knickerbocker v. Boutwell, 2 Sandf. Ch. 319, 94. A tract of land was mortgaged to S. H sub- seauunlly acquired a lien thereou, which waskuuwn to S H proceeded in chancery to subject the tract to his hen, and obtained a decree, and the tract, which had been laid out iuto 56 building lots, was sold by a master to T. A part of the lots were mortgaged to H by T, and the residue were dis- charged by the sale from H's claim. S had no notice of the suit in chancery, or any oi' the subse- quent proceedings. The conveyances and mort- 452 REA'B EXECUTORS-RECEIVERS, I. a. rages consequent on the sales were duly recorded. Afterwards H foreclosed T's mortgagre In chau- ccry, and at the outt;et filed the notice of lU pen- dens prescribed by the statute. 8, having: no notice of this suit, released to T, durintr Its pendency, IS of the 56 lots. The U lots left subject to the mort- iraere of S were a part of those which T had mort- eatred to H, and all of T's lots not mortgaged to H, were released by 8. Held, (1) that 8 was not chargeable with constructive notice of the first chancery suit of H, or of the sale under his decree: <2) that the recording of the conveyances to T and of T's mortgage was not notice thereof to S; and, on releaslDg, 8 was not bound to search the rec- ords for conveyances and Incumbrances subse- quent to his own mortgage ; and (3) that neither the foreclosure suit of H nor the lU pendeia filed affected 8 with notice of H's proceeding or of his Tights under T's mortgage. Stimive»ant t. Hone, 1 8. 41t, 7: 381 95. A. grantee is aifected by subsequent instru- ments executed by bis grantor who continues la possession exercising all acts of ownership, and a subsequent mortgage by the grantor recorded be- fore the deed to the grantee will have a priority over it. Froft V. PeoBock. i Edw. Ch. 878, 6: 1016 96. No one is chargeable with constructive notice of an instrument from Its being recorded,tmleas the law makes it necessary to be recorded, Wmtams V. Birbeek, Hoff. Ch. 359, 6: 1172 97. In applying the doctrine of the court as to presumptive notice, there Is no difference whether a deed is registered or not. IbUi. Editobial Notbs. Conditions subsequent 4: 478, 806, 5: 183 Estates; future, what are 4:354 expectant; devisable and alienable 4:64 in fee tail abolislied; fee simple substi- tuted 6: 1027 leasehold; right of possession 6: 922 limitation of 2: 668, 779, 802, 839 conditional limitation ; effect of dower right 2: 779 Grant of inconie carries fee in the land 5:824 Remainders; when vest 3: 737. 4- 65, 7: 692 contingent; what constitute 4: 801, 5: 102, 7: 692 to persons not in ease 8: 736 equitable estates in remainder 3:7S'i fail when life estate fails 7: 369 estates for life and in remainder 2: 839 Seisin; transitory and instantaneous 7: 271 Shelley's Case; rule stated; assisted by <^ prh doctrine 3: 1082 operation of 3: 919 abolished 8: 1082 executory trusts to be effectuated by con- veyance, not within 3: 1083 Registry Act; construed 7: 821 protection of 3: 646, 4: 637, 5: 46 Notice; constructive by record 1: 143, 185, 191, 341, 508, 2: 916, 3: 886, 950, 1005, 5: 594, 6: 1172, 7: 381 only of contents of instrument 7: 515 binds whom 4: 463 by contents of instruments 1: 444, 834 of prior equity ; effect of 8: 1015 Record; of deed and defeasance 2: 749 of assignment and mortgage 5: 46 unrecorded mortgage 1: 444 BEA'S EXECUTORS. Act for Their Belief, see Execdhob, 41-43. RECEIPT. See also Evidencb, 144; Husbaio) ahb Wife,*; Trusts, 131, 132. Lin construing a receipt which embraces several sums, the words with which it ends may be made to qualify the first sum, and are not necessarily to be confined to the last antecedent. Bovart V. Van YeUor, i Edw. CJh. 718, 6: 1031 2. Although a receipt not under seal is expressed to be in full, and therefore piesumptlve, in favor of payment in full, yet the presumption may bo re- pelled, explained and contradicted by parol testi- mony. And where a party claims against the face of such receipt. It is for him to prove his prior de- mands, and it is'not obligatory upon the bolder of the receipt to show previous payment independent of the receipt* Patterson v. Ackerson, Z Edw. Ch. HH, 1: 454 3. Where one executes securities for the payment of money, with interest at 6 per cent, payable semi- annually, and, at the periods when the interest is due, pays interest at the rate of 7 per cent and takes receipts therefor, each receipt so accepted by the debtor is evidence of an agreement to pay 7 per cent interest for tlie preceding glz months: and whether it be Seemed antecedent or made at the time of payment. It has the same consideration,— the creditor's forbearance; and having been execut- ed, the court will not Interfere, even If the agree- ment were not such as could have been enforced. New York L. Im. & T. Co. v. Manning, 8 8. .58, 7! 7«s i. 8uch receipts are not evidence of a contlnnlng agreement to i»y the higher rate of interest beyond the period wtiich they cover. UM Bditoeiax, Notes. Receipt; how far conclusive 6: 454 Joint, only presumptive evidence of posses- sion by both 7:786 RECEIVERS. L APPOnrFHEi^T Aim Covtboi. a. JjurUdielion ; Procedure. b. In What Cases Appointed. L Oeneratty; Trusts. 2. Partnerships; CorporatUnu, 3. For Mortgaged Property, i. In Oreditors' Suits. e. Who Appointed. d. Effect ; title to Property ; DeHmry and At- slgnment. e. Control and Protection o/. f. Durotion ttf Beceivershgi. n. BiOHTS ; PowEBS ; Duties ; Liabujties. a. Collection of Ansets. b. Powers OenercHly; Conduct and Manage- ment of Property. c. Claims against. d. -Accounts, m. 8TJXTS: Ehpiotheni of Conrssb IV. COHPESsATioir ; Expebses. y. Bemoval; Dischabob. EniTOBLAL Notes. 8ee also Appkal, 113; Assionhekt, 21; Bahk- BCPTCT, 74; Bapks aitd BAifKzua, 70; COB- POBATIOKS, 156, 157; Cbeditobs' Bn,u, 205, 206 ; iNjtraronoir, 21, 91 ; luUiDiiOBD abh Tot- ant, 67-70; Pabtkership, 148. I. APPOrHTMENT ABTD COKTBOI^ a. Jurisdiction; Procedure, 1. Appointment of receiver may be allowed as to a judgment debtor against whom execution has been returned unsatisfied while it Is denied as to property transferred, where fraud in the transfer is denied. HamUUm v. Mann, 2 Ch. 8ent. 43, S: 1090 2. The order allowing: a receiver, which Is not modified or discharged, becomes the law of the case RECEIVERS, I. a. 4S3 as to the rl(fht to have one, and the applieation of the funds In hts bands necessarily follows through him. Post V. Dorr, 4 Edw. Ch. 418, 6: 983 8. Any creditor of an insolvent limited copartner- ship may llle abill in chancery in behalf of himself and all other creditors for a receiver of the part- nership effects. Innes v. Lansing, 7 Paige Ch. 583, 4: 884 4. As a general rule a receiver should not be ap- pointed without notice to the parties interested. Penple V. Norton, 1 Paige Ch. 17, 8: 644 5. But this rule is subject to exceptions in specia' oases, where irreparable injury would be sustained by the delay. Ibid. 6. So, a receiver wiU be appointed without notice upon tae application of the complainant, where the defendant has absconded to prevent service of the subpcena to appear and answer the bill, or has , left the State, and is not expected to return for sev- eral months, and has no residence Or place of busi- ness where a subpoena can be served, JMd 7. The defendant, however, has a right afterwards to apply for relief against the order appointing such receiver. JM^ 8. As a general rule, an order for a receiver will not be granted ex parte untU the time for the de- fendant's appearance has expired and the bill has been taken as confessed against him. except where he has fraudulently withdrawn himself out of the Jurisdiction of the court, to avoid the service of the process. Sanclford v. Sinclair, 8 Paige Ch. 373, 4: 467 9. But where it is necessary to appoint a receiver of the property of an absentee, before the time for bis appearance has expired, to prevent such prop- erty from being wasted or removed beyond the Jurisdiction of the court, such receiver may be ap- pointed ex parte. Ibm. 10. A receiver cannot be appointed to deprive the defendant of the possession of his property, ex parte, without giving him an opportunity to be heard in relation to Kis rights, except in very spe- cial oases,— as, where he is out of the Jurisdiction of the court. Verplanck v. N. Y. Mercantile Ins. Co. 2 Paige Ch. 438, 8: 979 11. In cases where it is proper to appoint a re- ceiver ex parte, tlie particular cii-cnmstanoes which render such a summary proceeding necessary should be distinctly stated in the bill or petition on which the application is founded. Ibid. 12. An ex parte order for the appointment of a receiver ought not to be granted against a defend- ant who is not in default for not appearing, unless in a case of emergency, where the property to which the receivership relates would be likely to perish before the dcff^ndant could have notice and UP heard on theaniii'''0 121. The title of a receiver thus acquired is a valid* bar to a suit in equity by the purchaser of such things in action against the party indebted to the Judgment debtor. ibid. 122.A receiver is under no obligation to attempt to tuku property from the possession ot a thira person,, or even from the defendant himself, by force,, without an express order of the court directing him> to do so. Parker v. Browning, 8 Paige Cb. 388, 4: 473 133. The receiver or party who wishes an actual, delivery of the property should call upon the mas- ter to decide what property, legally or equitably, belonging to the defendant, and to which the re- ceiver is entitled under the order of the court, is in the possession of the defendant or under his power or control; and it is the duty of the master to di- rect the defendant to deliver to the receiver the actual possession of all such property, or to allow him to take possession thereof. If the defendant is dissatisfied with such decision of the master he must apply to the court to review the decision, or he will be compelled by process of contempt to comply with the master's directions. ibid. 124. Where the property is In the possession of a third person, who claims tne ngnt to retain it, the- recelver must either proceed by suit against him, or the complainant must make him a party to his- suit, and apply to have the receivership extended to- the property in his hands, so that an order may be^ made for its delivery, and may be enforced by pro- cess of contempt. Jbid.- 125. A defendant In a creditors' biU is not in con- tempt for neglecting to deliver over propel ty to the receiver, where such property is claimed to be in the possession of and to belong to a third person, unless the master has decided that such property belongs to and is under the control of the defend- Ca^aear v. Simojis, 8 Paige Ch. 273, 4: 426- 126. Where the defendant is directed to assign and (l*-liver over nis property to a receiver, unuer tne airoction of a master, if the complainant wishes to have an actual delivery of property which he sup- F)oses to belong to the defendant, but which the after insists belongs to another person, he must ap- plv to the master to decide what property is under the defendant's control, and to make an order di- recting the defendant to deliver over the property which shall be decided to be under his control, be- fore he can bring such defendant into contempt for disobedience of the order of the court. ibid. 127. The fact that the defendant in a creditors' bill has neglected to execute an assignment of his prop- erty to the receiver, as directed by the order of the court, furnishes no ground to the master for refus- ing to direct such defendant to deliver over his property to the receiver, and to decide what prop- erty the defendant has in his possession or under his control which ought to be delivered over pur- siinnt to the order ot the court appointing such re- cgIvcf* Eldred v. Ban, 9 Paige Ch. 640, 4: 848 128. What property the defendant may be directed by the master to assign and deliver over to the re- C6iv6r (Jreen V. iJicfts, 1 Barb. Ch. 309, 5:397 129. Under the usual ordsr to appoint a receiver upon a creditors' bill, the defendant, although he denies on oath that he has any property, is bound to execute to the receiver a formal assignment of all his property, equitable interests, and ohoses in ac- tion, as directed by the order, to enable the receiver to test the validity of any assignment or other dis- Dosition which the defendant may have previouslr made of his property or effects. Chipman v. SaMiaton, 7 Paige Ch. 47, 4.54 130. In settling the form of the assignment by de- fendant to the receiver,*the master cannot insert ara exception therein, of property which has proceeded 458 RECEIVERS, I. e. ;from a third person and ia held la trust for def ead- ADt. Degraw v. Clason, 11 Paige Ch. 136, 5: 84 131. The assignment to the receiver, executed by the defendant in a creditors' suit, need not contain « reservation of property which he holds merely in the character of trustee for others upon a valid irust, and in which property he has no beneficial in- terest. Nor is it necessary that the assignment should except property which the defendant has -already assigned to a receiver appointed iu a previ- ous suit. Cogger v. Howard, 1 Barb. Ch. 368. 5: 420 S. 0. 5 Ch. Sent. 68, 5: 1189 183. Such an assignment should contain an excep- •tiuii ui such propui'ty tia ia uy law uAumiiLuU from sale on execution, where it is made to appear to the master that the defendant is entitled to have any ipart of his property thus exempted; and this, not- -withstanding the general language of the order of reference-. Ibid. 133. After a decree in bankruptcy the bankrupt will not be compelled to execute an assignment to a receiver in a creditors' suit subsequently commenced. Wmtamg v. Blakeman, i Ch. Sent. 8, 5: 1136 134. Where defendant is directed to deliver his (Property to a receiver under the direction of a mas- ■ler, and the master decides wrongly as to the prop- erty in his possession, he should appeal to the court -to review the master's decision, instead of commit- 'tin«r contempt by refusing to comply with it. Burger v. Tobias, 1 Ch. Sent. 6, 5: 1053 135. In such case the master ought not to direct the delivery of property actually in the possession ■of otlier persons, or claimed by others who are parties to the suit as being in their possession, un- 'til the receivership is extended to such parties. Ibid. 136. A receiver vested with the title to property, real and personal, under a decree of the court in a suit to reach the effects of a judgment debtor in the hands of third parties, which decree directs that the defendants deliver such property to the receiver under the direction of a master, that he be put iu .possession of the real estates, that the tenants attorn to him, that he receive the rents and income, pay taxes and assessments, redeem from sales for i taxes, etc., and account and pay into court half- yearly,— is entitled to bring the decree into the mas- ter's offlce and proceed to possess himself of such property under its provisions. r'i(ii7i«8 V. Bru67i, 4 S. 417, 7:1160 137. Where a defendant in a foreclr sure suit is in 'Possession of the mortgaged premises by his tenant, who is not a party, the possession of the tenant can- not be disturbed by the appointment of a receiver; 'but he may be ordered to attorn to the receiver, and to pay the rent to him. Sea irus. Co. v. Stebbim, 8 Paige Ch. 565, 4: 543 138. Where a receiver of a corporation has been ap- fpointed under the provisions of the Bevised Stat- 'Utes relative to proceedings against corporations in ■equity, and its property and effects have thus be- come vested in him for the benefit of the creditors and stockholders of the institution, the answer of the corporation cannot affect the property in the hands of such receiver, nor have any effect what- ever in determining the right to the same. Davenport v. City Bank of Buffalo, i) Paige Ch. 12, 4:590 139. The receiver of a moneyed corporation, ap- pointed under § 41 of the title of the Revised Statu les which directs the manner of proceeding against corporations in law and equity, unless his powers are restricted by the order appointing him, fe abso- lutely vested with all the property and effects of the corporation ; and he may dispose thereof and distribute the proceeds among the stockholders. Verplanh v. N. T. Mercantile Inn. Co. 2 Paige Ch. •438, 8: 979 140. But a receiver appointed under the provi- •jlons of § 30 is a mere common-law receiver, to pro- tect the fund during litigation, and he has no pow- ers except such as are conferred by the order appointing him. J6(,j. 141. Where two creditors had filed separate billo against the debtor, to reach his property; and in one suit a receiver had been appointed, and in ithe other an injunction granted restraining the ■ debtor from parting with his books and papers, -and from collecting his debts, etc.,— upon an appli- cation to the court he was directed to deliver over to the receiver appointed in the first suit all the property and effects in his hands, together with his books and papers, to be collected and converted into money for the benefit of such of the parties as it should subsequently appear were entitled to the same. Osborn v. Heyer, 2 Paige Oh. 342, 2: 936 e. Control and Protection of. 142. Although the court of chancery will not per- mit the possession of its receiver to be disturbed by a third person who is not a party to the suit, it will, upon the application of such third person, give such directions to the receiver relative to his trust as may be necessary to protect the rights of such third per- son. Vincent v. Parker, 7 Paige Ch. 65, 4: 62 143. Where the property is legally and properly iu the possession of the receiver, it is the duty of the court to protect such possession, not only against violence, but also against suits at law; but if the property is in the possession of a third person, un- der a claim of title, the court will not protect the olEcer, who attemps by violence to obtain posses- session, any further than the law will protect him; his srnneral authority being unquestioned. Parker v. Browning, 8,P^ge Ch. 388, • 4: 473 144. If a receiver takes possession of goods under the express directions of the court, or where the master has decided that the goods are in the posses- sion and under the control of the defendant, and has directed the defendant to deliver the possession to the receiver, the court will assume the exclusive jurisdiction of the subject, and will not suffer the receiver to be sued at law for taking such goods. llml. 145. The receivers of an Insurance company which was rendered insolvent by the great fire in the city of New York, appointed pursuant to the Act of January, 1836, are subject to the control of the court of chancery. And an order of the court directing or controlling them in the discharge of their duties is not only binding upon them, but al- so upon the preditors of the insolvent corporation. Be Receivers of Olobe Ins. Co. 6 Paige Ch. 102, 3: 916 146. Where property is rightfully in the hands of a receiver it is in the custody of the court, and can- not be distrained upon for rent without permission of the court by whom the receiver was appointed; and any person who takes the property out of the possession of the receiver without such permission, after he has notice of the character in which such possession is holfien. is guilty of a contempt. Noe V. Oibson, 7 Paige Ch. 513, 4: 252 1 47. The same principles are applicable to any other interference witii the pussus^iuu of a receiver, se- questrator, committee, or custodee who holds the property as the oflBcer of the court of chancery, as his possession is in law the possession of the court itself. Ibid. 148. The court by whom a receiver is appointed has jurisdiction to restrain him from prosecuting an unjust and vexatious suit at law in the name of a third person, without his consent, although the persons applying for such relief are not parties to the suit in which the receiver was appointed. Be JKerritt, 5 Paige Ch. 125, 3:654 149. The court cannot protect the rights of the re- ceiver by a summary proceeding against a person, not a party to the suit, who seizes upon property which has never been in the possession of the re- ceiver or his ap;ents. Albany City Bank v. Schermerliom, 9 Paige Ch. 372, 4: 736 150. After the tenan ts of a party have attorned to a receiver under an order of the court, the court will not allow them or anyone else, to question the right of the receiver, by disturbing his possession. Jmd. 151. Where a receiver is in the possession of real estate which Is subject to the Hen of a judgment, the sale of the premises by the sheriff, upon an ex- ecution on such judgment-, does not disturb the pos- session of the receiver; and the sheriff cannot there- fore be proceeded against for a contempt in making such sale. But the purchaser cannot disturb the possession of the receiver, when he obtains his con- veyance from the sheriff, without the permission of t.lie court. Ibid. 152. Where a receiver appointed in aoredltois' suit is entitled to the personal property of the de- fendant and the rents and profits of his real estate, if the defendant neglects to make an assignment so RECEIVERS, I. f, II. a. ;?S^5,*I? *? *'^^ ^^^\Yl^. " '«»«• "tie to the property, li^i.^Y.'^^r? *.'*^ defendant in a creditors' biU had i^KR^l » "^ 11 ^"S^ ^"^ went upon the land and Kavt notice to the tenants of bis appointment7and re- quested them to deli ver the defendaSri shart of the •*Tw?S,™?^nS.»^'^i=*r'* the sheriff Afterwards .,.11; without notice of the appointment of such r&- I ei ver, made a more formal Vvy upon the erowine « 16. Objections to the execution of a reference by a particular master, if valid, should be made before such master has heard and decided the matter pending before him on the reference, Johnson v. SvxLrt, 11 Paige Ch. 385, 6: 171 17. A reference may be made to a vice-chancel- lor, with his assent, although the suit is pending before him ; and where there is no agreement to the contrary, the proceedings upon such reference are to be conducted in the usual manner, and the parties may except to the report as in other cases. Wetmore v. Winans, 8 Paige Ch. 370, 4: 46ft HEFEBENCE, III , IV. a. 46$ 18. Where there has lieen one reference on ex- ceptions to an answer, if a second or third answer is referred for insufficiency on the old exceptions, it should be referred to the same master, if he re- mains in office and is competent to act in the case. Leggett v. Duboin, 3 Paige Ch. 477, 3: 838 19. Where a master or any other judicial officer of the court of chancery has, in the character of u solicitor or couuselor, given advice or preparer any pleadings or proceedings in a cause or matter pending in or brought before the court, or hiia made or opposed motions or petitions in such cause or matter; or where bis law partner has been thus employed or consulted, although not the solicitor or counsel on record,— such master or judicial ofliccr cannot afterwards act as master, or do any Judicial act requiring the exercise of judgment or discre- tion, which is in any way connected with such cause or matter. But the restrictions of the Buviscd Stat- utes do not extend to a master wlio has acted mere- ly as chancery agent of the solicitor in the cause, in the receipt and service of papers: nor do they prevent a master, who is not the solicitor or coun- sel on record, from taking an affidavit, or doiiis' anv other mf»ro ministerinl act. McLaren v. Charrier, 5 Falge Ch. 630, 3: 817 20. A supplemental bUl, or an original bill in the nuLi.i''« ot a uuppu^uiLMiitij lull, is '.au. a uuutinuatiou ol th.' originii! suit, so far as leganls thn right of a Uiiistir A-ho lias been solicitor or counsej'. in the rrMT^nn] R'Mt to ftrr fi« master in any proceeciinjrs on the supplemental bill. ibid. ni. Prosecution of Reference. 21.The complainant must not only enter an order to reter exceptions to an answer within the ten days specified in the 51st Rule of the court of chancery, but he must also serve a copy or notice of such order, or take out.and serve a summons from the master, witbin the ten days, or the exceptions will be considered as abandoned. Peale v. Bloomer, 8 Paige Ch. 78, 4: 351 23. Upon a reference of exceptions to an answer, the complainant, in addition to the entry of the or- der of reference, must either serve a copy of the order or a notice that it has been entered, or he must take out a summons to proceed and serve the same within ten days, or the exceptions will be considered as abandoned. JosHn v. Joslin, 1 Ch. Sent. 65, 6: 1068 23. Where a party to a decretal order of reference wishes to obtain an order from the master to com- mit the prosecution or the reference to him, under the provisions of the 101st Rule of the court of chancery, he must give to the solicitor of the ad- verse party notice of the application, and of the papers, etc., upon which such application is to be founded. BdUm V. Glouer, OPaige Ch. 9, 4: 689 S. C. 1 Ch. Sent. 21, 5:1057 24. Or the party making the application to have the prosecution of the order of reference committed to him must deliver to the master the evidence of the neglect of the adverse party to prosecute the reference, and take out a summons thereon for such adverse party to show cause why the prosecu- tion of the reference should not be taken from him and committed to the applicant; and upon the re- turn of the summons the master must proceed to decide the question, after giving to the party sum- moned a reasonable time to answer the alBdavits and other evidence of neglect upon which the an- pllcation is founded, if copies thereof have not been served with the summons. IbM, 26. Where the evidence of the neglect of a party to prosecute a reference with due diligence exists in the master's office, the master's certificate of the facts is sufficient whereon to found an order to commit the prosecution of the reference to another party; but the party who has the prosecution of the reference is entitled to notice of what is in- tended to be used against him upon the application to commit the prosecution of the reference to the adverse party, to enable him to excuse or explain the supposed want of due diligence on his part. Ihid. 26. A party to a decretal order of rpferpuce who has not the prosecution thereof before the master is not authorized to take out a general summons to proceed in the reference, before he has obtained an order from the master committing the prosecution of the reference to him, as authorized by the lOIst Rule of the court of ohauceii . IbUi. 27. Where a decree is made upon the hearing, di- recting a reference In which both parties have an interest, the complainant's solicitor is entitled to- prosecute the reference, unless the court in mak- mg the decree thinks proper to commit the prose- cution thereof to the other nnrty. Qwickentywih v. Leonard, 10 Paige Ch. 131, 4:915- S. C. 3 Ch. Sent. 4, 5:1 101 28. In such a case. If the solicitor of thecomplain- niii. neglects to carry the decree into the master's oHioc and to take out and serve a summons upon the defendant's solicitor within the time prescribed for that purpose by the lOlst Rule, the latter may apply to the court, upon notice to the hdverse party,, to have the prosecution of the decree committed to him. or for such other order as may be proper to ex- pedite the proceedings. Ibid. 29. And where the party entitled to carry the de- cree into the master's office neglects to proceed with due diligence, after he has commenced the prosecution of the reference by the service of a summons to proceed thereon, the remedy of the other party is by application to the master to have the further prosecution of the reference com- mittted to him. Ibid. 30. As a general rule the party obtaining an order of reference is entitled to the prosecution thereof iu the first instance. Ibid, 31. A master cannot issue a summons upon a ref- erence until the decree or order directing suca reference is actually entered, and au authenncated copy thereof is brought into his office. Ibid. 32. It is the duty of the master to exercise the dis- cretionary power committed to him by the 100th Rule In such a manner as to do justice to both par- ties, and not to follow the directions of the solicitor for either party. Ibid. IV. Powers OF Master; Procedure. a. In Oene/ral. 33. An order of reference for an account before a master cannot be more extensive than the alle- gations and proofs of the parties. Conaequa v. Fanning, 2 Johns. Ch. 687. 1 : 7ae 34. Where the charges in the biU are specific, set- ting forth the items of the account, with their dates, on an order of reference for an account, the inquiry is not open beyond the special matters charged; although the bill may contain a g;enCTaI charge at the conclusion, and a prayer for a full account concerning the premises." loid. 35. Under an order of referent" 'i " ""ortgage case, which directs the examination of the com- plainant on oath as to payments, the master cannot examine his solicitor or agent in his stead, without a special order of the court for that purpose. Dekmey v. Carroll, 6 Oh. Sent, ar, 5: 1305- 36. In an order of reference to a master, the de- fendant may be directed to produce before the master, on oath, all books, papers, etc., in his cus- tody or power, and may be examined, on oath, on such interrogatories as the master may direct, rela- tive to the tranpactions pf-t lorth in the pleadings. Hart V. Ten Eycfc, 2 Johns. Ch. 513, 1; 4 <©• 37 Where a demurrer was put in to the whole bill 'and the cause was then referred to the assist- ant vice-chancellor of the First Circuit, who over- ruled the demurrer and gave the defendant six month's time to put in his answer; and the decre- tal order was entered vnth the clerk of the First Scuit ; and the complainant afterwards appealed from so much of the order as allowed six months to answer ; and the chancellor on the appeal modified that part of the order, so as to require the defend- ant to answer in the usual time, with liberty to ap- Sfv for an extension of the time,-HcM, tliat the feierence of the demurrer carried with it the whole case; and that the order overruhng the de- Su?rer an^ directing the defendant to answer. bSS entered with the clerk of the Krst Circuit where the assistant vice-chancellor held his court when the order was made, all subsequent proceed- £g! thereon must be had before the vice-chancellor of that circuit, in the same manner as if the cause bad l^en referred to such vice-chancellor and had been decided by him. inT.„.™ ni, nn; Atlantic Ins. (Jo. v. Lemar, 10 Paige Ch. 605, ^^^^ S. C. 4 Ch. Sent. 62, 5= >-156 464 REFERENCE, IV. b. 38. In a suit for an absolute divorce for adultery, •where the matter is referred to a master to take proof of the facts charged and to report the same with his opinion thereon, it is not the province of the master to decide the question whether the adultery charged has or has not been committed ; but he is merely to report the proofs, with his opinion thereon, for the ultimate decision of the court. Bemoick v. BenuHck, 10 Paige Ch. 420, 4: 1036 S. C. 3 Ch. Sent. 81, 6: 1136 39. Upon a reference to a master, upon a bill for a divorce on the ground of adultery, it is the duty of the master to examine witnesses and report the evidence as to all the material facts charged in the Dili, together with his opinion thereon ; particular- ly as to the averments in the bill which are required to be Inserted therein by the 163d Kule of the court of chancery as to condonation, collusion, etc. Dodge v. Dodge, 7 Paige Ch. 589. 4: 888 10. Where a motion to dissolve an injunction in a •suit pending before the chancellor is referred to a vice-chancellor to be heard and decided, such refer- ence does not carry the whole cause to the vice- -chancellor, so as to give him jurisdiction, upon the -decision of that motion, to make an order allowing an amendment of the complainant's bill ; but if he thinks the injunction should be dissolved without prejudice to the complainant's right to apply to re- new it upon an amended bill, he should make an -order accordingly, and should leave the complain- ant to make his application to the chancellor for liberty to amend and to have the injunction re- -stored upon such amended bill. Cowman v. Lovett. 10 Paige Ch. 359, 4: 1090 41. In reporting upon the title and the rights and interests of the several parties in the premises in a partition suit, the master should require the com- plainant to produce abstracts of his title as a ten- .ant in common in the premises, and to trace it back to the common source of title of the several tenants in common ; and the master in his report should, as far as it is practicable, give an abstract of the con- veyances of the several undivided shares or interests •of the parties in the premises from the time the ■several shares were united in one common source, Hamilton v. Morris, 7 Paige Ch. 39, 4: Bl 42. Whether the provisions of the Revised Stat- utes, authorizing a master, upon a reference against an absentee, to receive the teBtimony of the com- plainant as evidence, under the direction of the court, is applicable to the case of a reference as to title in a partition suit, where some of the defend- ants have been proceeded against as absent or un- known owners,— 3!«jBr«. Christy v. Christy, 6 Paige Ch. 170, 3: 943 43. Upon a reference to a master to examine the defendant on interrogatories relative to an alleged contempt, and to take such other proof concerning the contempt as shall be produced before him by either party, themasterisnotauthorlzedto receive the ex parte al£davits of witnesses, unless he is spe- cially directed by the order of reference tod-eceive such afladavits as proof ; and as a genernl rule the ■court \vil\ not allow ea; parte affidavits to be used on such a reference, but will compel the parties to pro- duce and examine the witnesses before the master, flo that they maybe cross-examined by the adverse iparty. Cumming v. Wagoner, 7 Paige Ch. 603, 4: 895 44. Where upon a reference to a master to settle issues to be tried by a jury and to determine in what county the trial should be had, each party swore to a great number of material witnesses residing in the counties where such parties respectively desired to have the issue tried, but they did not state in their affidavits the matters they expected to prove by such witnesses,— Heid, that the master sliould have rejected or disregarded these affidavits on both sides, or should have called the parties before him and examined them on oath as to the matters they expected and believed they would be able to prove by the witnesses respectively, and as to the grounds of such belief. Meaeh v. Chappell, 8 Paige Ch. 135, 4: 373 45. General principles on which examinations 'before a master are to be conducted, regulating and settling the practice as to the mode of taking testi- mony, on an order of reference to a master. Rem»eM v. Rermen, 2 Johns. Ch. 495, 1: 463 46. The object of the reference to a master to ex- amine and report as to the damages sustained by reason of the granting of an injunction is simply to ascertain the amount thereof according to the nat- ural meaning of the condition of the bond. ^ , , Edwards v. Bodine, 11 Paige Ch. 233, S; IIB 47. The master, upon the return of the first sum- mons, should regulate the manner of executing the references, and the several steps to be taken by the parties, so far as It can then be conveniently done; and, at any subsequent attendance of the parties before him, he should give such further directions in relation to the proceedings as have become neces- sary in the progress of the reference. SfOT!/ V. BroiCTi, 4 Paige Ch. 112, 3:366 b. On Oeditorn' BiH. 48. Upon a reference for the appointment of a re- ceiver in a creditors' suit, the complainant has no right to examine defendant or a witness for any otner purpose than to ascertain what property de- fendant had at the time the bill was filed. Sompson v. Taylor, 1 Ch. Sent. 89, 5: 1078 49. Under the usual order of reference to a master to appoint a receiver in a creditors' suit, the com- plainant Is not authorized to examine the defend- ant for the mere purpose of ascertaining whethet be had not made a fraudulent assignment of his property previous to the commencement of the suit, unless such property is still In the possession oi under the control of the defendant. Qreen v. Hicte, 1 Barb. Ch. 309, 6: 397 50. Whether the receiver himself has the power under such an order, to examine the defendant, ox any other person, as a witness to establish the fact of such a fraudulent sale or assignment,— gucEre. Ibid. 51. Under such an order, the complainant is not authorized to examine the defendant, or any other person, as to matters not relating to the appoint- ment of the receiver or to the ascertainment of the possession, nature, situation, value, character, or other particulars of the property T(hich is to be as- signed to the receiver, or to be delivered to such re- ceiver by the defendant. Ibid. 52. What questions the defendant is bound to an- swer on his examination before a master, upon an order of reference to appoint a receiver in a credi- tors' suit. Jbid. 53. Upon a reference in a creditors' suit the mas- ter should require the complainant to proceed with all reasonable diligence to close the examination of the defendant, and has no right to adjourn the ref- erence Indefinitely, leaving defendant subject to be summoned before him again at a future day, with- out defendant's consent. Hudson V. Plets. 11 Paige Ch. 180, 5: 99 54. After a defendant in a creditors' suit has been summoned to attend before the master, under the usual order of reference to appoint a receiver, etc., and has assigned and delivered over his property to the receiver on oath, and his examination oc oath asto the same has been completed, the master can- not issue a new summons to compel defendant to attend before him for further examination, with- out a new order of court. "'»(■ 55. Where the property of the defendantin a cred. itors' suit hiis beeu assig iied and delivered to lue i-e- ceiver, and has been sold by him, the complainant has no right to examine the defendant, on the ref- erence before the master, as to the title to such property. Ibid. 56. Where a judgment debtor has been examined under an order for a receiver and the examination has ended, he cannot be called up again to u<;Qergo another general examination. In such ;, case the master should have the question reauued to writing and laid before him; and then grant a summons if the questions are material, necessary and proper. Starr v. Marange, 3 Bdw. Ch. 345, 6: 683 67. Where a deed or other instrument is proved or is made an exhibit before an examiner, upon the taking of the testimony in a cause, it is the duty of such examiner to retain it and to return it to the register's or clerk's office, with the testimony, unless the parties to the suit consent that he may take a copy of the exhibit, and return that with the testi- mony, instead of the orijrinal. .4.tMn V. Martin, 11 Paige Ch. 499, 6:818 58. Under the usual order for a reference to ap- point a receiver on a creditors' bill, and directing the judgment debtor to deliver over his property and effects to such receiver, the only objects of au- thorizing the examination of the defendant and of REFERENCE, V; a, b, 1. 465 witnesses before the master are to ascertain the nature and value of the defendant's property, to 'enable the master to determine who would be a proper receiver thereof and the amount of security which such receiver should give, and to enable the «omplainant and the receiver to ascertain whether the order of the court is complied with by the de- fendant In delivering over the whole of his proper- ty; it is therefore erroneous to direct the exami- nation of the dpfendant, or of witnesses, to any other matters charged in the complainant's bill, «zcept where such examination is intended as a substitute for an answer, in oases where the de- fendant has given a stipulation to that effect, as authorized by the 191st Rule o! the court. Copous V. Kauffman, 8 Paige Ch. 583, 4: 558 69. Where the complainant obtains an order for the appointment of a receiver of the property of a defendant who is a lu natic and has put in an an- Bwerby his guardian ad Ktem, without any direction to the defendant to assign or deliver over his prop- 'Crty, the complainant is not authorized to call and -examine witnesses on the reference, after the re- -ceiyer has been appointed, for the mere purpose of obtaining testimony to be afterwards-used in the T- >,..for-^ thn COUrt. Dickinson y. Codwise, 4 Edw. Cb. 341, 6: 899 107. On a master reporting a plea as true, the complainant can except on tbe point of tbe truth in fact. The proceedings referred to by plea are produced: and if the exception be overruled, the REFERENCE, V. c. W plea stands for argument as to the question of its beJniF a bar. wakes V. Henry, i Edw. Ch. 673, 6: 1014 108. An Irregularity in a master's office. In a mat- ter of practice connected with his report, is to be corrected by motion, and not through an excep- tion. De M»tt V. Benson, 4 Edw. Ch. 397, 6: 884 109. No exceptions can be filed to a master's report upon a retereiice to take proof of the fact of adul- tery ; but the objection that he has formed an erro- neous opinion upon the testimony must be made at thp hearing of the cause. BenwMi v. Bemoich, 10 Paige Ch. 430, 4: 1035 110. Where a master a has proceed ed irregularly, or where it is necessary te examine additional wit- nesses in relation to the- subject-matter of the ref- erence, a special application must be made to the court for relief, upon due notice to the adverse party. jbiij. HI. Master's report cannot be excepted to for not being filed in time. Seymour v. Brewster, 3 Ch. Sent. 63, 5: 1096 o. RevUw of Report Oenerally; Subsequent Pro- ceedings. 112. Where the parties to a foreclosure suit stipu- huua to I'eteritto tne vice-chancellor before whom the suit was pending, to ascertain whether the premises could be sold In parcels, and to report the amount due and to become due on the bond and mortgage, and that upon filing his report the usual decree of sale should be entered in conformity therewith,— fleW, that the complainant was entitled to a decree Immediately upon filing such report, and without waiting the usual time to give the de- 'endants an opportunity to except to the report. Wetmore v. Winans, 8 Paige Ch. 370, 4: 466 US.The order to confirm the master's report of the amount of the deficiency, which is entered upon the filling of the report, is an order nisi, and does not become absolute until the expiration of eight days from the time of its eiitry. Bank of Boehester v. Emerson, 10 Paige Ch. 115, 4: 909 114. On exceptions to a master's report in relation to the rights of olaimantii upon surplus in a mort- gage case, the eamo must be put on the calendar and cannot be disposed of by motion. Eagle Fire Ins. Co. v. Flanagan, 4 Edw. Ch. 559, 6: 975 115. In a suit between the representatives of a father and the representatives of his eon, where all the matters in controversy were referred to a master, the court refused to allow the exceptions made to the report; the transactions being very stale and ancient, and most of them family dealings and concerns, and the parties and their witnesses having been fully examined before the master. Arden v. Arden, 1 Johns. Ch. 313. 1: 153 116. Where an irregularity has occurred previous to the reterenoe of tne cause tif a vlee- not directed to be altered or reconsidered by the master. Ibia. 126. An error apparent upon the face of a master'^ report, in a matter of mere computation, may be corrected by the court, although no exceptions to the report have been filed. BogeH v. Furman, 10 Paige Ch. 496, 4: 1065 137. Where the master's report In a partition suit shows the actual interests ot the several narucs in the premises, it is not nec.5Ssary to send the report bick to the master to correct an erroneous estimate which he has made in relation to such interests, but the error may he correeted by the decreo CaJpcMf^rv. Schermerhorn, 2Barb. Ch.314, 5: 656 128. A party cannot bring on the hearing of ex- ceptions to a master's report upon the merits at tiu- same time he applies to set aside the report tor ir- regularity, or to refer it back to the master to take further tes^'imony and review bis report. TyUr V. Simmons, & Paige Ch. 137, 3:925 129. The proper course, where a party wishes to apply to set aside a report for irregularity, is to ob- tain an order to enlarge the time for filing his ex- ceptions, for the purpose of giving him an oppor- tunity to apply to the court, and have the question of regularity disposed of before ho excepts. Ihid. 130.The master's certificate as to the insufficiency of an examination of a party on interrogatories does not require an order of confirmation. Case V. Abeel, 1 Paige Ch. 630, 8: 778 131. If the master's certificate is not excepted to within eight days after notice of the filing thereof, it becomes absolute of course. Ibid. 132. The practice in relation to exceptions to an swers for insufficiency must be adopted and pur sued^ far as the same is applicable to exceptions to the examination of a party. Ibid. 133. If the examination is reported insufficient, the master may allow new interrogatories to be added by the adverse party, and the exceptions and new Interrogatories must be answered together. Ibid. 134. If the examination is certified by the master to be sufficient, the adverse party cannot re-exam- ine the defendant to the same point without the permission of the court. Ibid. 468 REFORMATION OP INSTRUMENTS— RELEASE. Editorial Notes. Reference; to master or commissioner 1: 463, 3: 164 To appoint receiver upon dissolution of cor- poration 4:473 To take testimony as to accounts in surro- gate's court 5:459 To ascertain who entitled to surplus on fore- closure sale 4: 579 In case of suit in behalf of infant 1 : 479 Cannot be obtained as to estate in receiver's hands 4:470 Prosecution of decretal order of 4: 589 Decretal order of ; rehearing on the merits 1:650 Examination before master 1: 463 extent of 1:726 mode of taking testimony 1: 470, 6: 333 of defendant before master 4:155 application to examine books 3: 975 Master; sale by; correction of mistake 6:353 authority limited by order of reference 6:687, duty to take testimony and report evidence 4: 388 Referee an officer of the court 6: 614 Report; irregularities and neglect; course to be pursued 3:925 how far evidence 6: 372 need of confirmation 5: 490, 753, 6: 537 exceptions to report 1:463,3:594,3:506, 6:555 error in, may be .amended 5: 758 amendment not allowed after appeal 5:759 omission of master; reference back 5:304 errors and defects may be pointed out 5: 459 further afiswer must be referred on old exceptions; time within which excep- tions to be filed 6: 156 REFORMATION' OF INSTRU- MENTS. See CoNTBACTs, V. o. REGISTRATION. See Real Fboferty, n. REHEARING. I New Tblal, ZO ; Pbaotice. VL g. RELATION. I Bankbuptct, 39, 40. RELATIONSHIP. I Affdhit ; Master, 7, 8. RELEASE. See also Joint Dkbtoks j Mobioaoe, VL ; Pein- oiPAL AND Surety, I, c. 1. Where two or more persons are jointly and sev- erally bound, in one obligation, a release of one obligror entirely dischargres tlie rest at law, but not strictly so in equity ; for equity will not extend the operation of a release beyond tbe clear intention of the parties and the justice of the case, but will construe it to relate to the particular matter in- tended to be released. _ Kirhy v. Taylor, 6 Johns. Ch. 842, 8: 113 2. As, where A, B, and C, guardians, executed a bond, Jointly and severally, with T as their surety, for the faithful performance of the guardianship ; and the ward, after coming of age, executed a re- lease to A, adding, "But this release is not to apply to or affect my claims against B, my acting guar- dian, and whose account remains unsettled,"— BeM, that the release, as to A, was good ; and was also a good defense for T, so far as he was surety for A, but that he remained bound for B and C, the oilier two obligors. 164*. 3. It is a strong rule of equity that a general re- lease shall be confined to what was under consider- tlon at the time of giving it. Melntyre v. WiTUarmon, 1 Kdw. Ch. 34, 6: 50 4. The areneral words, in a release, "all claims and demands whatsoever," are to be restricted to the subject-matter of the release. Thus, where P. M. executed a release to T. B. C., by which be ac- knowledged to have received from the said T. B.C. a conveyance of a lot of ground, described as lot No. 184, valued at $200, in full satisfaction and dis- charge of all demands and claims whatsoever, and in consideration thereof and of SI, released and dis- charged the said T. B. C. of and from all claims and demands whatsoever,— It was Tieid that the release was to be restricted to the claims and demands which P. M. had against T. B. C. for the said lot of ground. No. 184, or to some demand of $200 which the conveyance was Intended to satisfy. Ibid. 6. A release to one who had contracted for the purchase of land and paid part of the purchase money is valid in this court, as if the releasee was in actual possession. Dias V. GUmer, Hofl. Ch. 71, 6: 1068 6. Where there is a particular recital in a release and nothing appears on the face of the instrument to show that anything beyond the matter of such recital was intended to be discharged, general words of release following such recital will be qualified by it so as not to discharge other claims which were not in the contemplation of theparties. Hoes V. Van Hoesen, 1 Barb. Ch. 379, 6: 484 5. C. 6 Ch. Sent. 5, 5: 1193 7. But the construction of a release must depend upon the language of the instrument itself, and ex- trinsic evidence cannot be resorted to for the pur- pose of showing the intention of tbe party execut- ing such release. ibid. 8. Where the owner of a charge upon the lands of several persons, which charge is primarily chargeable upon the lands of one of them, with full knowledge of the equitable rights of the parties, releases the lands primarily chargeable, he will not be permitted to enforce his charge against the lands which are only secondarily liable. Ltvingatxin v. Fretiand, 3 Barb. Ch. 510, 5: 991 9. When a release is obtained from the owner of land for the passage of a railroad, with a proviso calculated to confine the line of such road to a par- ticular portion of tbe land, the release will not be deemied to be operative, if the railroad company afterwards construct its road across the land by a difi'erent route substantially from that first con- templated. Dowilass V. New Tork & E. B. Co. C. 174, 1: 84 10. Where one conveys property to a religious corporation upon certain conditions which are vested in him alone, his release is competent to ex- tinguish them. Cammeyer v. United German IMtwran Churches, 2 Sandf. Ch. 186, 7; 568 Editobial Notes. Release of debt Construction of Restricted to subject-matter By mortgagee Cannot be explained by parol 7:640 6:434 6:50 5:595 6: 658 RELIGIOUS SOCIETIES. 469 I RELIGIOUS SOCIETIES. See also Chartcablii Uses, 19-Zl ; Cemetery ; Dis- covert, 20; Eyidence, 18; IiAndlobd and Tenant, 20-28 ; Reobiveks, 61 j Specific Pe«- VORMANCB, 102, 103. 1. Where a purchase was made on behoU of the memhers of a voluntary religious association, pi.id for by the memliers, and the deed taltea to one of them, the trustees appointed upon the church being subsequently incorporated have aright to call for a conveyance. Trustee* of South Baptist Church v. Fofes, Hotf. Ch. 142, 6: 1093 2. The indorsement of the grantee, that he held the property to be conveyed upon the members as- senting to an open communion, which was contrary to the tenets of a large proportion of the contribu- tors, cannot be regarded; no assent having been proven. ibid. ,3. The Act of 1784 authorizes subsequent acquisi- tions of property by religious corporations, but does not sanction previous gifts by devise. Wright v. Trustees of M. E. Church, Hoff. Ch. 202, 6: 1116 4. A legacy was given"'to the Hethodist Society that meet in the meeting-house in John Street." xlie corporate style of the claimants was: "Ti.:! I^ustccs of the Corporation of the Methodist Epis- copal Church in the City of New York." There were eleven churches composing the society, and that in John Street was one. Held, that payment to the secretary or clerk of the separate church, it there was any such olhcer, was good, or a payment to the treasurer of the general board expressly for its use. ijjid. 5. The corporation styled 'The Trustees of the Corporation of the Methodist Episcopal Church in the City of New York" can take lands directly un- der the Act of 1784. Ibid. 6. The trustees of a religious corporation have the power, with the consent of the court of chancery and under the sanction of its order, to make an as- signment of the real estate of the corporation to trustees in trust for the payment of all the creditors of the corporatiou ratably. And their deed of such real estate, under the corporate seal, will vest in the grantees the legal title of the corporation in such real estate and in the equity of redemption in mort- gaged premises. De Busier v. St. Peter's Church, 3 Barb. Ch. 119, 6:840 7. A right as a corporator in a religious society is obtained by stated attendance on divine worship therein, and contributing to its support by renting a pew, or by some other mode usual in the con- gregation. Cammeyer v. TTnited German Lutheran Churches, 2 Sandf. Ch. 186, 7: 558 8. Such a right cannot be derived by descent from the founders of the society, or from the for- mer contribute cs to or worshippers in the same. ibid. 9. The association between a religious incorpora- tion and its corporators is voiuuuii-y on tiie pare of the latter, and is dissolved by their withdrawing from attendance on its worship, omitting to con- tribute to its support, and uniting in the establish- ment of another like incorporation. Ibid. 10. The trustees of an mcorporated religious society can alone bind the corporation. The action of the vestiy has no such force. And where the act relied upon was adopted at a meeting of the conference or council, which consisted of the min- ister, elders, deacons, and trustees convened in mass, the corporation was not bound, although a majority of the trustees were present. Ibid. 11. Where the exercise of incorporate acts is vested in a select body, aa act done Ity tue persons cuiii- posing that body, in a mass meeting of all the cor- f)orators, or in union or amalgamated with other ike bodies, parts of the corporation, is not a valid corporate act. Ibid. 12. Where real estate is conveyed to trustees in trust for the use or a church or congregation us a place of worship, which church or congregation is afterwards incorporated, the court, after a great lapse of time, will presume a conveyance from the oriHnal truptpps nr their heirs tf^ the corporation Bef armed Dutch Church v. Matt, 7 Paige Ch. 77, I 4:67 18. Where real estate was held by individuals in trustifora Dutch cliurcb, which was incorporated previous to the passage of the Act of March, 1801, relative to religious corporations, the effect of that Act was to transfer tlip legal title to such estate from the trustees directly to the corporation. Ibid. 14.The Act relative to religious corporations gives to such corporations unliiuited power to couvey real estate which is held in trust for the corporators; provided the consent of the court of chancery to the alienation is given, as authorized by that Act. Ibid. 15. An injunction obtained by a pewholder, to re- strain trustees of a church from pulling it down, —dissolved, it appearing that the increase of the congregation and the dilapidated state of the old edifice made it proper. Heeney v. Trustees of St. Peter's Church, 2 Edw. Ch. 608, 6: 638 16. Jt would seem that on an application by a reli- gious corporation for leave to sell its church and grounds, it is not absolutely necessary for the ap- plicants to state that they have found a purchaser and fixed upon a new site ; a conditional order cvn be made. ;• BeBrick Presbyterian Church, 3 Edw. Ch. 155, 6:607 17. A purchase of a pew gives no right to the soil ; and the interests of a pewholder create no bar to a sale of the church and grounds. Ibid. 18. The pew-owners are only entitled to the use of their pews for the ordinary purpose of sitting there- in during divine service. But they may maintain case, tiespass, or ejectment, according to the cir- cumstances, if they are improperly disturbed in the legitimate exercise of their legal right to use their Eews in that manner. But in other respects they a ve no greater rights in the church than the other members of the congregation. Baptist Church v. WiOierell, 8 Paige Ch. 296, 3: 169 19. Where property is conveyed for the use of an unincorporated religious society, and such society is afterwards incorporated under the general Act authorizingtheincorporation of religious societies, the legal title to such property thereby becomes vestedin the corporation. ibid. 20.The statute authorizes the members of the con- gTegation,and not merely the members of the Chris- tian church connected with such congregation, to incorporate themselves : and the majority of the stated hearers in such religious society are author- ized to elect trustees and incorporate the society, although the persons composing such majority may have been excommunicated by the church judica- tories for heterdox opinions or unchristian prac- tices. Ibid. 21. The members of the church have no greater rights as corporators than other members of the congregation who statedly attend divine worship with them. . ibid. Zi. The legal tribunals of the State have no juris- diction over the church, or the memliers thereof, as such ; and the ecclesiastical judicatories are not authorized to interfere with the temporalities of a religious society or congregation. ibid. 23. The court of chancery has jurisdiction to pre- vent a diversion of the temporalities of a church from the purposes for which they were devoted by the donors, and to requ re them to be appropri- ated to the support of that form of worship, and to the teaching of those doctrines, for which they were originally intended. Gdble V. MUler, 10 Paige Ch. 627, 4:1118 S. C. 4 Ch. Sent. 22, 5: 1142 24. Where a religious society is formed or incorto- rated and a place of worship raised tor the puijj,,^,; of inculcating particular doctrines or worship, nei- ther the ofacers nor a part of the coagregatiou cuu set up a new faith there. This can only bp done with the consent of all the members. If it be at- tempted and a member complain, this court will examine into the doctrines and restrain the new faith in such particular place. This does not act as a check upon liberty of conscience, tor those who hold different principles can secede and form a new congregation. Bowden v. McLeod, 1 Edw. Ch. 588, G: 857 25. While two parties in a congrei? at'^n wp'p "y. ing to get possession of the church and their dis- putes were under scrutiny of a synod, the court di- mo EELIGIOUS SOCIETIES. ;reotea each party alternately to have the weekly use of the church. Ima. 28. Where a church is endowed with property for thesupportof a particular faith,and is subsequent- ly incorporated, it is not competent for a majority of the cnuroh.the congregation, or the corporators, or of a majority of each combined, to appropriate such property for the maintenance of a different faith. Kniskern v. iMtheran Churches, 1 Saudf . Ch. 439, 7: 388 27. The question of the particular religious faith or belief is not material in such cases, except so far as the court is called upon t j execute the trust, and to that end It merely inquires what was the faith or belief to maintain which the fund was bestowed. The court does not animadvert upon the religious belief of wither party, or assume to determine that eitherisinitself right or wrong. Ifiid 28. Where a trust is created by deed, for the use of a congregation of Christians, designating such congregatiou by the name of a sect or denomina- tion, wfthout any other specifloation of the religi- ous worship intended, the intent of the donors or founders in that respect may be implied from their own religious tenets, from the prior and contem- porary usage and doctrines of the congregation, and from the usage, tenets, and doctrines of the sect or denomination to which such congregation belongs. IMd. 29. In ascertaining the early and oontemporaiy usage and doctrines of such sect, resort may be had to mstory and to standard works of theology of an 'era prior to the existence of the dispute or contro- versy. Ibid. 30. A grant of lands was made in 1789 to the trus- tees of an EvangeUcal Lutheran congregation con- sisting of two churches, "for the common use and benefit ol the said Lutheran congregation f oreTcr." Prior to 1800, with other donations a house of wor- ship was erected by each church, and other tem- poralities were acquired. Each church became in- corporated under the general statute. At the time of these endowments, their standard of faith and doctrine was the Augsburgh Confession of Faith. In 1830 they became a part of the Hartwlok Synod of tue Evangelical Lutheran Church. In 1837 the trustees of the two churches, in connection with the pastor and the church councils, dissolved their connection with the Hartwick Synod, and united with other churches in forming a new synod, which adopted a declaration of faith essentially variant in three principal and cardinal doctrines from the Augsburgh Confession. Held, that these proceed- ings of the trustees were a perversion of their trust and an unlawful diversion of the property of the churches from the objects and purposes for which it was originally contributed. And they were de- creed to account for the rents and incomes thus perverted. TIM. 31. Held, also, that those members of the congre- gations who adhered to the Augsburgh Confession and continued their connection with the Hartwick Synod were entitled to have such trustees removed, and to have a decree for the application of the property to the objects for which it was given. And the corporate organization of such members having been continued, pending the suit, their trustees were held entitled to receive the tempo- ralities of the churches. Ibid. 32. Two Lutheran churches or reUglous societies, each owning temporalities, thougn of unequal value, entered into an agreement for a union, to re- main forever as one body, congregation, or society, by a new name expressing such union, and by which their estates were to be consolidated for the common use and benefit; and the charge of their estates and concerns was entrusted to officers to be chosen out of the united congregation, with other provisions showing an entire union and consolida^ tion into one oody; and the agreement also pro- vided that out of the property the ancient church of one of the constituent societies should be rebuilt on the site where its ruins stood, for the use of the united congregation, as soon as circumstances would admit. The united body was immediately afterwards incorporated by the name agreed upon, and after twenty years the corporation sold the site of the ancient church, and never rebuilt it. In a suit brought by persons claiming to be corpo- rators In the united church, and to be In part the representatives of the ancient congregation which owned such site, to compel the corporation to build «nd endow a church in pursuance of the terms of the union,— HeM, amongst other thlhgs, (I) that all the property of the two churches became vested in the incorporation. (2) That the management and control of the same vested in the trustees as a dl^ linct body, and to the exclusion of the elders and deacons. (3) That the same vested In the corpora- tion as an individual body or unit, in trust for the maintenance of the faith, doctrines, and discipllM of the Evangelical Lutheran Church; and not for the benefit of the two former congregations connected together for certain purposes. The existence of both was merged In the union. _ . Camrmuer v. United Oermcm IMtheran Churcnes, 2 8. 186. '! 668 33 No member of either of the former churches bad any greater, better, or different right in the in- corporated society than the members of the other. The rights of all were equal and upon a common footing. And if the ancient site of the one had been built upon, the rights of the members of both in such edifice would have been equal in all respects. ima. 34. Persons coming to worship In the edifice ac- quired no rights beyond the period for which they rented pews from time to time. Ibid. 35. Whether the separation of a church by the trustees and council luereof from the synod to which it formerly belonged, and its addition to an- other synod, is ground for equitable relief on be- half of the church members,— (rucBre. Kniskern v. Lutheran Chv/rches, 1 Sandf . Ch. 439, ?! 3o8 38. Where the trustees of a German Bef ormed Church which was in ecclesiastical connection with, and subject to, the church J uilicatories of the Dutch Iteformed Church in the United States, attempted to dissolve the connection of such church with the classis to which it belonged, and employed German Lutheran pastors, without the consent of a large portion of the church and congregation, or of the classis with which the church was connected; and re- fused to permit the stated supplies provided by the classis to occupy the pulpit,- HeM, that such con- duct of the trustees and their adherents was a di- version of the funds and property of the church from the purposes for which they were contributed by the original donors. Goftle V. Jjfffler, 10 Paige Ch. 627, 4:1118 S. 0. 4 Ch. Sent. 22, ■ . 5: 1148 37. Held, aUo, that those members ot the church und congregation who adhered to the original aoc- trines of the church, and who had continued their ecclesiastical connection with the church judica- tories to which they were subordinate when the property of the church was acquired, and who had also kept up a proper corporate organization, by the regular election of the proper church officers, as trustees of the corporation, from time to time, were entitled to the temporalities of the church and to its books and papers. Ibid. 38. Whether the trustees of a church who have the legal control of its temporalities can witudiaw themselves from their ecclesiastical connection with the church judicatories with which such church is connected, upon the ground that such church judi- catories have departed from the original doctrines upon which the church was established; or whether the decisions of such judicatories are conclusive upon the churches ecclesiastically connected with them, as to what are the peculiar doctrines of their church, or denomination of Christians,— aiuere. lUd. 39. In a mixed (German and English) congregation of a German Lutheran Church, one party cannot, on the resignation of its particular pastor, agree with another church that it may brijig in its pastor and congregation as a body corporate, with its church establishment. They may invite a minister and Individuals to attend and so Increase their num- ber. „ Cmnmeyer v. German Lutheran Chv/rches, 4 Edw. Ch. 223, 6: 859 40. The churchwardens and vestrymen of a Protes- tant Episcopal church have the exclusive power of calling and Inducting a minister. The persons qual- ified to vote for the church wardens and vestrymen, have no such right. Humbert v. St. Stephens Chwrah, 1 Edw. Ch. 308, 6: ISO 41. In such case a call and induction consists in a power to fix the salary as well as to make the con- tract of the rector and deliver him possession of the church. The term call as used In the statute for the incorporation of religious societies (3 Hev. Stat. REMAINDER-REMOVAL OF CAUSES. 471 J892) is derived from the Dutch Reformed Church. Ibid. 42. A church Judicatory cannot remove a clergy- man from big situation as minister of a society or oonjf regation, without the consent of a majority of the members of the congregation, or of their legal- ly constituted trustees, if the society is incorpo- Tated. JBophst Church v. WUherea, 3 Paige Ch. 296, 3: 169 43. Jt seems that the court of chancery will not in- terfere to prevent the trustees of a religious society from employing a particular individual as their clergyman, although his reUgious tenets should be at variance with those of the original founders «f the society, and from whom its temporalities -were derived. Ibid. 44. The Act of 1784 for the incorporation of rell-; gious societies recognized three distinct classes or bodies as existing in the incorporation of a Chris- tian church : viz., the church or spiritual body,con- eisting of its olBce-bearers and other communi- cants ; the congregation or electors, embracing all the stated hearers or attendants on divine worship: and the trustees, who were to have the control of the temporalities of the society for the beneflt of the stated hearers and the communicants. Lawyerv. Cipperly, 1 Paige Ch. 2Sl, 4: 156 45. The church, as to its doctrines, government, and worship. Is to be governed by Its own peculiar rules which neither the congregation nor trustees can interfere with; but whether the church can, with the assent of the congregation and the trus- tees, change its government, discipline, mode of worship, or standards of faith,— QUtcre. ibid. 46. The minister of an incorporated religious socie- ty cannot be called and settled by the church or communicants only; but the assent of tiie trustees must be obtained, to authoi'ize him to preach in ii building belonging to the corporation or to occupy the glebe and parsonage; and if he is to receive a support or compensation for his services from pew-; rents, or from the subscriptions or ordinary contri- t)Ution8 of the stated hearers of the congregation, the payment of such stipend must be authorized by ♦he electors of the congregation at a regular meet- ing called for that purpose. Ibid. | 47. If the trustees of a religious corporation should ■without reason refuse to employ a minister, against the wishes of the great body both of the church and the congregation, it seems it would be such a breach of trust as to authorize the court of chancery to I'emove the trustees and to allow the congregation to elect others in their places : but the trustees would not be guilty of a breach of; trust by withholding their assent to the call of a minister whose employment would probably de- stroy the peace and harmony of the church or of the congregation. Ibid. Editorial Notes. Authority ; rights and powers 3: 160 Distinction between church and corporation 3: 160 Church corporation ; organization and gov- ernment 4: 1.57 Incorporated 7: 888 Exercise of corporate acts 7: 388 Parochial authority and church judicatories 3:161.7:388 Usages, tenets, and ecclesiastical history 7: 388 Protestant ; what term includes 7: 388 Systems of faith; when antagonistic 7:388 Limit of police power over religious organ- izations 7: 388 Jurisdiction ; in church matters 3:160,4:156 over ecclesiastical bodies 4: 1119 over temporalities in church matters 3: 160, 4: 156, 6: 257 over charities directed to religious pur- poses 7: 388 power to change faith of a church 6: 357 No jurisdiction in equity over spiritual tenets 7: 388 Property of ; power to sell 3:395,4:69,5:840 seceders cannot carry property to new con- nection 7:388 Church pew ; personal property 5: 130 conveyance of right to use 3:160 rights of pewholder 6: 532 Tombs and vaults ; property in 6: 607 Trustees, authority of ; direction of t«m- poral affairs 7: 558 Employment of pastor 6: 150, 7: 388 power to fix his salary ; rule in different churches ; who liable for salary ; re. CO very of salary ; removal of minister 6:15o REMAINDER. See Assignment, 12; Deed, 24; Beal Propbbty, I, d ; Wills, 261, 263, II. f . REMITTITUR. See Appeal, 265. REMOVAL OF CAUSES. 1. If a defendant intends to remove a cause into the circuit court of the United States, he must file his petition, etc., for that purpose at the time of entering his appearance in this court. JAvingstmi v. (Jibbong, 4 Johns. Ch. 94, 1: 776 3. Where a defendant files his answer to an in- junction bill, and is heard by his counsel on ti.o merits of the blU and answer, and the court makes a decretal order in the cause, it is too late to make application for the removal of the cause. Ibid. 3. Where one of two defendants is a citizen of auuther State, and there is no Joint trust, luuji-csL, duty, or concern in the subject-matter of the con- troversy, he may be allowed to appear and defend alone, so as to enable him to remove the cause. , Ibid. 4. If some of the parties, plaintiffs and def end- auta, respectively, are citizens of the same State, the cause cannot be removed from the State court to the circuit court of the United States. North River Steamboat Co. v. Hoffman, 6 Johns. Ch.SOO, 1:1090 5. Where a corporation is plaintiff, it must ap- pear that all persona Jointly interested are entitled to sue in the courts of the United States, in order to give a circuit court of the United States Juris- diction of the cause, or to entitle a defendant in a State court to remove the cause into the circuit court of the United States. Ibid. 6. A suit in a State court wUl not be removed into the clicuit court of the United States, unless the latter court has Jurisdiction of the subject-matter of the suit, and has the power of doing substantial justice between the parties. Bogers v. Biygers, 1 Paige Ch. 183, 2: 609 7. Where N E commenced suits at law in the su- perior court of the city of New York against H tt, and H K filed a bill in chanceiy to obtain an injunction restraining the proceedings at law,— it was held that the suit in chancery could not be removed into the circuit court of the United States, inasmuch as such a removal would leave U K with- out remedy, the circuit court of the United States having no power to restrain the proceedings at law. Ibid. 8 Although the parties to an Interpleader suit in this court live in different States, still, the cause will not, before the complainant is dismisaed.be removed to a United States court— a complainant in an inter- pleader bill being more thnn a nominal party. Leonard v. Jamison, 2 Edw. Ch. 136, 6: 339 9. Where the defendants are aliens and proceed 472 RENT— REVIEW. BILL OP. to remove the cause into the circuit court of the United States under theAct of Congress, the grant- ing an Injunction on motion for Us inlfringement wlU not be ground for keeping a cause in this court. Byam v. Sfeuens, i Edw. Ch. 119, 6: 819 Editokial Notes. Application for removal of cause ; by whom 1:776 On ground of citizenship 1: 1090, 6: 339 Auxiliary suit 6:339 Suits not removable 2: 609, 3: 735 RENT. See Landi^obd and Tenant, IL RENTS AND PROFITS. See AooouNTiNO, 14 ; Husband and WtFi!, 4W ; Mortgage, 9S-95, 413-415; Pabtition, 103; WiIXS, 314, 3S2, 460-466. REPLICATION. See Fleadino, VI. REPRESENTATIONS. See Fraud. REPUGNANCY. See Real Property, 5 ; Wllm, 267. REPUTATION. See Evidence, X. o. RESALE. See JuDiciAi. Salx ; Mortgage. RESCISSION. Bee Contracts, Y. b; Sale, 30. RESERVATION. See Deed, H. b, 3. RES GESTiE. See Evidence, IX. RES INTER ALIOS ACTA. See EvmENCE, IX. RES JUDICATA. See Judgments, etc. RESTITUTION. 1. Where the coniplainant in a suit In chancery le the real party in interest, the court has no j urlsdio- liun over third pm-Bons wuo aiv not parcit-tt tu luc sult, to compel them, on a summary application, tu pay the costs of the suit, or to refund moneys re- ceived by them under a decree which waa after- wards reversed, and which they received in codbc- Quence of their having an eaultable lien upon th" moneys to be recovered in the suit, as security for a debt due to them by the complainant. Field V. Jlfoffftee, 5 Paige Ch. 539, 3:821 2. Whether the money collected under a decree^ and paid over to such creditors of the complainant before the reversal of the decree, can be recovered back from them after such reversal,— gucere. IbHU RESTORATION. See Husband and Wite, 123. RESTRICTION OF ALIENATION, See PeBpetuities. RESTS. See Interest. RESULTING TRUST. See Trusts, L d. RETAINER. See ExEcxrroBs and Administrators, IV. a, 4L. RETAXATION. See Costs. See Duties. REVENUE. REVIEW, BILL OF. 1. A bill of review is proper after a decree is en- rolled, and a supplemental bill in nature of a biU of review, before the enrollment of the decree. Wwer V. Blachlv, S Johns. Ch. 488, 1: 460 2. The party who asks for a bill of review must show that he has performed the decree, especially as regards the payment of money, and that he ha» paid the costs. Ibid. 3. A bill of review must be either for error in point of law apparent on the face of the decree, or for some new matter of fact relevant to the case, discovered since publication passed, and which' could not, with reasonable diligence, have been dis- covered before. Ibid, 4. A party cannot file a bill of review if he has noiuterestra the question intended to be presented by it, and if he cannot be benefited by the reversal or modiflcation of the former decree. TTebf) V. Pen, 3 Paige Ch. 368, 3:191 5. A bill of review for error apparent must be for an error in law arising out of the facts admit- ted by the pleadings or recited in the decree Itself as settled, declared, or allowed by the court. It cannot be sustained upon the ground that the court has decided wrong upon a question of fact. IMA. 6. Where a decree entered by consent is errone- KEVISED STATUTES ; REVIVOR. 47» ous. It cannot be corrected by a rehearing or an appeal. If It was obtained by fraud or covin, the remedy is by an original bill. Caster v. Clark, 2 Ch. Sent. 38, 5: 1089 7. Irregularities in a proceeding in a court of law can only be objected to there. Barnard v. Darling, 1 Barb. Ch. 818, 5: 360 8. If a decree is erroneous in that it is not war- ranted by the allegations of the bill upon wliich it is founded, the remedy of the party injured is by an application for a rehearing; of, if the decree has been enrolled, by a bill of review. Goodhue v. Cliwrchmcm, 1 Barb. Ch. 696, 5: 609 9. A bill of review wUl not be sustained on the ground that the chancellor who made the decree was interested in the stock of the complainants, a corpc-ation, if the decree was by consent or merely formal, so that the chancellor did not per- sonally exercise his judgment in it. Xor will it be sustained for newly discovered matter of error in the proceedings, which with ordinary diligence the party might have discovered before; nor un- less the complainant shows himself aggrieved by Lansing v. Altxmy Ins. Go. Hopk. Ch. 102, 8: 357 10. A bill of review on matter of fact is not al- lowed to be aied, unless on oath of the disooveiT- of new matter or evidence which has come to light since the decree, or at least since publication, and which could not possibly be had or used at the time publication passed. ZAvingiUm v. Bubba, 3 Johns. Ch. 124, 1 : 563 11. Newly discovered evidence which goes to im- peach the character of witnesses examined In the original suit, or of cumulative witnesses to a lit- igated fact, is not suificient. HM. 12. The matter of fact newly discovered must be relevant and materially atCeoting the ground of the decree. IWd. 13. A bill of review will not allowed unless the decree has been performed by the party seeking the review; but where he is in execution for the nonpayment of the money and costs awarded to be paid by him, and which he is unable to pay, it seems that leave to file a bill of review will not be denied on the mere ground of nonperformance of the de- cree^ Ibid. 14. II seems the court of chancery cannot enter- tain a bill in the nature of a bill of review, upon the ground of newly discovered facts, to review a decree which had belen afSrmed in the court for the correction of errors, unless such a right has been expressly reserved by the final decree of the appel- late court. Stafford v. Bryan, 2 Paige Ch. 45, 3:806 15. A bill of review can only be filed after enroll- ment, and then only lor error apparent on the de- cree, or to produce relevant matter existing at the time of the decree but discovered afterwards. A bill in the nature of a bill of review may be ex- hibited after the decree is entered and before en- rollment. Qreenvrlch Bank v. Lnomts, 2 S. 70, 7: 513 16. In general a bUl of review cannot be brought upon an interlocutory decree. Ftad V. Williamson, 4 Sandf. Ch. 613, 7: 1838 17. A bill of review cannot be filed without the special leave of the court, nor except on giving the security prescribed on an appeal. iWa. 18. A party who has appealed from a decree will not be permitted, while his appeal is pending, to file a bill of review. Io«». 19. Where in a decree against an infant defendant permission is given to him to show cause against ..ne decree witom six montlis alter lie Oecoiiits of age, he cannot at that period assail the decree in any mode he may choose. He must apply to the court for its leave and direction as to the manner and the terms of showing cause. He cannot flic a bill of review without such leave or direction, llild. 20. It is not necessary to obtain leave to file a bill of review, where it is brought to correct errors ap- parent on the face of the record. Webb V. POL, 1 Paige Ch. 564, 3: 754 21. Altter, where it is brought upon the disco ve^ of new matter. ■'"*"■ 22 Where a subpoena was taken out upon a bUl of review, and a bona fide attempt made to serve it within five years from the entry of the original de- cree—it was held to be a sufBcient commencement of the suit, although the subpcena was not in fact served within the time allowed by law for appeal- ing from the decree. Ibid. 23. On filing a bill of review a deposit must b& made with the register of the same amount which is required on an appeal. I6M, 24. Where the solicitor for the complainant aotedi under a mistake as to the practice, ne was allowed, after the commencement of the suit, to make the deposit nune pro tune. BM. 25. A bill of revivor and supplement, in the na- ture of a bill of review, must be founded upon ao aifidavit of the discovery off new matter, and can- not be filed without the special leave of the court ; neither can it be filed without making the deposit or giving the security required upon a bill of re- view. PendletKm v. Fay, 3 Paige Ch. 204, 3: 11 T 26. A usurious note was made payable to a txm. consisting of two persons. A suit at law was com- menced upon it in September, 1837, in the name of one of the firm. The defense of usury was set up; but no afSdavit was made of the truth of it, to entitle the defendants to call upoh the plaintiff to prove the usury. The defendants called the mem- ber of the firm who was not a party plaintiff, and who negotiated the loan, but he declined to testify, upon the ground of his continued interest in the note; and a verdict was given for the plaintiff. Held, that In a bill , to review such verdict, it is- necessary to allege that the plaintiff at law had no- knowledge of the usury, and could not prove it if called as a witness, under the Act of 1837; and for want of such averment a demurrer to the bill was allowed. Post V. Bnardman, C. 523, 7: 190 27. A bill of review must be brought within the' time allowed by law for appealing from the decree. Bowd V. Vanderfcemp, 1 Barb. Ch. 273, 5:383 28. On a bill of review alleging that the decree was not enrolled, it will not do for the defendant to demur and insist in his pleading that the decree was enrolled. He would thus make it a speaking demurrer. The party should plead the decree as enrolled and demur against opening it. Nor should he therein allege a want of affidavit; this is matter for a motion. Tdamadoe v. Lovett, 3 Edw. Ch. 563, 6: 763 Editorial Notes. Review, bill cf ; when proper 1: 460, 563, 2: 338, 806, 7: 1001 Defenses to Dill of review 3: 191 Piled without leave 3: 754 For newly discovered evidence 1:564,3:357,806 Parties; supplemental bill 1:461 Diligence muft be shown 1: 564 Chancery will not notice irregularities in law proceedings 5: 360' REVISED STATUTES. See also Statdtes. In suits pending at the time the Bevised Statutes went into operation, the rights of the parties re- mains unaltered ; but the remedy must be pursued according to such statutes, as far as is possible without impairing the right. Aym^er v. QauLt, 2 Paige Ch. 284, 8: 909 REVIVOR. I. Necessity or Eevivor. II. Who mat Kevive ; Pabiies. III. Mode; Procedure. IV. MORE THAN One Bill. V. Time. VI. Deebnsbs. Editorial Notes. See also Assignment, U ; Parties, IX. ; Review, Bill of, 25. 471 REVIVOR, I., II. I. Neoessiti or KevIvok; 1. Tliereis no occasion to revive or bring in new parties where the mortgagor dies after decreeand ibefore enrollment. Harrison v. Simotis, 3 Edw. Ch. 394, 6: 701 2. Where a cause was argued before a former -ohanbellor, but, before a decision therein, he went out of office, and also the complainant died,— Hold, that the cause could not be reargued before the new chancellor without being revived. „ „,„ Johnson v. Thomas, 2 Paige Ch. 377, «: 950 3. Where a suit abates after an appeal, but before the court for the correction of errors becomes pos- sessed of the cause, it must be revived in the court below, before any further proceedings can be had on the appeal. But if the abatement talses place af- ter the appellate court has become possessed of the , ■oause, that court, upon petition, may order the suit to stand revived in the name of the representatives of the deceased party. . _,, ,„ ii igate wiLU the Ueiciiuiiiits in tue i^ulc, uu revival of tlie suit was necessary to enable the court to ad- just and settle the claims of the creditors of the bank against the fund in the hands of the receiver, who was under the jurisdiction and control of the ciiiirt in the discharge of his duties. Ibid. 17. Bdd, also, that as the office of bank commla.- siu.icr Had been abolished, and the corporation had been dissolved, the further proceedings should be entitled " In the matter of the receiver of the bank," naming it ; and that an order might be entered, without reviving the suit for the master, to proceed and adjust the claims of the oreditots, which the receiver bad declined to allow, when they were presented to him for that purpose. IbM. 18. Creditors entitled to come in under a general lioorce lui- Lueir oeuenc arc, lor every Biiooi-iiit..ii iniipose, parties to the suit; and if the nominal oom- i>lainant neglects to proceed with due diligence, he may apply and obtain leave to prosecute the suit. And if the suit becomes abated by the death of the sole complainant, or if it abates by the death of a defendant, and the complainant or his representa- tive neglects to revive within such time as may be lixed by the court for that purpose. It is a matter of course to permit any creditor who has established his debt before the master, under such decree, to file II bill, in the nature of a bill of revivor and sup- plement, to revive and continue the proceeding. 19. Any other creditor who is entitled to come in iiiiuci- biicii uuuruc. auu wuo uas au existing claim 'i|>on the fund, has also a right to file such a bill to revive and continue the proceedings, and to have the benefit thereof, stating in such bill the exist- ence of his debt; but if the existence of his debt la denied by the defendant's answer, he must establish it by proof, before he will be entitled to a decree to i-evive and continue such proceedings. ibid. 20. Where a bill for partition is filed, and the com- plainant subsequently dies, and his devisee there- upon files a bill to revive and continue the proceed^ Ings in the original suit, it is no objection to this last bill that the complainant is an infant, and was therefore incapable of commencing an original suit for the partition of lands. MoCoaker v. Brady, 1 Barb. Ch. 329, 6: 404 21. Such a bill, filed by a devisee, although it is so far an original biU that the validity of the devise may be contested thereon, is in reality a bill to re- vive and continue the proceedings in the original suit. IMd. 22. A suit in chancery may be revived by a survlv. REVIVOR, III. 475 'ng (joiqplalnant against the infant representatives ei a deceased complainant, by petition and tlie ser- vice of an order, under tlie general provisions of the JElevlsed Statute. Wilkinson v. Parish, 8 Paige Ch. 653, 8: 310 23. The petition to revive must contain substan- tially the same tacts which aie requn^u to beset jorth in a bill of revivor, and must also state that nighty days have elapsed since the death of the de- ceased complainant, and that his representatives have not caused themselves to be made complain- ants ; and a copy of the order must be served upon the parties against vrhom the revival is sought. Ibid. 24. If the representatives of the deceased party neirleot to appear and answer the petition, or to alsmlsscd, with costs to bo paid by the survivinsr appellant. Ibid. 71. Where a respondent in an appeal from the decision of a surrogate, assigns his interest in the subject-matter of the appeal, and afterwards dies, the proceedings must be revived against the assign- ■ees of such deceased respondent. Ihid. 72. Suit against a banltrupt may be revived against his assignee, where the assignment is not ■attacked and the claim is sought to be enforced against the assigned property. Penntman v. Norton, 5 Ch. Sent. 50, 5: 1188 73. Where a simple bill of revivor is filed, or a sup- plemental bill in the nature of a bill of revivor, it geema that an order to revive must be obtained be- fore the hearing of the cause. Day V. Potter. 9 Paige Ch. B45, 4: 851 71. If the parties against whom a suit is sought to be revived are beyond the jurisdiction of the court, ■or cannot be found to be served with the order, a formal bill of revivor must be filed, and the like proceedings had, to obtain their appearance, as arc required In the case of absent, concealed, or non- resident defendants. Wilkinson v. Parish, 3 Paige Oh. 633, 3: 310 76. The order for the revival of acujise upon peti- tion should be entitled as in the original cause at the time of the abatement; but all subsequent or- .ders and proceedings must be entitled in the cause as revived. Rogers v. Paterson. i Paige Ch. 450, 3: 511 76. A bill of revivor, when necessary, may be fllpd of course without any order otthe court granting permission to file such bill. Pendleton v. Fay, 3 Paige Ch. 204, 3:117 77. Where a complainant had a ri?ht to revive the «ult, he may add to the bill ot revivor such supple- mental matter as is proper to be added, by way of supplement merely, in that stage of the suit. Ibid. IV. MOBE Than One Bill. 78. A defendant interested In three distinct suits <;annot, on abatement, revive all three by one bill of revivor and supplement. ■MfDermott V. iifcGown, 4 Edw. Ch. 502, 6:987 79. Where a biU, cross-bill, and supplemental bill jn the nature of a bill of review, between the same parties and relating to the aame subject, are all ■abated by the death of one of the parties, the whole proceedings may be revived by one bill of revivor. The party reviving will not, therefore, be allowed the costs of two or more separate bills for that pur- pose. wade V. JenWns, 4 Paige Oh. 481. 3: 524 v. Time. 80. A defendant cannot revive by bill before de- cree or decretal order giving a vested interest. ■McDermott v. McGoum, 4 Edw. Ch. 503, 6: 987 81. The court will limit the time within which surviving claimants shall make their election to re- vive the suit after the death of one complainant ; ■and if they do not revive within the time limited the cburt will order that they be precluded from any further prosecution of the suit. pais v. Coon, Hopk. Ch. 450, 8: 484 82. The suit abated by the death of the complain- ant after a decretal order establishing a right in la- vor of one of the defendants. That defendant filed a bill of revivor within twentjr days after the abate- ment, and'bef ore the executrix of the former com- plainant appeared to have proved the will. Held, that the representatives of the complainants have the first right to revive. It seems they shall have a reasonable time for the purpose. Pea V. ElUot, Hopk. Ch. 88, 2: 36% 83. The order was that the present defendants show cause in twenty days why the suits should not stand revived, unless they should apphr for fur- ther time, saving their rights by way of aefen"^. Ibid. VT. Detenses. 84. Where a bill of revivor filed against a defend- ant shows no title in the complainant to revive, as against him, he should demur to the bUl.instead of pleading thereto. ■Bwrtson V. OfifiJen, 8 Paige Ch. 276, 4:427 85. A defendant in a bill of revivor cannot by answer prevent a revival of the suit, although he denies the right to revive. Dai/T. Potter, 9 Paige Ch. 645, 4:851 86. But although the defendant cannot by an- swer prevent uii order lor luu ivm.„i ui tliu suit. yet if the facts upon which the title to revive rcsis are denied by the answer, the complainant "iiust es- tablish the right to revive at the hearing, or ho will eventually tail in the suit. Ibid. 87. If a bill of revivor is unnecessarily or improp- erly filed, the objection may be taken by plea or demurrer. Pendleton v. Fay, 3 Paige Ch. 204, 3: 117 88. If any matters contained in a bill of revivor and supplement are irrelevant or improper, the de- fendant may avail himself of the objection, either by plea or demurrer, or by exceptions for imperti- nence. Ibid. 89. If It appears that the complainant had no right to revive the suit, the defendant may avail liimself of the objection at the hearing. Douglass v. Sherman, 2 Paige Oh. 358, 8 : 948 90. Where a person claiming to be a devisee of a deceased complainant who had filed a bill to re- deem obtained on an ex parte motion an order to revive the suit in her favor,— Held, that the defend- ant might, at the hearing, object that the suit was not legally revived. I-effoett V. Diibofe, 2 Paige Ch. 211, 8:879 Editorial Notes. Revivor of suit 3: 943, 945 On transfer of interest 3: 117 On death of party 3: 117, 816, 6: 601 In cases on appeal or error 3 : 493 On death of mortgagor after decree 6: 701 before decree 3:492 Creditors' suit ; when not revived 6: 664, 684 Bill of revivor combined with supplemental bill 1: 1101 REVOCATION. Of Will, see Wills, I. b. REWARD. 1. A participation in a public reward is not wholly incompatible with ihe duties of public ofBoers or against the policy of the law. City Bank v. Ban^s, 2 Edw. Oh. 95, 6: 383 2. Police officers, acting without a warrant, upon tlie information and at the request of a private cit- izen, and who are instrumental (through such infor- mation) in the recovery of stolen property for which a reward is offered, will not be entitled to the reward merely upon the score of risk assumed or liability incurred in acting without a warrant. Ibid. 3. The City Bank was robbed. A large reward was offered for the recovery of the property, and a proportionate sum for any part. B., the keeper of a boarding house, from information given him by his wife, suspected a boarder. B. went to a police officer, stated his suspicions, and wished the latter to go with him, whv did so, accompanied by other officers. None of them had warrants. They were led by B. into his house, who pointed out the trunks of the boarder, he being absent. One of the officers unlocked a trunk and found the stolen money. Held, that B. was entitled to the whole of the reward. Ibid. 4. When a reward Is offered for the recovery of property, it is extended beyond persons wbo merely act ministerially. iThe criterion for determining to whom the reward belongs is this : who is the person that has acquired a knowledge of the facts neces- sary to a detection or discovery of the thing stolen 478 RIGHT OP WAT— SALE. or lost,aud has imparted such knowledge with the- intent and for the purpose of bringing about a re- covery or restoration of the property, taking upon himself the risk and consequences of a failure, and acting with a view to the reward, if his suspicions and disclosures are well founded and successful ? In such a case, therefore, the mere oiflcer who acts in his duty will not be entitled. It is not like the case of salvage in the marine law. Ibid^ 5. A ser vant whose mf ormation to a mistress may have given the first cause of suspicion of a robber, will not be entitled to any part of a reward offered for the restoration of stolen property, where such information was not given with an intention of in- ducing the mistress to act or of the servant's be- coming an instrument towards its recovery. Ibid. Editorial NotB. Reward ; who entitled to ; right of public officer 6: '623 RIGHT OP WAY. See Kasbments. RIVERS. See Waters and Watbbooubsbs, RULES. See also Bonds, 10; Mortgage, 294; Practiob, 13, The word "forthwith " in the 58th Bule of the court is to be construed, "within twenty-fours hours thereafter." , „ „ ChampUn v. ChcmpWn, 2 Edw. Ch. 3ii8, 6: 418 EDiTOHiAii Note. Rules of practice prescribed by statute ;re- strictjpe on power of court 5: 223 S. SALE. See also Fratjditlent Conveyances, II; Execu- tion; BxPECTANcy; JtTDioiAL SALE; Land- lord AND Tenant, X. t, 5 ; Mortgage, VII.; Vendor and Purchaser. 1. An offer to sell land at a fixed price, without more, is an offer to sell for cash. Cammeyer v. United Qerman I/uDieran Chwrches, 2 Sandf. Ch. 186, 7: 658 2. The acceptance of such an offer, to bind the seller, must be simple and without the addition of any new terms or qualifications. Ibid. 3. Where T., a lottery-ticket seller (having had similar dealings with B.) agreed to sell B. half of a ticket and the clerk of the former took it out of the drawer and B. marked on the back "J. B. one half," and the clerk wrote T's name underneath andput the ticket back into the drawer, — Held, to be a sale and that B. was entitled to half the prize the ticket drew. rates V. rtsOale, 3 Edw. Ch. 71, 6: 576 i. The nominal appointment of the vendor of a store of goods as an agent, to reuiin the possessiun and retail the goods for the vendee, without any visible change In the mode of doing business at the store, is not a change of possession within the in- tent and meaning of the statute on the subject. Butler V. Stoddard, 7 Paige Ch. 163, 4: 108 B. The sale will be deemed fraudulent as against creditors, unless it is accompanied by an actual and continued, as well as a nominal and constructive, change of possession. JMi). 6. Whether a sale and delivery be conditional, or not, depends upon the particular facts and circum- stances of each case. Buck V. (frimghaw, I Edw. Ch. 140, 6:89 7. It mav be the subject of express stipulation in the contract of sale or a matter of subsequent agreement when the delivery is made; or it may be inferred from the course of the transaction and the usage of a particular trade that the vendor did not intend to make or the vendee to receive an absolute and unconditional delivery. But the condition must be made to appear as matter of evidence; otherwise, the legal presumption would follow, from the fact of a purchaser being in the actual possession of the goods, that the delivery to him was an absolute one. Ibid. 8. B. sold to G. 220 bales of cotton for cash on de- livery. A part was delivered, without exaction of payment. G. put this part on board of a ship. Two days after he failed. B. demanded payment or a re- turn of the part which had been delivered. G. was unable to do either; having, on the morning when B. made the demand, delivered the bill of lading to S. S. & Co., who had made advances upon it. No fraud was charged against G. or S. S. & Co. Held, to- be an absolute delivery which changed the right of property. Ibid. 9. On a sale of stocks for cash, and a delivery to- the purchaser, citncr couditiuuaily that he will pay for them in a few minutes, or, through a fraudu- ii-nt ooutrivance, without actaal payment, the prop- erty does not pass, and the seller may recover the- stocks from the buyer or from any person to whom he has transferred them with notice. Hays V. Gurrie, 3 Sandf. Ch. 585, 7: 966 10. Where a merchant contracted for goods, the grice to be secured by his note indorsed by B and ; and the goods in the mean time were foi-warded' to his residence,— Held, that the property was not changed until the dehvefjr of the note, and that B and C, to whom he had assigned the goods to secure an antecedent debt, could not hold them against the vendor. Keeler v. Field, 1 Paige Ch. 312, 2 : 660- Il.Goods are sold at auction on the 9th and 22d days of June on "approved promissory notes," and uu- livered to the purchaser, who (although in good credit at the time) did, on the 17th day of July fol- lowing, make an assignment for the benetlt of creditors. The approved notes had not been given and were not applied for until after the assignment. The court decided that, even it there were a custom or usage as to sales for approved paper, the delay of the complainants here was against their recover- ing possession of the goods and that the delivery, was complete. MilU V. HallnOt, 2 Edw. Ch. 652, 6: 638 12. Goods were sold at auction, in the citvof New York, to be paid for in approved indorsed 'notes, at four and six months ; and it is the usage in that- city, where goods are so sold, to deliver them to the buyer when called for. and for the vendors after- wards to send tor the notes. The vendee of goods at auction, after he had received the goods, and be- fore he was called on for the nbt-es, according to the terms of sale, stopped payment, and assigned' the goods, with other property, in trust to pay cer- tain favored creditors. Held, that the delivery of SALE. 47»- the goods by the vendors was conditional, and the vendee a trustee for them until the notes were de- livpred ; that the assignment by the vendee was voluntary and fraudulent, and did not defeat the equitable lien of the vendors, there being no inter- ■•'^'ling purnhaser for a valuable consideration without notice. . laiiyentj v. Palmer, 6 Johns. Ch. 437, 8: 176 13. Where L, Aug. 24, 1826, sold to M, who was then ip good credit and supposed himself solvent, a quantity of goods, for which M was to give his own notes, without security, payable in six, seven, eight, nine, and ten months ; and the goods were delivered to M, and shipped by him for the West Indies Aug. 26, 1826, ana September 4 thereafterj and before he had executed the notes, M stopped payment ; and on the 9th of the same month M as- signed the goods to.V.to secure hipi tor a large sum of money for which he was rfesponsroe as'tadorser for M ; and September 6 L applied to M for a rede- livery of the goods, and also afterwards, in the same month, claimed the goods from V ; and both M and V refused to redeliver the goods to L, and M and V denied all fraud in the transaction, and V denied all knowledge, at the time of his purchase, of the conditions of the sale by L to M, and also or the nonpayment for the goods on the part of M,— it was held that the sale and delivery of the goods to M was unconditional and valid, and was sutB- cient in law to change the property, that the as- signment by M to V was also valid, and that L had no lien on the goods for the purchase money due him from M. Lupin V. Mw-ie, 2 Paige Ch. 169, it: S59 14. The principle of stoppage in transitu does not apply to such a case ; that right must be exercised, or an attempt made to exercise it, before the goods reach the possession of the vendee. Ibid. 15. If goods upon a sale thereof are uncondition- ally delivered by the vendor to the vendee, with- out any fraud on the part of the latter, the vendor can only look to the personal security of the ven- dee for the payment of the purchase money ; he has no equitable Hen for the same on the goods. Ibid. 16. If a purchaser who is insolvent, concealing his Insolvency from the vendor, obtains goods irom him wlthoutintending to pay for thom, it is a fraud upon the vendor, ana the property in the goods win not be changed. Durdl V. Haley, 1 Paige Ch. 492, 8: TaT 17. But if the goodshave been resold by the fraud- ulent vendee to a bona fide purchaser who has ac- tually paid for the same without notice of the Iraud, such purchaser will be protected. Ibid. 18. Where an insolvent confessed a judgment to ' his friend, on which an execution immediately is- sued, and then purchased goods for the purpose of subjecting them to the execution, it was held to be a fraud upon the vendor, and the judgment credi- tor was not penaatted to retain the {jroods, which lad been purchased in by him upon bis execution. Tbid.i 19. If the delivery of goods is procured by the fraud of the vendee, the title will not pass to him; and the vendor can reclaim the goods if they have not passed into the hands of a bnnafi^ purohaipr. . Lupin V. Marie, 2 Paige Ch. 169, »: 859 20. A purchaser, however, from such fraudulent vendee, to secure antecedent debts or responsibil-, ities, cannot hold the goods as against the vendor i Ibid',l 21. So, if the delivery of the goods was conditional, the title does not pass until the condition is per- formed. Ibid. 22. But a bona fide purchaser without notice of the fraud will be protected, even in the case of a conditional delivery. Ibid. 23. Where a merchant in good credit, who knows himself to be insolvent, fraudulently conceals that tact from the vendor, and purchases goods without intending to pay for them, or for the purpose of as- signing them to his confidential creditors, such sale may be set aside as fraudulent. Ibid. 24. G. applied to H. and S. in Baltimore to sell him »eventy-four hhds. of molasses on credit of foui months. They declined doing so upon his owi credit. He offered to give them a draft i)pon H of N. T., his consignee. They agreed. G. lefr Baltimore and went into Virginia. H. & S. wrot> to U. saying the.v were ready to deliver the molassc^ and considered it at his risk and account. Thexl then commenced shipping it to N. T. (consigned to H.) and handed over the bills of lading to G's agent. Another letter showed that they were using all their exertions to ship otC the whole; and they forwarded- a di'aft, la blank, on H.. requesting G. to sign an* to return it. They afterwards wrote for the draft and notified G. of the clearance of all the hogsheads. Not hearing from him, they again wrote tor tlip draft. It appeared that he became ill in Virginin;. and a friend, at whose house he was, answered thcii letter at G's request, stating that G. would soon go on to Baltimore and then give the draft. Tbcv again wrote urging to have the draft, saying it wa'j- ailtheyat present required. G. died insolvent -ind. without having signed the draft. The consignee, H. who had got the merchandise insured, was ap- plied to by H. and S., the latter sending a bill of Earcels, referring to G's death and asking H. Ut- onor the amount at the credit of four months. A creditor in N. Y. had taken out administration upon. G's effects, and claimed the proceeds arising fion the molasses. Held, that there had been an absolntf Harrison v. Wittiamaon, 2 Edw. Ch. 430, 6: 455 25. J, an insolvent stookbroker,owed C two notes. C employed K to aid in effecting payment. K told J he wanted J to buy stocks for him, and next day gave J an order to buy specific stocks, C having meantime passed the notes to M, his servant, and procured the lattei to give an order on K for the purchase of the same stocks. J procured the stocks^ from H in order to deliver them for cash, and of- fered them to K, who then referred him to M as his- principal. J refused to deliver them to M without the cash, but was induced by K to let M take them, on the assurance he would return with the money in a very few minutes. M. did return, and tenderedi to J his own notes given to C. These were refused and the stocks demanded, but not given up. C re- ceived the proceeds of the stocks. Held, (1) that there was no loan or unconditional sale of the stocks by H to J, but that H was the seller to K for cash,, through their broker J, and the delivery without payment being fraudulently procured, the title did not pass from H; CS) if it be regarded as a sale by H to J, the delivery to J was conditional, and the same result ensues; (3) that H was entitled to re- cover the stocks from C, or their value, with in- terest, and the costs of the suit. Hays V. Currie, 3 S. 565, 7: 906 26. Where the purchaser of a chose in action parts • with his money upon an agreement which he knows to be illegal and usurious, he cannot recover back the money from the borrower on the grou-id that the latter haspalmed upon him a forged secu'-itv. Thomoi V. Figh, 9 Paige Ch. 478, 4: '783 27. On a sale of shares of stock in an incorporated company, deliverable at a future day, it is not: necessary that the vendor, in order to recover dam- ages on the refusal of the buyer to receive the stock, should immediately make a resale of the stock and an actual transfer of the same. Fa«i)el! V. W^ooduiard, 2 S. 143, 7:543 28. On such a sale, no tender of the stock is neces- sary in equity, when the purchaser, on the day it is to be completed, avows that he will not receive- it. Ibid. 29. Where goods are obtained from the vendor by- means of a fraudulent misrepresentation of the vendee as to bis situation and circumstances, the vendor may elect to consider the sale void, and may follow the goods, or the proceeds thereof, into the hands of a third person, who has received them without paying any new consideration therefor; or he may affirm the sale, and proceed in the ordi- nary way against his vendee to recover the price of the goods. Lloyd V. Brewster, 4 Paige Ch. 537, 3: 551' 30. A bona fide sale of stock which has a specula- tive value in the market will not be rescinded, although the stock has been sold at an extravagant rate, merely on the ground that some of the ofB- cers of the corporation have been guilty of a fraud- ulent deception by which both buyer and seller were induced to suppose the actual value of tlie stopk was much ffreatfr than it rpally was. Moffat V. Winalow, 7 Paige Ch. 124, 4: 98 31.A and B being concerned together in commercial adventures to South America.A, unkno wn to B,who- was abroad, assigned over the whole of the return, cargo to C, to secure the individual debt of A, who was an insolvent ; and C knew at th e time that there- was a running account between A and B, arising- from these mercantile adventures, though he wa* 480 SCHOOLS— SET-OFF, I. a. lamorant of the nature or extent of the transac- tions between them, or of the amount of interest, if any, of B. HOd, that C, having sufficient notice of the rights of B to put him on inquiry as to the extent of his interest, took the assignment subject to all the rights and eauities of B. Bndrlfluez v. Heffeman, 5 Johns. Oh. 417, 1: 11^7 3Z. The right of stoppage e issued to en- force the performance of decrees other than for the payment of money, where an attachment can- not be served upon the defendant; or where he con- tinues to disobey the decree of the court after his commitment for a contempt of court. Bosaekv. Rogers, H Paige Ch. 603, 5: 848 S. C. 5 Ch. Sent. 14, 6:1168 ,. ^i,,^"^®",'" *"*'°°' ^ well as property which is liable to sale upon execution, may be seized by the sequestrators upon process of sequestration. IMd. Editorial Notes. Sequestration of chose in action 3: 813 How far property may be reached by 6: 162 SERVICE. See Pleading, LI,]; Practice, HL set-off. L When Allowable ; As to What Oeuandsl a. In OeneraL b. UnHquiOated Demands; Torts; Breach of Contract. o. Mutuality of Claims. d. In Mortgode Cases. e. Claims Bhr and Against Decedents' Estates, f. Assignment of Claims; Insolvency. n. Op OB Aoainst Judquents. Editorial Notes. See also Assignment, 8 ; Bonds, IS ; Election, 1; Executors and Administbatobs, IV. a, 4 ; Injunction, 141 ; Judgments, btc., 270. L Widen Allowable ; As to What Demands, a. In OenerdL 1. Equity requires that cross-demands should be set off against each other. Lindsay v. Jackson, 2 Paige Ch. 581, 2: 1038 2. And in a case not within the Statute of Set-Off. chancery will permit an equitable set-oS, if, from the nature of the claim or the situation of the parties, justice cannot be obtained by a cross- action, jjjid. 3. Where there are difficulties In relation to an offset at law, relief will be granted to the party claiming the offset, in chancery. afcCiarenv. Pennl7i(7ton,l Paige Ch. 102, 2:577 4. Where there is no set-off at law, the:« must bo special circumstances of eqiilty to authorize a set- off in chancery. MeaA v. Merritt, 2 Paige Ch. 403, 2: 963 5. A court of equity follows the same general rules as a court of law as to set-off. Duncan v. Dyon, 3 Johns. Ch. 351, 1: 644 SET-OFF, L b. 481 6. But a court of equity will not permit a defend- ant to offset against the complainant, , in a suit in that court, a demand' SgiUast hiin-asia laere'snUetJ'' for the debt of a third person, for which the de- fendant has security upon a fund belonging to the principal debtor, sufBcient to satisfy the debt. Holden v. Gilbert, 7 Paige Ch.208, 4: lae 7. A defendant in a suit at law who has a sepa- rate demand against the plaintiff , which is not a sub- ject of offset there, cannot hare relief in chancery unless the plaintiff is insolvent. Bee]om- plainant to the defendant is not due. Ibid. 77. Otherwise, If the debt of the defendant to the complainant was payable at a future day. IIM. 78. The right of a debtor to a bank to offset any demand he held against the bank at the time it stopped payment is nut altered by the appointment of a receiver. Be Middle DistrUit Bank, 1 Paige Ch. 585, 8: 768 IV. If the receiver is compelled to resort to an in dorser, where the real debtor is unable to pay, such indorser can offset the bills of the bank which be held at the time it stopped payment, unless he is indemnified by the real debtor. Ibid. 80. Where bills of a bank are obtained by one of its debtors after it stops payment, they cannot be set off by such debtor against the debt he owes the bank. Ibid. 81. A debtor to a bank whose charter is repealed baa an equitable right to offset every demand which he had against the bank at the time of the repeal of its charter, but not demands which he afterwards purchased. McClaren v. Pennington, 1 Paige Ch. 102, H: 577 8Z. I. gave C. his promissory note, and C. shortly afterwards gave his two notes to I. Prior to any of the notes becoming due I. became insolvent and made an assignment of bis estate, including the two notes, to a trustee for the benefit of credi- tors. C, in ttie mean time, had indorsed and passed away I's note and when it became due he had to take it up. C. then filed his bill to restrain the trustee from parting with his two notes, and pray- ing that the one he held made by I. the insolvent, might be set off against his own two notes. But the court dismissed the bill. Chance v. Inaaes, 2 Edw. Ch. 348, 6: 485 83. Where C received a negotiable note from I, payable at a future day, wulcn he Indorsea and Fassed away in the ordinary course of business, and held two negotiable notes against C for about the same amount, which were payable a short time after the note which he had origioally given to C became due; and, before any of the notes became due, 1 became insolvent and made an assignment for the benefit of bis creditors, which assignment included Cs notes, which were indorsed and transferred to the assignee, and C was afterwards compelled, as indorser, to pay and take up the note originally given to him by 1,—Beld, that C could not in equi- ty off-set the note so taken up by him against his own notes in the hands of the assignee. Aliter, if C had been the owner and holder of P's note at the time of the assignment for the benefit of his credi- tors ; as the circumstance of the note not being due would not have impaired C's equitable right to a set-off in such a case. Chance v. Isaacs, 5 Paige Ch. 592, 3: 844 84. B insured premises with the W. Insurance Company, ana assigned his policies to his mortga- gees. He, at this time, had obtained loans from the company and mortgaged to them premises other than those insured. The company became insolvent by the great fire; and, under the Statute of January 18, 1836, gave negotiable certificates of amount of loss, and received their policies. These certificates were made out and delivered to B. and he indorsed and handed them to his mortgagees in substitution for the policies. The receivers of the company foreclosed (upon the two mortgages) against B., and he claimed set-off to the amount of the certifi- cates. Held, that as the title to the certificates was in B's mortgagees, as the policies also had been, he had no such right of set-off, but must come in pari pofiim with other creditors. Sioorda v. BUike, 3 Edwi Ch. 112, 6: 691 85. A receiver of an Insolvent corporation, ap- pointed under the Act of the 18th of January, 1^, or appointed by- the court of chancery under the provisions of the Revised Statutes relative to pro- ceedings against corporations in equity, is bound to offset a liquidated debt due to the corporation against an unliquidated debt due from the corpo- ration to the same person, in the same manner as trustees of insolvent debtors are bound to offset cross-demands arising from mutual credits as well as from mutual debts. In such cases the right of set-off is not confined to liquidated debts or to such as might have been offset in a suit at law be- tween the original parties ; but It also extends to all mutual credits arising ex contractu between such original parties. HoXbrnok v. Receivers of American F. Ins. Co. 6 Paige Ch. 220, 3: 968 86. Where a party who had obtained a loan from an insurance company upon bond and mortgage, and who had also insured his property wltn the same company, which property was destroyed by the great fire in New York ; by which fire the com- pany was rendered insolvent, and receivers of its effects were appointed under the Act of the 18th of January, 1836 : and such receivers, for the purpose of depriving the assured of his legal right to set off the amount of his loss against the amount due from him to the company on the bond and mort- gage, refused to adjust toe amount due him upon the policy, as required by that Aet,— Held, that it was the duty of the receivers to allow the set-off: and that the court of chancery, upon a summary application, was authorized to order the receivers to allow the same. Ibid. 87. An allegation that the party against whom a set-off in equity is claimed has parted with some of his property, and threatens to put the residue out of nis bands, is not equivalent to a charge of insolvency, and is not sufficient to entitle the party making such allegation to offset a demand in the court of chuncery which is not a proper subject of set-off at law. Jennings v. Webster, 8 Paige Ch. 303, 4: 580 II. Of ob Against Judoments. 88. Judgments, not only In the same court, but in different courts, may be set off against each other at law ; find the power of courts of law, in allow- ing such set-off, does not depend upon statute, but on the general jurisdiction of the court over its suitors. Simpson V. Hart, 1 Johns. Ch. 91, 1: 70 89. Where the defendant in a judgment is sole owner of a demand against the holderof such judg- ment, upon which he brings suit, if he afterwards assigns the demand, and the assignee takes steps to revive the original proceedings, the defendant may olTset his judgment against the demand. Goy V. Gay, 3 Ch. Sent. 50, 5:1116 90. The right to set off one judgment or decree against anotlier, upon motion in the court ot chancery, or by a suiumaiT application to the equi- table powers of a court of law, exists only in those cases where the debts on both sides have been final- ly liquidated by judgment or decree, before the assignment of either of them to a third party for his own benefit Oav V. Gay. 10 Paige Ch. 369, 4: 1015 S. C. 3 Ch. Sent. 71, 5: 1183 91. Where one of the copartners in a mercantile firm filed a bill against his copartner for an account and settlement of the copartnership transactions, and to obtain his share of the profits of the firm in the hands of the defendant; and the defendant at t he time of the commencement of the suit was an indorser for the complainant, upon notes on which the holders afterwards recovered judgments against such complainant; and the defendant who was lia- hle as such indorser paid the judgments, and took :in assignment thereof for his protection and in- demnity, before the termination of the suit for an account,— Hefd, that the indorser had an equitable claini to offset such judgments against the balance which might be found due to the complainant, who was insolvent, notwithstanding the complainant liad assigned all his interest in the suit to a third iiprson, pending the suit, but after the judgments had been assigned to the indorser. IbU 92. Had, also, that the proper mode to obtain such set-off. by the defendant In the suit for the account, was by filing a cross-bill, and not by a summary application to the court, previous to a final decree for the balance found due to the complainant, by the report of the master to whom It was referred to take an account of the copartnership transactions. Ibid. 93. Held, fwrfher, that as the assignees to whom SET-OFF, II. 485 the complainant had asslerned his Interest In th< suit, after the balance due to bim had been liqul dated by the master, had filed a bill in the nature o a bill of revivor and supplement, to have the ben eflt of the former proceeding's, and to obtain a de cree for the payment of the amount reported due the defendant was authorized to claim the ritrht o set-off in his answer to such bill, so as to obtain the benefit thereof at the hearing in such supplemon' tary suit. j;,i<) 91. A Judcrment at law against the complainant in favor of the defendant in equity may be offset, on motion, against a decree in equity in favor of the complainant against such defendant for the payment of money due upon a mortgage. Holden V. Gilbert, 7 Paige Ch. 308, 4: 186 95.lt is no objection to the set-off of one Judgment against another, on motion, that the party making the application has the adverse party in execution on his judgment. IWca ijw. Oo. V. Poioer, 3 Paige Ch. 365, 3:190 96. If a debtor is arrested upon a ca. sa. and then is discharged from Imprisonment, with the consent of the plaintiff, the judgment upon which the ea. sa. issued is extinguished as a liquidated demand, and cannot be set off on a motion against another judg- ment. Ibid. 97. Where the solicitor in a suit is entitled to the cftsts awarded against the adverse party, the latter has an equitable claim to have such costs offsf c or applied upon a Judgment in bis favor, agains the solicitor. joid. 9s. i' be assignee of a bill of costs due to a solicitor takes the same subject to an equitable rleht of set- off which existed against the solicitor at the time of the assignment. Ibid. 99.A judgment for costs will not be offset against another judgment so as to devest the lien of the at- torney for the costs in the flrst-mentioned judg- ment. The court will protect such lien. Van Bansl v. ParceOs, 2 Edw. Ch. 600, 6: 518 Dunkin v. Vanderibergh, 1 Paige Ch. 622, 8: 775 Nimll V. Nicott, Z Edw. Ch. 574, 6: 509 Bev'd in 16 Wend. US. 100. Contra, Gay v. Gay, 3 Ch. Sent. 50, Fitch V. Baldwin, Clarke Ch. 426. 5: 1116 7: 161 101. But where different claims arise in the course of the same suit, or in relation to the same matter, they may be arranged and offset agreeably to equity without reference to the Uen of the solicitor. Dunkin v. TandenbeTgh, 1 Paige Ch. 622, »: 775 102. The solicitor's lien is only on the clear bal- ance due to his client after all the equities arising out of that particular litigation are settled. Ibid. 103. The court of chancery will not on motion al- low a aebt wnjcu is uot asccrtaiuea by judgineiic or decree to be offset asainst a decree lor costs, to the prejudice of the solicitor's lien, although the valid- ity of the debt is admitted by the client. Ibid. 104. The power of the court of chancery to offset one juug-meut or cle ,ree ag^ust another, on mouon, is the^nme as that iX the common-law courts. But on a bill filed for an offset, the jurisdiction of the court of chancery is more extensive than that of the common-law courts. Ibid. lOo.The attorney's or solicitor's lien for costs does not affect the equitable right of set-off between the parties. It extends only to the clear balance re- sulting from the equity between the parties. But this lien will not be suspended, or satisfaction of the judgment delayed, until an unliquidated claim of the opposite party can be ascertained and a bal- ance finally struck between the parties. Mohawk Bank v. Burrows, 6 Johns. Ch. 317, a: 137 106. The right of a complainant who has a judgment at law against a defeiiuauL, to have his judgment set off against the costs recovered by the defendant in this court against the complainant, is superior to the lien of the solicitor for the defendant upon the decree for costs. Fitch V. Baldwin, C. 42a, 7: 161 107. A defendant in a creditors' bill who has suc- ceeded in obtaining a decree for costs against the complainant, upon the dismissal of the bill, may be compelled to have his costs set off aeainstan equal amount of the judgment of the complainant Ibid. 108. Costs In ejectment lor premises embraced by the bill against the defendant, who was insolvent. allowed, on motion, to be set off against costs due to the latter on the dismissal of the bill. Stuyvesant v. Davieit, 3 Edw. Ch. 537, 6: 763 109. Where the granting of costs is discretionary, the court, on giving them to a party, may direct them tobesctoffuponaj udgment held against him and another by the adverse party, although such Joint j udgment be not the subject of a legal set-off. TF?ieci6r v. Beermans, 3 S. 697, 7: 970 UO.Under the usual order that the complainant's bill be dismissed upon payment of costs, he Is not authorized to offset the defendant's costs against a judgment or other liquidated demand in ftivor of the complainant, without a special order of the onnrt allowiug such offset to be made. Simpson v. Brewster, 9 Paige Ch. 245, 4: 687 HI. Costs of a creditors' bill dismissed after de- fendant's discharge as a bankrupt cannot be offset by complainant's judgment on which he brought the suit. Mickles v. Brayton, 10 Paige Ch. 138, 4: 91» 8. C. 3 Ch. Sent. 14, 6: 1104 112. C filed a bill against H in October 1829, which was dismissed July 7. ISiO, with costs. He filed an- other bill against H. January 16, 1830, which waa also, October 19, 1830, dismissed with costs. In the month of April, 1830. C. had brought an action against H. for a breach of covenant and perfected a judgment therein November 22, 1830, but prior to the judgment he assigned the damages sustained in the action to one A. Upon a bill now filed by H. to have the costs upon the bills dismissed, set off against the judgment.— It woe held that the right of set-off did not exist, provided the assignment was a valid and unsatisfied one. BacHett v. Con?i«tt, 2 Edw. Ch. 78, 6: 313 113. A part^ cannot set off a Judgment, unless he is the beneficial, as well as as the nominal, owner of it. Aikin v. Satterlee, 1 Paige Ch. 289, »: 661 114. Where A indemnified T, a sheriff against sell- ing S's goods, for which 8 recovered a judgment against T,—Bad, that A and T coald not set off against S a judgment which A had purchased for less than one third of its amount, and taken an as- signment of it in the sheriff's name. Ibid. 115. W, holding a mortgage against C and S.became indebted to them in ^,wO on an open account; alter which the complainants recovered a jurii;- ment against C and S. W subsequently assigned his mortgage to the bank of N, without indorsing or crediting the {3,000. The complainants tendered to the bank the amount supposed to be due, and more, and now file their bill for redemption and assignment to them, for an account, and to have the 83,000 allowed on the mortgage. The debt of 83,000 from W to C and S is to be allowed as a set-off. Boseuelf v. Bank of Niagara, Hopk. Ch. 579, 8:630 116. Before the judgment it was optional with the mortgagee, but a matter of right In the mort- gagors, to make this set-off. II>ia_ 117. That right passed by the Judgment to the Judgment creditors. ibid. 118. The bank of N as assignee of the mortgage took it subject to all equities, and, among others, to this set-off. Ibid. Editorial Notes. Distinction between payment and set-off 7:862 Obligations which cannot be 3: 962, 6: 275 Effect of assignment of claim 4: 1015. 6: 275, 315 Doctrine of 1:645,6:591 Right of 1:70,719,3:962,6:186 Must exist in one's own right; mutual debts and credits distinguished 1:645, 646, 1:746 Uncertain damage's cannot be set off 1: 645, 646. 843 Right of, in equitable suits 3: 1018, 1128, 4: 520, 1015. 5: 218 How enforced 1 : 70 By cross-bill 2: 407 486 SETTLEMENTS— SHIPPING. Attorney's lien not a bar to right of 3: 595 Of demands against bank by debtor 3: 763 By a debtor of insolvent bank 3: 578 Of deposit against claim of insolvent banker 3: 708, 1033 Counterclaim in actions on contract 4: 1015 In case of notes in circulation 3: 843 Allowance in foreclosure cases 4: 137 Against government claims 6: 275 In cases of insolvency 3: 843, 5: 153 Indebtedness against legacy 6: 439 Against legacy by surviving partner 3: 708 Cross demands; ofifset against executor or administrator; sufficient if due when suit brought 5: 859 Mutual transactions with insurance com- panies 6: 528 Receiver of insolvent insurance company should allow 3: 963 Of judgments 1: 70, 727, 2: 651, 776, 3: 190, 595, 4: 1015 On custom-house bonds against debentures 6: 273, 313 SETTLEMENTS. See also Husband and Wife, IV. 1 ; Infants, 76. 1. A voluntary settlement fairly made is always binding, in equity, upon tne grantor, unless there be clear and decisive proof tnat he never parted, oi intended to part, with the possession of the deed; and, if he retain it, there must be other cir- cumstances, besides the mere fact of his retaining it. to show that it was not intended to be absolute. Souverbye v. Arden, 1 Johns. Ch. 240, 1: 186 2. A voluntary settlement without power of rev- ocation cannot oe revoked. Bid. 258, l! 132 3. A voluntary conveyance or settlement, though retained by the grantor in his possession until his death, is good. Bunn V. Winthrop, 1 Johns. Ch. 329, 1: 159 4. As between the parties, a voluntary actual transfer, by deed, of a chattel interest, is valid, without any consideration appearing. Ibid. SHELLEY'S CASE. See Husband and Wife, 191; Real Pbopebty, Lb; Wills. 264. SHERIFF. See also Escape : Execution, H; Interpleader, 5,14. 1. The sheriffs of the several counties, except the county of New York, are the keepers of the county jails, and are entitled to all the fees and perquisite of such ofBce. Becker v. Ten Eyck, 6 Paige Ch. 68, 3: 903 3. The sheriff may keep tue Jau in person, or lie may employ under bim as many deputy keepers as he thinks tit, and may allow them such compensation for their services as shall be agreed upon between bim and them, either by way of salary, or by allow- ing them the whole or a portion of the perquisites to which he is entitled as tiie principal keeper. Ibid, 8. So the sheriff may contract with bis under eheriff and deputies for the discharge of the duties of tbeir several trusts, either for a specific conpen- eation or for a reasonable proportion of the fees and emoluments arising from the performance of such duties. But an agreement of a deputy to al- low to his principal a sum in gross, not payable out of the profits of the office, and which may therefore exceed such profits, is a violation of the statute which prohibits the buying and selling of oiUces. Ibid. 4. Where the deputy of a public officer is by law entitled to certain fees or perquisites in virtue of his character of a deputy merely, if he agrees to give to the officer appointing him a portion of such fees or perquisites, it is a purchase of the deputa- tion; and the parties to such agreement are guilty of a violation of the statute against the buying and selling of offices. Ibid. 5. It the sheriff neglects to return an attachment by the return day thereof, an attachment may forth- with be allowed against bim. And he will also be liable for the damages and costs sustained by such neglect. People V. Elmer, 3 Paige Ch. 85. 3: 68 6. Where the office of sheriff devolves upon his under-sheriff, by the death, rvo.^ nation, or remov at from otBce of the sheriff, the general deputies of the sheriff are not authorized to discharge the du- ties of general deputies of .the under-sheriff upon whom the office has devolved, without a new ap- pointment from him; and such new appointment must be in writing, and must be recorded in the of- fice of the county clerk, and the deputy must take the oath of office in the same manner as upon hi» oriyjnal appointmPnt by t.ho shnritf. Boardman v. HaXHday, 10 Paige Ch. 223, 4: 953 S. C. a Ch. Sent. 21, 5 : 1 106 7. When the office of sheriff devolves upon the under-sheriff by the resignation of the sheriff, and such under-sheriff is in the exercise of the duties of the office, a deputy de facln of the sheriff who re- signed cannot, as such, do any official act which will be valid as to third persons. IIM. 8. To make the acts of a deputy sheriff de facto valid as to third persons, it must appear that he was in fact in the exercise of the office of deputy to the then sheriff, and who was exercising the office of such sheriff. Jbid. 9. Where the office of sheriff devolves upon the under-sheriff, and the general deputies of the for- mer sheriff continue to act as the deputies of such under-sheriff, and with his knowledge and assent, but without a new appointment, it seems they will be considered as deputies de facto of such under- sheriff, so as to make their acts as such deputies valid as to third persons: in such a case a parol ap- pointment by the under-sheriff may be inferred, so as to constitute them deputies de facto of such un- der-sheriff. Jbid. 10. Where the question of jrimary UabiUty, as be- tween the defendants in an execution, is doubtful, the sheriff is not bound, at his peril, to decide upon the conflicting claims of the defendants to equity, as between themselves. Boughton v. Orleans Bank, 2 Barb. Ch. 458, 5: 714 EDiToniAL Notes. Court will protect 6: 446 Duties of office 3: 902 Appoiplment of deputy 3: 902, 4: 954 Liability of representatives of 1: 337 When not liable for attachment of properly in hands of a receiver 4: 970 SHIPPING. See also Equity, 29; Mortgage, 539. 1. Shipowners are tenants in common, not Joint tenants or partners; and one of them, where the vessel has been sold, knowing that the share of the ' others had been lawfully assigned, has no right to possess himself of the whole proceeds, with a view to retain such share, to satisfy any claims he may have against the other. Nicoll V. Mumford, 4 Johns. Ch. 523, 1: 983 2. The assignee of one part-owner of a vessel is entitled to his part, or the proceeds thereof, with- out being subject to any general balance of account between the owners. Jbid. 3. But the owners of the freight and cargo are joint tenants or partners. Ibid. 4. The masters of the North Elver steamboats, in whose names contracts have been made with the postmaster-general, tor carrying the mail between the cities of New York and Albany, are not entitled to take the profits of the contract to their own use SHIPPING. 487 and benefit, without the consent of the owners of the boats ; nor is the contract to be considered as made with the masters personally, for they are the mere agents or servants of the owners, liable to be ■discharged from their employment ; and the own- ers have a ripfht, at any time, to demand from them ■an assignment of the mail contract, and take the profits thereof, without making any compensation to them for it, further than they have especially ■engaged to do by the eicpress terms of their ap- pointment or contract. Bonrbach v. North Biver Steamboat Co. 6 Johns. €h. 463, %: 187 5. It is not competent to the captains of these boats to object to the legality of an alignment of the mail contract by them to the owners. Nor, af- ter having consented and continued to receive an additional salary for their services, in lieu of all fees and perquisites for carrying the mail, or com- missions for collecting the steamboat tax, can they afterwards claim any share of those perquisites ■and commissions. Ibid. 6. The plaintiff and defendant were joint owners ol a ship and cargo on a voyage from New York to BaCavia andljack; and the defendant agreed to go out in the ship as supercargo,and the plaintiff agreed to pay him, as a compensation for the performance of the duties of a supercargo, the sum of $10,000, "'out of the proceeds of any cargo the ship may br'mg from Batavla, or to deliver him part of such cargo, to that amount, at the current market price, on its arrival at New York, at his option." The ship, on her return voyage, from necessity put into St. Kitts, where she was condemned as unseawor- thy, and sold, with the cargo, and the proceeds re- mitted by the supercargo to New York. The de- fendant having caused $8,000 of the sum stipulated to he paid to mm by the agreement to be msured as his commissions, ne recovered the amount in a euit at law, of the underwriters, as for a total loss, ■on the ground that he had no remedy on the agree- ment against the plaintiff, his compensation being payable only out of a particular fund which de- pended on a contingency that had never happened. On a bill filed against the defendant for an account, the defendant claimed to retain a certain sum for ■commissions, and for services in the sale and man- agement of the concern; and it was held that the defendant was not entitled to any allowance on a quantum meruit for bis services merely on the ground that the contingency bad never happened on which his specific compensation for the same service was to depend; nor was he entitled to any ■compensation for his services at St. Eltta, as heettU acted in the character of supercargo, and the sales there were substituted for a sale in New Yort-, on which, bj; his special agreement, he was to receive no commission. FVanhlin v. BoMnmn, 1 Johns. Ch. 157, 1: 98 7. G was engaged by M as a supercargo of a ship on a trading voyage from New York to Madeira! tbe Cape of Good Hope, Madras, and Calcutta, and thence back to New Y'ork. ^y the written instruc- tions to G, by which much was confided to his judg- ment ^^^ discretion, he was to receive, as a com- pensai^ion for transacting the business, 2^ percent ■of the value of the property brought home for the jiocount of M, arising 'froin the ptqceeds of the out- ward cargo, deducting duties, etc., and to have his reasonable expenses while on the voyage paid out of the cargo, and to be allowed, also, 5 per cent, or one-twentieth part of the net profits, on its termi- nation. G performed bis duty from New York to Madeira and the Cape of Good Hope, but was taken «iok at the latter place and obliged to leave the ship, and died on his return homeward in another vessel; having first appointed, at the Cape, B and U (one of whom had been a clerk of M, and particu- larly recommended to G's attention) his substitutes, as supercargoes lor the remainder of the voyage, agreeing to pay thorn for their services out of his rnmmissions. The sliip proceeded to Madras, from whence it was thought best, on account of political oircumstances, to return to New York without go- ing to Calcutta : and on the return of the vessel to New York the homeward cargo was delivered to M, who cleaned a considerable profit on the voyage, B and B having faithfully performed their duty as supercargoes, in the place of G. It. was held that the legal representative of G was entitled to the full compensation stipulated, as for the completion of the voyage. Gray v. Murrav,Z Johns. Ch. 167, 1: 580 8. Where several persons had a joint interest in a ahip and cargo, in ih^ nature of a limited partner- ship, and an Insurance company loaned money to one of the partners, with the assent df the qppflrt- ners, upon respondentia upon his interest in the cargo only, and a part of the cargo was afterwards sold by the master for the repair of the ship,— Held, that the insurance company was entitled, to claim a remuneration pro tantu out of the proceeds of a sale of the shlD. American iiu. Co. v. Coster, 3 Paige Ch. 324, 3: 173 9. The master of a ship in a foreign port may, in a case of necessity, sell a part or hypothecate the whole of the cargo to repair thq ship, for the pur- pose of enabling him to complete the voyage. Ibid. 10. Where the master is compelled to use his own private funds, or to take the propertj; of a shipper, for the repair of the ship in a foreign port, the master or shipper has a lien upon the ship for the expenses of such repairs, although there is no ac- tual hypothecation thereof. Ibid. 11. If an individual makes a voluntary loan to the master for the repair of the ship, and takes other ' securityfor the loan without reserving to himself a lien upon the ship, the lien is waived. Ibid. I 12. The lien upon a ship, for repairs furnished in a foreign port, must be enforced within a reasonable time, or the ship wiU not be liable therefor in the hands of a bona fide assignee. IMd. 13. But it will be sufficient if the party entitled to the lien proceeds to enforce it within a reasonable time alter the termination of the voyage during 'which the repairs were made, and before the ship sails upon a second voyage. lbid_ 14. It is the duty of a master of a ship, when his vessel is disabled in the course of the voyage, to procure another ship, if he can, to take on the cai'- go to its destined port. Searle v. Scoodl, 4 Johns. Ch. 218, 1:820 ■ 15. He is in such case, from necessity, agent for the owner of the cargo ; and bis acts in relation thereto are binding upon it. Ibid. 16. And if he hires a new ship, the extra freight for the renewed voyage becomes a lien on the car- go. Ibid. 17. He has no right to sell the cargo at the port of necessity, and there put an end to the adventure, if he can hire another vessel to carry on the cargo ' to its port of destination. Ibid. 18. When a ship puts into an intermediate 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 3hip, the cargo, on its arrival at the port of desti- nation, is chargeable with the increase of freight arising from tfie charter of the new si^p; that is, the extra freight beyond what the freight would have been under the original charter-party it the necessity of hiring another ship bad not intervened. Ibid. 19. The owner of the goods is not answerable both for the old and new freight. Diid. 20. To ascertain such extra freight, the proper rule seems to be to determine the difference be- tween the amount of freight under the original Jcharter-party, and the ratable freight for the goods saved, to the port p| necessity, added lo the freiglit of the new ship hired to carry on tlie goods. Ibid. 21. The ordinary mode of obtaining the benefit of a lien on a ship is by a proceeding in rem in tl. instance court of admiralty. But where the couri of chancery has the administration of a fund arising from a sale of the ship, in a suit for the settlemeni of the accounts between the joint owners, that court is authorized to take cognizance of such ii claim, for the purpose of making an equitable dis- tribution of the proceeds of the ship. American His. Co. v. Coster, 3 Paige Ch. 324, 3: 173 Editorial Notes. Shipping ; part owners of freight and cargo 5:812 of vessels are tenants in common, and not joint tenants or partners 5: 812 Master may liypothecate cargo 3: 173 Contribution in proportion to interesis of sliippers 8; 174 488 SIGNATURE— SPECIFIC PERFORMANCE, I. b. Lien of shipper 3: 174 In case of disaster, duty of master to traD- sbip ; hypothecation of cargo ; extra freight charged ; freight as general average 1 : 830 SIGNATURE. See Plkading, I. h ; Wills, I. u. SLANDER. See LiBEii AND Slander. SLAUGHTER-HOUSES. See Injunction, te ; Nuisances, 2. SOCAGE. See Guardian and Ward, 39. SOLICITOR AND COUNSEL. See Attorney and Solicitoh. SPECIAL GUARDIAN. See iNrANTS, 66, 67, 72. SPECIFIC PERFORHIANCE. I. When Gbanted or Eepused. a. In General. b. Inequitable Contracts ; Fraud; Mistake. c. Failure or Defect of liOe. d. Completeness; CertaAnty; Mutuality. e. Abandonment of Contract ; Statute of Fraudn. t. Time ; Offer to Perform, g. Transfers of Interest ; Parrties. II. Procedure ; Becrbe ; Belief Granted. Editoriai. Xotes. Spe also Equity, 37. I. When Granted or Befused. a. In General. 1. A bill for the specific performance of an agree- ment is addressed to the sound judicial discretion of the court, in the exercise of its extraordinary jurisdiction. St. John V. Benedict, 8 Johns. Ch. Ill, 2: 71 Seymour v. Delancey, 6 Johns Ch. 282, 8: 106 2. Where, therefore, the agreement appears to have been made to defeat or defraud a creditor of the plaintiff, or an intervening purchaser at a sher- iff's sale under a judgment and execution, a specific performance will not be decreed. Ibid. 8. The court of chancery will not aid a part y who is seekiner the specific performance of a mere vol- untary atfreemeat, which is neitber founded on a good or a valuable eoneideratiou. Acker V. Phoenix, iFaigeCb. 305, 3:44" 4. Equity will not enforce a mere voluntary agreement not valid at law, especially against a legal claim for a just debt, and where there is no consideration, accident, or fraud. Mintum v. SeHJnotir, 4 Johns. Ch. 497, 1: 914 5. Executed covenants and agreements founded upon a good or meritorious consideration are up- held and enforced speciflcally in a court of equity. Hayes v. Kershmo. 1 Sandf. Ch. 258, , 7: sai 6. The court of chancery does not interfere, by way of decreeing specific or further perf ormanoei with executed agreements. Tucker v. Clarke, % Sandf. Ch. 96, 7: 583 7. Purchasers of real estate cannot suggest their own alienism as a bar to specific performance. Scott V. Thorpe, 1 Edw. Ch. 512, 6: 9Z» 8. The court of chancery may decree the specific performance of a ooiiuact for ihe sale of lands ly- ing In another State, where the party who is to make the conveyance is within the jurisdiction of the court and has been served with process. SufpRen v. Fowler, 9 Paige Ch. 280, 4: 700 S. C. 1 Ch. Sent. 69, 5: 107» 9. And where the defendant in such a suit is an in- fant, the proper decree is that he convey the legal title to the premises when he arrives at the proper age to enable him to do so, according to the laws of the State where the property. is,4tuated;,and. that in the meantiilie the vendiCbe permitted to receive and retain tlie possession of the property. Ibid. 10. The court of chancery has jurisdiction, upon a bill filed by the vendor, to decree a specific per- formance of a contract for the purchase of real es- tate, and to compel the vendee to pay the purchase money, although the complainant has a remedy at law upon the contract. Brwim V. Haff, 6 Paige Ch. 235, 3 : 69» 11. Contracts for personal services are matters for courts of law, and equity will not compel spe- cific performance. HambUn v. Dinneford, 2 Edw. Ch. 529, 6: 498 12. Equity has jurisdiction to enforce an agree- ment tu insure, and on a bill for that purpose u compel the execution of a policy, or, if a loss lui occurred, will decree its payment. Carpenter v. Mutual Safety ins. Co. I 8. 408. 7: 115» 13. Equity may decree the performance of a gen- eral covenant of indemnity, though it sounds only in damages. ChampUm v. Brown, 6 Johns. Ch. 398, 9: 163 14. Although articles of separation are condemned by the policy of the law, and will rarely be enforced between the parties, yet collateral engagements be- tween the husband and third parties contained in them, will be executed. Champlin v. ChampUn, HotF. Ch. 55, 6: 1063 15. A bond or agreement which creates a partial or particular restraint of trade is good, if founded upon an adequate consideration ; and specific per- formance will be decreed, Noah V. Wehb, 1 Edw. Ch. 604, 6; 268 16. It is a settled principle of the common law that na cuurc will lend its aia lo enforce the pert'oi-inancc of a contract which is contraiy to public policy, or any contract or agreement which was intended by the parties to contravene the provisions of a pusi- tivp low. Pratt V. Adams, 7 Paige Ch. 616, 4: 30O 17. It is very questionable whether a mere matter ol dcfeti6uuq,e.or,cuuuiiiuii amounts tuia>contmuc which a court ot law or equity can recognize as the foundation of an action or of a bill for a specific performance. Wright v. Taylor, 1 Edw. Ch. 226, 6: 119 18. Specific performance may be compelled of a covenant to make improvements upon one's own land for the benefit of another who is interested in having them made, where the injurv occasioned by the breach is of such a nature as not to be capable of being adequately compensated in damages. Stmvesant v. New York, 11 Paige Ch. 414, 5: 188 19. Where, from the nature of the relief sought* performance of a covenant in specie will alone an- swer the purposes of justice, the court of chancery- will compel a specific performance, instead of leav- ing the complainant to an Inadequate remedy at law. Jfftid- b. Inequitable Contracts; Fraud ; Mistake. 20. The court of chancery will not allow mere technical legal rights to be enforced contrary to equity and good conscience. Eniign v. Colin*™, 11 Paige Ch. 503, 5: 81* 21. To induce equity to decree the specific per- formance of an adireement, it must be free from, f laud, surprise, or misrepresentation. Best v.. Stow, 2 Saudi. Cn.,298, 7: 601 32. A misrepresentation made by the vendor in a SPECIFIC PERFORMANCE. I. c. 48» matter of substance atleotiuir the value of the estate sold is a eood defense to a suit for spcciflo perform- anoe, altnousrh the vendor, as well as the vendee, was ignorant of its untruth, ibid. 23. This was held of an erroneous statement that land in a distant State was situated in a particular county in which the purchaser desired to buy . ibid, 24. Inadequacy of price, though not so gross as to amount to fraud, may be a sufBcient ground tor refusing to enforce a specific performance of a con- tract of sale. Osflood V, Franfclin, 2 Johns. Ch. 23, 1:888 25. Though mere inadequacy of price,independent of other circumstances, is not, of itaelf , suBicientto set aside a transaction, yet it may be sufficient to induce the court to stay the exercise of its discre- tionary power to enforce the specific performance of a private co»trafit,^fQr,±)J9,^SftlejQf,lapd,,f«id,to, leave the party to seek his compeusMaoh in" dam- ages at law; especially where the inadequacy of price is so great (being half the value) as to give to the contract the character of unreasonableness, in- eqiiality, and hardship. St. John V. Benedict, 6 Johns. Ch. Ill, 2:71 Seymour v. Delancey, 6 Johns. Ch. 2ZZ, S: 106 26. The defendant in a suit for specific perform- ance may show in his defense, by parol evidence, that the written contract relied upon does not cor- rectly and truly express the agreement of the par- ties, but that tbere is some material omission, in- sertion, or variation, through mistake, surprise, or fraud. Best V. Stow, 2 Sandf. C*. 298, 7: 601 27. Specific performance is not to be compelled where there has been accident, mistake, or fraud. Schmidt v. Livingston, 3 Edw. Ch. 213, 6: 631 28. The court of chancery will not compel a spe- cific performance of a couiraot if the complainant Intentlonailyconcealeda material fact from the de- fendant, the disclosure of which would have Jgre- vcnted the making of the contract. ZAvingston v. Peru Iron Co. 2 Paige Ch. 390, 8:956 29. Where a lot is sold and supposed by both par- ties to be of certain dimensions, and found after- wards to be more than as large again, specific per- formance will not be compelled. Schmidt v. Livingston, 3 Edw. Ch. 2U, 6: 631 30. Whether a party will be compelled specifically to perform a contract for the purchase of his own land, where there has been no mistake as to the facta on which his title depended,— giwBre. redder v. Euertson, 3 Paige Ch. 281, 3: 1S4 31. Where the vendor of a lot of land secretly in- tended to sell only a part of the lot, but succeeded, in making the vendee understand that he was buy- ing the whole lot, and only a part of the lot was in- cluded in the deed of conveyance, for which the vendee paid the vendor the whole consideration in- tended by him to be given for the whole iQj, the court decreed that the vendor execute to the ven- dee a conveyance for the whole. Wistmll V. Hall, 3 Paige Ch. 313, 3: 168 32. The wife of the vendor having united with him in the deed, but not being privy to the fraud at- tempted to be practiced upon the purchaser, the court refused to compel her to join m the convey- ance. ' iibid. 33. Where parties contract for the sale of land for a gross sum or price, r.nder a mutual mistake as to the quantity oontaiuLu in the parcel sold, believing it to contain about a f Duith mure than its actual contents, and the vendee has taken possession, made valuable permanent impioveiuent8,and>paid nearly ail the price, equity will compel the vendor to convey the land actually owned by him, with a ratable deduction from the price for the deficiency. Voorhees v. De Muer. 3 S. 614, 7 : 9 76 34. D sold to G by an executory contract two lots of wild land, which, by the survey and location thereof made for D and others, contained 18754 acres; the one intending to sell, and the other be- lieving that he was buying, the lots as thus sur- vevedT It turned out that in making such survey and location the surveyor had extended and marked bis line beyond the true boundary of the tract he was laying out, and bad thereby included 43J4 acres in D's two lots, to which he never had any right or claim. HeJii, that this was a case of mutual mis- take: that the deliciency was not in the subject- matter of the contract, for that was the two lots as marked and surveyed for D: but that the difSculty was in giving title to that subject-matter. ibid. 0. ii'oilwre or Defect of Title. 85. The court of chancery will not decree the spe- olflo performance of a contract to purchase, where the vendor is unable to give a valid title to the- premises, unless it aiipears from the contract thaC the understanding of the parties was that the pur> chaser woald take the risk of the goodness of tbs> tit>e which the vendor was to give. Winne v. HeynUdx, B r'aige on. 407, 3: 1041 Bates V. Delavan, 5 Paige Ch. 299, 3: 786 Brown v. Eaff, 5 Paige Ch. 235, 3 : 69» Seymour v. DeLancey, Hopk. Ch. 436, 8: 4 78 36. Where, by the mistake of both parties as to the existence of a gore of land, one contracted to sell and convey, and the other to purchase and pay for- a supposed gore of land which had in fact no actual existence, tt!e,vsndee.ca,nnot..flle a bill in equity f dr the specinc performance of the contract, or for a compensation in damages by the vendor for not making the conveyance when requested to do so. ikforss V. Elmendorf, 11 Paige Ch. 277, 5: 135- 37. If the vendor contracts to sell land, and the title to a part of it fails, the vendee may claim a specific performance of the contract as to that part of the land to which the vendoi- can give him a title, and for a compensation in damages as to the part of the land to which the title fails. ibid, 38. Bui where a vendor, by mistake, supposes he has title to land, and contracts to sell and convey the same, he cannot be compelled to convey an ad- joining lot to which he has title. ibid. 39. Equity will not compel a purchaser to take- land which is involved in a doubtful and disputed question of boundary. Toortiees v. De Myer, 3 Sandf. Ch. 614, 7: 976 40. A specific performance will be decreed when- the vendor is able to perform his agreement in. substance, although there is a trifling variation in the description of the premises, or a trifling incum- brance on the title, which cannot be removed, which is a proper subject of compensation to the pur- chaser. Winne v. Reynolds, 6 Paige Ch. 407, 3: 1041 41. It is no valid objection to the title of a vendor that the conveyance under which ho holds the prem- ises contains- a reservation of mines and minerals- and water privileges, if , from the evidence, there is. no reason to suppose there are any minerals or water privileges on the premises. ibid. 42. As the law does not regard trifles, a reservation! of a peppercorn,or any other rent which is merely nominm, is not a valid objection to the title of the vendor, who holds subject to the payment of such- nominal rent. ibid. 43. But a restriction upon the power of alienation,- ill the nature of a quarter-sale or other substantial' fine ,upon alienation,' or the reservation to the ori- ginal owner of a pre-emptive right of purchase for a cort.iin length of time, is an Incumbrance which diminishes the value of the title. And a purchaser who has contracted to purchase the premises with- out notice of the existence of such an incumbrance will not be compelled to take the premises subject thereto, without a proper allowance therefor. Ibid. 44. Where there are trifling incumbrances upon the title, which were known to tne vendee at the- time he contracted to purchase, a specific perform- ance will be decreed without compensation, al- though by a mistake of the scrivener they werO' not excepted in the written contract of sale, ibid.. 45. Where the vendor, upon a contract for the sale of a farm in the manbr of Rensselaerwiek, which he held under a lease from V B at a nommal rent of a pound of wheat, containing a reservation or mines and minerals and water privileges and a. pre- timptive right of purchase, covenanted to give to the purchaser a good and lawful deed of the prem- ises,— if eW, that the reservation of the nominal rent was no objection to the title; and there being no mines or minerals or water prlvUeges on the prem- ises, and V K having agreed to relinquish his pre- emptive right of purchase, of which the vendee had nofice at the, time of makin !• his contract to pur- chase, a speoino performance was decreed. ibtifc 46. Upon a bill for a specific performance of a. contract for the sale of lands, and upon exceptions to the master's report In favor of the title, it ap- Esared that one link In the chain was a deed from , found among the title papers accompanying the 490 SPECIFIC PERFORMANCE, I. d. poaaession, but with respect to which the welgrht of evidence waa that the deed waa not grenuine. By •excluding that deed, the complainant would be reduced to rely upon adverse possession, which was less than twenty-flve years. There was slight evi- dence that L was an alien, and, if not so, there was no account of'his heirs or devisees, field, to be a •case proper for an issue at law. Seymour v. De Lancey, Hopk. Ch. 436, 2: 478 47. If the complainant's title had been clearly ad- verse for twenty -Ave yeara, it would not be surti- ciently impeached by the possibility, either of an e'44, 4: 867 62. Where parties, supposing that they were seised, 30ld ana conveyed lands with covenants of seisin and warranty, to which, asit subseqently appeared, they had no title: and six years afterwards, on be- ing sued by their grantee on the covenant of seisin, purchased the lands of the true owners, and ten- dered a new conveyance thereof to the grantee, who refused to accept it,— Held, that the court had no power to compel-tho grantee to receive the deed, or to interfere with his action on the covenants of title. lYtcfcer V. Clarke, 2 Sandf. Ch. 96, 7: 583 d. Completeness; Certainty; MutiuMty. 63. To entitle a party to a specific performance of an agreement for the sale of real estate, the con- tract must be certain in its terms and mutual in German v. Machin, 6 Paige Ch. 288, 3: 990 64. The court may, in proper case, where there is a covenant on one side and no mutuality, decree a specific performance of it. Be Hunter, 1 Edw. Ch. 1, 6:37 65. Where there is a covenant in a lease allowing 11 leasee to purchase the fee at a specified sum, it is a lair inference, in a bill filed for a specific perform- ance, that the rent was fixed at the amount re- served in the lease as an inducement to purchase the fee under such covenant. Ibvl. 66. A court of equity will never decree perform- ance where the remedy is not mutual, or one party only is bound by the agreement. Benedict v. Lynch, 1 Johns. Ch. 370. 1: 175 Parkhurst v. Van Cwtlandt, 1 Johns. 274, 1: 138 67. Whether a specific performance of a contract lor the sale of lands, signed by the defendant but iiotby the complainant, can be enforced,— gucBre. The solution probably depends upon the clrcum- jtances of each case. MeWluyrter v. McMahan, C. 400, 7: 1S4 Afl'd. 10 Paige Ch. 386, 4: 108a S. 0. 3 Ch. Sent. 86, 5: 1188 68. When there is a written contract for the sale of lands, coUidining a mere general description of the lands, and a deed is tendered in pursuance of such contract, describing the lands specifically, it should be^ proved that theJauds described in the deed are the same lands contemplated by the con- tract; but if this is not made an objection in the pleadings, it may be refpi'red to a master to whom che reference as to title is made, to take proofs as to the identity of the lands described in the con- tract and deed. Ibid. 89. An execution of a contract for the "nle of real estate owned bs- a partnership firm, by one partner in the partnership name, and in the presence and with the approbation and consent of the other part- ner, would be suiflcicnt to enable the vendee to en- force a specific performance thereof as against the partnership vendors, and is sufficient to enable the vendors to enforce it as against tue vendee. Ibid. 70. A contract for the sale of lands,signed or sub- scribed by the buyer only, cannot be enforced. Miner V. Paietier, 4 Edw. Oh. 102, 6: 818 71. Whether a contract for t^e sale of land belong- ing to a copartnership, signed by one partner In be- half of himself and his copartner, can be enforced against the purchaser, who has also signed the con- tract, under the provisions of the Bevised Statutes relative to such contracts,- gucere. More V. Smedtntrgh. S Paige Ch. 600, 4: 558 72. To authorize the court of chancery to make a decree against a feme covert or her heirs for the specific performance of an agreement to convey SPECIFIC PERFORMANCE, I. e, f. 491 itier interest In real estate, she muse not only have executed the contract. with her husband, bu£ must also have duly aokuowledg:ed the same before the proper officer, upon a private eAamlnation apart I'r'^m hor hns>»nn(i. KnovHes v. MeCamly, 10 Paige Ch. 843, 4: 1003 73. Where the husband and wife entered into a written contract for luu sum uud convuyauuu oi a lot of land which was held in right of the wife, but i£uch contract was not aoknowledped by the wife, in the form prescribed by law to m.ilte the contract ibindingupon her; and the husband and wife after- wards, in attemptins to carry the contract into •effect, conveyed to the purchasers, by mistake, an- other lot in which the wife had no Intoroat; and the wife afterwards died ieavins: an infant dauglirer her heir at law,— Helrf, that as the contract was not ICKaiiy bindtnK Opon the wife, the court could not compel her daughter to convey to such purchasois the interest which had descended to her as heir at law to her motlier. yi,,,,-. 74. Held, also, that the purchasers were entitled to a decree, against the husband, that he should pro- cure a conveyance of the interests of the heir at law of his wife in such lot, or pay to the purchasers their damages by reason of such defect of title. llnil. e. Abandonment of Contract; Statute of Fraudx. 75. If one who goes into possession of land under 4 written contract of purchase subsequently aban- dons the same, and consents that the vendor may make a new contract with another person, which .is done, he has no right to a specific performance which can be enforced. AWridhir. Putney, 11 Paige Ch. 204, 5: 108 76. One who goes into possession of land under a verbal contract for purchase, but never makes any payments, has no right to a specific performance after the vendor has resumed possession. Ibid. 77. But where the complainant asks for an injunc- tion to restrain the defendant from parting with the property which was to be transferred in payment ot the complainant's land, or for a receiver of such property, he must show that he is in a situation to f uitlll the contract: and it is not sufficient to show that he may possibly be able to perform the con- tract at the hearing of the cause, but he must show a present ability to perform it, where the defendant hoa a right to require an immediate performance of the agreement. Baldwin v. Halter, 8 Paige Ch. 47S, 4: 508 78. Where a party voluntarily abandons an agree- raentin wrlCmgrorthe sale or exchange of lands, with the assent of the other party, because he is not In a situation to perform the same, it seerm he can- not afterwards demand a specific performance, although such abandonment of the agreement was hy parol merely. Ibid, 79. Whether a party can come Into a court of chiincery tor the specinc performance of an ezecu- lury agreement for the sale of lands; which agree- ■ment is materially variant from the written eon- tract between the parties, and where there has been an part performance of the agreement, nor any '-other equitable circumstances sufficient to take it out of the Statute of Frauds, as a mere parol con- tract hotween the pnrfios,— oiicer*. Cowles V. Bovme, 10 Paige Ch. S26, 4: 1076 80. Where a block of land which had been subdi- vided into several distinct lots wasput up unu A.-id at auction, and was struck off to thB purchaser at a specific sum, and the vendor, upon a bill filed foi' a specific performance, insisted and proved that the premises were put up and sold by the -lot, and the purchaser, in his answer, insisted that the premises were put up as one entire parcel, and that he bid for the premises a price which was for the entire block; and the evidence was such as to renii'T it doubtful whether the defendant understood tlmt the premises were put up and sold by the lot,— the court decided that the complainant was not entitled to a specific performance of the contract, without reference to the provisions of the Statute of Frauds. Ibid. M. Bill filed by the lessee of premises which he 4ield under a church lease, against persons who had agreed in writing to purchase his lease. Complain- -ant alleged that an implied right of renewal en- tered into the purchase, and that defendants were to take, subject to a burthen upon a part of the premises of a lease for a year which had been -granted by the complainant. The buyers omitted to Insert these things in the written agreement, but verbally recognized them; and they manag(Kl to get a renewal in their own names, through the recom- mendation of the complainant; but declined, inas- much as the old term had in the mean time expired, to make good their agreement with the latter, and proceeded to eject the tenant who was to have held possession of a part for a year. Complainant prayed that the parties might pay their purchase money and perform their contract with him. A general demurrer was interposed, but overruled. Phyfe V. Warden, 2 Edw. Ch. 47, 6: 304 82. Land was struck off to E (who, in, truth, was one of the sellers); he let B. take his place, the lat- ter agreeing to give his note for an advance or premium, paying deposit to the auctioneer and re- ceiving the auctioneer's receipt as the buyer. On a bill for specific performance a plea of the Statute of Frauds was interposed, but overruled, with liberty, however, to K. to set it up in an answer— it being a case of some nicety. Bailey v. Le Boy, Z Edw. Ch. 514, 6: 487 83. Although in general a bill in this court will not lie, after a party has put it out of his power to fulfill a contract to convey land, when the^ fact of his having disquaUfled himself is known to the com- plainant previous to the filing of the bill, ypt where no action could be sustained at law, but a 'bill might have been supported here, the rule does not apply. Hence , where a parol contract was sought to be en- forced on the ground of part performance, and no action could have been brought for damages, this was held no objection to the bill, although filed after the party contracting had conveyed away the property. In such a case the assessment of dam- ages through this court, is the oulv remedy open. Jeruis V. Sm«ft, Hoff. Ch. 470, 6:1818 f . Time ; Offer to Perform, 84. Parties may so frame a contract for the sale of land as to make the time of payment a material part of the agreement; and where, from the terms of the contract, it appears that the parties thereto intended that the purchaser should not have the land unless the purchase money was actually paid at the day specified by such contract, if the money is not paid, a court of chancery will not decree the performance of the contract. Crippen v. Heermance, 9 Paige Oh. 311, 4: 678 85. A short delay .indeed even a delay for a length of time fairly accounted for and so as to repel the presumption of a waiver or abandonment of the contract, will not, ordinarily, deprive a party of his right to a specific performance. But, where the vendor requires and the purchaser agrees to make time a condition of the contract, and they insert the same as a distinct and substantive part of the agree- ment, it must be kept. Wells V. Smith, 2 Edw. Ch. 78, 6: 315 Afl'd, 7 Paige Ch. 23, 4: 43 86. Where a contract for the sale of a city lot con- t.tittba u pru\ muiu luat the purchaser should, on or iicfore a particular day specified, build and enclose a house upon the front of the lot, or in lieu thereof he shoiild on that day pay 'tolthe vendor S1,000 as the first payment towards thepurchase money; and the contract further provided that if the vendee neg- lected or failed to perform any of the covenants therein contained at the times limited for that pur- fiose, all bis rights or interest in the premises, either a law or in equity, should cease, — Held, that the parties had made the payment at the day an essential part of the contract; and that the vendee, who had not attempted to build the bouse upon the lot, and who had without any legal excuse failed to make the payment at the time specified, was not entitled to a decree for a specific performance of the con- tr-'-t WeilU V. Smith, 7 Paige Ch. 32, 4: 43 Afl'g, 3 Edw. Ch. 78, 6: 316 87. The vendor is not bound to tender a deed of the premises and to demand payment of the purchase money, except for the purpose of enabling him to affirm the contract and to recover the purchase money in a suit at law; and where the payment of the purchase money at a particular day is made an essential part of the contract, if the vendee wishes to entitle himself to a specific performance, he must tender or oflTer to pay the money to the vendor at th" time sneolfied, upon the receipt of the deed of ■ n?VMnla'-«. Ilild. 88. In the sale of lands, time may make part of the essence of the contract ; and on default at the day, without any just excuse, or any acquiescence 492 SPECIFIC PERFORMANCE, I. g. or subsequent waiver by the other party, the court will not help the party in default. Benedict v. I/yneh, 1 Johns. Ch. 370, 1: 175 89. Where A, in March, 1810, agreed to purchase a farm of B, and to pay $250 in oue >ear, one lan. of the residue of the purchase money in one yeai thereafter, and the other two thirds in the two suc- cessive years ; and, on the payments being made. B was to give a deed ; and. If he failed in the pay- ments, or either of them, the agreement was to be void ; and A entered Into possession under thi agreement, and made improvements, but made nc payments ; and B, in October, 1813, above twi years after the first default, supposing the aereo- ment void or abandoned, sold the farm to a thiiu person,— a bill filed by A in 1814, on a tender of th< whole purchase money, for a specific performance of the aureement,. was dismissed, with costs. Ibid. 90. dh a contract for the sale of land, the pay- ment of the purchase money by the inaiuuLt i,ai made a condition precedent to the conveyance; ant! after a default the defendant accepted part of tb( purchase money ; but the plaintifl!, though repeat- edly called upon, refused to complete the payment. The defendant, after giving notice of his intention to do so, sold and conveyed the land to another; and the plaintiff afterwards tendered the money due on the contract, and filed his biU for a specific per- formance of the contract. Held, that a specific per- formance could not be decreed, nor coiud the bill be sustained for a compenoatinn in damages. Hatch V. Cobb, i Johns. Ch. 559. 1 : 936 91. It neeins that even if ihe defendant had not aold the land to another before the plaintitc filec his bill, he would not, after such default and delaj on his part, be entitled to a specific performance, ai no accident, mistake, or fraud had Intervened, P prevent the performance on his part. Ibid. 92. Where one goes into possession of land under a written agreement for purchase, by which the purchase money is ma should buy one of the lots, acd pay the price by re- deeming both from the sheriff's sale. M was to take a deed from the sheriff, pay all liens and charges and on receiving the surplus beyond the price ol the one lot, with interest, at a day fixed, was to con- vey the other lot to the vendor, or, if such payment were not made, was to retain both lots. The vcndoi was, by a like covenant, to give possession of the lo sold to M. Held, that by the agreement M tecamc the purchaser of the one lot, and took the other lot as a security for her advances beyond the price ol the former; and that she was bound to convey to the vendor, on being refunded such excess, with in terest. Held, further, that if the contract were tarty to the suit, to compel him to deliver over to the master, for the purpose of having them delivered to the com- plainant, books and papers belonging to the parties to the suit, which such stranger to the suit claims were placed in his hands by one of the parties, be- fore the commencement of the suit, as security for a debt. Jforiej; V. Green, 11 Paige Ch. 240, 6:182 Editorial Notes. Summary proceedings; to obtain possession of land sold on execution 2: 973 To enforce decree 2:404 SUNDAY. See also Execution,' 14 ; Subboqaiion, 81 ; Writ AND Process, 4. Agreements and contracts to create and dis- SUPERINTENDENTS OP POOR— SURROGATES. 499 ohari^e debts or responsibilities are not void be- cause made on Sunday, unless prohibited by stat- ute. Morris v. Orane, 1 Ch. Sent. 6, 5: 1136 SUPERINTENDENTS OF POOR. Sep Parties, 139; Poor Persons. SUPPLEMENTAL PLEADINGS. See Pleadibo, I. p. SUPPLICAVIT. 1. Whether this court •will Rrant a writ of suppK. cavit to protect a married woman from violence threatened to her by her husband, by compelling him to give sureties to keep the peace,— gucEre. Coda V. Codd, 2 Johns. Ch. 141, 1: 383 Z, Such a writ will not be granted where the men- aces, etc., Bwom to, were eight years before the application for the writ, during-which interval the husband was absent from the State, and had lately returned; but the court, under the circumstances of the case, ordered that the wife should have the exclusive custody, care, and direction of the chil- dren, and that the husband should not be permit ted to visit them, except under the direction of one of the masters of the court. iMd. Editorial Note. Supplicanit; writ of 1:333 SUPREOIE COURT. The power to review and correct the errors, abuses, and mistakes of public oOicers and of In- ferior or subordinate jurisdictions, belongs exclu- sively to the supreme court. Whitney v. Mayor of New York, 1 Paige Ch. 548, 9: 748 Mooen t. SmedUy, S Johns, Ch. 28, S: 43 SURETY. See Peihcipai, and Surety. SURROGATES. Appeal from, see Appeal. See also Executors and Aduinistrators; Wills, 97-99. L, A surrogate's court has not Jurisdiction to compel an auministrator to deliver up property t.) the owners thereof, which he has wrongfully taken possession of under color of his letters of adminis- tration, and claiming it as a part of the estate of the intestate. Marston v. Paulding^ 10 Paige Ch. 40, 4:877 2. Where the surrogate has not jurisdiction of the subject-matter ot the suit or proceeding oef ore liim, no assent or submission of the parties can give him such jurisdiction. But where the objec- tion to the jurisdiction is not taken before the sur- rogate, but is made for the first time in the appel- late court, the appellant will not be allowed costs npon the reversal of the sentence or decree of the surrogate, unless the same is found to be errone- ous upon the merits also. _ „, „ Dakin v. Demmdng, 6 Paige Ch. 95, 3: 913 3. The court of the surrogate has exclusive juris- diction to try the validity of a will of personal es- tate. Heyer v. Burger, Hoff. Ch. 1, 6: 1043 4. Surrogates, having exclusive jurisdiction In relation to the proof of wills of personal property, must determine aU questions of fraud, imposition. and undue influence in procuring such wills, as well as the general question of the capacity of the testator. ClarH V. nsher, 1 Paige Ch. 171, 9: 604 5. The surrogate of the city and county of New York has no authority to grant letters of adminis- tration with the will annexed, of a person dying out of the State, not being an Inhabitant of the State. Goodrich v. Pendleton, 4 Johns. Ch. 549, 1 ! 938 6. His powers, though they may exceed those of the county suixogatus, who have no power to grant letters of administration of the goods of per- sons dying intestate out of the State, not being in- habitants of the State, are limited in this respect by the Acts, Sess. 30, chap.79, S 17, Sess. 38, chap. 159, to the case of a nonresident of the State dying in- testate, and leaving goods and chattels in the city of New York. Ibid 7. The surrogate by whom letters testamentary or of aUmiuisirauou were granted has coucurreuo jurisdiction with the court of chancery to call the executor or administrator to account. The pen- dency of a suit in chancery, therefore, by one cred- itor for an account, if the suit has not proceeded to a decree, is no bar to a proceeding instituted be- fore the surrogate by another creditor for an ac- count. Rogers v. King, 8 Paige Ch. 210, 4: 403 Seymour v. Seymour, 4 Johns. Oh. 409, 1 : 885 8. Where administrators have been brought be. fore the surrogate wuo granted the letterb of ad- ministration, for an account and distribution of the intestate's personal estate, this court will not, wjthout some special and satisfactory reason, inter- fere with the proceedings of the surrogate, by granting an Injunction and sustaining a bill for general relief. Seymour v. Seymour, 4 Johns. Ch. 409, , 1: 885 9. When executors or administrators are cited to account before a surrogate, it is the duty of the complainants, when required, to file a written alle- gation or libel stating the substance of their claims against the defendants. Foster v. WiWer, 1 Paige Ch. 537, 8: 744 10. The defendants may call on the surrogate to reject the allegation for insufflciency, or they may take issue upon the facts propounded, or put in a counter-allegation in the nature of a plea in bar. Ibid. 11. The surrogate before whom the will was proved, or by whom administration was granted, has power, upon application of the legatees or next of kin. to compel executors, as well as administra- tors, to account and to distribute the personal es- tate according to law or the directions of the tes- tator. Ibid. 13. No surrogate can call executors or admlnis- tratiors to account, except where probate of the will or letters of administration were granted by him. Ibid. 13. Whether a surrogate can compel an account from the personal representatives ot a deceased executor or administrator, although probate or administration of both estates were granted by liim, unless some portion of the first estate actual- ly came to the hands of such representatives,— qucere. Ibid. 14. Where persons are appointed by the court of chancery as trustees of a fund .which was origi- nally committed to an executor, they cannot be called to account, before the surrogate, in relation to the execution of their trust. Be Van Wyeh, 1 Barb. Ch. 565, 5: 496 15. The jurisdiction conferred upon the surrogate in whose ofBce a will is proved, to call the execu- tors to account for the proceeds of real estate sold by them for the payment of debts and legacies un- der a power contained in the will, extends to wills made previous to the passing of the statute on this subject, as well as to those executed subsequent to that tame. . ., ^„ o'tarK V. aarh, 8 Paige Ch. 152, 4: J 79 16. It is the dutv of the surrogate, upon the taking «f an account, or upon any other proceeding before him which may be the subject of an appeal trom his decision, to reduce to writing and preserve the evi- dence and the admission of the parties, so far as to enable him or his successor to make a correct re- turn of the facts, if it shall be necessary to do so upon appeal. And no extraneous evidence can bo received by the appellate court upon the hearing of soo SURVIVORSHIP— TAXES. the appeal to contradict the return of the Burro- irate. Williamson v. Wmiamson, 6 Paige Ch. 398, 3: 995 17. A surrogate may appoint a guardian for an infant, although such surrogate is a relative of the person appointed. UnderhiU v. Dennis, 9 Paige Ch. 203, 4: 668 18. The accounts of trustees of real estate are not within the jurisdiction of the surrogate. McSorUy v. Leary, i Sandf. Ch. 414, 7: 1154 Editorial Notes. CoDsaDguinity or affloity not to disqualify 5:663 Powers; discretionary; when exercised 5:698 restriction on 5: 335, 394 plenary, in probate matters 4: 991 incidental, over proceedings 5: 451, 856 may revoke letters 6: 676 as to distributive shares of an estate 4:548 to open, vacate, modify, or set aside decree or order 4: 635, 5: 394. 452 Jurisdiction and authority of 1:885, 3:733,5:459, 698 on final accounting 5: 696 to adjudicate disputed claims 5: 697 •over claims against estates of decedent 3:881,941, 4:86 Jurisdiction; over tortious acts of adminis- trator ' 4: 877 may adjust equitable as well as legal de- mands 3: 881 ousted by equitable claim set up in answer 7:161 Proceedings before 3 : 819 by executor before, to prove will 4: 55 anyone interested may intervene; legatees may intervene 4: 55 SURVIVORSHIP. See Partnership, VI. d ; Reai. Pkopebtt, L f ; ■Wills, U. k. SUSPENSION OF ALIENATION. See Perpetuities. SWAMPS AND BOG MEADOWS IN ORANGE AND DUTCHESS COUNTIES. See Dbainaqe Acts. T. TACKING. -See MoRTOAOE, 58, 59. TAXATION OF COSTS. See Costs. TAXES. See also Debt ; Lite Tenant, 6 : Injunction, I. k ; INTEBFLEAIIEB, 32, 33. 1. A corporation liable to taxation upon its cani- tel cannot be taxed for Its surplus profltg remalnlngr on hand and undivided. It can only t>e taxed for eo much of its capital stock paid in, or secured, as will remain after deducting therefrom the actual «ost of the real estate of the company. Bank of Utica v. Uttea, 4 Paige Ch. 899, 3: 487 2. A railroad corporation Is not liable to taxation upon Ite capital, aa personal estate, for that part thereof vested In the lands over which the road runs, and in the railways and other fixtures con- nected therewith; but that part of the corporate property should be taxed in the several towns and wards in which the same is situated, as real estate, and at its actual value at the time of its assessment. Morumit & B. B.~ Co. v. C!«te, 4 Paige Ch. 384, 3:480 " Tho oBnltal stock of a railroad corporation, not Tested In its railways or other real estate, is to be taxed as personal property in the town or ward where the principail office or place for transacting the flnanclEU concerns of the company Is situate. Ibid. 4. Where the president of a railroad corporation uirlii6Uca tuc oiai'Cii.uiJL, ix;quiruil by lUti HiatitLti IXJ uc delivered to the assessoi-s of the town in which the corporation was liable to be taxed upon its cap- ital, but by mistake as to the law omitted to de- duct, as a part of the real estate of the corporation, that portion of its capital which was vested in the railways and other fixtures; and the corporation was assessed and taxed in that town, in conformity to such statement,— the court of chancery refused to restrain the collection of the tax. Ibid. 5. The estate of a corporation which is taxable aa personal property isonly that portion of its capi- tal which is not invested in real estate. Utica Cotton Mfg. Oo. v. Oneida County, 1 Barb. Ch.433, ,8=*** 5. C. 6 Ch. Sent. 8, 5: 1194 6. The principle of the Bevlsed Statutes in regard to the taxation of corporations is to tax the real es- tate of each corporation, except as to canal, turn- pike, and bridge companies, upon its actual value, lor the benefit of the inhabitants of the town and county where it is situated, in the same manner as the property of individuals is taxed; and to tax the residue of its capital after deducting the cost of its real estate, aa personal property for the benefit of the inhabitants of the town and county where the financial concerns of the corporation are carried on. Ifiid. 7. Under § 9 of title 4 of the article of the Bevlsed Statutes relative to the assessment of taxes on in- corporated companies, etc., the real, as well as the personal, estate of a corporation, is exempted from taxation, provided a satisfactory affidavit is pre- sented to the board of supervisors of the county in which such property is assessed, showing that such company is not in the receipt of any income or profits, either from its real or personal estate. Ibid. 8. If such an affidavit is made and filed with the (derk of the board of supervisors within the time ' prescribed by the statute, it is the duty of sucb TAXES. 5(J board to strike the name of tbe corporation out of the assessment roll. iMd. 9. But the board of supervisors should require the affidavit to be in such a form as to leave no doubt upon their minds that the real, as well as the per- sonal, estate of the corporation, is wholly unpro- ductive, so that it yields neither rents nor income which are received by tKe corporation or its agents. /hid. 10. B and L purchased of the Holland Land Com- pany their interest in the lands in four counties, which interest consisted of bonds and mortgages for lands sold,contract8 for the convey ance of lands and lands not sold, the title to remain in the com- pany until the contract was complied with. The Holland Land Company were f orei|;ners. H and L resided in LeRoy. UndertheActof April27,1833, in relation to taxation of debts due to f oreifmers for the sale of lands,— Held, that H and L were liable to be taxed in LeRoy only for the amount of the debt which they incurred for the purchase of lands, and not for the debt incurred by the purchase of the bonds and mortgages and contracts. Bedfield v. Genesee County, Clarke Ch. 42, 7: 46 U. Tbe tax upon the bonds and mortgages and contracts'was properly assessed in the towns where the mortgagors and purchasers owing the debts re- sided, according to the proper construction of the Act of April 27, 1833. Ibid. 12. The purchase of bonds and mortgages and contracts for landssold, and the obligation or debt incurred thereby, does not create a debt for "the purchase of real estate,"within the meaning of said Act. Such debt arises out of the purchase of choses in action. Ibid. 13. The register, assistant register, and clerks of the court of chancery are not liable to be assessed, as trustees, for the funds and securities belonging to suitors in that court standing in the names of such officers; neither can the court be assessed anfl taxed as the trustee of such funds or SeouritieJi. Be Kellinger, 9 Paige Ch. 62, 4: 608 S. C. 1 Ch. Sent. 27. 6: 1058 14. WTiPT-p moTipvs are deposited in court, or se- curities taken for the same m the names of any of the ofl&cers in the court in their official characters, the owners of such funds or securities are liable to be assessed and taxed therefor at the places of their residence, as a part of their personal estate, ibid. 15. Where lands have been sold for taxes or as' eessments during the existence of a law whiob on- titled the purchaser to an absolute deed, or to a lease for alimited term, in case tbe premises were not redeemed within a specifled time, it is not com- petent for the Legislature to extend the time for the redemption, and thus to deprive the purchaser of the right to the possession and enjoyment of the premises, without providing an adequate compen- sation to the purchaser for his loss of the use of the premises during the time of auch extension. Dtkeman v. Dikeman, 11 Paige Ch. 484, 6: 807 16. The board of supervisors of a county may file a bill in equity, in the nature of a creditors' bill, to coJleot a tax legally a.ssessed against the defendant out of his equitable interests and choses in action, upon the return of tbe collector that tbe defendant has no visible property out of which the tax can be levied MSimyCountv v. Dwrcmt, 9 Paige Ch. 182, 4: 659 S. C. 1 Ch. Sent. 38, S: 1068 17 Where there is a remedy given both against real and'personal estate,f or the satisfaction of taxes and assessments, as a general rule the remedy against the personal estate should oe first exhausted, unless there is some specific and controlling equity to make it proper to proceed against the real estate in the first instance. , ^ „,„■„, m. Gouvermur v. Mayor of New York, 2 Paige (m 434, 8:977 18. Where tbe illegality of an assessment and taxation of property appears upon the face of the warrant for the collection of the tax, trespass will lie against the collector who levies upon property * Ban/o7S'V. Utto, 4 Paige Ch. 399, 3= 487 19 If the error in an assessment apnears upon the face of the assessment roll, or the assessment is made by tbe same body which impose the tax, the party improperly taxed has a remedy at law, by mandamus, to compel such body to correct the taxation, IMd 20. If land sold by the comptroller for taxes, or any part thereof, is actuaUy occupied at the end of the two years from the cM'e of the sales, the pur- chaser or bis assignee muai. serve the notice required by the Act of April, 1830, upon the occupant, anci flic the evidence of such service with the comptrol- ler, within tlie times prescribed by that Act or by the Act of 1444 amending the same, or be will lose the benefit of bis purchase. Vtica Bank v. Mersereau, 3 Barb. Ch. 528, 5: 998: 21. Where tbe purchaser serves such notice and flies the evidence of such service within the time prescribed, and the lands are not redeemed withla the six montiis allowed by the Act of 1830 for that purpose, his title will become perfect as soon there- alter as he stiall have obtained the comptroller's deed, wlietlier such deed shall have been given be- fore or after the service of such notice. Ibid. 22. In cases where the lands sold are not occupied at the expiration of the two years, but there is an actual occupant of the land, or of any part of it, at the time of tbe giving of the comptroller's deed, tbe title of the purchaser will not become absolute under such deed until six mouths after he shall have served the occupant with the notice to redeem, and shall have obtained tbe comptroller's certificate that evidence of the fact of such service has been filed, and that tbe land was not redeemed by tbe payment of tbe redemption money into tbe treasury within six months after tbe service of such notice,^ Ibia. 23. In cases not coming within tbe scope of the Act of April, 1830, there Is no time limited by law for giving notice to the occupant of the land who was in the occupancy thereof at the time of giving the comptroller s deed: and tbe only efCect ot a ne- glect to give such notice is to extend tbe time for redemption of tbe land and the perfecting of the title of the purchaser. Ibid. 24. The fact that the occupant of the land sold la the tenant of tbe grantee in the comptroller's deed will not authorize the latter to perfect bis title, as against tbe paramount claims of otiiers upon the land, withoutgiving the notice to the occupant re- quired by tbe statute. Ibid. 25. If any part of the premises sold for taxes is actually occupied at the times specified in tbe sta t- utcs relative to tbe giving of notices to the occu- pant, the purchaser must give the prescribed notice to tbe occupant of such part of the premises, and obtain the comptroller's certificate that such notice was given and that the premises were not redeemed within the time prescribed, before he can complete bis title to any part of the premises included in the purchase. ibid. 26. If the lands described in the comptroller's deed cannot be located for want of a proper de- scription of the tract out of which the lands sold were to be taken, the sale is invalid. Ibid. Zl. It is not necessary that a deed given by the comptroller to the purchaser of lands sold for taxes should be technically executed in the name of tbe People. It is sufficient if it recites the substance of the statutes under which the sale was made, the nonpayment of the taxes charged upon tbe land, tbe advertisement and sale of tbe premises, the payment of the purchase money by tbe grantee, and that the premises have not been redeemed, and purports to convey tbe land to the original pur- chaser or his assigns by virtue of the authority vested in the comptroller by law, and is executed under the comptroller's official seal, and witnessed by one of the officers mentioned in tbe statute. Ibid. 28. The statute does not require a comptroller's deed to state in what year the tax was assessed tor the nonpayment ot which the land was sold. Hence if the deed states that tbe taxes have been as- sessed and returned to the comptroller, and have remained unpaid for two years, this is all that is necessary to show upon the face of the deed that the comptroller was authorized to make the sale. IhkU 29 The vriina facie evidence of ownership in the grantee afforded by a comptroller's deed is liable to be rebutted by proof that the tax returned to the comptroller as unpaid bad actually been paid to the coUector. ibui. 30. Such prima facie evidence may also be rebutted by showing that the land Uius tola and oouveyea hy the comptroller, or some part of it, was actually occupied by some person at the expiration of two years from the time of the sale, or that it was so occupied at the time of the giving of the comp- troller's deed, so as to throw upon the party claim- ing under such deed tbe necessity of giving to tha 502 TENANT— TITLE. occupant the notice to i^edeem which in required by the statutes on this subject. Ibid. Editorial Notes. Assessment of property 6:444 when may be declared void 3:481,488 accurate description essential to validity of 5: 1001 Collection ; resort to personalty first ; goods found on premises 2: 977 restraining 4: 592, 744, S; 444 statute authorizing sale of real estate to pay 5: 207 Incumbrance ; purchaser takes subject to 4:883 Payment by mortgagee 2: 432 Right of action in public corporation 4: 659 Taxation of corporations 5: 444 of capital of moneyed corporations 3; 487 surplus profits not liable 3 : 488 of railroad companies 3: 480 trust moneys in hands of court or officers thereof 4: 608 in two places ; remedy by bill of inter- pleader 2: 4.19, 3: 481 Tax title 5: 1000 TENANT. See Landlord and Tenant. TENANT BY THE CURTESY. See CuBTESY. TENANT FOB LIFE. See Life Tenants. TENANT IN COMDION. See Joint Tenants and Tenants in Common. TENDER. See also Costs, 16. 1. A mere offer to par off a Judgment, made by a person who is ready to purchase the property, is not a sufBoient tender to the judgment creditor to vary the running of Interest, Janes v. Moore, 1 Edw. Ch. 633, 6:373 i Where a person holds hypothecated property, and a tender u made of the amount due upon It aud he refuses the tender, he makes the property so far his own as to run the chance of after depreciation and will be oblieed to take it in full satisfaction should it prove worthless; and should there have been a surety, the latter then becomes released. Orl^old V. Jaeftson, 2 Edw. Cli. 461, 6: 467 3 A tender of principal and 10 per cent interest, under the Act of May 12, 1837, allowing redemption under sales of mortgaged premises, will uot save ordinary interest (7 per cent) from time of tender, where it does not appear that the amount of such tender has been lylns idle. Bwrr V. Stanley, i Edw. Ch. 27, 6: 786 4. Where the right to a debt due from a third per- son Is in litigation, it cannot with safety be paid to either party after notice ; but the debtor wlU be permltfed, pending the litigation, to pay it into court to the credit of the cause. MOIs V. PUtmim. 1 Paige Oh. 490, 8: 786 ter 6. A tender of the money due on a mortgage af- sr the condition of the mortgage has been broken. does not turn what was before an equity of redi-m pi tion into an absolute estate disch^ged of the litii of the mortgage money which remains unpaid. But a tender ot the money on the day it becomes due is a compliance with the condition, and by th'>ii . surate with such trust, without reference to olln j- iilegal trusts which the testator or grantor has at- tpmpted to create in the same estate as distinct nii'l 6 "Mfnt/> trnRt«. /'■' '. 24. Where a testator devised certain property to his executors to be sold and converted into money and the proceeds invested, and directed the execu- tors, among other things, to provide for the sup- port of his nieces out of the income until they arrived at the age of twenty years, or married, after which the income to be paid to them upon their separate receipts, notwithstaniingcoverture. during their respective lives, it constituted a valid trust. Gott V. Cook, 7 Paige Ch. 521, 4: 856- 25. A trust of personal estate may be created for any purpose which is not Ulegal, so far as relates to the mere vesting of the legal title to the property in the trustees. But all limitations of future or contingent interests in personal property, or inter- ests in the future income thereof, are subject to the same rules and restrictions which are prescribed by the Revised Statutes in relation to similar inter- ests in real estate. Ibid^ 26. Where an agent purchases land for his prin- cipal .with the understanding that the agent should take the title to the land in his own name, to be paid for by his own money, but in trust for the principal, this trust cannot be enforced unless it is in writing. Heacoch v. Coatesworth, Clarke Ch. 84, 7: fS 27. A conveyance of real estate in trust to lease the same uua lo pay ana apply tbe mcome uiitu sucti persons, for such uses aud purposes, and iu such parts and manner as E, a married woman, should in writing appoint, and, for want of such direction, then to her proper hands, or otbci'wise to permit her to receive the ineorau tof her sole and separate use and benefit, — is valid as an express trust. Riigers v. Luillnw. ;i S. 104, 7: TRR 28. Such a trust interest in real estate cannot be subjected to the payment of liabilities in the nature of debts created by the wife. Ibid. 29. Where a husband, immediately after marriage and without consideration, uione executed an in- strument of settlement, whereby he released and conveyed to trustees the wife's real and personal estate: "lb hold and keep both the principal and in- terest th^eof during the said marriage, exempt from his debts, contracts or control, to benuniaged and dis- posed of on her separate orders or receipts or by her deeds nr wW, so that she may enjoy and dispose of the tame as it came from her parents and sister or may hereafter in any manner accrue to her in all respects as if she were wimarried; and delivered the same to such trustees,— ifeW, that the instrument was valid; that the statute against fraudulent conveyances, in requiring a consideration to be expressed, does not control an instrument which creates and passes the estate, title or interest; that a consideration is here implied by execution; and thatadeedlikethe above Is not to be deemed executory, promissory or as a covenant or agreement, to do some future act. Omger v. Dmiglas, 4 Bdw. Ch. 433, 6: 930 30. .4180, held, that the Instrument is not void under the Statute of Uses and Trusts-! Rev. Stat. 727, § 25: for, while the words, "to be managed or disposed of on her separate orders or receipts or by her deeds or 506 TRUSTS, I. c. viiU, so thai she may enjoy the same in all regpecU as ■if she were unmarried," would seem to give her all power as if she were a/eme mle and the trustees be mere nominal parties, yet, when obupled with the i -words (applying to the trustees) "to hold and keep hoth the principal and interest thereof during the said -marriage, etc.," a requirement to perform aotlre duties appears and makes the trust good. Ibid. 31. A trust need not be clothed In the very words of the Statute of Trusts ; a substantial compliance 48 sufficient. * Ibid, 33. The wife by a deed (under the power in the above instrument) irrevocably transterred to her husband a half of the income of her estate, real and personal, for life, and directed her trustees to pay it. Held, to be a valid instrument; and that the disabling langusifre of section 63 of the Statute of Uses and "Trusts did not affect It: because, here Is an appro- priation only of the benefits resulting from the trust in a manner compatible with its object and which does not put an end to the Interest of the beneficiary Ibid, 0. Implied and Constructive Trusts. 33. A court of chancery will relieve against a fraud, by converting the person guilty of It into a trustee for those who have been injured thereby. Brovm v. Lynch, 1 Paige Ch. 147, 2: 596 31. A clerk of a bank, through fraud using the bor - •rowed check ol a lii-m, whob« account (in that way overdrawn) was more particularly under his own supervision, withdrew money from the bank and •deposited it to his own account in another bank and bought stock with it and caused such stock to be placed in the name of his sisters without considera- ■tion. Held, that the sisters were to be construed as trustees for the hank dpfniurted. Bank of America v. Pollock, i Edw. Ch. 215. 6: 856 35. Where a person obtains money from a bank by an improper and fraudulent overdrawing of his account, and the money thus obtained is placed in the hands of a third person, who has notice of the fraud before he parts with the money or pays any valuable consideration therefor, the latter cannot retain the money as against the bank. Mechanics Bank v. Levy, 3 Paige Ch. 606, 3: 398 36. If the money of a third person, which is in the bands of one oJ^ the members of a copartuersiiip us •a trustee or otherwise, is applied by him to the use of the firm with the knowledge and consent of all the copartners, such third person has a claim upon th'^ ci-mnany for the repavment of the money. Hutchinson v. Smith, 7 Paige Ch. 26, 4: 46 37. Where the agent of the owner of real estate -was, after the owner's death, appointed guardian ■nls Infant heir, and received the whole rents arter the ancestor's death, to the exclusion of two adult heirs, such agunt is to be deemed trustee for the two adult heirs, for two thirds of the rents so re- ceived, and may be held to account to them for «uch rents in this court, as such trustee. Ellas V. hockwood, C. 311, 7: 188 38. A wife owned land on the Bast River, in the city of New York, which the corporation of the cit • directed to be extended out into the river, in pur" Buance of the city charter and the laws of th( State. Her husband caused the designated portion to be filled up, and the land was extended accord- ingly. The land thus regained from the river be- longs to the wife. Dickinson v. Codwise, 1 Sandt. Ch. 214, 7: 304 39. Where a wife is seised of building lots which ■tae separated from a street by a narrow gore of land and the husband purchases such gore and takes e. conveyance of it in bis own name, he will be deemed in equity a trustee thereof for her benefit. Ibid, 40. Where the husband borrows money and secures it by a mortgage whicu his wlte executes with him •on her lands, and he lays out the money in perma nent buildings and improvements on such lands she is not a surety for him in respect of the moit «age debt. ibid. 41. A testator, ten or eleven years before his death, contracted verbally tor land, entered into possession, and occupied it till his death. His •executrix succeeded to the possession, and several years afterwards paid the purchase money and took a deed for the land in her own name. She was held to be b trustee for the heirs of the testator. Ibid. 42. A receiver of money under color of right is frequently looked upon as a trustee for the real owner of such money. If he chooses to treat the re- ceiver in such light. ElXaS V. iMCkwood, Clarke Ch. 311, 7: 188 43. One purchasing at a great discount, with his own tuiidn, juugmeuis agamst a bankrupt firm, at the instance of one of che partners and on his promise or assurance that he will immediately re- place the advance, there being no deposit or other security given for the fulfillment of such promise, does not become a trustee for the partner or the firm, although soon after the purchase such partner pay to him on account, towards the amount due, a sum greater than he paid for the judgments. Draper V. tfiwdon, 1 S. .-ilO, 7:1079 44. If a purchaser has notice of a trust at the time of purchase, he himself becomes a trustee, notwithstanding the consideration he has paid. Murray v. BaXUm, 1 Johns. Ch. S6S, 1: 847 45. Where money was awarded by the I'lorida commissioners upon a memorial of one of two joint owners, and the applicant claimed in his memorial the whole to himself, without naming his joint owner,— it was held that the joint owner not named was not bound to put in his claim and contest his right before the commissioners; that the person who received the money awarded was a trustee, and accountable in equity to the real parties inter- ested in the fund. Delajield v. CoMen, 1 Paige Ch. 139, 8: 598 46. An allegation, in a creditors' bill, that the lands therein described are held by two of the de- L,.iiaiuits. the daugiiiers at the judgment debtor, in trust for him, will not be sustained by showing that the debtor purchased the lands with his own funds, and took the deed thereof in the name of the daughters, as an absolute gift to them, and that the com|i)ninant's debt was contracted previous there- to, and that the debtor was insolvent at the time of suf^h purchapp. Bodine v. Edwards, 10 Paige Ch. 504, 4: 1068 47. Where, upon an application for a grant of State lands for the mutual benefit of three persons, they entered into an agreement whereby one was to pay the money and receive the patents, and re- lease one third of the lands to each of his associ- ates as soon as their shares of the purchase money was repaid to him, — if the executors and trustees of such person paid the money and took the legal title, they held it as trustees for all who were bene- ficially interested under the agreement. Quackenbush v. Leonard, 9 Paige Ch. 334, 4: 782 ^. Where a feme covert, after having two chil- dren by her husband, abandoned him and lived in adultery with J, during which time she had eight other children supposed to be the children of J, and then died, after which time her father died in- testate leaving a large real and personal estate, the whole of which was claimed by the two first chil- dren, and a part of which was also claimed by J, acting in behalf of the eight younger children; and thereupon a compromise was effected, in conse- quence of which the two first children released eight tenths of the property to J, for the benefit of the others, but the conveyance on its face was ab- solute to J, who never gave any declaration of trust; and afterwards the estate was partitioned and eight tenths thereof set off to J,— Held, that the beneficial interest in that portion of the property which was released to J oelonged to the eight younger children, and that J could not set up their illegitimacy as a defense to their claim ; and that the legal liens of judgment creditors of J upon the property could not prevail against the equitable claim of such children. Sweet V. Jaeockf, 6 Paige Ch, 355, 3: 1018 49. Assignees of a bankrupt sold a lot of ground for $4,o00 to I. S. with a promise of covenants in fee and a warranty ; the latter took possession and ex- pended money in building; the assignees then re- fused to give a deed with full covenants of warranty anil forced him down to take a deed with a covenant against their own acts only and took a bond and mortgage for $4,000 payable in five years, upon the understanding that if their title failed they would return the purchase money and, in the mean time, would not pass the mortgage away. The assignees, without the knowledge of I. S., were notified of an intention to contest their title. I. S. sold to R. D. who paid off the mortgage (the assign- ees having, against their promise, parted with it). One J. J. brought ejectment upon a paramount title and recovered against R. D.,who compromised. R. D. failed and assigned his property to assignees. TRUSTS, I. d. 507 who filed a bill against the assignees In bankruptcy Cor repayment of the amount which R. D. had sac- rificed upon the compromise. Held, that the as- eignees in bankruptcy not only took the mortgage in trust, but were to be considered as trustees of the money arising from it, and that U. D. and those rep- resenting him were entitled to the benefit of it. Denston v. ilforrte, 2 Edw. Ch. 37, 6: 899 50. Thomas L and J L were owners of a farm in Orange County, which, in 1811, was, by a fraud upon them, mortgaged to R. The mortgage was foreclosed in chancery, and the farm advertised for sale by a master. Before the sale, B, by an arrange- ment with Thomas L and J L, agreed to purchase in the farm for their benefit, for which he was to re- -ceire a stipulated compensation. B, the mort- gagee, in order to favor Thomas L and J L, agreed wiui B that he might bid off the property at $1,500, about half the amount of the mortgage. B, at the sale, prevented others bidding, by representing that he intended to buy tor Thomas L and J L. B pur- chased the farm at the master's sale for $1,510, about $1,000 below Its value. Afterwards B refused to convey the farm to Thomas L and J L, or to ac- count to them for the value, although they ten- dered to him the amount of his bid, with interest, and the sum an-eed to be paid for his services. It was held that B was a trustee for Thomas L, and J L, and had no other interest in the farm than that of a mortgagee to secure the repayment of the pur- ■chase money, and the payment of the sum agreed to be allowed him for his services. Brown v. Lynch, X Paige Ch. 147, 8: 595 51. Where S owned a farm in the county of Queens, and about 10 acres in addition, and made -an agreement with F to exchange with him the 10 acres for 6 acres adjacent to the farm, and posses- sion was respectively taken by SandF; and, before the conveyances were executed on this exchange, S mortgaged his farm to G, and by mistake includ- ed in the mortgage the 10 acres, instead of the 6 acres; and the mortgage was foreclosed in chan- cery in 1825, and the mortgaged premises ordered to be sold ; and S, who was alone interested in the surplus to be raised on the sale, employed E, an auctioneer, to sell the property to pay oft the mort- gage ; and the property was exposed to sale and bid in for S ; and E also attended the master's sale as -the agent of S, at which sale a map, which had be«n made of the farm including the 6 acres, was exhib- ited as containing the property to be sold ; and the property was sold with reference to the map, and for an amount much exceeding the mortgage and 'Costs, and H became the purchaser ; and after the sale, S obtained the legal title to the 6 acres ; and havmg received the surplus moneys and becoming insolvent,— upon a bill filed by H. praying for a de- cree to compel S to convey to him the e acres, it was held that S,havlng obtained the whole -consid- eration money for the land, including the 6 acres, under circumstances which amounted to a fraud upon H, S would be considered as a trustee for H, and would be decreed to convey to H the 6 acres. Howlamd v. Scott, 2 Paige Ch. 406, 2: 965 d. Resulting Trusts. 62. In order to establish a resulting trust in a case arising before the Revised Statutes, it is neces- sary to prove clearly the payment of the money at the time of purchase, or before the delivery of the deed. Cases upon resulting crusts are of two classes: one where a trustee has invested trust moneys in land, the other where the deed has been taken in the name of one, and the purcha«o money, ■or a proportion of it, paid by another. The former class is preserved by the Revised Statutes of 1880; the latter abolished, except as to creditors of the party paying the money. The difficulty of tracing flip mnnov invrstort nft^T, -nmr-dlcd by directing a -further inquiry, even at the hearing. In the latter - class of cases, whether payment ia made to the ven- • dor directly, or to the nominal grantee to reim- burse him, or to meet the payment, it is essential that such payment be proven to have been made before the consummation of the purchase. Itisun- . settled whether.if part is paid bef ore.and part after. • the deed is delivered, the proof of a parol agree- ment to hold the land in trust may be admitted. It seems admissible. The sum paid should be liqui- dated and ascertained. Proof after the death of the -nominal grantes admissible. Free.man v. KeUy, Hoff. Ch. 90, 6: 1074 fi3. Equity will never raise a resulting trust in fraud of the rights of the State or of the laws of the land. Leggett v. Dubois, 5 Paige Ch. 114, 3; 649 54. Where an alien, to evade the law, purchases land, and takes the conveyance in the name of a third person without a written declaration of trust, a resulting trust will not arise in his favor.his act being in fraud of the law. IMd. 55. A resulting trust cannot be raised in favor of a person agai nst tho intention of the parties. fVhite V. Carpenter, 2 Paige Ch. 218, »: 888 66. A resulting trust is the mere creature of equi- ty ; and it cannot, therefore, arise where the parties have declared an express trust which is evidenced by a written declaration of such express trust. Leggett v. Dubois, 6 Paige Ch. 114, 3: 649 57. No resulting trust can be raised in favor of a grantor in opposition to the express terms of his conveyance. Squire v. Harder, 1 Paige Ch. 494, 8: 788 68. Where the grantor conveys in fee with war^ ranty, he is estopped from alleging that he had an interest in the purchase money which created a re- sulting trust in his favor. Ibid. 69. Letters and accounts addressed by a person to his brother were held, under the circumstances, insufficient to raise a trust by implication, to the father. Steere v. Steere, 5 Johns. Ch. 1, 1:987 60. To raise a trust by implication or operation of law, an actual payment or loan of money by the cestui que trust, at the time of the purchase, must be shown. Ibid. 61. To constitute a resulting trust in real estate< it is necessary that the consideration money, upon the purchase, should have belonged to the cestui que trust, or that it should have been advanced by some other person as a loan to him, or that it should have been advanced as a gift to him or for his ben- efit. Getman v. Getman, 1 Barb. Ch. 4S9, 5: 478 62. Where there is a resulting trust under a con- veyance. It must arise at the time of the execution of the deed. Rogers v. Murray, 3 Paige Ch. 390, 3:201 63. After the legal title has passed to the grantee by the execution of the deed, a resulting trust can- not be raised by the subsequent application of the funds of a third person for the Improvement of the property, or for the payment of the purchase mnney, so as to devest the legal estate of the grantee. Ibid. 64. The intestate in 1802 bought a farm, which was conveyed to him in tee, he giving a mortgage for che purchase money. He resided upon it until his death in 1835, but it was paid for out of the labor and earnings of his four younger sons. Held, that such payment raised a resulting trust in their favor, and they were entitled to the farm in equity. Harder v. Harder, 2 S. 17, 7: 490 6.5. If A purchase land with his own money, but the deed is taken In the name of B, a trust results by operation of law to A; and the fact whether the purchase was made with the money of A, on which the resulting trust is to arise, may be proved by parol, it not being within the Statute of Frauds. Boyd V. M'Liean, 1 jouus. Ch. ba^i, a: *'J54 Botsford V. Burr, 2 Johns. Ch. 4U5, 1: 486 66. If the person who sets up a resulting trust has in fact paid no part of the consideration money, he will not be allowed to show by parol proof that the purchase was made for his benefit. Ibid. 67. If part only of the consideration is paid, the land will only be charged with the money advanced protanto. ibid. 68. Any payment or advance of money after the purchase has been completed will not raise a re- sulting trust. Ibid. «!l. A trust may result or be implied from a Joint advance upon a purchase by two In the name of one. It is not within the statute requiring the trust to be manifested by writing, and the payment of the money after the purchase (by the party claiming the benefit of being a Joint purchaser) makes no difference. Plea, that the alleged trust was not in writing and that the complainant did not pay part of the purchase money at or before the completion of the purchase, overruled. Kues V. Hegeman, t Edw. Ch. 373, 6: 434 70. Where a person makes a purchase and ad- 5j8 TRUSTS, H. a. vanoes the consideration, the property is prima facie his own, although the title is taken in a third person's name ; but this presumption or implied trust may be repelled, ana the onus to that effect is on the grantee named in the deed, provided he Is a stranger ; but not so where the grantee is a wife or child. Astreen v. Flanagan. 3 Bdw. Ch. 279, 6: 656 71. The Revised Statures have put an end to re- sulting trusts arising from the payment of the pur- chase money by one person and taking a convey- ance of the land purchased in the name of another, so far as relates to any trust in favor of the person ■who voluntarily pays the consideration for such a conveyance. ^„„ BoMne v. Edwards, 10 Paige Ch. 504, 4: 1068 73. Where real estate is purchased by one person witn the moneys oi anotuer, ana a conveyancu is taken in his own name with the consent of the owner of the fund, there is no resulting trust In favor of the latter, under the provisions of the Ke- vised Statutes: but the person to whom the convey- ance is given la entitled to the premises absolutely, as against him. Norton v. Stone, 8 Paige Ch. SSS, 4: 407 73. Where a trustee applies the trust fund in his bauds to the purcliase of real estate, and takes a conveyance of the premises in the name of a third person, there is no resulting trust in favor of such trustee for his own benefit; nor is there a resulting trust in favor of his general creditors, under the provisions of the Kevised Statutes; but there is a resulting trust in favor of the owners of the trust fund which has been thus misapplied by the trus- Bimell V. Allen, 10 Paige Ch. 249, 4: 9C5 74. A trust resulting from the mere payment of the purchase money ot land, previous to the Re- vised Statutes, was a resulting trust in favor of the person paying such money, and descended to his heirs upon his death; but the payment of the mouey by one person will not raise a resulting trust by implication in favor of another. Paduettv. Laio/ence, 10 Paige Ch. 170, 4:931 75. The trust which results in favor of creditors, under the provisions of the Revised Statutes rela- tive to uses and trusts, where a grant is made to one pc^rson and the confffderdtion therefor ier>Baid by an- other, is only a trust in favor of those who were creditors of the person paying the consideration at the time when the conveyance was executed and such consideration was paid; and there is no re- sulting trust in favor of creditors whose debts are Buhseouently contracted. Brewster v. Vtmer, 10 Paige Ch. 562, 4: 1091 76. Where the consideration of an assignment is paid by one person and the assignment is made to another, the whole legal and equitable title to the assigned premises is vested in the latter, except as to creditors of the^rmer. (Mrojnder v. lAvingsUm,^ Barb. Ch. 416, 5: 955 77. Where the real estate of the testator is devised to a trustee upon aisliiict and u'lUepenueiic u-usls, some of which trusts are valid and others are in- valid, there is a resulting trust in favor of the heir at law as to so much of the property as is not legal- ly and effectually disposed of by the will, where the interest of such heir is not turned Into a legal estate by the provisions of the Kevised Statutes; and the cestui que trust in such cases may file a bill in chancery to have his rights in the estate of the tes- tator settled and ascertained, and to have the trusts of the will carried into effect, so far as they are valid and effectual. Bmoers v. Smith, 10 Paige Ch. 193, 4: 940 78. Where an express trust is created to lease lands, and receive the rents and broflts thereof, for the payment of annuities and other charges there- on, there is a resulting trust, as to the surplus rents and profits, in favor of the person who is presump- tively entitled to the next eventual estate in such lands. Bawley v. James, 5 Paige Ch. 318, 3 : 734 79. Where a testator died seised of lands in an- other State, which by his will he devised to his ex- ecutors and trustees to be sold, and directed the pro- ceeds to be invested in lands in the State where he was domiciled at the time of his death, upon trusts which were illegal and void by the laws of the lat- ter State,— Held, that there was a resulting trust in favor of the heirs at law, as to the lands devised; and the executors and trustees were directed to ti-c'sfer the legal title to such heirs. Eawley v. James, 7 Paige Ch. 313, 4: 129 80. Where the object for which a conversion of real estate into personalty is directed, fails, either wholly or in pan, so that the proceeds thereof are- not legally and effectually disposed of by the will of the testator,there is a resulting trust in favor of the heir at law pro tanfo. ibia. 81. Lands purchased by the husband, with the- moneys of tne wife, are deemed to be held in trust, for her, though purchased in his own name; and a third person to whom the husband had conveyea an estate so purchased, with notice of the manner of his acquiring it, was held to be chargeable with, the trust. , , t ,. MetTwiiist Episcopal Church v. Jcupies, 1 Johns. Ch. 450, 1: *<•* 83. If the object of a husband who purchases, real estate and takes the conveyance in the name- of his wife is to place it beyond the reach of then existing creditors, there will be a resulting trust for their benefit to ihe extent of their debts. Jencfts V. Alexander, 11 Paige Ch. 619, 5: 805- 83. There is no resulting trust in favor of a hus- band who purchases real estate and takes the con- veyance in the name of his wife. ibid. n. Trustees. a. A.ppointment; Power of Court «s to Trvsta. 84. Op a bill filed by the husband to set aside the murr^flgc settlement, and submitting to join in th» execution of a new one under the direction ot th& court, a decree was made referring it to a master to report a new settlement of the real estate, prepara- tory to avoiding the former. The master having reported a scrtlement, and that the husband should be the trustee, the court confirmed the selection. Temple v. Hawley, 1 S. 153, 7: »7T 85.Persons nominated in a will who die before tes- tator's death never become trustees ; and where the ^vill shows a design that there should always be three trustees it was the duty of the only one sur- viving to fill up the vacancies. An appointment by him to take effect after his death is luvaUd. Sherman v. Burnham, 6 Ch. Sent. 47, 5: 1808- 86. The duties of a surviving trustee, on his de_ ci use, do wot devolve upon his personal represent- atives or upon his heirs: but the trust, if unexccutcrK vests in the court of chancery, with all the powcii nnd duties of the original trustee: such reproseni- ntivi'S or liciis, therefore, are not authorized to ii St ' ■ 'I n a suit for the benefit ot the cestui one tn'- ' Hawley v. Ross, 7 Paige Ch. 103, 4: 83- 87. The 68th section of the article of the Re- vised Statutes relative to uses and trusts, whicli devolves the trust upon the court of chancery upon the death of the surviving or sole trustee, is appli- cable to the trustee of a future or contingent inter- est in personal property. Ibid,. 88. If one of the three trustees named in a will dies, and the other two refuse to accept the trust,, the trust devolves upon the court of chancery,, under the provisions of the Re^-ised Statutes. McCosker v. Brady, 1 Barb. Ch. 329, 5: 404 89. On the trustees becoming incapable of exe- cuting a trust, the court of chancery will carry it into execution in behalf of the parties interested. Suarez v. Pumpelly, 2 Sandf. Ch. 336, 7: 616- 90. The court of chancery will not permit a trust to fail for want of a trustee to execute such truot; and where all the trustees named in a will refuse to act, the trust devolves upon the court, and a new trustee will be appointed if necessary. De Peyster v. Clendining, 8 Paige Ch. 295, 4: 43* 91. A trust is not to fail for want of a trustee or from any other cause, unless it would be Inconsist- ent with public policy or the law of the land. Staei; V. Beekman, Z Edw. Ch. 89, 6: 320- 92. Whether a new trustee is necessary to be ai)- pointed In any suit or proceeding In the court of chancery, in cases where the trust has devolved upon that court under the provisions of the Revised Statutes, and where the real parties in interest are before the court, — quosre. Jauncey v. Rutherford, 9 Paige Ch. 273, 4: 69» 93. Where one of the persons appointed trustee of an express trust refuses to accept such trust, and executes a formal renunciation tnereof , he can- not afterwards accept and execute the trust, except I it be under a new appointment as trustee. I ite cu/iSc/MjunhoDen, SPaige (jn.5i9, 3: 83» TRUSTS, II. b. 609 94. Where one of three persons appointed, by a ^ili, trustees ot an expieei, trust, rotused to accept the trust, and executed a formal renunciation thereof, and, after the death of one of the acting trustees, the survivor applied to the chancellor to restore such renouncing trustee to the trust, which he was then willing to assume in conjunction with «uch survivor,— Held, that the court had no author- ity to restore such renouncing trustee to the trust, or to appoint him a new trustee in conjunction with the survivor, who had originally assumed to act as one of the trustees. Ibid. 95. The Bevised Statutes only authorize the court ot chancery lo appuiut a new trustee lu luo pliiuu -jt one who is removed by the court, or whose resigna- tion is accepted after he has assumed the trust, or in case of the death of a sole surviving trustee, so •that there is no one left to execute the trust. Ibid. 96. A new trustee, under the statute, cannot be appointed except upon the application of a party interested in the execution of the trust, or by a ■decretal order made In a cause, where such new trustee is proper to carry into effect the decree of the court. King v. DonneUy, 5 Paige Ch. 46, 3: 681 97. On the court appointing a new trustee of an express trust, security cannot be dispensed with, if there are infant benenciaries. Be Jones, 4 Sandf . Ch. 615, 7: mag b. Di^harge; Bemoval; Change; Succe3ai(m. 98. The authority of the court of chancery to ac- cept the resignation of a trustee, ana lo uiSL/haiyu him from his trust and appoint a new trustee iu his place, relates only to cases where the trustee has be- come vested with the trust estate, or has made liim- self answerable as trustee by accepting the trust, or by doing some act in bis character of trustee. Be Stevenson, 3 Paige Ch. 420, 3: 213 99. On a trustee applying to be discharged from bis trust, there being no cause for it other than bis wish to be relieved from his duties, the court will impose, as terms of discharging liim, that be bear the costs of the petition and the appointment of a new trustee, and that ho be not allowed any com- missions on the capital of the trust estate. IU Jones, i S. 615. 7: 1S89 100. VThere trustees have accepted the trust and entered on its execution, they cannot afterwards, without the consent of the cestui que trust, or the directions of the court, surrender tue trust or dis- charge themselves from it. Shepherd v. M'Evers, i Johns. Ch. 136, 1:791 101. The Bevised Statutes authorize the court of chancery. In the case of a trust relating to real es- tate, to accept the resignation of a trustee and lo discharge him from the trust, upon his own petition; and they authorize the court to remove htm from his trust, for a sufficient cause. And the statul/e ?ives the same authority to the court in relation to he acceptance of the resignation of the trustee of a power in trust, and as to bis removal from the trusteeship. But the statute does not, in either case, give to the remaining trustees authority to execute, the trust alone, as ttfey would have the right to do if the trustee so discharged or removed nad died or had never accepted the trust. Be Van Wyck, 1 Barb. Ch. 565, 5: 496 102. A trustee, after he has accepted the trusti miist either be discharged from the trust by virtue of a special provision in the deed or will which created the trust, or by the order or decree of the court of chancery, or with the general consent of all the persons interested in the execution of the trust. Cruder v. JTMiday, 11 Paige Ch. 314, 5: 148 S. C. 4 Ch. Sent. 64, 5: 1156 103. Where infants or persons not in esse are in- terested in the trust, it seems that a trustee cannot be discharged without an order or decree of the court of chancery. Ibid. 104.Chancery has no power, upon a mere petition, to discharge a trustee or to accept his resignation and to appoint another in his place, without the consent of all persons who are, or who upon any future contingency may be, interested In the exe- cution of the trust. Be Van Wyck, 1 Barb. Ch. 665, 6: 496 S. 0. 6 Ch. Sent. 20, 6: 1199 105. Where a testator by hia will created a trust a£ to certain distributive snares ol a mixed fund consist- Inglof the personal estate and the proceeds of the real estate, which shares he directed his executors to in- vest, as trustees for certain persons, for tlioir re- spective lives, and then to pay over the principal to .their appointees by will, or, la default of such ap- pointment, to those who might be their heirs or next of Itin at the termination of their respective life estates,— Heidi, that where the duties which be- longed to the executors in their character of exec- utors merely had been fully discharged, and the division of the estate made, the court of chancery had the power to accept the resignation of one of such executors, and to appoint another in his place as one of the trustees to hold the funds set apart for the legatees of the testator. fbUl. 106. Where trustees under a will have accepted the trust and have received a legacy given upon the condition that they should execute such trust, the court will not discharge them from the trust unless good and sufficient cause be shown. Craig v. Craig, 8 Barb. Ch. 76, 5: 884 107. Where a portion of the trusts of a will can be so far severed from the general trust committed to the executors as to be capable of being vested in different persons, the court, upon sufficient cause shown and on the giving of proper security to pro- tect the rights of tne cestuis que trust, may accept the resignation of the trustees appointed by toe will, as to those partioular trusts, and appoint others in their places. , . 12nd. 108. If a trustee has been guilty of a breach of trust, and is insolvent or irresponsible, the court of chancery will remove nim from his trust. Jauncey v. Butherfard, 9 Paige Ch. 273, 4: 698 109. Where one of the trustees has become lunatic it is proper for the court of chancery to Interfere to remove him, under the provisions of the Revised Statutes, so that the trusts may be executed, either by the remaining trustee, or by him and such other person as may be substituted in the place of the lu- natic. Be Wadsworth, 2 Barb. Ch. 381, 5: 683 110. Where a single trust is created, it is not com- petent for the court of chancery to remove one ot the trustees from a part of the trust, and to ap- point another in his place to act with the cotrus- tees in part only. Ibid. HI. Where separate and distinct trusts are creat- ed by a testator, aa to different portions of his property and for the benefit of different persons, and which trusts are separate and distinct from the trusts and trust powers which are conferred upon the trustees in their character of executors, one of the trustees may decline one of the trusts attempted to be conferred upon him, and may accept another of such trusts, and may take out letters testamen- tary and assume the duties of an executor. Ibid. 112. A lunatic trustee who is also an executor may be removed from his office of trustee of a special trust not connected with his executorship, without interfering with a trust conferred upon him aa ex- ecutor. Ibid. 113. But where land is devised In trust, and all the devisees decline the trust, the legal estate nomi- pnHv '--i-+s''in thnm for-the hp"" the costs of the suits. Ibid. 155. If a mortgagee, executor, trustee, tenant for life, etc., having a limited Interest, gets any advan- tage by being in possession or otherwise in ob- taining a new lease, he Is not allowed to retain it for his own benefit, but must hold it for the mort- gagor or cestui que trust. Ublridge v. Gillespie, 2 Johns. Oh. 30, 1 : 284 See DatiOMe v. Fanning, 2 Johns. Ch. 257, 1:370' 166. An executor or trustee cannot purchase the trust property from his coexecutor or trustee with- out being liaole for the profits arising from the property purchased. (km V. Abea, 1 Paige Ch. 393, 8 : 689 • 157. A trustee cannot become a purchaser of the trust property, under a prior incumbrance, for his own benefit ^nd to the prejudice of the cestute gue trust, without their eonseht. Slade V. Tan Techten, 11 Paige Ch. 21, 6: 48- De Caters v. De Chaumcmt, 3 Paige Ch. 178, 3: 105 158. Where a trustee purchases in the trust prop- erty, under a prior incumbrance, at a price below its real value, he Is always considered as making the purchase for tbe use and benefit of his cestui que trust. Ibid. 159. Atrustee who purchases a judgment affectin purchaser of the property on his own accouUi: and this principle is not confined to a particular (^ass of > persons, such as guardians, trustees, and solicitors. Tmrey v. Bank of Orleans, 9 Paige Ch. 649, 4: 853- 162. No person is permitted to purchase an interest in property, and hold it for his own benefit, wher& he nas a duty to perform in relation to such prop- erty which is inconsistent with the cbaracter of a purchaser thereof, on his own account and for bis individual use or benefit. Tan mpps V. Tan Epps, 9 Paige Ch. 237, 4: 688 163. One of two trustees, who contracted for a< Joint Interest with the trust estate m a purchase of a cotton-mill, the title to which was taken to th trustPcs, afid the trust estate was pledged for nearly the whole purchase money, after failing to perform the terms of his contract for such interest, will not be permitted to set up, as owner, any right qr claim inconsistent with the interest and advantage of the trust estate, In dealing with the premises. Wetln V. Chapman. 4 S. 312. 7: 1 115 164. A trustee is not allowed to make a profit out; of the trust funds for his own benefit; and if he • employs them in trade whereby he makes more than simple interest, he will be charged with the whole profits, either by making periodical rests and char- ging him with compound interest, or in such other manner as will best carry out the principle of giv- ing to the cestui que trust the benefit of all profits inKin bPvond the simple interest. Utiea Ins. Co. v. Lynch, 11 Paige Ch. 520, 5:819' 165. In such cases tbe court allows simple interest only, where il; is evident that the prottts made uy the trustee could not have exceeded that amount. But where it is doubtful whether the profits dirt not exceed the simple interest, the cestui que trust will be allowed to elect between such interest and the actual profits made out of the trust fund; such profits to be ascertained upon a reference. Ibiil. 166. If atrustee or person acting for others sells the trust estate, and becomes himself interesteu in the purchase, tbe ceetuis que trust are entitled as of course to have the purchase set aside, and the property re-exposed to sale under the dlrootion of DaDOuev.Fannino, 2 Johns. Ch. 252, 1:365- 512 TRUSTS, II. c, "3. 167. Unless the trustee has fairly devested himself of that character. Ibid. See Hendriclca v. Bobinson, Johns. Ch. 311, 1:391 168. And it makes no difference in the application ot the rule, thnt u saiti wja at pum^io uliui^iuh, itona fide^ and for a fair price, and that the executor did not purchase tor himself; but a third person, by iirevious arrangement, became the purchaser, to lold in trust for the separate use and benefit of the wile of the executor, who was one of the cestuisque tiiist arid had an interest in the land under the ■will of the testator. Davoue v. Fannitig, Z Johns. Ch. 252, 1: 367 169. A trustee cannot become the purchaser, for hieiuwii uuucuc, (u inu pruijm'iy aSdi^^'iK^U to him la trust; and it winihi »e&m that ho could not become such purchnJ5cr. even thou^jh the sale was a Judicial -one and made without the c(mtrivance or procure- ment of the trustee, unless by the order of sale he was expressly allowed so to purchase. If a trustee becomes the purchaser of such trust prop- erty, bo holds it for the benefit of his cestui que Chopin V. Wud, Clarke Ch. 464, 7: 178 170. If a trustee has a personal interest in the sale wiiich may be sacritlcod if lie is not allowed to be- come u bidder^ the court, will substitute in hi^vlace a master or another trlistee to bxecute the trust, if it can be done without injury to the interest of the ce»*ui nvK trust. De Caters v. Del haumnnU 3 Paige Ch. 178, 3:105 171. Where a husband and wife were seised of real ■estate in riRht of the wife, subject to a mortgage .executed by them to their son, and which had been by him assigned to a moneyed corporation, and .afterwards sold such land subject to the mortgage, which the purchaser agreed to pay, and who gave . to the son another mortgage for the residue of the purchase money ; and the son gave to his parents a ■declaration of trust stating that the junior mort- gage was held by him in trust to receive the inter- ■est thereof and the rents of certain other property, -and to pay over the same to them during their lives, and after their deaths, unless sooner required to do so by them, to divide the principal of the bond and mortgage and the other trust property among their heirs at law,— Held, that the trust was valid ; •and that upon a foreclosure by the corporation of the prior mortgage, and a sale under the same, the .son, who held the junior mortgage as trustee,could not become the purchaser of the mortgaged prem- ises for his own benefit, to the prejudice of the ■cestMt's que trust. Van Bpps v. Van JBpps, 9 Paige Ch. 237, 4: 688 172. Trustees who buy in an outstanding incum- brance against the trust estate are only entitled to hold such incumbrance as a security for the amount actually paid by them therefor, with the interest thereon. Quaekenbush v. Leonard, 9 Paige Ch. 334, 4 : 782 173. A trustee who holds the legal estate for the ■use of another person, and who refuses to convey to him, will not be allowed to purchase in an out- standing title for his own benefit. Kellogff V. Wood, 4 Paige (Jh. 578, , 3: 668 174. An executor or trustee cannot buy in land of ithe testator, on a sale under an incumbrance, for Uiis own benefit. Evertson v. Tappen, 5 Johns. Ch. 497, 1: 1154 175. But where a trust projierty was sold under hos- itile proceedings, by a judicial sentence, upon an in- cumbrance made prior to the trust, and the trustee subsequently purchases from a liana flde purchaser, the relation does not exist, and the property may not be followed. It must be established that the trustee unwarrantably promoted or allowed the proceedings, In order to realize an advantage to himself. De Bevoise v. Sandford, Hoff. Ch. 192, 6:1118 176. A person by his will appointed an executor who afterwards became a judgment creditor of the testator. When the testator subsequently died, he left debts unpaid, and an estate consisting of per- iBonal property and lands. The personal estate was insufiicient to pay the debts; and the person ap- pointed executor accepted that trust and acted as ■sole executor. This executor caused all the lands '. Rogers, Hopk. Ch. 515, 8:50, 177. In such circumstances, an executor is oharsed with a trust affecting the lands ; and If he purchases the lands, the sale will be annulled, as m other cases of trustees purchasing the subjects of their trusts. ibid. 178. A mortgage is made to a church ; and a per- son interested in the mortgage money sells his interest in it to a trustee of the church. Such trustee can only charge against the church the amount he paid for it. He must, as to the rest, be considered as having acted for his church. Be Oakley, 2 Edw. Ch. 478, «: 473 179. Where an attorney who was employed to col- lect or foreclose a mortgage, instead of foreclosing the same, took a conveyance of the equity of re- demption to himself instead of his clients,— Held, that he took the legal title as a trustee for his clients, and that upon bis death the legal estate de- scended to his heirs at law charged with the trust, and that the clients were entitled to a conveyance from the heirs, \tpon the repayment of the amount paid by the attorney for the equity of redemption, and the amount due for his services, aud the value of the improvements made upon the premises by the heirs before they bad notice of the existence oC the trust. Held, aUin, that one of the heirs, who had purchased and paid for the sha^^esof the other heirs 4n the trust premises befor6'-Be' had any notice of the trust, was entitled to bold the shares thus con- veyed to him, discharged of the trust, and that the cestuis que trust must look to the heirs who sold Nuch shares, for the purchase money received by them on the sale. Ulddiiigs v. tlastman, 5 Paige Ch. 561, 3: 830 180. Where the farm of a defendant, worth $2,000, was sold under a judgment and execution on which there was not more than S80 due, to the attorney of the plaintiff, who attended the sheriff's sale, for {10, —Held, that, under the circumstances, the purchase by the attorney was not to be considered as absolute, or as originally intended for his own benefit, but in trust for the respective interests of the parties to the execution; and the debtor, on a bill filed by him for that purpose, was allowed to redeem the estate, on paying the balance due on the execution, the amount paid bv the attorney, with interest and no"*". Howell V. Baker, I Johns. Ch. 118, 1: 784 181. A person entrusted with business as an attor- ney or agent for another ought not to be allowed to make that business an object of Interest or prof- it to himself. UM. 182. Whether an attorney or solicitor for the plaintiff can purchase the property of the defend- ant sold under execution, for his own benefit,— quaere. Ibid. 183. The estate of C wa.s directed to be sold.and the proceeds to be paid to T to pay incumbrances and expenses, and the residue in trust for the creditors of C, and the surplus, if any, in trust for the wife of T. T purchased in the whole estate at one bid, and, by assuming to pay their debts, prevented the creditors from bidding, aud all competition at the sale, so that the real value of the estate at auc- tion could not be ascertained, nor whether any, nor what, surplus remained in trust for the wife; and T continued to hold the estate exclusively as his 6wn,'uiitil''his gage any part of the estate to raise money for its improvement. Cummtoo v. WilUamson, 1 S. 17, 7: 821 6. Investment. 199. The defendant's testator held notes against a manufacturing company in trust for the complain- ant's intestate, which notes he invested in the stock of a different manufacturing company. This being done in good faith, and being deemed advantageous at the time, the estate of the trustee shall not be chnrged with the loss. Broum V. Campbell, Hopk. Ch. 233, 8: 404 200. If a guardian or other trustee lends the money of the cestui que frttst, without due secu- rity, he will be responsible in ctise the borrower be- comes insolvent. Smtth V. Smith, 4 Johns. Ch. 281, 1: 840 201. What is due security for moneys loaned by a trustee appears to be a point not fuUy settled. Ibid. 202. It seems that, in general, mere personal secu. rity is not sufScient to protect the trustee from re- gponsibility in case of loss. Ibtd. 203. Where a guardian took promissory notes of persons solvent at the time of taking the account before the master, under a decretal order of the coui^i on a bill med for an account, and which notes were allowed by the master, and credited to the guardian, who was ready to deliver them up; the court confirmed the report of the mas'fr, tho notes being for small sums, for rents, etc., and the credit and course of business according to the practice of the testator in his lifetime. Ibid 204. A guardian or trustee is not held to account for any neglect or breach of duty not charged in the bill. Ibid. 205. Where the right or interest of a cestui que trust in property which is to be invested in land up- on trust to receive the rents and profits thereof lor his use is inahenable by the provisions of 8 63 of the article of the Revised Statutes rela- tive to uses and trusts, the trustee is not authorized, even with the assent of the cestui que trust and with the sanction of the court of chancery, to do any act which would be a virtual alienation of the trust fund directed to be so invested in trust. But where the fund is directed to be invested in the pur- chase of land in a particular place, upon such a trust, the court of chancery may, with the assent of all parties who have any interest in the trust fund, or In the lands to be purchased therewith, authorize it to be invested in the purchase of real estate in an- other place, upon the same trusts; and the chancel- lor, as the general guardian of infants who are in- terested in the trust fund, may assent to such change of investment in their behalf. Wood V. Wood, 5 Paige Ch. 596, 3: 844 6. Application of Funds; Accounting. 206. The assignment by a trustee, as security for bis private debt, of a bond and mortgage belonging to the trust fund, will make such trustee chargeable for the value of such bond and mortgage at the time of fluch assignment, with interest thereon. Van Bensselaer v. Morris, 1 Paige Ch. 13, 8: 643 207. And such trustee will be so chargeable, al- though the mortgagor should, subsequent to such assignment, become insolvent, and the mortgaged premises be insuflttoient to discharge the mortgage debt. Ibid: 208. A trustee who suffers funds to pass improper- ly into the hands of his cotrustee i« chargeable for as 611 TRUSTS, II. c, 7. any loss arising from such negligence or abuse of trust. Mumford v. Murray, 6 Johns. C!h. 488, 2: 188 209. A defendant who suffered moneys received un- der an order In favor of himself and the jilalntift as partners, to be blended with moneys received by him under a subsequent trust deed tb him and an- other, to pass Into the bands of his cotrustee, was held accountable to the plaintiff, notwithstanding: the plalntlfF,a8 one of the cestuU que trust, had joined In a discharge of such cotrustee, but without any knowledge of the fact of the first money being blended with the trust moneys. ibid. 210. A trustee in the possession of land is required to account to the cestui que trust, not only for the rente and proflte actually received, but also for the rents and profits which might have been received. Boflers V. B09er«, 1 Paige Ch. 188, »: 611 211. Where B, while a confidential clerk of P, took bonds and notes belonging to F, without his know- ledge or permission, wnicn he refused to return or give an account oi, he was held answerable for the whole of the principal and Interest due on the securities, without any regard to his diligence in obtaining payment or the subsequent solvency of the makers; It appearing that the bonds and notes were good about the time that thoy were so taken byE. Barrow v. BMneUmder, 3 Johns. Ch. 614, 1: 736 213. Where the securities held by a trustee are di- rected by a decree confirming a master's T^ort to be assigned to the cestui que trust, the responsibility of the trustee ceases; and there having been no culpable negligence or default on his part in tak- ing the secaritles,he is not to be charged with them, on making the final decree, on the equity reserved, though they may have been, perhaps. Impaired by the delay of the litigation between the parties. Smith V. Smith, 4 Johns. Ch. 445, 1: 897 213. Where a trustee sells stock contrary to his trust, the cestui que trust is entitled, at.his election, to have the trust replaced, or the produce of it, with the highest Interest. Hart v. Ten EycJc, 2 Johns. Ch. 117, 1: 315 214. Where G, being Indebted to H, conveyed to W certain bonds and mortgages, and part of the lands sold under the mortgages and purchased in by W, In trust to sell the same as H might direct; and "upon payment of such sums as might be just- ly due to W, In relation to the execution of his trust, or that he might advance or become liable for," to convey to H the lands and proceeds there- of, and to assign over to H the bonds and mortgages taken by W, and which might remain in his hands "after his said advances and responsibilities were secured and satisfied ;" and H afterwards assigned over all his Interest in the trust estate to his sister T, the wife of Q, to her separate use, for Uf e, with power to dispose of the same to and among her children,— it was held that payments made by the trustee to G, the husband of T, the cestui que trust, were not cht^eable on the trust fund; nor, if au- thorized by T, could the trustee be allowed the benefit of them, in his account, further than what was actually necessary for the support of herself and children; unless it appeared that the husband bad applied the payments to the specific purposes of the trust. Oreen v. Winter, 1 Johns. Ch. 26, 1: 46 215. A trustee will not be allowed for expenditures for Improvements of the trust estate, though made bona fide, as in building houses and mills, clearing land, making roads, ete., such expenses not being within the purview of the trust, which was to sell the land to raise money to pay off incumbrances, ete., and to restore the residue. He is entitled only to necessary expenditures, as for repairs, ete.; and the cestui que trust has always I'lis option to take or refuse the benefit or loss of the unauthorized act of bis trustee. Ibid. 216. Nor will the purchase and sale of stock, hay, grain, and farming utensils, etc., be taken into the account of the trust estate. Ibid. 217. Where a trustee, though called on for that purpose, refused to exhibit to referees appointed by the court by consent of parties, an account of t'le rents and profits of certain parts of the trust estate, he was held chargeable with what. In the opinion of the referees, such parts of the estate would reason- ably have produced. Ibid, 218. Where a trustee agreed to purchase and pay for a farm, at the request and for the use of the cestui que trust, out of the proceeds of the trust es- tate; and he purchased the farm, for which he gave his bond secured by a mortgage on the premises: but, when the bond became due, he refused to par It but procured a foreclosure and sale of the farm by the mortgagee, at a loss of about $4,000, — th» ) ••iigtee was )>nld chargeable for this loss, and i>U the costs of the suit. Tlrid. 219. Where A is mortgagee and trustee for creditors and buys in the real estate (mortgaged to himj m his own name, but voluntarily for the benefit of the trust, and afterwards allows a resale for the like purpose (subject to his Just charges and expenses), and the amount is credited to the trust fund, he can- not retract; especially, as the debt owing to him from the trust estate bad been satisfied. It has be- come trust property. Pierson V. IViompson, 1 Edw. (3h. 212, 6: 11« 220. Where real estate Is conveyed for the benefit ot creditors and an equity of redemption, em- braced by the deed, is sold under an execution, but the Judgment creditor ceases to claim the avails of the sue, they belong to the trustees and not to the administrator of the debtor. IblA 221. A trustee cannot charge the trust estate with the coste of defending actions of assault and battery, recovered against him, although the acts were committed in an attempt to protect the trust property. Ibid. 222. Payments by a trustee of a debtor, after a bill filed by a creditor who had obtained judgment and issued execution against such debtor, or after notice of the priority of right acquired by such creditor, are made in his own wrong, anu of no- avail against such creditor. Spader v. Daim, 5 Johns. Ch. 280, 1 : 1083 223. It is the duty of executors and trustees to keep the trust funds separate and distinct from their private funds. Case V. ^Beel, 1 Paige Ch. 393, 8 : 68» 224. If they use the trust funds, or mix them, with their private funds, they wUl be made liable for all losses which may arise from their neglect or mismanagement. Ibid. 225. It is proper, in taking and stating the accounts of two trustees, that the master should state the ac- counts as to the trust fund separately, as between .the trustees respectively and the cestui que trtist, although each trustee is liable for the defaults of the other in misapplying the trust fund. And the consent of the parties that the accounts should be thus stated is equivalent to a special provision, ia the order of reference, authorizing the account to be so stated. Spencer v. Spencer, 11 Paige Ch. 299, 5: 148 226. Where trustees had accounted before the sur- rogate in good faith (the beneficiaries being iji fants), the court, on decreeing an account, left it to the master to adopt the result before the surrogat(\ If in his opinion the rights of the infants wen; properly secured there, and would not be prejudict'u by that course. McSorley v. Leary, 4 Sandf . Ch. 414, 7: 1154 7. Compensation. 227. A trustee cannot demand a compensation forservlcesbeyond what is founded on the positive agreement of the parties. Oreen v. Winter, 1 Johns. Ch. 27, 1: 4* Manning v. Manning, 1 Johns. Ch. 527, 1: 834 Mumford v. Mv/rra/y, 6 Johns. Cli. 452, 3: isa 228. And where a trustee, who was a counsellor at law, was to be allowed for "all his advances and responsibilities," it was held that though he was entitled to a liberal Indemnity for his expenses and responsibilities Incurred in the due and faithful ex- ecution of his trust, yet he was not entitled to a counsel fee as a general retainer, or for anything more than what is understood, in the language of a court of equity, to be "Just allowances." Cfrecn v. Winter, 1 Johns. Ch. 27, 1: 48- 229. A trustee Is not entitled to commissions on sales of the trust property, or on moneys received and paid by him, or any compensation for his care and pains in executing the trust; but he is entitled to n.n allowaiioe per diem, for his time and expenses of travel, etc. ibid. 230. A person to whom the administratrix com- mitted the entire possession tmd management of the estate of the intestate, and who admitted that he accepted the agency from motives of benevo- lence and as a friend and relation of the family, is- TRUSTS, III. a, b. 515 not entitLed to oommlssionfl on monevfi received and paid by Mm, or any iillowanoeforlils servlcea in relation to the estate. Mason v. Rnn^-velt, 5 Johns. Ch. 584, 1: 1166 231. Where the deed or instrument creating a trust contains no prorision as to tlie oompensation which the trustees are to receive for their services in the execution of the trust, the court of chancery upon a hiH filed against them for an account of the execution of the trust, will allow them the same compensation, by way of commissions, as is allowed to executors and guardians for similar services Meaxiham v. Sternes, 9 Paige Ch. 39», 4: 749 S. 0. Z Ch. sent, i, 6: 1080 232. If the trust deed says nothing as to the com ■ peneation of the trustees, the law implies an agree- ment to perform the service for the same allowance which is made by statute to executors, etc.; but if tiie instrument creating the trust Axes the oompen- sation, or declares that none is to be received, or where the trustee, previous to his acceptance of the trust, makes a valid and binding agreement with the eeatul que trust as to the compensation which he is, to receive, the compensation fixed by the instrument, or iby such agreement, will be the lule of allowance to the trustee. Ibid. 233. Where the instrument creatine a tmet declares that the trustee shall receive a compensation for his services, but leaves the amount of such compensa- tion to be settled upon the principle of a quantum meruit the extent of such compensation will depend nnnn the services to be performed, and the pensation usually allowed or given for similar ser- vices by parties under voluntary agreements. Ibid. 234. A trustee is entitled to commissions upon sums with which he is charged in consequence of losses arising from his negligence, and on debts due to nimself as one of the cestuis que trust; and also on the balance in his hands which he is directed by the decree to pay over to the eestuis que trust. Ibid. 235. A trustee, having bought the trust property at a mortgage sale, performed valuable services in preserving and securing the same for his own bene- fit. On the purchase being decreed a trust for hit- beneficiaries, he was allowed a full remuneration, so far as such services benefited the estate. IdMnqs v. Bruen, i S. 223, 7: XOS-I 236. A trustee in passing his accounts, on being discharged trom his trust and transferring the property to his successor, is entitled to commis- sinns on the capital of the estate, consisting of stocks and bonds and mortgages, although the same came to him from his predecessor and were neither invested nor converted by him. Be Be Peyater, i S. 511, 7: 1190 237. He is also entitled to commissions on real es- tate which his predecessor bid in on the foreclosure of mortgages thereon; the same being in equity personalty ,80 far as the trust estate was concerned. Ibid. 238. A trustee who has made advances in good faith for the benefit and protection of the trust estate,— as, paying taxes on the property,— is entitled to look to the estate, in the first instance, leaving the cestui! que trust to their remedy, if any, against the grantor m the trust deed, by substitution ; and the trustee having paid off incumbrances on the trust estate and taken an assignment of them to himself, is entitled to his indemnity out of the property so re- deemed by him. Murray v. De Botteriham, 6 Johns. Ch. 52, 8: 58 239. A trustee acting in good faith is entitled to a prompt indemnity for his necessary disbursements and expenses, and has a lien on the trust property for them. Ibid. 240. The trustees have no lien upon land after their estate in it ceases, for any unpaid commissions or charges. Bellinyer v. Shafer, 2 Sandf. Ch. 293, 7: 599 ni. Cestui Que Trust ; Nature of Interest. a. In Oerwral. 211. An Act of the Legislature by which the legal title of a mere naked trustee is declared to be trans, (erred to and vested in the cestui que trust, who pre vi- ously had the power to compel a transfer by appli- cation to the proper tribunal, is constitutional and Dutch Church in Garden St. v. Mott, 7 Paige Ch. 77. *: 67 242. Where a valid trust as to real estate is oi eate4 by will, the whole legal estate is vested in the trus- tees so long as any of the valid purposes for which the trust was created continue, so that the cestui que trust will take no estate in the lands during the continuance of the trust. McCosker v. Brady, 1 Barb. Ch. 329, 5: 404 243. Under a con veyance,prior to the Revised Stat- utes, in trust to pay the income to the grantors for life, and after their decease to convey the premises to the heirs, the children of the grantors, while the latter survived, and after the Statutes took effect, were held to have an equitable, and not a legal in- Pitcher V. Carter, 4 Sandf. Ch. 1, 7: 1001 244. Under 8 47 of the article of the Revised Stat- utes relative to uses and trusts, every person who, by virtue of any grant, assignment, or devise, is en- titled to the actual possession of lands and the re- ceipt of the rents and profits thereof, has a legal estate therein of the same quality aud duration, and subject to the same conditions, as his beneficial interest. La Orange v. L^A.m(mrev/c, 1 Barb. Ch. 18, 5: 888 Cusftney V. Hcnn/, 4 Paige Ch. 345, 3:464. 245. In all the trusts authorized by the Bevised Statutes, the whole estate, both legad and equita- ble, is vested in the trustee. The cestui que trust takes no estate or interest in the land, but may enforce the performance of the trust in equity. L^Anmureuic v. Van Benssdaer, 1 Barb. Ch. 34, 5: 88S 246. Where it is apparent from a deed that the property embraced in it was Intended to be con- ve.ved to the grantee merely as a trustee for others, and not for his own benefit, he will take no legal title or bcneflcial interest under such deed. And the persons having the legal estate under such deed are not entitled to a decree directing such grantee to convey the property to them. La Orange v. UAmowreux, 1 Barb. Ch. 18, 5: 28a 247. Under a devise to a trustee, in trust to receive the rents and protits, and pay the same to one for lite, and after his death to convey the estate to hia issue then living, since the Kevised Statutes no con- veyance of the legal title by the trustees is necos- sary in order to vest the whole estate in the chil- dren at the determination of the particular estate. WiUianuon v. Meld, 2 S. 533, 7: 60* 248, Where a deed executed previous to the Revised Statutes conveyed certain premises to a trustee upon a mere naked trust, in the first place, for the use and oenefit of M C, a married woman, and her heirs and assigns forever; and, secondly, to convey the premises to such person or persons as she should, by will or by her certificate in writing, dur- ing her life and after the death of her husband, designate; and if no such last will and testament should be made or certificate given, then to convey the premises to her heirs after her death,— JJeJd, that the trustee was a mere naked trustee of the legal estate, with a bare power in trust to convey the premises to her devisee, grantee, or heirs, either during her life or afterwards; and that the equita- ble interest of the cestui que trust was turned into a legal estate in the premises in fee, by the operation of S 47 of the article of the Revised Statutes relative to uses and trusts, especially after the death of her husband. Frazer v. Western, 1 Barb. Ch. 220, 5: 361 249. Held, also, that the whole beneficial interest in the trust property belonged absolutely to the cestui que trust, with the single exception that she could not alienate the same during the joint lives of her- self and her husband, without his consent or with- out the concurrence of the trustee. Ibid, 250. Held, further, that after the death of her hus- band, in case of her death without will and without alienating the land in her lifetime, it would descend to her heirs at law in the same manner as if the legal title had been conveyed to her at the time she acquired her equitable interest in the property by the deed of trust. ibid. b. Control of Property; Power In Alien. 251. In the case of a trust to receive the rents and luoiits or income of property, and to apply the same to the use of the cestui que h-ust, as authorized by the Revised Statutes, the cestui que trmt, if he is perfectly competent to manage his own affairs with rljscretion, has the right to direct how such rents Hid profits and income shall be applied to his use, iter they have been actimlly received by the inis- 616 TRUSTS, m. c, IV. tee, althouRb he cannot alien or make any otiici- valid dlsposiilon of such rents and profits or income previous to that time: but the court of chancery will protect the trustee, if he acts in grood faith, in refuging: to place the rents and profits or income of the trust fund in the hands of a centui que trust who is improvident and will prnliably waste the snm" Oott V. Cook, 1 Paige Ch. 521, 4: 856 253. The enbui que trust has no right to charge the trust property, even for necessary lepairs thereon, without the assent of the trustee. Nor can the trus- tee himself do so, except so far as he is authorized bv the terms of the trust. L'Ammireux v. Van Benaselaer, 1 Barb. Ch. 34, 6: ass 253. A trust to receive the rents and profits of rea^ estate, or the interest or income of the proceeds of such estate, comes within 8 63 of the article of the Revised Statutes relative to uses and trusts. 1 Eev. Stat. 730. And the cestui que. trtaH cannot assign, dispose of, or in any manner mortgage or pledge bis interest in the trust property or in the future Income thereof; nor can he contract any debt which will create a lien upon such future income, so as to authorize a creditor to reach It by any proceeding ' either at law or equity. Ihia. 254. Where property is conveyed to trustees upon a trust to receive the rents or income thereof for the use of the cestui QUe trusst for life, and after his death to convey the property to his heirs, the inter- est of the cestui qut trust for life in such property is inalienable, and he cannot authorize the trustees to sell the trust property, nor can he pledge bis in- terest in the future rents or income thereof to the trustees or otherwise. Van Epps v. Van Epps, 9 Paige Ch. 237, 4: 682 255. The limitation of a trust of personal estates to receive the future income thereof and to apply it to the use of the cestui que trust for life, or any shorter period, renders the interest of the cestui Que trust in such income inalienable, in analogy to the restriction in the Kevised Statutes upon the power of alienating a similar interest in the rents and profits of real estate so limited in trust. Hone V. Van Schaick, 1 Paige (Jh. 221, 4: 133 256. An interest in the future income of personal estate, which is to accrue and be received after the death of the testator, or after the execution of the deed creating such interest, is a future interest in personal property, and is subject to the same rules as a limitation of a future estate of the same nature in lands; and where the property is conveyed to a trustee in trust to receive such income and apply itto the use of another, the absolute ownership of the personal property out of which such income is to arise is suspended during the continuance of the trust, as the interest of the cestui que trust therein Is inalienable. Gott v. Cook, 7 Paige Ch. 521, 4: 256 257.Afterasettlementforthe benefit of a married woman she, on a private ezamination in due form, declared her desire, and executed an appointment, to have $10,000 of the personal estate paid over to her husband absilutely, and that he might be re- stored to his n"'.'.tal rights in the real estate. The la*ter was held to be impossible because of the in- alienability of t7ast interests in real estate. As to the personalty,— Ifefd, that with her consent and by her appointment, which operated on her life interest in the income, the court might order such payment; and an order was made accordingly, on the husband's executing a valid settlement of the residue of the personal estate, so as to secure the capital to the children of the marriage. Oruut V. Van SclumChoven, 1 Sandf. Ch. 336, 7:350 258. Whether a cestui que trust would have the right to devise the trust premises during the life of her husband, so as to vest the legal title in the dev- isee, without any conveyance from the trustee, under the provisions of the Eevised Statutes rela- tive to powers, in connection with the operation of § 47 of the article relative to uses and trusts,— gu chap. 37, 1 N. E. L. 72), rendering lands Uable to exe- cution against the cestui que use or cestui que trust, applies only to those fraudulent and covinous trusts in which the cestui que trust has the whole real and beneficial interest in the land, and the trustee the mere naked and formal legal title. Bogart v. Perry-, 1 Johns. Ch. 52, 1: 56 USURY. 1. Statute against ; Construction. n. What Constitutes. a. Oeneral Bvles. b. Commissions, Exchange, Extra Charges. etc. ; Efect. c. Discounts," Collateral and, Contingent Interests; Fiefittoits Values. d. Particular Coses. m. Bbtect ; Validity op Contract. rv. puroino; kenewaii or substitution of Security. V. As A Defense. VI. COLLATERAIi SECURITIES. Vn. Belief prom Usurious Contract. a. How obtained; When Granted ; Prac- tice. b. Conditions. c. TPTio Entitled to. d. When Refused. vm. Money Paij); How Par Beclaimable. IX. Penalty. Editorial Notes. See also Accounting, 12 ; Action or Sum, 17 ; Cloud on Title, 10 ; Conflict of Laws, II. ; Debtor and Creditor, 6-8 ; Discovery, 37 ; Equity, 51, 59, 60 ; Evidence, 53, 314 ; Injunc- tion, 1. 1. 3, 153 ; Insolvency and Assignment for Creditors, 137, 138; Mortgage, 481; Pleading, m. e. 3 ; Statutes, 18. I. Statute against ; Construction. I. The word "borrower," as used in § 8 of the article Lf the Bevised Statutes relative to the interest of money, and in S 6 of the Act of 1837 for the preven- tion of usury, is not confined fo the person to whom the original loan was made ; but it embraces his su- reties, heirs, devisees, and personal representatives. It also embraces a subsequent grantee of premises E abject to a usurious mortgage, who took the prem- ises adverse to the claim of the mortgagee, but who subsequently guaranteed the payment of the bond end mortgage, including the usurious premium for the loan. Cole V. Savage, 10 Paige Ch. 583, 4: 1099 S. C. 4 Ch. Sent. 7, 6: 1136 Bev'g, Clarke Ch. 483, • 7:179 2. Section 3 of the Act to Prevent Usury has no gre^r scope or effect than § 6 of the Uevised Stat- utes in relation to the interest of money, and neither of them prescribes the terms upon which relief shall be given by the court of chancery in usury cflses. &le V. Savage, Clarke Ch. 482, 7: 179 3. Section 8 of the Bevised Statutes in relation to the interest of money, and 8 4 of the Act to Prevent Usury, passed May 15, 1837, apply only to borrowers, and a subsequent purchaser of mortgaged premises is not a "borrower," within the meaning of either Act, and such subsequent purchaser, when he comes into chancery to set aside a previous mort- gage on the ground of usury, must abide by the ancient rule of the court, and pay the money loaned, before he can have either discovery or re- lief. IIM. 4. Section 4 of the Act to Prevent Usury, passed May 15, 1837, only varies from 8 8 of the Bevised Statutes in relation to the interest of money, in re- quiring the court of chancery to entertain bills for discovery, as well as relief, without any payment or deposit by the complainant, when such complain- int is a borrower. Neither Act appUes to any other olass of complainants except those who can be- legally designated as borrowers. Ibid. II. What Constitutes. a. Oeneral Rules. 6. Usury consists in a corrupt agreement for a. loan at more than 7 per cent interest, Staley v. Kneeland, Clarke Ch. 30, 7: 43 6. To constitute usury there must be a corrupt agreeement by the borrower to give, either directly- or indirectly, more than 7 p6r"cent-for the use of the money loaned. Rayner v. American L. Ins. Co. 1 Ch. Sent. 85, 6: 107T 7. To render a transaction usurious, there must be an unlawful or corrupt intention confessed oi~ proved. JVourse v. Prime, 7 Johns. Ch. 69, 8: 884 8. To render a contract usurious, both parties- must be cognizant of the facts which constitute the usury. Atdrieh v. Reynolds, 1 Barb. Ch. 43, 6: 898- 9. The test of usury is whether the substance of the transaction is resflly a loan of money or the cre- ation of a debt, whatever may have been the form of the contract ; and if it be a loan, then whether the lender or payee has stipulated for or secured to- himself by means of the loan, and arising either from It or from anything connected with it and forming part of the same transaction, any profit or pecuniary advantage he would not otherwise have been entitled to, exceeding the rate of interest al- lowed by law. DowOall V. ienox, 2 Edw. Ch. 267, 6: 396 10. The statute against usury does not apply where a loan is made to he returned within a certain time or upon a certain event depending upon a casualty which hazards both principal and Interest without any right to look to the borrower. Ibid. 11. Where a money transaction is substantially a loan, upon an understanding that the money or thing is to be returned at all events, the lender can- not lawfully reserve to himself anything in the- shape of interest or profit beyond the amount of legal interest. Nor will any shift or contrivance- take the case out of the statute. Ibid. 12. The subject-matter of a usurious contract is a loan or forbearance in pursuance of a corrupt agreement ; the question of intent is therefore an element in the commission of usury. Lowry v. Chautauque County Bank, Clarke Ch. 67, 13. When there were many litigated and harassing questions at issue between two hanks and their re- spective friends, which were finally settled by a mutual agreement, a part of which provided for a loan from one bank to the friends of the other of the oifice notes of the other, such loan is not per se usurious. The intent of the parties at the time of making the agreement gives the character to the transaction. 7?iiA. 14. Usury .lepends upon intent, and the court wih Jook into the whole trurisaotion— subsequent acts as well as contemporaneous acts— to judge of the in- tent of the parties at the time of the transaction; and if, upon the whole, a usurious intent is appa- rent, the contract will be declared void. Bardwell V. Howe, C. 2»1, 7:115 15. Where, upon a loan of money, a premium or profit beyond the legal rate of interest is either di- rectly or indirectly secured to the lender, the loan, will be usurious, unless it Is attended by some con- tingent circumstances which subject the money lent to evident hazard. Colfon V. Dunham, Z Paige Ch. 267, 8: 901 16. A mere nominal contingency attended by no real hazard of the principal of the money lent will not devest the transaction of its usurious char- acter. 'bious. Suydam v. Bartle, 10 Paige Ch. 94, 4: 901 30. And where the agreement by its terms con- -templates an advance oi money to pay the bills when they become due if the principal does not furnish the means of payment at the day, an allega- ■tion that such agreement was usurious merely pre- -sents a question of fact to be decided by the proofs, whether the compensation agreed to be paid was Intended as a mere shift to cover a usurious pre- mium on such advances, or was intended as a com- pensation for the trouble and expense of accepting and paying the bills as the agent of the principal. Ibid. 31. A creditor is not allowed to make it a condi- tion of ,i loan, that he shall receive a compensation for his services in procuring the money, as the al- lowing such a demand would have a tendency to usury and oppression if it be not usury in itself. Hine v. Bandy, 1 Johns. Ch. 6, 1: 39 32. On a loan of credit or name (not of monevi on notes running on time, a commission taken for it, not exceeding the legal interest, does not amount to usury, even where the parties lending their name get an old.debt guaranteed as a further con- sideration. BuOock V. Boyd, HofC. Ch. 294, 6: 1148 33. A charge of a commission of a half per cent, by a stock and exchange broker, in addition to the lawful interest on advances made on a deposit of stock, as a compensation for transacting the busi- ness, IS not usurious. Nourse v. Prime, 7 Johns Ch. 69, 9: 884 34. . Where D lent F his promissory notes, and re- ceived the promissory notes of F for the same amount in. exchange, and £ilso a commission of 2^ per cent, which exceeded the legal interest for the time the notes had to run, the transaction was held to be usurious, and the notes and other securities given by r, void. Fanning V. Dunham, & Johns. Cb. 1^, 1:1030 35. Where the defendant advanced his notes to the plaintifF, for his notes for the same sums, paya- ble at or near the sameperiods, for which exchange the defendant received a commission of 2 1-2 per cent on the amount, and the notes, when they be- came due, were renewed, and new notes given in exchange, and this renewal and exchange were re- peated many times, and the defendant, on each re- newal and exchange, received a commission of 2 1-2 per cent, but which wa£ less than the lawful inter- est on the amount of the notes for each time they had to run,— this was held not to be usury, but a compensation only for a loan of credit and risk. Dey V. Dunham, 2 Johns. Ch. 182. 1: 340 36. On an application to purchase foreign bills on Crciit, tlie dia^ver UciuaLiacU u^ p^i' uuui. prcujiuni, 1 per cent commission, and interest on the whole till paid. Held, on the testimony, that the commis- sion was a part of the stipulated price of the bills, and was not to be deemed a compensation for for- bearance or giving day of payment, and that the contract was not usurious. Holford V. Blatchf ord. 2 S. 149, 7: 544 37. If the commission had been Included for for- bearance, wht*riierit8iiould not De coiisti-ueu as bwu distinct contracts, (1) for the sale of exchange at ^ per cent premium, and (2) an agreement to forbear payment of the price for sixty days, in considera- tion of the legal Interest and 1 ner cent commission, — quaere. Ibid. 38. The taking a compensation for the difference in exchange, where a loan is made in a draft on a distant place, which draft is wanted for the purpose of being aiituailly used there, and not as a mere cover for usury,— is not illegal. Onta/rio Bank v. Schermerhorn, 10 Paige Ch. 119, 4:907 S. C. 3 Ch. Sent. 2, 6: 1100 39. A resident of Savannah being in New Tork, with funds which he had just remitted from S, at an expense of* per cent for excha.nge, loaned the same inN., stipulating for7^per centof the exchange so paid by him, besides legal interest. Held, that the transaction was usurious, and that a succession of notes given in renewal were also void for usury: and the last in the series were ordered to be deliv- ered up and canceled. Jacks V. Nichols, 3 S. 313. 7: 865 40. A prior remittance of the money loaned from another State or country, not expressly for the pur- pose of the loan, furnishes no valid pretext to charge the borrower with the charges of such re- mittance, in addition to Interest. U)id 41. There is an intent to take unlawful interest, within the meaning of the statute, when more than 7 per cent is reserved, although the lender took the surplus under a mistaken idea that he had a right to charge the borrower for expenses or trouble. IMd. 42. A commercial house In New Fork draw ifti USURY, II. c. 623 tiills of exchaniire on a house in ..x>n(!oD, and sold ithem on a credit to the payees, before acceptance, for a price which was 2^ per cent beyond the then ■current price of exchange between New York and London. There was no allegation that it was a •loan, or a cover for a loan. Held, that the transac- tion was not usurious. The charge of SH per cent •beyond the cash price of the exchange did not maki? >the transaction usurious. Holford V. BlaUhford, 2 Sandf. Ch. U9, 7: 544 43.0n giving a mortgage bearing interest, for part ot an advance of money, the lender took from the borrower an agreement to pay to the broker an an- nual sum equal to about 7 per cent on the whole advance, until the latter was paid up, designatinz the annuity as a compensation for brokerage, and ■forany loss that might be sustained on merchan- dise bought and sold by the borrower for the lend- er's benefit. Held, that the mortgage was usurious wais V. Chavman. i S. 312. 7; ms 44. D & Co., having a house in New York and an- -otherin Havre, were dealers in foreign exchange. N was a banking corporation in New York, in em- barrassed orrcumstauces. N obtained from D & Co., in New York, bills of exchange payable in francs, in Paris, at sixty days' sight, drawn on D & Co., in Havre, and agreed in writing, with a de- posit of State stocks as collateral security, to re- itum to D & Co. within flf ty-flve days from date the same amount of francs in bills at sixty days' sight on Paris, satisfactory to D & Co., adding in- terest at 7 per cent, and 1 1-2 per cent commission. Held, that the transaction was a loan of credit, and was usurious. The agreement was directed to be ■canceled and the stocks returned. Leavitt v. De Launati, 4 Sandf. Ch. 281, 7: 1105 45. A mortgage made to an insurance company '48 not void for usury on the ground that, under a covenant allowing the mortgagees to insure, they caused such insurance to be effected in their own ■oface and charged the premium. (The case of Utica Insurance Company v. Cadwdl, 3 Wend. 296, con- taining the same doctrine, approved.) Ira. Co. v. Donaldson, 3 Edw. Ch. 199, 6: 635 4fi, Where W, who resided at Glens Falls, was in- debted to H & M of the city of New York, and 1-, -. .ippiicHliuu to \t^, attbe place of his residence. lor payment of the debt, it was agreed between him and H & M that they should give to him three months for the payment of one naif of the debt and four months for the payment of the other half upon his securing the debt by bond and mortgage ; and that he should, in addition to the legal interest, allow them interest for fifteen days for the time they estimated it would take them to obtain the money in the city of New York after it was paid; 4ind the farther sum of $20 for the traveling ex- penses of one of the creditors, who had come to Glens FaUs to secure the payment of the debt; which $20 and the additional allowance for the fif- teen days' extra interest were included in the bond and mortgage,— Held, that the bond and mortgage were usurious and void, although the debtor vol- untarily agreed to pay the half of the expenses of coming to his residence from New York to collect o 'ire the debt. Wtaiams vi Bance,.7 Paige Cli. 581, ■ • 4: 883 47. If a debtor, in consideration that the mort- tragees will make the mortgage payable at the res- dence of the mortgagor, instead of the place of residence of the mortgagees, agrees to allow them the difference of exchange between the two places, the contract will not for that reason be invalid, unless such agreement was a mere device on the part of the mortgagees to evade the usury laws, and to obtain more than legal interest for the use of their money. Ibid, ■o. DlMounU; Collateral and Contingent Interests; Fictitious Values. 48. Whether the purchase of a negotiable note at a greater discount than legal interest, from a per- son who was supposed to be the legal holder and owner thereof, but who was in fact the mere agent of the drawer, rendered the note void for usury in the hands of the purchaser, or whether £uch purchaser was protected to the extent of the Jnoney actually paid for the note, under the pro- visions of the Kevised Statutes relative to usury,— Huwre. Mitchell V. Oakley, 7 Paige Ch. 68, 4: 63 49. A chose in action valid in its inception may I be sold at a discount less than its face and beyond the legal rate of interest, without subjecting the purchaser to the imputation of usury. Western Reserve Bank v. Potter, C. 482, 7: 163 50. In an assignment of assignable paper for less ihan its face, the question of tact to be oonsiderec Is Whether it is an assignment as a bona Me sale, o- a device to cover a usurious loan,— in other words, whether it is a sale or a loan. ibic 51. A guaranty of payment of the full amount mentioned in a bond assigned for less than its face is not of Itself conclusive evidence that the assign- ment was made in pursuance of a usurious agree- ment, particularly in a suit by the assignee against the obhgor upon the bond. Ibid, 52. Where a security is not valid as between the parties, but is made for the mere purpose of being sold at a discount of more than legal interest, it is not valid in the hands of the purchaser who buys it tor Jess than the amount, although he is ignorant ot the object for which it was made, and supposes It IS a valid security in the hands of the person irom whom he receives it at a discount; but the party who obtains the money upon the false rep- resentation that the security is valid and justly due will be liable to refund the money thus fraud- ulently obtained : and he wnialso be liable to a criminal prosecution for obtaining the money by taJse pretenses and with an intent to defraud. Thomas v. Fish, 9 Paige Ch.. 478, 4: 783 53. Obligations for the payment of money upon bona fide consideration maybe purchased of the obligee by a third person at less than their face, and the purchase will not be usurious. Staley v. Kneeland, Clarke Ch. 30, 7: 43 54. So an obligor may purchase his own obligation from the person to whom he has executed, at less than its face, and such purchase wUl not be usuri- ous, provided such purchase is bona fide and not connected with any previous agreement so to pur- chase, f^ 55. Such purchase would be usurious if coupled with an agreement or understanding so to do, made oetore the execution of the obligation. ibid. 56. Where the holder and apparent owner of ne- gotiable paper sells it to a hrma Ude purchaser at a discount, representing It to belong to himself and to be business paper, the transaction is not usu- rious as between the vendor and vendee of the paper, although the representation of the vendor was false, and it was in fact paper which had been made for the purpose of being sold at a usurious discount in the market. Holmes v. WilUams, 10 Paige Ch. 326, 4: 996 57. Where a person.upon applying to another for a loan of money, agrees to procure the bond and mortgage of a third person, and sell it to the lender at a discount, after guaranteeing the payment thereof, such agreement is not usurious or illegal. PoTid V. Wilber, 3 Ch. Sent. 4, 5: 1101 58. Where to agreement that one desiring to bor- row money shall give his note to a third party, and take the latter's note for the same amount in ex- change therefor, which he shall sell to the lender at an usurious discount, is carried out, the third party kubwing the object for which the exchange of notes was made, the whole transaction is void for usury. National F. Ins. Co. v. Sackett, 11 Paige Ch. 660, 5:270 59. If, on application for a loan of money ,the sale of shares in an insurance company, at par, is made the condition of the loan, when the shares are. In fact, below par, the transaction is' usurious. SOflleso?* V. S?iO(t«e!7, IJohns. Oh. 536, 1:837 60. And if it be impossible to ascertain the cash value of the shares, the company havlngfailed, the sale will be rescinded, and the mortgage taken by the lender ordered to stand as security only for the cash lent and the interest thereon. Ibid, 61. Where, upon an application tor the loan of money, it is by the agreement made a condition of the loan that the borrower shall receive from the lender uncurrent bills at a higher rate than their value in cash or current funds, the loan is usurious. Cleoeland v. Loder, 7 Paige Ch. 5S7, 4: 873 62. AUter, where there is no agreement to make the loan in a depreciated currency, but the borrow- er at his own request, and for his own accommoda- tion merely, receives payment of the loan in bills wV<*"h are under par at the place where the loan is made. U>idt 5M USURY, II. d. 63. Where a note is discounted at a banlc, at the rate of 7 per cent per annum fur the time aueii note has to run. under an afirreement between the borrower and ciie officers of tbe banlc that be shall receive the money, lent in the bills of such bank, and will at his own expense cause such bills to be kept in circulation until his note becomes due and parable, the agreement for such loan is usurious and void by the usugr laws of this State. Pratt V. Adaim, 7 Paige Ch. 615, 4: 300 64. Certain State stock held by a banking associ- ation, was depreciated in the market, yet a party chose to fake it at par and give his bond and mort- gage for it at the par amount. Held, not to be a usurious transaction. Willov^fOyy v. Comstnck, 3 Edw. Ch. 424, 6: 7ia 65. A loan of money made on condition that the borrower shall sell to the lender real estate of a speculative and contingent value, for cash, to the same amount as tlie loan, which real estate is worth atthetime no more'tlrantbie;Siun,agrced.topaid for it, is not usurious, although both the lender and the borrower then expected that it would greatly Increase in value. Faimm V. American L. Ins. <£ T. Co. 1 8. 203, 7:296 6X If the agreement had been that the lender might take the real estate, or receive the stipulated price, with interest, at bis option at a future day, the contract, it seems, would nave been usurious. Ibid. 67. Where the money loaned was secured by a transfer of stocks: and It was made a condition of the loan that the lender should have the option to retain the stocks,— with tbe dividends, at the mark- et value of the stock at the time of making the loan, or to receive back his money, with the interest thereon, at the time appointed for its payment,— Held, that this stipulation for a contingent bene&t to tbe lender beyond the legal interest, in an antici- pated rise in the value of tbe stock, rendered the contract usurious. Cleveland v. Loder, 7 Paige Ch. 557. 4: 873 d. Particular Cases. 68. Where M,beingin embarrassed circumstances aud pressed with executions against him, applied to S for a loan of $800, and 8 refused the loan un- less M would consent to purchase from him 124 acres of wild land at S550, which was much above its real value, and M finally accepted this proposi- tion, and gave 8 a bond and mortgage for $1,850, payable In twelve equal annual installments, with annual interest, — It was held that this loan was usu- rious. Morgan v. Schermerlwrn, 1 Paige Ch. 544, 2: 746 69. A foreign institution, on on application in New York to loan $100,000 at 7 per cent, on bond and mortgage of property there, agreed to give their certificates to that amount beating interest at 5 per cent, and a large portion of them paj at> e in twenty years. Such a transactiou,{tux)uld sce/zt, is usurious. Stoneyv. American lAfe Ins. A T. Co.i Edw. Ch. 332, »: 896 70. Where, upon application for a loan, the lender agreed to issue its cercitlcates of depuaic for ttm iiat- of the borrower to the amount of £48,000, in cousid- eration that the borrower give it his promissory notes for £50,000 payable within seven years, with interest, the reservation of £2,000, or 4 per cent of the principal sum, rendered the contract usurious. New York Dry Dock Co. v. AmerUMn L. Ins. & T. Co. 3 8. 2l5. 7: 888 71. N. owed L. $4,500. The former applied on be- half of himself and D. to L. for a loan of $60, 000 to purchase a cargo, and so that the old debt of N. of $4,500 was to be secured by the same bond and in the same way whereby the $80,000 was to be secured. In fact, a bond was given by N. and D.. with a sure- ty, for $64,500 and interest, and L. also held the re- turn cargo (as had been agreed) for better security. Had, that the adding of N's old indebtedness of $4,500 to the $80,000 borrowed by N. and D. did not make the matter usurious, either as between N. and L. or D. and L. DowOaU V. Lenox, 2 Edw. Ch. 267, 6: 396 72. A made a contract with B, in the spring of 1836, to sell B a farm. B paid $600 down and was to pay the balance in October, and take a deed. B was un- able to fulfill in Octot)er, and agreed with A to post- pone the payment until April 1, 1837, upon paying him $55 for the delay and damage. The fnlflllment was postponed from time to time, Bpaylng part of the purchase money, until May 4, 1837, when A gave B a deed of the land and U>ok back from him a mortgage, payable in one day, for $300 more than the balance remaining due upon the contract. R was unable to pay the balanc-u due on the contract May 4, and thus secure a deed. Held, that the trans- action did not constitute usury in the mortgajfiv In contracts for the sa'e of lands, time is of the es- sence of the contract, as well as the price to be paid. Crippin V. Hetrmanee, C. 13.3, 7: 78 73. Where a person applied to another to assist him .,1 wuuuuiujj 1, loan ui f4U0. and promised to give l.im $^ for procuring the loan, investigating tbe ',itle,nnd drawing a bond and mortgage therefor and putting them on record; and the latter applied to liis own father for a loan of the money for a year At 7 per cent, and agreed that the title should he investigated and the securities made and put upon record withoutexpense to bim;and the father 'iisented tomake theloan'-without 'knowing that his son was to receive any compensation from tbe borrower for obtaining the money,— Held, that the loan was not usurious, although the son when he took the bond and mortgage for the loan, in tbe name of the father, included therein for his own boncflt the $28 which the lender bad agreed to give him for his services. Oraru v. HuVbell, 1 Paige Ch. 413. 4: 810 74. M. & Co. required bUls of exchange on Eng- land, and it was agreed by luc: ij. u. ^Joui\m.ay to draw them at a premium and or a credit of sixty days, adding 6 per cent iuteres for tbe time of credit, and M. & Co. were to give their notes at six- ty days for the amount of the bills and premium with interest, and deposit other notes as collateral security. Held, that this was a sale of the bills of exchange and not a loan and forbearance whereby any usury attached. Manice v. New Turk Dry Dock Co. 3 Edw. Ch. 143, 6:603 75. Where a bond and mortgage for $3,000 and in- terest were sold and assigneu at a discount of $400, for the purpose of raising money thereon: and it was agreed between the vendor and vend- ee that tbe former should execute an assign- ment reciting that he had, in consideration of the $3,000 paid to him, assigned the same to the vendee, and sliould covenant that the whole amount was actually due and owing on such bond and mortgage; and should also give to tbe vendee a bond with surety, conditioned that tbe whole amount of the bond and mortgage, with interest thereon, should be paid to him upon the day when such bond and mortgage by its terms was due and payable,— Held, that the transaction was usurious, and was a mere device to obtain more than legal interest for an ad- vance or loan of money. .Anderson v. Rape/ye, 9 Paige Ch. 483, 4: 786 S. C. 2 Ch. Sent. 19, 6: 1085 76. Where the holder of a mortgage against D, which was not yet due, otrercd to maKe a large dis- count if payment should be made immediately, and D, not being able to procure the money himself, agreed with the complainant that he should raise the amount and take an assignment of the mort- gage to himself, and should bave a part of the dis- count for bis servicesin obtaining the money,— ffcW, that such agreement was not usurious, and that a mortgage subsequently given by D, which includ- ed complainant's share of such rliscount, was vnlid. Vroom\. Dttmas, 4 Paige Ch. 526, 3: 545 77. Where a debtor owing a mortgage debt pay- able in small annual installments at a future period, on the application ot his creditor, advanced to the latter $1,400 on an agreement that he would apply and indorse $2,100 as a payment on the mortgage, and the creditor receipted that sum as such pay- ment,— fleW, (1) that there was no loan or any for- bearance, directly or Indirectly, by the debtor to tbe creditor, and that the agreement was not usu- rious; (2) that the agreement was supported by a valid and sufficient consideration, and was not un- conscionable. BighUr v. Stall, 3 S. 608. 7: 974. 78. Where one having a large mortgage on afarm, payable at adistaut periuo. witu o pu;- i;ent iutei-coL, at the request of the mortgiigor, who had laid out the farm in town lots for sale, canceled such mort- gage and received in lieu of it thirteen separate mortgages for the same aggregate amount, on thir- teen distinct portions of the whole farm, payable when the original mortgage was to be paid, with in- terest at 7 per cent, and at tbe same time received U&lTRY, m. 525 from the mortarag'or S^OO for errantlng the accom- modation,— Heia, that tbe transaction was not usu- rious. jyee/«8 V. Vanderveer, 3 Sane made the foundation of an action; and in such case a new promise by the borrower to pay the amount borrowed, with lawful interest, will be bindinic; but to make such new promise valid and binding, the abandonment of the ' usurious contract must be made with the full knowledge of both parties as to the precise situation of the usurious contract, and of the facts alleged to constitute abandonment. tiowry V. Chautaugue County Bank, C. 67, , 7:53 96. An original taint of usury attaches to the whole family of consecutive obligations and secu- rities growing out of the original vicious transac- tion ; and none of the descendant obli^tions, how- ever remote, can be free of the taint, if the descent can be fairly traced. Dunning v. Merrill, Clarke Ch. 292, 7: 106 97. Neither the renewal of an old nor substitution of a new security between the same parties can ef- face usury; nor further security; nor a guaranty given subsequently by a granger. But if the usu- rious instrument comes to the hands of an innocent holder, and in consideration of forbearance a new security is given to him, it is valid. And whether the holder took it for an antecedent debt, or paid money for It at the time, is immateriaL Brincfcerho# V. Foofe, Hoff. Ch. 291, 6:1147 98. If a honafide holder of a negotiable note which was tainted vvith usury in the hands of the original payee receives from the maker a new security for the debt and gives up the note, without any know- ledge of the usury, the security which be takes in lieu of it is not usurious. AldriOi V. Beynolda, 1 Barb. Ch. 43, S: 292 99. Where a note, prior to the Act of May 15, 1837, was tainted with usury and afterwards renewed from time to time, but no fresh usury occurred, the original taint was kept upon it and brought it within such statute; and no offer to pay was neces- sary to be made in the bill. Folatym V. Blake. 3 Edw. Ch. 442, 6: 71» 100. A cash note which is usurious, being changed to a chattel note, does not purge the usury. A suit commenced upon such chattel note, and afterwards compromised by giving farther time on the one hand, and additional security on the other, the same note still remaining, does not purge the usury. Ihinning v. MerrOl, Clarke Ch. 252, 7: 106 101. Where a party to a usurious biU or note gives a new security for it to a holder lor value without notice of the usury, the new security is valid, al- though the holder could not have recovered on the bill or note. Smedberg v. Whttllesey, 3 Sandf. Ch. 320, 7: 86S 102. The giving of a new note without objection, by the debtor on a usurious note held by an indorsee is of itself an admission that the Indorsee is a bona fide holder of the old note, without notice of the usury. Xbtd V. As A Defense. 103. A defense of usury must be distinctly set up in the plea or answer of the defendant, and the terms of the usurious contract and guanlum of usurious mterest or premium must be specified and distinctly set out. iMce V. Binds, Clarke Ch. 453, 7: 169 101. If the security upon which a suit Is instituted IS a mortgage or otiiLT specialty, the defendant can- not avail himself of a defense of usury, under a general answer denying complainant's right as claimed by the bill. But the defense of usury must be distinctly set up in the plea or answer of the de- fendant, and the terms of the usurious contract must be distinctly and correctly set out. The proof must also correspond with the allegations in the plea or answer. Troom V. Dttmas, 4 Paige Ch. 528, 3: 545 105. The owner of the premises, against which an usurious mortgage is attempted to be enforced in the court of chancery, must himself set up the de- fense of usury in his answer. He cannotavail him- self of a defense set up in the answer of a codefend- ant, from whom he purchased, who has no interest in or lien upon the mortgaged premises, and who is not a necessary imrty to the suit. Ibid 106. Where a suit at law is brought upon a usurious bircuriLy, If the deleiiUHiil utxb a. ie^di uctviiet; ue must insist upon it in that suit; and where a discov- ery is necessary to establish such defense, he must flle his bill of discovery and obtain an injunction to stay the suit at law until the discovery is made, so. as to enable him to use the answer on -the trial at. BarOvilmmw v. Taw, 9 Paige Ch. 165, 4: 651 107. Where R, a resident of the State of New York,, applied to C, at his residence in England, for aloai> ui money, upon the security of a bond and a mort- gage upon lands in New York, at the legal rate of interest in that State; and it was there agreed that^ upoB the return of H to New York be should exe- cute his bond and mortgage, and have the mort- gage duly recorded in the county where the land» were situated; and that upon the receipt of the bond and mortgage by C in England he sbould de- posit the money loaned with the bankers of K in- liOndon, for his uae: and the bond and mortgage were executed and the money received accordingly, —Held, that the mortgage was a valid security for the loan according to the laws of New York; and that upon a bill filed there to foreclose the niortgnge K could not set up the usury law of England as a de- fense to the suit. Chapman v. Robertson, 6 Paige Ch. 627, .3:112* 108. Where a defense of usury is interposed to the foreclosure of a mortgage, by the purcuuser of the equity of f^^demption, the complainant cannot over- come it by proof that the lands were conveyed sub- ject to the mortgage, unless bis bill sets lortb thi; Cxecnti'in an'' t^rm^ ^^f Bnf'- 0',r^\ — ijncc. Hetfield v. Newton, 3 Sandf. Ch. 564, 7: 95* VI. Collateral Securities. 109. When a usurious loan has been made, any- transfer of even valid paper to the lender in such usuriousloan, as security for the payment thereof,. is void in the hands of such usurious assignee, and he cannot enforce the collection thereof, eveu against the maker of such valid paper. Western Reserve Bank v. PMer, Clarke Ch. 432, 7:16* 110. Under the statute of 1837, it seems that a bona fide purchaser of stock or other property given as- collateral security for a usurious loan maybe compelled to surrender it; and this,even where the assignee of the stock is not the assignee of th& debt. IMlle V. Barker, Hoff. Ch. 487, 6: 121* HI. The taking of a separate security for the in- terest and the excess does not aid a usurious loan;, nor is it material that no part of the unlawful in- terest was ever paid. Jacks V. NielMt, 3 Sandf, Ch. 313, 7:865 112. The court will decree the delivery up of a note given as a security on a usurious loan, and retained by a broker as security for usurious Interest paid by him and for bis com iiissions in effecting theloan^ the principal and legal interest having been paid. Cowman v. SedgvHck, Hoff. Ch. 60, 6: 106* Bullock V. Boyd, Hoff. Ch. 294, 6: 114* 113. A transferred fifty shares of stock to B. as security for the sum of ^,26u, tor which a note was given to B. On the same oay 3 transferred thirty- five such shares to C, from whom t2,0()0 of the amount was obtained. No usury existed in this loan by C to B. The balance, $1,250, whs obtained from D, and usury was paid for it. B was em- ployed to get the money, and A knew of his bor- rowing it of others, although the lenders' names were not communicated. B also received a com- mission for obtaining the money, which was de- ducted from the sum paid over, and was usurious. Held, that the transaction with C was separate, and being free from usury, he was entitled to retain the thirty-five shares transferred to him as security, and to sell them, the time given by a power to sell having expired. C was repaid in part by money borrowed at legal inl crest from the complainant, and fifteen shares were transferred to him. Held. that the plaintiff had tbe same right to retain and sell these shares as C bad. Tbe plaintiff, in addi- tion to the loan upon which the fifteen shares was transferred, had got the residue of the stock trans- ferred to him. He became tbe purchaser absolute- ly, the consideration being partly other loans un- tainted, and about 8*00 paid on the completion or the purchase. Held, that the transaction was sepa- rable, and that as to so much of the stock as was transferred to the pLiintiff upon the loans, be wa» USURY, VII. a, b. 627 entitled to hold it, and as to shares (20) finally trans- ferred when he became the purchaser, he was bound to surrender the certificates, and make an asslirnment. lAttte V. Barker, Hoff. Ch. 487, 6: 1818 VII. EELiEr FROM Usurious Contract. a. How Obtained; When Granted; Practice. lU. If a mortgage is usurious, the mortgasror may file a bill to have it cariceled. Haitson v. Davenport, 6 Ch. Sent. 53, 5: lail 115. Under the Act of 1837 to prevent usury, the court of chancery is required to entertain jurisdic- tion of suits to cancel usurious contracts; and it will grant such relief after a suit at law is commenced, whenever it appears that the defense at law is doubtful or imperfect, and it is clear in eauity. Mnrse v. Hovey, 1 Sandf . Ch. 187, 7: !i90 116. To a usurious note executed by a principal and two sureties and transferred by the payee to a nominal holder, the payt- b still being the party ii. interest, sued at law by the nominal holder, by suii against the principal and sureties, with no proofs of t*e usury except th. --intMpal and pavpf, ti- sureties have no adequate defense at law, and can come into this court to establish the usury. Beags V. BuUer, Clarke Ch. 5X7, ?: 188 117. Under the. Act of 1837 in regard to usiiry. equity will oul> liiterfere in the cases in which, upon its general principles, it will interfere with a judgment, or, upon its peculiar principle in oases of usury, of payment of the debt justly due. Tavptng v. Van Pelt, Hoff. Ch. 545, 6: 1339 118. Principles settled under the Revised Statutes as to dealing with a usurious contract in this court. Cowman v. Sedgwick, Hoff. Ch. 60, 6: IO63 119. A bill for usury, under the Act of May 15, 1837, will not be sustained unless thei-e are special grounds for cominer into chancery. FoUam v. Blake, 3 Edw. Ch. 442, 6:719 120. The Act for preventing usury (Sess. 10, chap. 13 ; 1 N. B. Xi. 64) contains no limitation to a suit, at the instance of the party aggrieved, to compel the defendant to discover and refund the usurious ex- cess of interest paid, provided no qui tarn or pop- ular action has been commenced by a third person, under the Act, previous to filing tlie plaintiff's bill. Palmer v. Lord, 6 Johns. Ch. 95, 2: 65 121. A plea, therefore, in bar of the suit, that the plaintiff did not file his bill within one year after the usurious interest was paid, is bad. Ibid. 122. The right of the party aggrieved to bring an action after one year may be lost by the inter- ference of the popular action given by the stat- ute ; but until such popular action has been com- menced, and a right has attached in a third person, it eeems that the party aggrieved may bring his ac- tion ; and his right to the surplus of Interest will be fixed, so that a popular action brought after- wards cannot be sustained, though within the sec- ond year; and if no such popular action is brought withmthe second year, the right of action contin- ues in the party aggrieved, subject only to the gen- eral limitation of actions at law. Ibid. 123. A bill for relief against a usurious contract can only be filed where it is necessary to aid a defense at law, or to remove a usurious incum- brance which is a cloud upon the complainant's title to real property, or which may be used at law to his injury, or in such a manner that he could not Interpose a legal defense if he was sued thereon in a court of law. Moise V. Jdaoey, 9 Paige Ch. 197, 4: 665 S. C. 6 Ch. Sent. 10, 5:1195 124.Under the Act of May 15, 1837, the provision tnat the Act shall not affect such paper as has been maae and transferred previous to the time it shall take effect, refers to negotiable paper previously re- ferred to. Negotiable paper is put by the Act on the same footing when in the hands of a bona fide holder, as other securities. Held, that the Statute of 1837 does not extend the power of this court be- yond that of 1830, where judgments have been ob- tained at law, even if upon a default. Such a J udg- ment must be treated as a hostile Judgment. Topping V. Tan Pelt, Hoff. Ch. 545, 6: 1339 125. Denials of usury in an answer will not be ef- fectual, where facts admitted lead to the conclu- sion of usury. Manice v. New York Dry Dock Co. 8 Edw. Oh. 143, 6:60» 126. Upon a bill filed to set aside a contract on the ftiuuuuuL ubUL-y, wuerecuu uuuu'auL wuuuiuat; wiia the defendant personally, if any of the facts stated iu the bill as constituting the usurious agreement are not denied in the answer, they will upon the hearing of the cause be considered as true, under the provisions of the 17th Rule of the court of chan- cery. Anderson v. Rapdye, 9 Paige Ch. 483, 4: 785 127. Although the Act authorizes the defendant at law to examine the plaintiff as a witness on the trial, it does not compel him to rely upon such in- terested testimony if he can establish the usury otherwise, either at law or in equity. Morse v. Hovey, 1 Sandf. Ch. 187, 7: 39» 128. Where notes were executed and matured in 1836, but not prosecuted until November, 1837, the defendant could avail himself of a defense of usury under the Act of May 15. 1837, and call upon the plaintiff as a witness to Drove the usury. Peirson v. Smith, Clarke Ch. 228, 7: 10» 129. In a suit on a usurious note by the nominal plaintiff for the benefit of the real owner, the owner is bound to testify to the fact of usury. Beggs v. Butler, 9 Paige Ch. 226, 4: 678 S. C. 1 Ch. Sent. 52, 5: 1067 130. When A makes a usurious loan to B, and for security takes a mortgage directly to himself; and before any suit is commenced at law upon any of the securities, B files a bill to set aside the usurious transaction, this court has acquired Jurisdiction, and a demurrer to such bill will be overruled. Trowbridge v. Christmas, C. 271, 7: 111* 131. A biU was filed by two sureties to avoid, on the ground of usury, a promissory note given to H, on which a suit at law had been commenced against all the makers, in the name of C for H's benefit. The bill aUeged that the principal debtor, although discharged from his debts pending the suit at law, could not be a witness therein to prove the usury, because he was a party defendant; and that the complainants could not establish the fact, except by his testimony or by H's adrhissions. The an- swer on oath of H was waived, and the principal debtor was not made a defendant in the bill. A de- murrer to the bUl for want of equity was overruled. Morse v. Hovey, 1 Sandf. Ch. 187, 7: 890 132. Where sufficient ground'appeared to support the charge of usury, a reference was ordered to a master, to take an account, etc. Thompson v. Berry, 3 Johns. Ch. 395, 1: 660 133. Utihty and policy of usury. JfiM.399, 1:663 b. Conditions. 134. Where a party comes to chancery to avoid a usurious contract, he must consent to pay the sum actually loaned with interest, or the court will not grant him any relief. Fulton Bank v. Beach, 1 Paige Ch. 429, 3: 703 135. And where the proof s in a cause are regularly closed, the court will not open them to enable tne defendant to re-examine a witness in order to es- tablish the usury, unless he agrees to pay the sum actually lent. Ibid. 136. So, the court will not allow an answer to be amended for the purpose of setting up a defense of usury, unless the defendant consents to pay the amount equitably due. Ibid. 137. A party who comes to chancery for relief against a usurious contract must pay, or offer to pay, the amount actually due, before he will be en- titled to an injunction to restrain proceedings at law, or to an answer as to the alleged usury. Morgan v. Schermerhom, 1 Paige Ch. 544, 3: 746 138. But if the defendant puts in his answer with- out making this objection, the court willnot after- wards dissolve the injunction, if the complainant is still willing to pay the amount actually due. Ibid. 139. On a bill for discovery on a charge of usury, an injunction will not be granted to stay proceed- ings at law on the notes or usurious contract, un- less the plaintiff tenders or brings into court the money actually lent and the lawful interest there- Bogers v. Bathbun, 1 Johns. Ch. 367, 1 : 1 74 Tupper V. Powell, 1 Johns. Ch. 439, 1:201 -528 USURY, VII. c. 110. ITpon a bill In chancery for relief a^nst a usurious contract, the court is not authoiized to decree payment to the defendant of the amount equitably due, unless the compUlnant ha^ giren the court authority to make such a decree, by offering- ill li1» hill to pay whatever is equitably due. Judd V. Seaver, 8 Faiire Ch. 548, 4: 537 141. Before the Act of 1837, one who sets up a de- fense of usury at law, and is surpri ed by a verdict .aeainst him, must, before be can outain relief in •chancery, pay or offer to pay the money actually loaned, with interest. Williams v. Loikwood, Clarke Ch. 172, 7: 83 TM. Where a judgment has been recovered upon a not«, alleired to be usurious, previous to the Act of luaj for the prevention of usury,— HeM, that the party against .whom the judgment was recovered could not come Into the court of chancery for dis- covery and relief against the judgment without olfering to pay the money actually lent, and legal int^rej't thereon. GampbeO, v. Morrison, 7 Paige Ch. 157, 4: 105 143. A purchaser of premises incumbered by a usurious mortgage cannot file a bill in this court, ■either for discovery or relief, to set aside the mort- gage as usurious, without paying, or offering to pay, the amount actually loaned and secured by the mortgage, with interest. Cole V. Savage, C. 483, 7: 179 144. Where the lender has proceeded at law. and recovered a judgment on a bond and warrant of attorney, or ia proceeding to foreclose a mort- gage, by virtue of the power of sale, under the statute, without the aid of this court; and the bor- rower files his bill for relief against the judgment ■OT other legal securities, on the ground of usury, he must, before he can be entitled to relief, pay, or offer to pay, the principal and interest lawfully due; and that, whether the usury be established by proof or be admitted in the defendant's answer. Fanning v. Dunham, 5 Johns. Ch. 128, 1: 1030 145. Practice of courts of law in interferiner to «et aside judgments by confession on bonds and warrants of attorney, on the ground of usury. Ibid. 137, 1: 1035 146.Underthe provisions of theBevised Statutes it IS not necessary for a complainant who applies to this court for relief against an usurious contract either to pay or to offer to pay the principal or the interest of the money actually loaned; provided the answer of the defendant, on oath, is waived by the bill. TAvingston v. Harris, 3 Paige Ch. 528, 3: 361 147. The complainant cannot call upon a defend- ant for a discovery as to the usury charged in the bill, unless he pays or offers i;o pay the amount equitably due, exclusive of the legal interest, ibid. 148. A usurious loan is negotiated with one mem- ber oi a [firm when no person is present, the note given for the loan is sued in the name of the other member of the firm, and the person who made the loan is called upon as a witness, and declines testi- fying, on the ground that his Interest in the note -still remains in him, and a verdict passed against the defendant. Held, that this was a case of sur- prise which would warrant the interference of the court of chancery; and that the defendants had no adequate remedy by applying to the supreme court for a new trial, inasmuch as the plaintiff in the suit at law could not prove the usury if the pleadings were amended so as to call upon him as a witness. Post V. Boardman, C. 523, 7: 190 149. The principal and surety in a note, being bor- rowers, are not compelled to pay or deposit the money loaned as a condition or obtaining relief or discovery of a usurious transaction, under the law •of 1837. Jbid. 150. Under the Act to prevent Usury, of May. 1837, borrowers can come into the court of chancery, either for discovery or relief, without making any deposit or payment; and in cases of a verdict or a Judgment at law, they can now, under the spirit of the Act, come in upon precisely the same terms and upon the same principles as other complainants, in 3 not affected with usury. ITM. 151. If a party comes into this court in a usury -case, and makes a mistake in this court, whicn makes it necessary for him to apply to the court for a favor, it is competent for the court, as a con- ■ditlon of granting the favor, to compel the party to •do equity by payment of the money actually loaned. ibid. 1.52. Where A borrowed money at a usurious rate of interest and gave his bond and mortgage for the ■money loaned and for the usurious premium; and TB.the lender, afterwards took a noteo'f A for a part of the usurious premium for the further forbear- ance of the usurious loan, which note was also signed by C as the surety of the borrower; and A subsequently conveyed the mortgaged premises to C, with warranty; and C afterwards gave a cove- nant to the lender to pay the usurious bond and mortgage, and subsequently filed his bill for the purpose of having the several usurious securities delivered up and canceled,— Held, that the com- plainant, who did not ask for a discovery as to the usury, was not bound to offer to pay the amount which was equitably due upon the usurious securi- ties, as a condition to the granting the relief sought by his bill. Cole V. Savojge, 10 Paige Ch. 583, 4: 1099 S. 0. 4 Ch. Sent. 7, S: 1136 o. Who Entitled to. 153. Privies to the person to whom the loan is made, either by representation or by operation of law, are borrowers, within the meamng of the statutes of usury. LeaMt v. Be Launay, 4Sandf. Ch. 281, 7: 1105 154. The receiver of an insolvent corporation or association may maintain a suit to avoid usurious transactions entered into by the company which he represents. _ Ibid. 155. The surety in a usurious contract has a right to set up the defe:isc of usury to a suit brought against him and the principal debtor on such con- tract, and to file a bill in chancery, if necessary, to establish the defense, altliough the principal debtor refuses to join as a complainant in the bill ; but he has no right to make the principal debtor a com- plninant in the suit, wirhont- hie consent. Morse v. Hovey, 9 Paige Ch. 197, 4: 664 S. C. 1 Ch. Sent. 42, 5: 1064 156. Where a party to a, judgment entered upon a warrant of attorney, voluntarily waives his deiense on the ground of fraud or usury, and releases the other party, a subsequent purchaser under him, with notice of the judgment, will not be allowed to impeach it, or to investigate the merits of the ori- ginal transaction, between the original parties. French v. Shotwell, 5 Johns. Ch. 555, 1 11 7b 157. As, where a party against whom i. judgment had been entered oycontession or warrant of at- torney, founded on an usurious consideration, filed a bill for relief against the judgment on the ground of usury; and afterwards voluntarily con- sented to a decree dismissing the bill, with costs,— Held, that a subsequent purchaser of the land on which the judgment was a lien could not impeach it on the ground of usury or fraud. Ibid. 158. A subsequent mortgagee is not a borrower, within the meaning of the usury laws, so as to au- thorize him to file a bill to set aside a previous se- curity given by the sisortgagor, on the gro';nd that it is usurious, without paying or offering to pay the amount actually due or advanced, for which such previous security was given. Bea^ford v. Widger, 3 Barb. Ch. 640, 5: 1040 S. C. 6 Ch. Sent. 73, 5: 1218 159. A person who purchases the mere equity of redemption in premises upon which there is a usurious niortgage,or who agrees to take the prem- ises from the mortgagor subject to the lien of the mortgage, cannot set up a defense of usury as against such mortgage ; nor can a mere stranger, between whom and the mortgagor there is no privity, set up such a defense. Cole V. Savage. 10 Paige Ch. 583, 4: 1099 S. C. 4 Ch. Sent. 7, 5: 1136 160. But the heir of the mortgagor, or a devisee or grantee of mortgaged premises which are subject to the apparent hen of a mortgage which is void for usury, and who holds the premises adversely to the claim of the mortgagee, may set up as a defense to such claim that the mortgage is usurious and void. Ibid. 161. The owner of land who has given a usurious mortgage thereon may sell or mortgage the land to another, generally, and give to such purchaser or mortgagee the same right to contest the validity of the first mortgage as ne has himself; but he may affirm the validity of the usurious mortgage by selling the equity of redemption in the mortgaged premises only, or by selling or mortgaging the laud subject, in express terms, to the previous mortgage; USURY, VII. d— IX. 529 In which case the purchaser or subsequent mort- gagee will be entitled to the equity of redemption merely, and cannot question the validity of the prior mortgage. Shufelt V. Shufelt, 9 Paige Ch. 137, 4: 639 162. A purchaser of a mere equity of redemption In mortgaged premises, incumliered by a usurious mortgage, who by the terms of his conveyance takes the premises subject to the lien and payment of such mortgage, cannot set up the defense of usury in the mortgage, and thus obtain an interest in the land which the mortgagor never agreed or in- tended to transfer to him. Post V. Dart. 8 Paige Ch. 639, 4: 573 163. Nor can a mere stranger insist upon the inva- lidity of a usurious mortgage in respect to which tie is neither a party nor a privy. Ibid. 164. But the defense of usury may be set up by Anyone who claims under the mortgagor and in privity with him; for the usurious mortgage is void, not only as to the mortgaxor, but as to all -others who succeed to his rights in the mortgaged premises either by operation of law or otherwise. lUd. 165. Where the holder of a usurious bond and mort- gage fllesa bill of foreclosure agamatthe mortgagor, And makes a subsequent judgment creditor of the latter a party to the suit for the purpose of obtain- ing a decree which will destroy the lien of the Judgment upon the premises in the hands of the purchaser under such decree, the judgment cred- itor may avail himself of the defense of usury, to the full extent of his legal lien upon the premises by virtue of his judgment, although the mortgagor suffers the bill to be taken as confessed. Ibid. 166. Where property conveyed to trustees for the purpose of securing the payment of a usurious loan is sold by them, and the purchase money se- cured by bond and mortgage for the benefit of the lender, the mortgagor cannot set up usury between the original parties, to avoid payment of his bond and mortgage. Stoney v. American L. Ins. Co. 11 Paige Ch. 635, 5:361 167. A party who is the direct assignee in trust of & mortgagor may impeach the mortgage for usury. Such an assignee stands in the place of the mort- sacror and has his rights. Pearsall v. Kingsland, 3 Edw. Ch. 195, 6: 684 168. T. P. executed a bond and mortgage to the y retaining both the land and the money paid therefor,— (pnwe. CrippcTi V. Heermance, 9 Paige Ch. 211, *: iiT4 44. ■Where the title to real estate fails, the pur- chaser has no remedy in equity to recover back the price, unless there was fraud or deceit in the sale. Banks v. WaJker, 2 Sandf. Ch. 344, 7: 619 45. The only recognized ground of equitable in- VENDOR AND PURCHASER, II. e, f. 533 terference to stay the collection of the unpaid pur- chase money, in the absence of fraud, is a failure of the consideration by reason of a defect of title clearly established, and an eviction from the pos- session of the land. tbUl. 46. These facts may be shown as a defense, when the collection is attempted In chancery, notwith- standiD? the deed contains coyenants of title, ibid. 47. It is a well-settled rule of equity that a grantee to whom possession has been delivered un- der covenants of title and warranty can have no relief in this court against bis grantor for a return of purchase money or security, on account of a de- ficiency or failure of title. Demton v. Miirris, 3 Edw. Ch. 37, 6: 899 48. If a grantee in possession has taken no cove- nants and the title fails, he will be without a rem- edy in equity as well as at la TV, provided the con- tract were fair and there is no fraud. Ibid. 49. But if fraud is shown in making the purchase or in completing it, and whether there be covenants of title or not, the purchaser may come into equity for relief or to obtain indemnity against eviction, di8turbance,or defect of title. These circumstances take the case out of the general rule. Ibid. 50. Where the sale has been consummated by a conveyance, without any covenants of warranty as to the title; and there has been neither fraud nor misrepresentation on the part of the vendor, the vendee has ni> remedy to reooverlback the purchase money, upon a subsequent failure of title. Bates V. Delaman, 5 Faige Ch. 299, 3: 786 e. lAabilities of Purchaser Generally. 61. He who takes under a deed must perform all its express and implied conditions. His election precludes objection and becomes matter of estoppel in va/'s. Maynard v. Maynard, 4 Edw. Ch. 711, 6: 1089 52. Where n deed is delivered in performance of a contract for the sale of land. If the purchaser has any objection to the deed itself, or to the descrip- tion of the premises therein, or it he objects to ac- cepting the deed upon the ground that the premises are incumbered, it is bis duty to make the objec- tion known at the time, so as to give the vendor an opportunity to obviate it. MeWhorter v. McMalian, 10 Paige Ch. 386, 4: loaa 53. Where a vendor lets a purchaser into posses- sion upon aa undersLaudiug not to require the con- sideration until the buyer has a title, the latter can- not be called upon to bring the money into court. Nor can it be done where possession baa been given without any stipulation made about the purchase money. Birdaoll v. Waldron, 2 Edw. Ch. 316, 6: 413 54. If a purchaser be in possession under a prior title,or the possession commenced independently of the contract of sale, and the vendor be guilty of laches m perfecting the title, he cannot compel the buyer to bring the consideration into court, ibid. 55. Where a vendor is resisting performance and does not recognize a bargain, such a vendor cannot compel the vendee to pay the consideration Into court. ibid. 66. A special authority must be strictly pursued, and a purchaser is presumed to know such author- ity when it is given by a public statute ; and if he purchases where the authority is not pursued, it 18 at his peril. Denning v. Smith, 3 Johns. Ch. 344, 1: 648 67. If a purchaser has notice of a trust at the time of purchase, he himself becomes a trustee, not- withstanding the consideration he has paid. Mwrray v. Ballou, IJohns. Ch. 566, 1:847 58. A purchaser of land buys at his peril, and is bound to look to the title and the competency of the vendor. ibid. 69. A purchaser of land chargeable with con- structive notice only by means of a lis pendens is not to be charged with costs, there being no actual fraud, though the purchase is set aside on the ground of the implied fraud. ibid. 60. A purchaser of lands from an incorporated company is chargeable with notice of all the re- strictions upon its power to hold and convey lands contained in its charter. JfoTift V. iambert, Hoff. Ch. 166, 6:1103 f. Defects in Title or Deficiency in Quantity. 61. A party has no remedy in this court, on the mere ground of a failure of title, if he has taken no covenant to secure the title, and there is no fraud in the case. Chesterman v. Gardner, 5 Johns. Ch. 29, 1: 997 62. Where a contract for the sale of land hasbeea executed by the giving of a conveyance, the court of chancery will not rescind the contract upon the ground of a mere defect of title, where there has been no fraud on the part of the vendor, but wilt leave the purchaser to his remedy upon the cove- nants in his deed. Woodruff V. Bunee, 9 Paige Ch. 443, 4: 768 S. C. 2 Ch. Sent. 5, 5: 1080 63. The mere fact that a purchaser of real estate, who has a covenant of warranty from the grantor, is sued for the purpose of recovering the premises by persons claiming title paramount to his deed, will not authorize such grantee to come into the court of chancery for relief against an action ali law for the unpaid purchase money for the prem- MiUer v. Avery, 2 Barb. Ch. 582, ' 5: 76» 64. The mere fact of a failure of title in the vendor affords no sufficient ground for the purchaser's coming into a court of equity for relief, where he has not been disturbed in his possession, and where no suit has been brought against him by the right- ful owner of the land. ibid. 65. A purchaser of land, who has paid part of the purchase money, and given a bond and mortgage for the residue, and is in the undisturbed posses- sion, will not be relieved against the payment of theboml or proceedings on the mortgage, on the mere ground of a defect of title, there being no al- legation of fraud or any eviction, but must seek his remedy at law on the covenants in his deed. Abbott V. ^IZen, 2 Johns. Ch. 519, 1: 47» Leggett v. JUTCaHy, 3 Edw. Ch. 124, 6; 59ft 66. It makes no difference in the application of this principle, whether the mortgagor is complain- ant or defendant in the action in which the ques- tion of his liability is raised. While he holds posses- session it would be unreasonable to say he oughl; not to be called upon to pay the mortgage debt. Leggett v. ilTCarty, 3 Edw. Ch. 124, 6: 69» 67. If there be no fraud, and no covenants taken to secure the title, the purchaser has no remedy on a failure of his title, either at law or in equity. Abbott V. Allen, 2 Johns Ch. 523, 1 : 4 74 68. The court will not decree the performance of a contract for me saie of land, where there is a fail- ure of title as to an undivided portion thereof, which the vendee has not agreed to take at his own risk. But if the vendor has executed a conveyance of the land, with warranty, the court of chancery will not rescind the sale, but will leave the grantee to his legal remedy upon the covenants in his deed. Bates v.Delavam, 5 Paige Ch. 299, 3: 786 69. Where the vendee gave a bond and mortgage to secure the purchase money, and an action of ejectment was afterwards brought against him by a person claiming a paramount title, and the ven- dor brought a suit on the bond, and advertised the premises for sale, under a power contained in the mortgage, the proceedings on the bond and mori>- gage were ordered to be stayed until the action of ejectment against the vendee was determined, and the further order of the court. , . „ „ Johnson v. Gere, 2 Johns. Ch. 546, 1: 483 70. Where a person holds a contract for purchase of real estate, and he sells the property and agrees that he will cause to be executed and delivered a good and sufficient warranty deed, the last buyer cannot object on the ground that the title is in an- other ; and he will be bound to take a deed in the name of such other. This case is not within the principle making void purchases where the seller IS not a bonaflde contractor and is speculating with other persons' property. Scotfv. Thorp, 4 Edw. Ch. 1, 6: 777 71. If a purchaser has covenants to cover a defect of title, he cannot have redress in this court. WeaterveU v. Matheson, Hoff. Ch. 37, 6: 105S 72. If there has been either fraud or concealment, or anything beyond a mere mistake on both sides, as to the quantity of land, the contract will not be enf orcsd against the party who is deceived. Feeder v. Fonda. 3 Paige Ch. 94, 3: 71 634 VENDOR AND PURCHASER, II. g— IH. b. 73. In the cases where land is sold at a certain price by the acre or foot, aua ic turns out tliat by the mutual mistake of the parties there is a considera- ble deficiency in the quantity, equity sometimes interferes and relieves tne purchaser from the pay- ment for the deficiency. But in such cases a slight variation in quantity will not afford a ground for the interference of the court to correct the mistake. Marvin.v. Bennett, 8 Paige Ch. 313, 4: 441 74. The oases in which courts of equity interfere to give relief, where tue quantity of the land ex- ceeds or falls short of that which is specified in the deed or contract of sale, are those in which the sale of the land has been made by the acre or foot ; or where there has been fraud, or willful misrepresen- tation, on the part of the party against whom relief is sought, to induce the other party to believe the quantity of land conveyed was different from what Morris CaricH Co. v. Emmett, 9 Paige Ch. 168, 4: 65% 75. Where a lot or farm is sold in gross or by its boundaries, and is conveyed by a deed containing the words ''more or less," such words being inserted upon deliberation, because neither party professes to know the precise quantity of land conveyed; and It is afterwards found that the quantity of land is less than the parties supposed,— the court of chan- cery will not interfere for the relief of the pur- chaser, in the absence of any fraud or intentional misrepresentation as to the quantity of land con- tained within the boundaries of the deed. Marvim, v. Bennett, 8 Paige Ch. 312, 4: 441 76. A person who sells land as containiug a cer- tain quantitv, more or less, when he knows from an inspection of the title deeds in his possession, or otherwise, that it contains a much less quantity, in «quity is Dound to make good the difference. Veeder v. Fonda, 3 Paige Ch. 94, 3: 71 77. But where a contract has been consummated without any fraud, misrepresentation, or conceal- ment as to the real quantity of land sold, courts will not inquire whether there has been an actual mistake as to the supposed quantity. Ibid. g. Beseisston. 78. Where the vendee has entered into possession of the premises under an executory agreeiiieia lor the purchase of the same, if he wishes to rescind ttie contract, (»-< Ute ground that the vendor has not perfected his title to the premises and executed a conveyance thereof within a reasonable time, or at the time specified in the agreement, he must give up the possession to the vendor— as he cannot elect to rescind the contract and still continue in posses- sion of the premises under it. More V. Smedburgh, 8 Paige Ch. 600, 4: 658 in. Liens. a. Existence of. ' 79. The vendor of real estate has an equitable lien upon the estate sold, for the unpaid purchase money, as between him and the vendee, in all cases, unless there is either an express or an implied agreement to waive such lien. BraOley v. Bosley, 1 Barb. Ch. 125, 5: 384 80. Where, by the fraud of the vendee, a part of the price of the estate sold in fact remains unpaid, although the vendor supposed he had been paid in fuU at tne time, there is no waiver of the equitable lien for the part of the price that actually remains unpaid. Ibid. 81. Where upon a sale of lands the negotiable note of the purchaser is given for the purchase money, the vendor retains an equitable lien upon the land; but an indorsee is not, from the mere transfer of the note, entitled to the benefit of such lien, where the indorser has not been made liable upon his in- .dorsement. Whitev. WUliams, 1 Paige Ch. 502, 8: 731 82. A vendor has a lien on the estate sold for the purchase money, while the estate is in the hands of the vendee, and when there is no contract by which it may be implied that the Hen was not intended to be reserved. Garson v. Oreen, 1 Johns. Ch. 308, 1: 151 83. Prima facie the purchase money is a lien, and it lies on the vendee to show the contrary ; and tne death of the vendee does not alter or defeat the Uen. i'>*<'. 84; Nor does the taking a promissory note for the purchase money affect the lien; and if part be paid, the lien is good for the residue; and the vendee is a trustee for what is unpaid. Ibid. 85. Where the vendor of land takes no mortgage or other security for the payment of the purchase money, he will have an equitable lien upon the land, in the hands of the heirs of the purchaser, and upon the improvements made upon the land by the purchaser in his lifetime. Warner v. Van Alstyne, 3 Paige Ch. 513, 3: 853 86. The widow of the purchaser takes her dower in the land subject to the equitable lien of the vendor for the unpaid purchase money. Ibid. 87. The purchaser of land under a statute sale for the payment of an assessment charged thereon, takes the land discharged from the equitable Uen of the original owner for the purchase money re- maining unpaid upon a former sale. Ihid, 88. Where, upon an exchange of farms, each party gives to the other a boud to pay off and indemnify him against prior incumbrances upon the lands con- veyed to him; and the lands conveyed to onc-of them are afterwards sold to satisfy prior incumbrances thereon,— whether the grantee whose land is thus sold has an equitable lien upon the farm given by him in exchange therefor, to the extent of such prior incumbrance,- tn(CBre. WhUe V. Knapp, 8 Paige Ch. 173, 4: 389 b. Waiver. 89. Taking security is a waiver of a vendor's lien. Sioartwtmt v. Wychoff, Z Ch. Sent. 70, 5: 1097 90.The mere taking of a promissory note from the purchaser long sutiequent to the conveyance will not waive the implied Uen ; and it rests upon the put chaser to prove it was intended as a waiver. Shirley v. Siigar Befinery, 2 Edw. Ch. 505, 6: 483 9L Where the mere personal security of the pur- chaser has been taken on ahum ul iuuu the rule Is, as between vendor tind p,. Phaser, to sustain the im- plied lien for the unptua purchase money; and to consider any bond, note or covenant given by him alone as intended only to countervaU the receipt For the purchase money contained in the deed and to show the time and manner in which the payment is to be made— unless there be an express or mani- fest agreement to waive such Uen. And, on the other hand, generally to consider the implied lien as waived, whenever security is taken on the land for the whole or anv part of Th*> punthaso money or whenever the security of a third person Is given- IMd. 92. A grantor of lands has an equitable Uen on the estate sold, for the payment of the purchase money; and this lien is not waived by the grantor's taking the mere personal security of the purchaser only, unless there is ac express agreement between the parties that the equitable Uen be waived. But wherever any security is taken on the Imid sold, or otherwise, for the whole or a part of the purchase money^ the equitable lien will be waived, unless there is an express agreement that it shaU be re- ta' -d. Fish V. Howland, 1 Paige Ch. 20, 8: 545 93. So the Uen is waived where a note or bond Is taken of the vendee for the purchase mon^y, in which a third person joins as security. Ibid. 94. Likewise, if the vendee sells to a third person without notice, the lien is lost. ibid, 95. Where, by the fraud of the vendee, a part of t'lie price of the estate sold in ^act remains unpaid, although the vendor supposed he had been paid in full at the time, there is no waiver of the equitable lien of the vendor for the part of the price that ac- tually remained unpaid. Bradley v. Bosley, 1 Barb. Ch. 125, 5: 324 96. Where A contracted to purchase of B a lot of land, and A entered luto pusse&jiuu oefore receiv- ing a deed, and made improvements; and B made a conveyance of the land contracted for to another, and after the conveyance A, with knowledge of the facts, settled with B for the damages by taking a judgment of B for the amount, — A, upon return of an execution upon such judgment unsatisfied, is precluded from calling in question the fairness of the conveyance from B. By such settlement the lien of the purchaser for a conveyance is waived, and he indicates a determination to look to the seller for his damages; and he must be confined to such determination. Titeworth v. TiUworth, C. 272, 1: lia VENDOR AND PURCHASER, IV. a, b, 1. 635 IV. Subsequent Furcsasers, a. Omerally. 97. If the purchase money has been paid by a vendee before a subsequent mortgage is recorded, the mortgagee will nave no claim upon the land. Qouvernewr v. I/yneh, Z Paige Ch. SOQ, S: 916 98. If a part of the purchase money remains un- paid at the time the mortgage is recorded, such mortgagee will have an equitable lien on the land to the extent of the unpaid purchase money. Ibid. 99. Where a person who had contracted for the purchase of land obtained a deed of the same from the vendor, under an agreement that it should not be used until the balance of the purchase money then due was paid ; and the vendor again sold and conveyed the land, and took a bond and mortgag^ on such second sale, for a much larger amount than was due to him tor the unpaid purchase money on the first sale, which mortgage and oonveyaDce were recorded before the recording of the deed to the original purchaser ; and the bond and mortgage were afterwards assigned to a person who was in- formed of the facts upon which the equitable rights of the parties depended,— HeJd, that the as- signee of the mortgage was only entitled to pref- erence in payment out of the proceeds of the land over a judgment creditor of the original vendee, to the extent of the unpaid purchase money on the flrst sale, with interest thereon. Arnold v. PatricH, 6 Paige Ch. 310, 3: 1000 100. Upon a purchase of lands under a judgmenti which lands are subject to the lien of a prior mort- gage given by the judgment debtor, the premises in the hands of the purchaser are primarily liable for the payment of the mortg.^ge debt, and the judg- ment debtor is neither legally nor equitably bound to pay off such a prior mortgage for the benefit of the purchaser under the judgment. BugseU V. Alleri, 10 Paige Ch. 219, 4: 965 101. The rules that, a purchaser is, in equity, ■chargeable with constructive notice of facts an<} circumstances which came to the Itnowledge of his attorney or agent for the purchase, or in the ex- amination of the title, and that notice of a deed is constructive notice of the contents thereof, do not apply to controversies between the vendor and purchaser in relation to their Own rights. These jMiles as to constructive notice are only adoped by the court of chancery for the protection of the orior equitable rights of third persons, against subr sequent purchasers who claim in hostility to such rights. Champlin v. Laytin, 6 Paige Oh. 189, 3 : 950 103. WS executed an agreement for the sale of ipart of his farm to H, and then sold and conveyed the whole farm to J S, with notice of the agreei ment. Held, after the agreement was executed, W S became in equity the trustee of the land for H, iaving a lien thereon for the purchase money; and on his conveying to J S, with notice of the trust, J S became such trustee In equity in his Stead, and the lien for the purchase money passed to him along with the burden of the trust. Ten EieH v. Simpson, 1 S. 244, 7: 316 103. Where C sold SO acres of land and took back a bond and mortgage from the purchaser for $870 of the purchase money, and subsequently purchased from K a farm in Canajoharie, and gave to him a bond and mortgage for the purchase money, and as « further security therefor assigned to him the mortgage upon the 50 acres, both of which mort- gages were assigned by K to J in payment of a r written in the margin transversely or other- - wise, amounts to a warranty or condition. CaUaman v. Atlantic Ins. Co. 1 Edw. Ch. 64, 6: 61 WASTE. See also Accountino, 4; Injunction, I. d; Life Tenants, 4. 1. The court has jm-isdiction to prevent a tenant in common from committing waste. Haiwlev V. Clowes, 2 Johns. Ch. 122, 1: 316 2. The court of chancery interferes only to pre- - vent future waste, except in cases where there are some special grounds f oi equitable interference as to waste already committed. Winship v. Pitts, 3 Paige Ch. 259, 3: 145 3. Where waste is committed upon real estate purchased under execution, between the sale auu the expiration of the time allowed for redemption, the purchaser, if the premises are not redeemed, is entitled to the proceeds of the waste, in the hands of the judgment debtor, or of any other person who may have received the same without consider- ation, or with full knowledge of the equitable rights of such purchaser. Boyd V. flbyt, 6 Paige Ch. 65, 3:689 4. It is not waste for a tenant to erect a new edi- fice upon the demised premises, provided it can be done without destroying or materially injuring the buildiniys or ot>ipr improvements already existing thereon. But the tenant has no right to lake down valuable buildings, or to make improvements or alterations which will materially and permanently change the nature of the property, so as to render it impossible for him to restore the same premises, substantially, at the expiration of the term. Winshiv v. Pitts, 3 Paige Ch. 259, 3: 145 5. The ancient doctrines of the common law in relation to waste have been relaxed in favor of modem tenancies, particularly as to buildings erected forthe purposes of trade and manufacture, lUd. 6. Tnrletprmininffthe question whether trees ap- purtenantto a dwelling-house are ornamental trees, BO as to make It waste in a tenant to cut them down, it is important to ascertain the fact whether they have been considered and treated as ornamental trees by the former owners and proprietors of the D x*6rn i86s HawUy v. Wolverton, 5 Paige Ch. 522, 3: 813 7. In a bill for waste, proof of a single clear in- stance of waste committed Intentionally is sufficient to entitle the complainant to a continuance of the injunction and to a decree for an account. The question of costs will be determined after the ac- count is taken. _ _ Sa/rles v. Sarles, 3 S. 601. 7: 972 8. In an account decreed against a tenant for waste of timber, he may be allowed, in mitigation, for firewood and timber furnished by him for the farm from other premises. Ibid. 9. It is not waste for a tenant for life of a farm to 640 WATER COMPANIES— WATERS AND WATERCOURSES, II. a. ell hay to be removed from the farm, where it is the custom of husbandry in the vicinity to sell hay from farms for consumption by others. Ibid. 10. The removal of coarse bog grass from a farm which had usually been foddered on the f arm,— held to be waste. IMd. 11. So of the impoverishment of fields by constant tillage from year to year. Ibid. 12. The erection of a new out-house, with timber from the farm, in place of one which has become ruinous, is not waste. Ibid. 13. In a suit for waste against a tenant for lite and her unaer-tenaut, ou a deurue lor au account against both, the former may insert a provision that the master ascertain what portion of the sum reported against her should be paid by the under-tenant. Ibid. Editorial Notes. Waste; injunction to restrain 1:316, 1046, 3:123, 145 Substantial damage to remainder 7: 972 WATER COMPANIES. 1. The Act for supplying the city with water au- thorizes the commissioneis to enter upon lands and agree with owners of any property " which may be required for the purposes of the Act;" and in case ot disagreement as to " any property which may be required for the said purposes or afFected by any operation connected therewith as to the amount of compensation to be paid to such owner, etc." then the vice-chancellor is to appoint appraisers to ex- amine the property and to estimate the value or damages to be paid. Held, that the commissioners could claim to take the fee of land, although they might only want it for its materials, and even though it wai not within but adjoining the line of their aqueduct. Be Water Commissioners and Lawrence, 3 E. 552, 6: 759 2. Such commissioners, however, can only take private property for legitimate purposes and in strict conformity with the statute and plan for supplying the city with water. IbxA. 3. .4.180 hAd. that, though the commissioners had theretofore taken land from an owner for the pur- pose of the aqueduct, yet their powers were not then exhausted as to him, but that they could, while the work was unfinished, again recur to his lands and require more of it, if necessary. Ibid. i, Bule of compensation where the fee is required by public commissioners, although they want the land only for the materials which are upon it. Ibid . WATERS AND WATERCOURSES. I. Navigable Waters. n. Water Eights. a. Riparian Bights. b. Bights by Grant, Prescription, etc. c. Springs. EuiroKiAL Notes. See also Deed, 26, 27 ; Eminent Domain, 2 ; Evi- dence, 66; Injunction, I. f; Nuisances, 9; Partition, 76-79; Trusts, 38; Wills, 225. I. Navigable Waters. 1. The Albany Basin, notwithstanding the juris- dictiou of the city of Albany over it, can. to the same extent as the navigable waters of the Hudson Blver. be regulated by the Legislature, if not in- consistent with the vested rights of individuals. Bart V. Mayor, etc. of Albany, 3 Paige Ch. ^p. 2. Owners of land fronting on the Harlem River have no greater rights to the water or navigation than more distant proprietors. The corporation ol the City of New York own the land from high- water mark to low-water mark: and all beyond is under the power of the Legislature. Be Water Commissioners, 3 Edw. C!h. 290, 6: 660 3. Where a patent from the State for landaigd,- joining a navigable river, above tidewater, refers, for the location of the lot, to a map on file in th& surveyor general's office, upon which map the lot is laid down as bounded on the river generally, the patentee is entitled to hold to the middle of th& stream, subject to the right of the public to navi- gate the river in such parts of it as are navigable. And subject to such right of the public, the paten- tee is entitled to the use of the water and water privileges naturally connected with the lot thus- granted. Varick v. Smith, 9 Paige Ch. 547, 4:811 4.The several Acts of the Legislature of this State, granting and securing to B. B. Livingston and Kobert Tulton and their assigiu the sole and ex- clusive right of using and navigating boats or ves- sels by steam or fire, in the waters of this State, for- a certain number of years, are constitutioxial and Ogden v. Gibbons, i Johns. Ch. 150, 1: 79r 5. And this court will grant an junction to re^ strain the citizens of another State from navigat- ing the waters of this State by vessels propelled by steam, without the consent of the said B. B. L. and' B, IT. or their assigns, although such vessels may have been enrolled and licensed under the laws of the United States as coasting vessels. Ibid. 6. The running or employing steamboats over the- waters of this btate, for the transportation of pas- sengers between the city of New York and Ehza- bethtown Point in New Jersey, directly or circuit- ously,byopo or more steamboats, and shifting the- passengen from one boat to another at any inter- mediate point between those two places, without the consent of the person to whom Livingston and Fulton had assigned the exclusive right of navigat- ing; steamboats between those two places, is a vio- lation of the right of such assignee; and an injunc- tion was granted to restrain the defendant from so using or navigating steamboats, to the injury of th*^ plaintiff. Ibid. 174, 1: 805- 7. Where the plaintiff, having an exclusive right to navigate witu bteamuouts tue waters of the bay of New York and that pai^t of the Hudson Bivcr Si >uth of the State prison, granted to the defendant tlie exclusive right of navigating with steamboats- between;tfte city of New York and the qUarantine- gi'ound on Staten Island, etc., and it was provided in the grant or assignment, that if the State or I ^gislatuie of New Jersey should, atany time there- at ter, obstruct or prevent the plaintiff from navi- gating with steamboats the waters of that State^ tl at thenceforth the grant should cease and b& V. jii tue eui'Lu, the uwuer oC the land abore where the water of the spring issues from the earth has no right to divert such water, by an ezcaTation or artificial works upon bis own land, to the injury of the landowners below, who are supplied by the waters of such spring in their nat^ iir.il course or by prpsoriptive nse. Smtth V. Adams. 6 Paige Ch. 435, 3: 1051 29. But to entitle a party to come into the court of cbancery for relief, uy lujunction, against tbe Qi- verslon of water to his injury, the amount of in- j ury which he would sustain by a permanent diver- sion of the water must exceed SIOO. And where a bill was filed for a very trifling injury of that kind, it was dismissed, with costs. Ibid. Editorial Notes, Waters; appropriation by eminent domain 3:1148 Injunction to protect rights in 1:332, 2:40, 8:282 to prevent interference with navigation 1:750 Power to compel lowering of dam 2: 614 Damages for diversion of water of spring 3: 1051 Rights of riparian owner 1: 332, 2: 710, 6: 660 Right to use acquired by prescription 3: 281 Right to subterranean waters . 3: 1051 Restoring water to its natural state 3: 282 Boundary, at middle of stream 4: 811 on navigable waters 6:660 Navigable waters; what are; watercourses; waters without currents; waters of United btates; obstructions are nuisan- ces 6: 660 WAYS. See Bj»sements, 10-15. WEIGHTS AND KEASURES. See MONiciPAi. Cobpobations, 6. WHARF. See also Covenant, 11, 12 ; Deed, 28, 1. "The right to erect a wharf and to receive tolls for tfce use thereof is a franchise, and cannot be ex- ercised by an individual citizen, except under a grant f one of a different character, ibid 16. Valid wills are made daily by persons in the last stages of ulsease, when the uouily functions are totally prostrated and the mental powers much im- paired. These circumstances are not considered as entitled to weight, unless the testator's bequests are extravagant or widely different from those which bis situation and that of his family woul(f lead a sensible man to expect. IMd, 17. In a suit to set aside a devise on the ground of the mental incapacity of the decedeilt, and of un- due influence exercised by his second wife, it ap- peared that the decedent, a very active, intelligent business inan;'when in his-sixty^seventh year had ai severe attack of apoplexy, which entirely pros- trated him in mind and body for two or three months, after which he slowly recovered, so far as to transact bis business and sign his name, for two or three years. He continued partially paralyzed in his limbs, so as to be confined to his room, and most of the time bedridden, though occasionally riding in a carriage. His utterance was impeded and not intelligible to those unaccustomed to it: and to such persons he appeared childish. After he had recovered from the severity of the attack, his- wife died, and seven months after that he married her sister. Nineteen months subsequent to this^ event, he made a will giving to her a life interest in all his property, and dividing the capital among hiS" and her relatives. The will was prepared by a soli- citor in his presence, carefully read to and signed' by him, and the three witnesses to ita execution concurred in his being mentally capable of making- it. His nearest relatives by blood were two nieces having families, and another an infant; and he gave to the three, five eighths of his estate after his- wife's death. There was conflicting testimony as to his mental capacity, but the court sustained the devise; and there being sufficient mind, and the- weight of evidence being against the allegation of undue influence, the court pronounced against that allegation. ibid. 18. A will is not to be set aside on as slight evidence^ ot mental unsoundness as would ovei'tum a con- tract or conveyance executed on a consideration very questionable or on terms grossly unequal, or a gift inter vivos to one who had no reason to ex- pect it from the donor. Ibid. 19. If a married woman may dispose of her property Dy will according to the laws of the country where> she is domiciled, her will may be proved and estab- lished as a valid will of personal property in New Ynrk. and letters testamentary will be granted here. Be SUwart, 11 Paige Ch. 398, 5: 1 76 20. The will of a feme covert is not valid as a will of real piopertysitUKtedin the State of New York, al- though it would be valid by the laws ot the State where she was domiciled and where such will was- executed. i&fd;. 21. The will of a. feme covert whose residence was without the State may be proved and established, here as a valid execution of a power of appoint- ment authorizing her to dispose of her real estate by will. Ibid. 22. A feme covert cannot, under the provisions of the Revised Statutes, make a will of her general .personal estate during coverture, founded upon the mere assent of the husband to the making of suclt' will. Moehringv. Mitchell, 1 Barb, Ch. 264, 6: 37» . S. C. 5 Ch. Sent. 60, 5: 1186 23. And it seems that she cannot dispose of her separate estate by will, unless such will is made in [pursuance of a power, either beneficial or in trust, to dispose of her separate estate by will or by a testamentary instrument in the nature of a will.. Ibid. 24. But a feme covert having personal estate con- veyed to her separate use, with an express power' to dispose of it by will at her death, may make a will or an instrument in the nature of a will, for the purpose of appointing or disposing of such- property in pursuance of such power. Ibid. 25. The testamentary instrument which a married' woman executes under a power of appointment, either as to her real or personal estate, is not strictly -544 WILLS, 1. 0. « will; nor does it operate as 8uoh In the proper legal sense of the term. It operates as an appointment; *nd the devisee or legratee takes the property by the force of the power. Strong v. WWiin. 1 Barb. CSi. 9, 5: 277 0. Form; Execution; Publicatian. 28. A Scotch deed of disposition and settlement, if duly executed as a testamentary disposition of the testator's property according to the laws of Scotland, and in the presence of two witnesses as required by our laws, is a valid will of the testator's ireal and personal pronerty in this State. Be SfMton's TTili, 6 Paige Ch. 183, 3:948 27. A will of personal property, made out of this £tate by a person who was not a citizen of this State, cannot be admitted to probate by the court •of chancery here, unless it was duly executed ac- .cording to the laws of the State or country where dt was made, although the testator was domiciled liere at the time of his death. Re Roberts's Wm, 8 Paige Ch. 446, 4: 497 28. S, being about to sail on a voyage to the West ludies, where he afterwards died, addressed a let- ter to M, containing the following clause: "A thousand accidents may occur to me, which might -deivive raLysisterB'of that protection whi«h it woilld be my study to afford; and, in that event, I must beg that you will attend to jutting them in posses- sion of two thirds of what I may be worth, appro- :priating one third to Miss C and her child, in any manner that may appear most proper." This was held to be a valid will, especially atter it had been proved as the last will of S, by the surrogate, and administration granted with the will annexed; and that C and her son were each entitled to a moiety -of one third of the personal estate of the testator, in the hands of the administrator. JrforreB V. Dfcfcey, IJohns. Ch. 153, 1:96 29. Where a testamentary paper purporting to t)e a will of personal estate was prepared by the testator in his own handwriting, with attestation -clause, and leaving blanks for the date ; and upon his death, twenty-seven years afterwards, it was found among his valuable papers in this State, with - -out subscribing, witnesses, date, or signature,— It was held to be an unexecuted and unfinished in- -strument, and not a valid will of personal estate. Public Admr. of New TorU v. Watts, i Paige Ch. -347, 8: 673 30. Where, from an inspection of a testamentary £aper, or otherwise, it appears that the deceaucu itended the same to operate as his will, without .any further act on bis part, and without the addi- tion of any other formalities. It is a valid will of personal property. Ibid. 31. But if some other act or formality was sup gosed necessary by the testator, or was mtendeu w e done and observed by him, it is an unfinished or unexecuted will, and is not valid unless the testator was arrested by death before he had a reasonable time to complete his will in the manner Intended. Ibid. 32. The provision of the Revised Statutes, requiring wills to be executed in the presence- of two wit- 'iiesses,does not apply to a will of personal property' •executed out of this State, by a person dotmcilfid where such will was executed, and who continued to reside there until his death; neither does 'it ap- ply to wills of personal estate made before the Ee- vised Statutes went into effect, although the testa- te" was domiciled here at the time he died. Re Roberts's Wm, 8 Paige Ch. 446, 4: 497 33. In the execution of wills, the statute does not require any particular form of words to be used by the testator, either in the admission of his signa- ture, in the publication of the instrument as his •will, or in the communication to the witnesses of ihis request or desire that they should subscribe their names to the will as attesting witnesses to the fact of its due execution by him. It is sufficient it the formalities required by the statute are oom- .plied with in substance. Ndson V. McGiffert, 3 Barb. Ch. 158, 5: 855 34. To prove the due execution of the will, each -of the statutory requisites must be shown,— viz., the testator's subscription at the end of the will, made in the presence of each of the two witnesses, -or acknowledged in their presence; its publica- tion; and its attestation by two witnesses at bis re- •quest. Grant v. OranU 1 Sandf. Ch. 235, 7: 318 35. It is necessary that the attesting witnesses should see the testator, or someone for him, sign the instrument which they are called upon to wit-> ness; or that the testator should either say or do something in their presence and hearing, indicating that he intends to recognize such instrument or pa- per as one which has been thus signed by him and upon which bis name appears, as a valid will, or as having been signed by his authority, for the pur- poses therein expressed. Jauncey v. Thome, 2 Barb. Ch. 40, 5: 549 8. C. 6 Ch. Sent. 45, . 6: 1808 36. But it is notnecessary that the testator should, in express terms, declare thac nis name, signed to the will, was so signed by hiih, or that it was so signed by his authority and direction and n his presence. Ibid. 37. The production of the will, with hisnamesub- Ecrlbed to it, and in such a way that the sit^nature can be seen by the testator and by the attesting wit- nesses, and the request of the testator that they should witness the execution of the instrument by him or as his will, would of itself be a sufficient ac- knowledgment of his signature to render the will valid, under the provisions of the Act of March 5, 1813, concerning wills. Ibid. 38. Where the instrument propounded as a will was wholly in the iiandwuting of a third person, and was executed by the decedent merely by sign- ing it and acknowledging it to be her betnd and seal in the presence of the subscribing witnesses; and the instrument was not read, nor was anything said at the time from which the witnesses understood it to be a will,— JfeW, that it was not duly executed and published by the testatrix, so as to make it a valid will, under the provisions of the Revised Stat- utes, although the attestation clause, which was not read by or in the hearing of the witnesses, stated the will to have been diuy published in the pi-ftcence of such witnesses. Brlnckerhoof v. Remsen, 8 Paige Ch. 488, 4: 514 39. The Revised Statutes having provided that the testator, at the time of signing or acknowledging his will in the presence of each of the witnesses thereto, shall declare the instrument so subscribed to be his last will and testament, there must be an actual publication of the instrument, as a -wilL in the presence of the subscribing witnesses, in addi- tion to the other formalities required by the stat- ute. ItM. 40. No particular form of words is necessary to be used by the testator in declaring the instrument signed by him to be his will, if ne actually com- municates to the attesting witnesses the informa- tion that he knows and understands the nature of the instrument he is executing and intends dis- tinctly to recognize it as his will. Ibtd- 41. But to render a will valid, under the provisions of the Revised Statutes, the subscribing witnesses thereto must, at the time of its execution, know it to be a will, and must also know that the testator understands it to be and means to execute it as a will. Ibid- 42. Where the attestation clause Is in the usual form, stating the will to have been executed and published by the testator as his last will and testa- meht, ih-tfae'i)resenc6-of the witnesses, specifying ■ that all the requisite formalities were complied with, if such attestation clause is read over in the presence and hearing of the testator and the wit- nesses, and understood by him and them, a request from the testator that they -will subscribe the same as witnesses to his execution thereof -will of itself be a sufficient publication of the instrument as his last will and testament. Ibid. 43. The subscription of the will must be made by the testator in the presence of each of the attesting witnesses, or it must be acknowledged by him to have been so made to each of the attesting wit- Chaffee v. Baptist MissUmary Conv. 10 Paige Ch. 8S< 4: 896 S. 0. 2 Ch. Sent. 67. 5: 1096 44. Where the testator, at the time of the execu- tion of his wiiU in presence of the attesting wit- nesses, placed his finger on his name, subscribed at the end of the will, and acknowledged that it was his last will and testament; but there was no evl- dence that he subscribed it in the presence of the attesting witnesses, or that he aclmowledged in their presence that such suliscription was made by him or by his direction or In his pre8enee,-He!4 that the will was not duly executed. Zbi£, 45. The making of his mark at the end of the WILLS, I. d. 545 "Will, by the testator, is a auffloient signing of the will to he a compliance with the requli'ements of ■the statute. Ibid. 46. It is proper that the whole attestation clause .should, at the time of the execution of the will, he read over in the hearing of the witness and of the testator; and where the testator is illiterate, it is also proper that the whole wUl should be deliber- ately read over to him in the presence and hearing of the witnesses, and that the fact of such reading In his presence should be stated in the attestation clause : or at least the witnesses should, by indui- ries of such illiterate testator, ascertain the fact that he is aware of the contents of the Instrument which he executes and publishes as his will, and that he is possesseu of a competent understa.uung ■to make a testamentary disposition of his property. The neglect, however, of these precautions, will 'not render the will invaUd, if the court and jury before whom the question of its validity is tried are satisfied, upon the w Uole evidence, that the will was duly executed, and that the testator understood its contents. Ibid. it. Where any of the formalities required by the statute in the execution of a wUl £ire not substan- tially complied with the will is void. Ibid. 4S. An attestation clause showing upon its face that aU the forms required by the statute have been ■complied with, is not absolutely necessary to the validity of a will, as the subscribing witnesses will ibe permitted to prove that the forms were in fact comphed with, although the attestation clause is «ilent on the subject. Ibid. 49. And after the death of the subscribing wit messes, a compliance with any of the forms required by the statute, and not noticed in the attestation •clause, may even be presumed from circumstances. Ibid. 90. Although the attestation clause to a wiU states that all the formalities required by the statute in the execution of the will have been complied with, the fact may be disproved by the subscribing wit- Ibid. 51. But a proper attestation clause showing that all the statute formalities have been complied with will, in the absence of proof to tne contrary, be presumptive evidence of the fact after the death ■of the subscribing witnesses, or where, from the lapse of time, the witnesses canuot recollect what took place at the execution of the will. Ibid. SS. A proper attestation clause is also important ■to show that the person who prepared tne will knew what formalities in its execution were re- ouired, and to raise the presumption that he gave to the testator the necessary information in rela- tion thereto; or, if he was present-at the execution of the will, that he took care that such formalities were complied with. Ibid.' 53. No person should subscribe his name as a wit- ness to a will until he is clearly satisfied that the testator is possessed of a sound and disposing mind and memory, and that) in'executing his will he acts understandingly and with a full knowledge of fits •contents. Seribner v. Crane, 2 Paige Ch. 147, 8: 850 d. Bevocation; Bevival. 54. A will duly executed, which in terms revokes all former wills and appoints executors, is a valid revncation of a former wiii disposing of a part of the testator's property, alttiough the will contain- ing such clause of revocation makes no disposition of the property embraced in tlie former will. Be Thomvson, 11 Paige Ch. 453, 6: 195 55. A subsequent will does not revoke a former ■one, unless it contains a clause of revocation, or is inconsistent with it. And where it is inconsistent with the former will in some of its provisions mere- ly, it is only a revocation vro tcmto. miscm V. McGiffert, 3 Barb. Ch. 158, 5: 855 56. Where a subsequent will has been made, and there is no evidence that it contained any clause revoking a former will,— as in cases where the con- tents of the last vll cannot be ascertained,— it is not a revocation 'jt the former will. Ibid. 57. Subsequent marriage, and birth of a child, are ■an implied revocation of a will, either of real or personal estate. Brush V. Wilhiru, i Johns. Ch. 506, 1: 018 58. But such presumptive revocation may be re- butted by circumstances. Ibid. 'Ch. Dig. 35 59. It seemn that a subsequent marriage or subse- quent birth of a child alone will not amount to an Implied revocation. Ibid. 60. Implied revocations of wills are not within the Statute of Frauds. Ibid. 61. A will duly executed, but revoked by a subse- quent marriage, and birth of a child, cannot be con- nected with a will subsequently made, but notexe- cuted with the requisite solemnities to pass real estate, so as to constitute a valid will; butthee.state descends to the heir at law. Ibid. 62. A contract to sell lands is a revocation, pro tanto, of a prior will ; but the latter remains in force as to the legal estate ; the title passes to the devisee ; and he will be a trustee for the purchaser and com- pelled to convey. Gaines v. Winthrop, 2 Edw. Ch. 671, 6: 508 63. To give effect to a devise, the testator must not only be actually seised of the land devised, at the time of making his will, but must continue So seised to the time of his death. Minuse v. Cox, 5 Johns. Ch. 441, 1: 1135 64. A conveyance, therefore, by the testator, of land devised by him, is so far a revocation of his will. Ibid. 65. The provisions of the Revised Statutes relative to implied revocations of wills of real estate do not extend to the case of an actual conversion into personal property of the real estate devised, subse- quent to the making of the will, by selUng and con- veying the testator's whole interest in the land and taking back a bond and mortgage for the purchase money, or a part thereof. Adams v. Winne, 7 Paige Ch. 97, 4: 80 66. After making his will, the testator conveyed his share of the real estate under the will of his ue- ceafied father, and which made part of the testa- tor's real estate devised to his children, to trustees, to pay the debts of his father, and then in trust for the devisees of his father and their representatives. HeM, that this subsequent conveyance, being for the mere purpose of paying debts, was not a revo- cation of the will beyond that particular purpose; but the trust as to the residue was for the devisees, and not for the heirs of the testator. lAvinggton v. lAvingaton, 3 Johns. Ch. 148, 1: 673 67. A subsequent conveyance by the testator, in trust for the payment of debts, and the residue for the testator and such persons as would have held the same before the conveyance, is not a revocation of his ■will beyond such special purpose. Ibid. 155, 1: 576 68. The testator devised two lots with the build- iuga to his brother in satisfaction of the latter's claims upon him. After the date of the will and be- fore his death he erected buildings on the two lots, which nearly doubled their value. He also reduced the amount of his debt to his brother. Held, that these acts were not a revocation of the devise. Havens v. Havens, 1 S. 334. 7: 346 69. Where an estate specifically devised is sold by the testator, by an executory contract, it is a revo- cation of the devise in equity ; for the estate, from the time of the contract of sale, is considered as in the vendee. TTaltonv. Walton, 7 Johns. Ch. 258, 8: 886 70. A devise once revoked, expressly or by impli- cation, cannot be restored without a republication of the will. IMd 71.1f a testator conveys the estate devised, though he takes it back again by the same instrument or otherwise, it is a revocation at law and in equity, though he did not intend to revoke his will. Ibid. 72. But a mortgage or charge by the testator for the payment of debts is not a revocation beyond the special purpose of it. Ibid. 73. A conveyance, inoperative for want of com- pletion or incapacity of the grantee, mar amount to a revocation, if it shows the intention of the tes- tator to revoke his will. Ibid. 74. Where the testator entered into a written con- tract for the sale of part of the land devised,— fleid, that this is a revocation pro tanto, in equity, though not at law. Ibid. 75 And though the contract of sale was rescinded by the purchaser, ana the testator, who was jus restored to his former title and estate, died seised of the same land,— Held, that the devise was, never- theless, pro tanto revoked and gone forever. Ihia. 76. A testator by his wiU gave eleven one hundred 546 WILLS, I. e, 1. and sixth parts of nls real and personal estate to a trustee in trust to keep it as It was, or to sell and conr^7 Jt, as li£ might deem most expedient, and to invest the proceeds in real property or personal se- curities in his discretion, to collect the rents and income during the life of the testator's son J, and to apply the same to the use of J during his life, for the support of himself and his family during that time, m sums, time, and manner in the trustee's discretion; and after J's death the trust was to cease, and the trust fund, with all its increase and accumulations, was to be divided and distributed between, the children of J then living and the issue of his deceased children, per stirpes. If J left no children, the same was to go to the other children of the testator. By a codicil the testator de\ised and bequeathed all the property, estate, or interests he had by the will devised or bequeathed in trust lor the wife and children of J and their children, heirs, etc., to his son J and his heirs and assigns, af and for his own proper estate, thereby and for that purpose revoking the trust. Meld, on the construc- tion of the will and codicil, that the trust in the will was for the benefit of the wife and children ol J in respect of the sale of the real estate, for the accumulation of the rents and income, and for thi application of the same for the support of J's fam- ily: and that by the codicil the whole trust was re- voked, and an absolute legal estate given to J in the eleven one hundred and sixth parts of the tes tator's property. Coster V. Coster, 3 S. Ill, 7: 791 77. A codicil, with three competent witnesses, be- ing executed with all the solemnities required by the statute,may be a republication of a will, so as to give effect to a devise, otherwise void on account of the devisee being a witness to the original wUl. Jfooers V. White, 6 Johns. Ch. 376, «: 155 o. Probate; Contest; EstablisMng Foreign Will. 1. In Oenercd. 78. An application to the surrogate to prove a will of personal estate may be made either by the executor or by any other person interested in the estate under the will. Foster v. Foster, 7 Paige Ch. 48, 4: 55 79. Where a will has been established and admit- ted to be recorded by the surrogate, upon service of the citation upon one of the heirs at law and next of kin, who was a feme covert, without serving it upon her husband, the husband cannot apply in his own name only to set aside the decree; but the application must be made in the name of the hus- band and his wife jointly, if the proceeding upon the service on the wife only was irregular. Bibby v. Myer, 10 Paige Ch. 320, 4: 958 80. Where a person appears before a surrogate to oppose probate of a wlU, he is bound. If required by the adverse party, to propound his interest, or show his right to contest the will. Public Admr. of New York v. TTatt*, 1 Paige Ch. 847, a: 673 81. If issue is taken on the allegation of interest, the evidence in relation to that question and that which relates to the validity of the will should pro- ceed pari passu. Ibid. Sit. A person claiming as next of kin should, in his allegation of interest, show how he was related to the deceased. Ibid. 83. An allegation, by a party coming to contest a will, that he is nearer of kin to the deceased than any other person residing in the United States, is not sufficient. Ibtd. 84. When the testator and all the witnesses to the execution of a will are deaa, a bill cannot be filed in this court by a devisee to take proofs of the due execution of the will and the sanity of the testator, with a view to have the same recorded as a will of real estate. The court of chancery has no power to give to proofs taken under such a bill the effect of a record of a will duly proved. But the court of chancery has power to cause the necessary proofs to be taken to perpetuate the testimony of the wit- nesses to the necessary facts. Stephens v. Brooks. C. 130, 7: 71 85. Devisees claiming the estate, or an Interest therein, under a will which is alleged to have been fraudulently destroyed, may file a bill to establish the will, and to set aside as Invalid a subsequent will which purports to make a different disposition of the property. And in such suit, the devisee in the last will, as well as the heirs at law, are proper parties, _ „ „_™ Bowen v. Idley. 6 Paige Ch. 46, 3: 893 86. Where an executor, devisee, or any other per son who is interested in establishing a will of reaf estate, applies to the surrogate to have the will proved, it is only necessary to give notice of such application to the heirs at law of decedent. Jauncey v. Rutherford, 9 Paige Ch. 273, 4: 69» 87. The probate of a will of personal property, whether such probate was obtained by a summary or a plenary proceeding, if granted by the proper testamentary court, is conclusive evidence of the due execution of such will, until such probate has been called in or annulled by such court, or has been reversed on appeal to theproper tribunal. Muir V. Leake & W. Orphan Sumse. 3 Barb. Ch. 477, 5:97» 88. If a will is destroyed in the lifetime of a testa- tor, without his knowledge. It may still be estab- lished upon satisfactory proof of its contents, and destruction. Bowen v. Idley, 1 Edw. Ch. 148, 6: 92 89. Where a testator has been induced to make a will in consequence of a gross fraud practised upon him by means of a conspiracy, the court of chan- cery has power, by consent of parties, to make a decree declaring the same void and that it was ob- tained by fraud and imposition, so far as relates to the parties to the suit. CJorJce V. Satoyer, 2 Barb. Ch. 411. S:695 90. Whether the court of chancery has Jurisdic- tion to decree a will void, except by consent of parties, without awarding an issue deviiaMvelnon. —gucBre. jbui. 91. The court of chancery has no original juris- diction to try the validity of wills of personal es- tate. CoUon V. Boss, 2 Paige Ch. 396, 2: 959 92. The jurisdiction of the court exists only in case of an appeal from the decision of the surrogate. Ibid. 93. Where no appeal is made to the court of chan- cery, the probate of the will before the surrogate is final and conclusive as to the personal estate. Ibid. 94. The court of chancery has no jurisdiction to sec aside a will of real estate, on the ground of the incompetency of the testator ; and wherever the complainant nas a perfect remedy at law, if the de- fendant raises the objection by demurrer to the bill, or insists upon it In his answer, the court will refuse to sustain the suit. Ibid. 95. The courtr however, frequently decides upon the validity of a will of real estate, where the ques- tion arises collaterally ; but in such cases, if the heir insists upon the invalidity of the wUl in his answer, an issue will be awarded to try the question at law. Ibid. 96. Where a biU is filed by the heirs at law against the devisee in possession, to set aside a will of real estate, on the ground of the testator's Incapacity, or that the devise was the result of undue Influence. it will be a valid objection, upon demurrer to the bill, that the complainants have a perfect remedy at law, and that the court of chancery has no Juris- diction of the case. Bowen v. Idley, 6 Paige Ch. 46, 3: 893 97. Upon the proving of a will before the surro- gate, he has jurisdiction aud power to receive proof that such will was revoked by a subsequent will of the testator, and that such subsequent will has been fraudulently destroyed, or that it was destroyed by the testator when his mind had become so far im- pair-'d that he was incompetent to perform a testa- mentary act. Nelson v. McOiffert, 8 Barb. Ch. 158, 5: 855- 98. But the chancellor alone has the power to- take proof of the will which was thus destroyed, for the purpose of establishing it as a testamentary disposition of the property of the decedent. Ibid. 99. In resisting the probate of an instrument pro- pounded as the last will and testament of a dece- dent, his heirs and next of kin have the right to In- troduce any testimony which will be sufScient to satisfy the surrogate that the instrument pro- pounded was not in force as a valid will at i.he death of the testator uiimed therein. !uid. 100. It seems that a will of personal estate Is valid If made and executed In conformity to the law of the testator's domicile, although It does not WILLS, I. e, 2. 547 conform in all respects to the law of the place where It is executed; but If the testator is not a citizen of this State, such a will oaunot be proved in this State upon a commission from the court of chancery, or by the mere production of the foreign probate to the surrogate, under the special pro- vision of the Revised Statutes on this subject. Be Boberts'a Will, 8 Paige Ch. 519, 4: 537 101. Where a wU was mad"! ani the tpstator died previous to the Revised Statutes, but the will was proved before the surrogate alter Jan. 1, 1830, and before the passage of the Act of May, IBS'?, con- cerning the proofs of wills, etc.,— Held, that the for- malities requisite to the due execution of the will were those which were required by S 2 of the Act of March 5, 1813, concerning wills; but that the mode of proof must be that which was prescribed by the provisions of the Kijvised Statutes, which were iu I'orco when the will was propounded for probate. Jcmncey v. Thome, Z Barb. Ch. 40, 5: 549 102. Proof of instructions is never called for when the will propounded is ofBcious,— i. e., bestows the property upon those who have natural or direct claims upon the bounty of the testator, Glarlce v. Sawyer, 3 Sandf. Ch. 351, 7: 879 ] 03. It is only where the person who draws or pro- cures the will takes a oenellt under it, and there are circumstances of suspicion, greater or less, arising from the capacity of the decedent, the extent ot the gift to such person, the claims of others upon the decedent, the amount of his property, or the like, that proof of instructions is required. Ibid. 104. On a bill to establish a lost wiU, proof must be made of its execution and validity, its contents by two witnesses, its existence at the death of the tes- tator, and its loss. Grant v. Grant, 1 Saudf. Ch. 235, 7: 318 105. If established at all, it must be established against all the heirs at law of the decedent. Hence testimony of the admissions of part of the heirs does not furnish the requisite proof. ihid. 1C6. The evidence to prove the execution of a lost will was that ot a solicitor, wuo tesiiiied that ho drew a will for the decedent at the date alleged; that he cannot recollect who witnessed it; that he was in the habit of witnessing wills, and his clerk, it present, usually witnessed them; and of the solici- tor's clerk, who testifled that the will was drawn up in the solicitor's oiBce; that he cannot say posi- tively who witnessed it; his impression is that he witnessed it, hut he cannot say with certainty. Held, that the testimony did not establish the exe- CDtion of the alleged will. Ibid. 107. Even upon a bill filed to establish a will of real estate, and where the decree is to be conclusive upon the rights of ithe heirs at law, the court of chancery does not require that each subscribing witness shall be able to recollect and prove that all the formalities required by the statute were com- plied with. Jaunuy v. Thorne, 2 Barb. Ch. 40, 5: 549 108. The rule of the English Court of Chancery is that upon such a bill all tne subscribing witnesses, if living and competent to testify, must be called by the party seeking to establish the will, and must be examined by him, so as to give theadverse party an opportunity to cross-examine them as to the sanity of the testator and the circumstances attend- ing the execution of the will. And the rule is the same upon the trial of an issue of devisauit vel imn awarded by the court of chancery. Ihid. 109. But it is not necessary that all the witnesses should testify to the due execution of the will, and that the testator was of sound and disposing mind and memory at the time of the execution thereof. Jbid. 110. In a proceeding before the surrogate to prove a will ot real estate, under the provisions of tlic Ke vised Statutes, it is not necessary that each witness to such will should be able to swear that all the re- quisites of the statute which was in force at the execution of the will were complied with. Ibid. 111. The statute only requires, in such cases, that It should appear, from the proof taken before the surrogate, that the wiU was duly executed by a tes- tator who was competent to make a will, and who was free from restraint. Ibid. 112. Where any of the witnesses are dead, or in such a situation that their testimony cannot be ob- tained, proof of their signatures is received as sec- ondary evidence of the facts to which they have attested by subscribing the will as witnesses to thw execution thereof. Ibid. 113. Where one of the subscribing witnesses to a will swears that all the formalities required bv the statute were complied with on the execution tnere- of, the will may be admitted to probate, notwith- standing the other subscribing witnesses may not be able to recollect the fact. Nelsion V. McOiffert, 3 Barb. Ch. 158, S: 855 114. Where the attestation clause of a will states that the will was signed, sealed, and published by the testator as his last will and testament, in the presence of the attesting witnesses, who, at his re- quest and in his presence, subscribed their names as witnesses thereto, this, after a considerable lapse of time, and when it may reasonably be supposed that the particular circumstances attending the execution of the will have escaped the recollection of the attesting witnesses, is a circumstance from which the court or a jury may infer that these re- quisites of thestatute were complied with. ibid. 115. The most liberal presumptions in favor of the due execution of wills are sanctioned by courts of justice, where from lapse of time or otherwise it might be impossible to give any positive evidence on the subject, Jauncev v. Thome, 2 Barb. Ch. 40, 5: 54» 116. A will may be sustained, even in opposition to- the positive testimony of one or more of the sub- scribing witnesses, who, either mistakenly or cor- ruptly, swear that the formalities required by tne statute were not complied with, if, from other tes- timony in the case, the court or jury is satisfied that the contrary was the fact. ZbidL 117. In case of the death of the subscribing wit- nesses to a will, their signatures at the end of an at- testation clause, stating in the usual form;that all the formalities required by law were complied with, would, when duly proved, be sufficient evidence that the will was executed and published by the testator in due form, Brinckerhoof v. Bemsen, 8 Paige Ch. 488, 4: 61* 118. Where the subscribing witnesses to a will have subscribed their names as witnesses at the end ot an attestation clause showing that all the for- maUties requisite to a valid execution of the will were comphed with, the mere inability of the wit- nesses to recollect that the testator published the instrument as his will is not sufficient to invalidate the same, unless the witnesses recollect that he did not declare it to be his will, and that the attestation clause was not rcMd cad understood at the time of the execution of the instrument. Ibid. 119. The burden of proving the due execution of the will lies upon the party seeking to establish it ; but it may be proved by other evidence than that of the subscribing witnesses ; or its due execution may be inferred from circumstances, where the subscribing witnesses are dead , absent, or otherwise incapacitated to give testimony ; or where, from lapse of time or otherwise, they are unable to recol- lect whether the requisite formalities were ob- served when they witnessed the execution of the instrument. Chaffeev. Baptist Mis. Conv. 10 Paige Ch. 85,,4: 896 120. When a will is produced . subscribed by the testator, with an attestation clause signed by two witnesses, stating that he subscribed it in their presence, and declared it to be his last will and tes- tament, such subscription and publication will be presumed on proof of the signature ot the witness- es, although they have forgotten the occurrence. Grant v. Grant, 1 Sandf. Ch. 235, 7: 312 121.Where executors prove the will and a codicil thereto, and undertake the execution of the same, they cannot afterwards object that the codicil was not properly executed. FritOuM-d v. Hicks, 1 Paige Ch. 270, 8: 64a 2. Commission. 122. The sound construction of Act April, 1830, 8S 12, 16, amending the Revised Statutes, is that ito chancellor may issue a commission to prove a will, either of real or personal estate, in any case where, from the absence of the will or the noiiresidencc of witnesses in this State, it cannot be proved be fore the surrogate. Be HorTihi/'s Will, 2 Paige Ch. 429, 2:976 123. Such commission may be issued by the chan- cellor, although aU the subscribing witnesses to the will are dead; but in such a case the proof takes will have no greater effect as evidence than a will 548 WILLS, II. a. proved before a surrogp.te without producing any of the subscribing witneeaec thereto. Tbid. 124. The chancellor alone can grant a commission to take proof of a will out of the State, and It can- not be issued by the direction of a vice-chancellor. All the proceedings must be entered in the office of the register at Albany. Ibid. 125. In issuing a commission to take proof of a will in a foreign country, for-the purpose of establish- ing the same andhaving it recorded as a will of real estate within this State, the same notice of the ap- £licatlon for a commission must be given to the eirs at law of the testator and the persons Inter- ested in oontestlngthe will as is requiredupon prov- ing a will before a surrogate. Be Atkinson's Witt, % Paige Ch. 2U, 8: 880 126. Persons authorized to contest the validity of the will may join in the commission, and may be permitted to name a commissioner on their part ; and they will also be entitled to reasonable notice of the time and place of executing the commission. BM. 127. A commission to take proof of a will 'of real estate can only be granted upon the application of a person interested in the establishment of thewilL It should therefore appear from the bill or petition that the decedent left real property in this State, in which the applicant for such commission had some legal or beneficial Interest under the alleged will. Be Boston's Will, 6 Paige Ch. 183, 3: 948 128. To authorize the chancellor to issue a commis ■ sion to make probate of a will of personal property, the applicant must show that the decedent, at the. time of his death, left assets in this State, or that fleets have come into this State since his death. The bill or petition must also state the necessary facts to show what surrogate has jurisdiction to grant letters testamentary or of administration, so as to enable the chancellor, after the will is proved, to send the mandate to the proper surrogate for that purpose. Ibid. 129. The prayer of the biU or petition upon which an application for a commission is made should show whether the will is to be proved as a wiU of real estate, or as a will of personal property, or as a will of both. Jbid. 130. Where the will is to be proved as a will of real estate, the applicant should, in his bill or peti- tion, state, either positively or upon information and belief, that the instrument propounded is the last will of the decedent, and was executed in due form of law to pass real property ia this State. He must also show who are the legal heirs to whom by the laws of this State such real property would have descended If the decedent had died intestate, and the names and residences of such heirs, so far as the same can be ascertained, to enable the chan- cellor to determine what notice should be given to them of the proceedings to prove the will. And it the decedent left no heir capable of inheriting lands in this State, that fact should be shown. Ibid. 131. When the instrument propounded is to be proved as a will both of real and personal estate, or as a will of personal estate merely, if the decedent at the time of his death was not domiciled in this State, or if the will was executed out of the State, the domicile of the decedent at the time of his death should be stated; and also the names and res- idences of his next of kin, or of those who in case of intestacy would have been entitled to the succes- sion to his personal estate according to the law of his domicile, so far as the same can be ascertained. Ibid. 132. And where a will of personal estate was ex- ecuted in any other State or country, by a decedent who was not a citizen and inhabitant of this State, the applicant must show that the instrument pro- pounded as a wlU was duly executed, so as to make a valid testamentary disposition of the decedent's personal property ,accoraingto the law of the place where he was domiciled and where such will was made. Ibid. II. CONSTBtTOTION ; DEVISE AND LEGACY. a. General Bvles. 133. Although the intention of a testator is the ffdveming principle with the court when looking at his will, yet the court is bound by precedents and authority, and will not proceed on arbitrary oonjee- tu re in settling its construction. KtansUmd v. Bapelye, 3 Bdw. Ca. 1, 6: 549 134.1f the Intention of the devisor In a wfll,or of the grantor In a deed, is Illegal or Incapable of Beinsr carried into effect, the court of chancery ia not au- thorized to frame and decree the execution of a new Intention for the devisor or grantor, as near as prac- ticable to his original Intent, by extending the doc- trine of cy pres to such a ease. But where separate and distinct interests or estates are created by will or deed, some of which are legal and others illegal, the court must carry into effect so much of the in- tention of the testator or grantor as is consistent with the rules of law, where it is practicable to sep- arate the legal from the illegal interests or estates thus created. -t, . r^ ,»„ „ „»• LoriUard v. Confer, 5 Paige C!h. 172, 3: 674 135. It is a cardinal rule in the construction of wills, that the Intention of the testator Is to govern, If consistent with the rules of law: and he is not bound to use any particular form of words to devise or bequeath a legal Interest in property, or to desig- nate the objects of his bounty, provided he uses language which Is sufficient to show his intention. Hone V. Van SOiaidk, 3 Barb. Ch. 488, 5: 983 Irving v. Ue Kay, 9 Paige Ch. Wi., 4: 800 S. C. 2 Ch. Sent. 17, 6: 1085 CouenftoDen V. STiiJler, 2 Paige Ch. 122, 2:839 Parks v. Parks, 9 Paige Ch. 107. 4: 637 Crosby v. Wenaett, 6 Paige Ch. 548, 3: 1096 136. The testator's intention is to be ascertained from the whole will taken together, and not from the language of any particular provision or clause thereof when taken by itself. Ibid. 137. Full effect should be given to the particular intent, as well as the general intent of the testa- tor, so far as his particular intent can be ascer- tained by the will, and as is consistent with the rules of law and with his general intent ; which general intent must control in the construction of Parks V. Parks, 9 Paige Ch. 107, 4: 627 138. In the construction of wIUs, if the language of t&e testator is such that it may be construed in two different senses, one of which would render the dis- position made of his property Illegal and void, and the other would render It valid, the court should give that construction to his language which will make the disposition of his property effectual. Butler V. Butler, 3 Barb. Ch. 304, 5: 910 Pond V. Bergh. 10 Paige Ch. 140, 4: 919 139. Where a recital in a wlU manifests an inten- tion to make a present bequest, and the words of actual bequest are omitted by Inadvertence or mis- take, the words will be supplied; and the words will amount to an Implied bequest. Marsh v. Hague, 1 Edw. Ch. 174, 6: 101 140. The Introductory part of the will has some effect In the construction of the subsequent devises; but the intention manifested in the introductory part is not alone sufficient, without an actual de- vise. Earl V. Grim, 1 Johns. Ch. 494, 1: 220 141. If two parts of a will are irreconcilable with each other, the last part is generally to be taken as evidence of the latest intention of the testator. But this rule is only applied to those cases where the two provisions are totally inconsistent with each other, and where the real intention of the tes- tator cannot be ascertained. Covenhoven v. Shuler, 2 Paige Ch. 122, 2: 839 Porte V. Parks, 9 Paige Ch. 107, 4: 62 7 142. In the construction of a will, if It be Impos- siDie, according to established principles, to give effect to the whole apparent intent of the testator, the construction must be adopted which will carry out the principal design of the will, if that be legal: and whatever is by law Inconsistent with such de- sign must yield. M'Donald v. Walarove. 1 S. 274, 7: 327 143. Where an estate Is actually vested in a devisee, who is the natural object of the testator's bounty, the court wUl not favor a construction of the wul which will have the effect of devesting the estate. CHason v. Clason, 6 Paige Ch. 541, 3: 1094 144. Where the language of a will necessarily con. fines the interest of the parent to his life, the courts. In construing it, will lay hold of slight circumstances to raise a gift in the children, and avoid imputing to the testator the extraordinary intention of giv- ing the property to the devisee or-egatee over, and leaving the issue of the tenant for life unprovided for Sturgesv. CargiU, 1 Sandf. Ch. 318, 7: 344 145. In the construction of a will, the extent and situation of the property is a proper extrinsic oir- WILLS, II. b. c, 1. H9 cumstance to be considered in ascertaining the in- tent and object of the testator. Mason t. Mason, Z Sandf. Ch. 433, 7: 66a 146. Where a wiil was made before the Revised Statutes went into operation, but the testator died afterwards, the validity of the trusts and provisions of his wiL' must be determined by the law as it ex- isted at the time of his death. De Peyster v. Clendining, 8 Faige Ch. 295, 4:434 147. When the intention of the testator is apparent' upon the whole will taken tUKetUer. tue ouui l luusi give such a construction as will support such in- tent of the testator, even against strict grammat- ical rules. And to effectuate his evident intention, words and limitations may be transposed, supplied, or rejected. Pond V. BergJi, 10 Faige Ch. 140, 4: 919 148. The words of the will may be transposed in order to make a limitation sensible, or to effectuate the general intent of the testator. Covenhoven v. Shvler, Z Faige Ch. 122, 8: 839 149. The clear, literal interpretation of words in a will may be departed from, if they will bear anoth- er construction, where other parts of the will man- ifest a different intention. Hat/ihone v. Dj/ckman, 3 Faige Ch. 9, 3:37 150. The strict grammatical sense of words in a will may be rejected, to carry into effect the intent of the testator. Ibid. 151. And where the intention of the testator is incorrectly expressed, the court will carry it into effect by supplying the proper words. Covenhoven v. Shuler, 2 Faige Ch. ISB, 8: 839 153. The court will supply words to support the intent, when that is apparent upon the whole of the will taken together. Carter v. Bloodgood, 3 Sandf. Ch. 293, 7: 858 153. The bequest over to grandchildren, in the shares of children who die without issue, whether before or after the death of the parents of such grandchildren, may be raised by implication from the testator's general intention. IMd 154. Devises by implication ard sustained only up- on the principle of carrying into effect the inten- tion of the testator: and unless it appears, upon an examination of the whole will, that such must have been his intention, there i .iig to them, their hus- bands and issue, were to be applied to her and her husband and issue. By a codicil to his will the tes- tator gave unto each of his grandchildren living at the time of his decease the sum of $K,(KXi to be paid to them and each of them upon their attaining re- spectively the age of twenty-one years or marrying. At the time of the making of the will and codicil. J K was of the age of twenty-one and was married, and both her parents were dead. All the other grandchildren of the testator were under age and unmarried. At the date of the codicil J K had one child, and was enceinte, at the death of the testator, of a child born after his decease. She subseq uen lly died, leaving four children surviving her. On a pe- tition by C K, the surviving husband, claiming that each of her two eldest children were to be consid- ered as grandchildren of the testator, under the provisions of his will and codicil, so as to bu entitled to legacies of $6,000 each, under the codicil,— Helii that the testator did not intend to give a legacy of $6,000 to J K; but that he meant to give a legacy of that amount to each of her children who should be in esxe at the time of his death, by the designation of grandchildren; and that each of her children who were in esse at the testator's death was there- fore entitled to a legacy of $0,000, to be paid to them upon their m^rnlMse or on attaining the age of twenty-one, in the same manner as t'ne other grandchildren. Hone V. Van Seliaick, 3 Barb. Ch. 488, S: 983 195.The words "lawful issue" have as extensive a Gignillcatlon as "heiis of the body" and embrace lineal descendants of every generation. And when used in a devise, by which the immediate devisee takes an unrestricted freehold, Itis a word 'ji limi- tation and has the same etf ect as heirs of the body Kingaland v. Hapelye, 3 Edw. Ch. 1, 6: 349 3. Cfti!lary and Mancy, children of Oeorge Murray, or to their heirs, $500 each, with provision that, in case of the death of either of them before they should arriv^: at lawful age, and without issue, their shares sliould be divided equally among the survivors, or their heirs." Euphemia was dead at the date of the will, leaving children, and assumed to be over twenty-one years of age. Held, that the words or to their heirs, pre- vented a lapse. Had it been and to their heirs, it would have been different; a transmission through the legatee being implied. HeM, also, that as the gift was of personal property, the term "heirs" means such persons as the law points out to suc- ceed to personal property. That the children did not take by special designation, nor technically a» heirs, but as next of kin— next of kin being heir» as to personal estate. That the father was excluded. He never took jure mariti, as the legacy never vested In the wife, and a husband in legal strictness is not next of kin to his wife. Wright v. Trustees of M. E. Church, Hofl. Ch. 202, 6: 111& 214. The phrase "next of ]rin,"when used simplieiter does not mean those entitled under the Statute of Distributions, but the next in blood. Ibid. 215. The words "nephews" and "nieces" likewise, in their primary and urdmary sense, mean the im- mediate descendants of the brothers and sisters of the person named, and do not include grandnephewa and grandnieces, or more remote descendants. Oomer V. Pinofciiey, 3 Barb. Ch. 466, 5:974 216. Upon the ordinary rules of construction, pa- rente and children cannot both take, under the de- scription of the testator's nephews and nieces, but only the parents who are living, and those grand- i'.epbews and nieces whose parent is dead. Ibid. 217. Where the testator by one clause of his will gave a legacy unto each of uis nephews and nieces except J C, who was not a nephew, but one of the children of a deceased nephew; and by another clause he gave to the children of his nephew J C $500,- Held, that the brothers and sisters of J C, and other grand nephews and nieces whose ancestors were dead at the time of making the will, were en- titled to legacies, the will showing that the testator used the words "nephews and nieces" in an enlarged 61'Dse, so as to include all the grand nephews and nieces whose parente were dead. Xbid- d. What Property is Given. 1. In Gene/rol. 218. A devise will not be permitted to fail in con- sequence of a misdescription of the subject-matter of such devise, where the Intention of the testator is apparent. Pond, V. Bergh, 10 Paige Ch. 140, 4: 919 219. Where the testator bequeathed to his wife all the rest, residue, and remainder of the moneys be- longing to his estate at the time of his decease, it was held that the word " moneys " must be understood- in its legal and popular sense, to mean gold and silver, or the lawful currency of the country, or bank notes, where they are known and used in the market as cash, or money deposited in bank for safe keeping, and not to comprehend promissory notes, bonds, and mortgages, or other securities; there being nothing in the will Iteelf to show that the testator Intended to use the word in that ex- tended sense. Mann v. Mann, 1 Johns. Ch. 231, 1: 12» 220. Plate used In the family passes under a devise- or conveyance of "household goods or furniture." Bunn V. TTinthrop, 1 Johns. Ch. 329, 1: 15!> 221. The term "lands," in a will, is synonymous with "real estate ;" and unless restrained by some- WILLS, II. d, 2. ass- thing else, embraces future and contingent as well as nresent freehold estates in laud. Pond V. Bergh, 10 Paige Ch. 140, 4: 919 222. An equitable interest in lands, founded on ar- ticles of agreement for the purchase, will pass by a subsequent devise; and if there be no devise it will descend to the heir, and the executor must pay the purchase money for the benefit of the heir. , LivimgsUm v. JVetoMrJf, 3 Johns. Ch. 313, 1:*630 223. A devise to a corporation of any estate or in- terest in land which is descendible is void by the Statute of Wills. But although whatever is descend- ible is now devisable, yet the power to devise is not limiced to descendible interests. An estate per autre vie is now personal assets, yet may be devised under thp term "lands." TTrioM v. Trustees of M. E. Church, Hoff. Ch. 202, 6: 1115 221. A power to sell lands may be devised, and a power given to a corporation to sell for the use. of others is void within the exception of the statute. Ibid. 225. Where the fee of a mill under lease, using water turned from a river or a mlllsite for future mill purposes, is devised with the addition of "with an equal proportion of water out of Croton River Dam," the gift of such proportion of water is as permanent aa the gift of the mill. Re Water Commissionera. i Edw. Ch. 545, 6: 969 226. Where the testator by his will gave to his wife a legacy of $10,0(JU in lieu of dower, and all bis house- hold furniture, etc., "with the exception of his desk, which contained his private writings, and all the money and papers therein;" and made a residu- ary devise and bequest to the children of his brother of all bis property not before disposed of, including his desk and all the papers and writings, excepting deeds of property given to others, and money, it any therein contained, — Held, that f,he money in the desk was intended to be excepted Iioui the bequest to the testator's wife, and was given to the residu- ary legatees, as a part of the residuary estate oC the testator after payment of debts and legacies. FlaOer v. Flagler, U Paige Ch . 457, 6:197 2Z7. Where a person holds land in his own name,but Is only a trustee and dies, leaving a will, the will Is that the legal estate in such lands will pass by such general words as are sufficient to comprehend it in legal construction, unless from circumstances appearing on the face of the will it can be collected that the testator meant to devise his own property only and not property which he held as a trustee If this should be apparent from the will, the legal title of trust property will not pass by the will, al- though general words are used sufficiently com- prehensive to embrace the lands. The circum- stances which weigh against the presumption are a charge of debts, limitations in strict settlement of any other disposition inconsistent with the idea of its being trust property and which leads to the in- ference tliat the testator could not have intended to giv( the legal estatp of such property. Merrltt v. Farmers Fire Ins. & Loan Co. 2 Edw. Ch. 547, 6: 4,99 228. Where the testator in the lifetime of his first wife devised to his son lands to the value of $1,500, to be taken at an appraisement, and to be selected by the devisee out of any of the lands of the testator, excepting two farms specified in the wUl ; and the testator, after the death of his first wife, married another wife, who survived him and claimed dower in all his real estate, and had it as- signed to her,— Held, that the devisee was entitled to lands to the full value of $1,500. exclusive of the claim of dower, or of any other claims thereon which might diminish its value. NeOsm v. JVeiZson, 6 Paige Ch. 106, 3:917 229. Where a testator directed his real estate to be sold by his executors, and the proceeds to be put out at interest, on good security, and the interest to be annually paid, in equal proportion, to A, B, and C, and the sqrvivors of them, without Umita- tion of time, but was silent as to any further dis- position as to the principal or residuum of his real estate,— this was held to be a beguest of t he princi - pal as well as the interest; it being apparent, from the introductory and other clauses in the will, that the testator did not intend to die intestate in that .^Z V. Grim, IJohns. Ch. 494, 1:880 230. If it be apparent, from the introductory part, thatthe testator meant to dispose of the whole of his property, and the expressions in the residu- ary clause may include the whole, they are to be taken in the largest sense, in order to correspond with the introductory part. Ibid. 231. Where a testatrix, whose only son and heirr WHS an idiot, and had a large property in the liands nt his committee, the income of which was more than s\illlcient for his support, bequeathed $1,000' lor the use and benefit of such son, to be appropii- atfd at the discretion of her executors; and directed i.hat so much of that legacy as her executors should not appropriate for his use during his life should' lit his decease go to the Foreign Mission School, a supposed charitable institution which in fact had no existence; and the testatrix, after making a spo- oifio devise of a part of her real estate and giving specific and pecuniary legacies to a large amount, directed hor executors to sell the real property not spcciflcally devised, and bequeathed the proceeda. and all her residuary estate to the Home Mission- ary Society, in case it did not exceed $1,000, and the residue beyond that sum to the children of her njece,— Held, that the committee of theJdiot was- not entitled to have the $1,000 legacy aptilied to his general support while the income of his estate was- more than sufficient for that purpose, and that the executors were only bound to apply it if it should become necessary in consequence of a loss of his property. Held, also, that the limitation over to the supposed charitable institution having failed, the unexpended balance of this legacy would fall into- thc general residue of the personal estate of the tes- tatrix, and would belong to her residuary legatees. King v. Strong, 9 Paige Ch. 94, 4: 68S 232. A, by will, after devising speoifle bequests, bequeathed to his daughter C $4,000, on her mar- riage,to the intent that she might receive as much as- his other children, to all of whom he bad madu large gifts on their marriage. He devised, with limitations, a dwelling house to each of his four daughters, including 0. (The son had one given to him during A's lifetime.) A fifth part of the resi- due of his estate was left to each child. A married, after making the will, and by codicil, bequeathed to every after-born child "an equal share of my- property with my other children, notwithstanding it may have been hereinbefore appropriated." There was an after-born daughter, field, that C's share was the standard for setting out the post- humous child's rights; and, therefore, the latter was entitled to $4,000. a house equal in value to C's, and a sixth of the residue. Also, that the after-born daughter took upon the same trusts and llmitationa^ to which the other daughters were subject. Lawrence v. Lavtrence, 1 Edw. Ch. 241. 6: 134 233. Where the testator, subsequent to the Re- vised Statutes, devised his real and personal estate to a trustee in trust for the use, support, and bene- fit of bis daughter; and directed the trustee toman- age the estate so as to make it produce the greatest income, and to keep the buildings, etc., in repair, and to apply the income of the real estate and so much of the personal estate as should be necessary from time to time for the support of the daughter; and in case she should die leaving issue, that his trustee should divide all the estate so devised to her among her lawful heirs, in equal proportions,— Held, that the remainder in fee in the testator's es- (nte, after the death of the daughter, she having r'icd without issue, was an interest in such estate im^ rlisnosf^'l of Itv +bp will. Wood V. Keyes, 8 Paige Ch. 365, 4: 464- 2. After-Acquired Property. 234. On a general devise of all the testator's es- tate, real property acquired after the making of the- wiU descends to the heir at law, and does not be- long to the devisee. ^ Douglass v. Sherman, 2 Paige Ch. 358, 3: 943- 235. A testator must have a legal or equitable title in the land devised, at the time of making the will ; otherwise nothing passes by the devise. A subse- quently acquired title will not pass by it. M'Kinnnn v. Thompson, 3 Johns. Ch. 307, 1: 6Z»- Llvingston v. Newhirli, 3 Johns. Ch. 312, 1:630 236. Where the testator by his will devised all his lands in a particular county,— Held, that his future and contingent interests, as well as his present freehold estates in lands in such county which he- had at the time of making the will, passed by such Pond V. Bergh, 10 Paige Ch. 140, 4: 919' 237. Where, by a will made and published subse- quent to the Revised Statutes, the testator devised ail his real estate in the county of Schoharie, in gen- eral terms, to his four sons, subject to the payment 554 WILLS, II. d, 3, e. •of certain legraoles to his other children,— Held, that no real estate in that county except such as the tes- tator owned at the time of makinf; his will, or in which he then had some right or interest, passed to the devisees; and that property which he after- wards acquired by devise or descent, and of which he was seised in that county at the time of his death, did not pass under that clause of the will. Ibid. 238. Under the provisions of thcKevised Statutes, .a general devise, by the testator, of all his real es- tate Ota particular description of which he shall die possessed, or which shall belong to him in a partic- ular town or place at the time of his death, will have the effect to pass to the devisee property which tinswers the description in the will, although ac- quired by the testator subsequent to the making of ■«uch will. But in case of a devise of all the testator's real estate in a particular town or district of country, without anything to indicate an intention to pass after-acquired property which he may have in that particular town or district at the time of his death, 'the legal presumption is that the devise was only intended to relate to the real property the testator had there at the time of the making of his will. ibid. 239. A bequest of all the residue of his "estate," —Held, under the circumstances, not to pass real ■estate acquired after the making of the will. Havens v. Ravens, I Sandf. C!h. 334, 7: 346 240. Although personal property is acquired by a testator after the making of his will, yet it passes under it, provided words sutflciently comprehensive are used or the context shows he did not intend to die intestate as to any part. O'Brien v. Heeney, 8 Bdw. Ch. 242, 6: 385 3. Residuary Gifts. 24L Where the testator, by his will , devised certain •real estate, and bequeathed certain articles of per- sonal estate, to bis wife, in lieu of her dower, and then devised and bequeathed all his real and per- gonal estate, not thereinbefore devised and be- queathed to his wife, to his executors in trust, and tne widow af tertvards elected to take her dower in the testator's real estate instead o t the provision made for her in the will,— Held, that the property *equeatlied to the widow did not pass under the i^rust clause in the will, and that it must be distri- buted as in case of intestacy. Bawley v. James, 5 Paige Ch. 318, 3: 734 242. A general devise of all the testator's real es- tate will carry his real property of every descrip- tion, and every estate or interest which he has therein, either' Id possession, reversion, or remain- der, or whether the same is absolute or contingent, unless such general devise is restrained by other words in the will. Pond v. Berah, 10 Paige Ch. 140, 4:919 243. But a residuary devise of all the testator's real ■estate not before disposed of by his will dops not ■embrace real estate which is in terms absolutely de- vised to others in the same will; allhougb iiisfound upon the death of the testator that such real estate is not legally and effectually devised, either from "the incapacity of the devisee to tal^e real estate by ■devise or by-reason of his death in the lifetime of cthe testator. Van Kleeck v. Reformed Dutch Church, 8 P. 600. 3: 1118 244. A general bequest of the residue gives to the residuary legatee all the personal property of the testator which is not otherwise legally and effectu- ally disposed of by the will. Bowers v. Smith, 10 Paige Ch. 193, 4: 940 245. A residuary devise of real or personal estate carries with it not only the property of the testator in which no interest is devised or bequeathed by ■other parts of the will, but also all reversionary and contingent interests in the property which, in events contemplated by the tes tator, are not other- wise disposed of. Craig v. Oraig, 3 Barb. Ch. 76, 5: 884 Bowers v. Smith, 10 Paige Ch. 193, 4: 940 Van Kleech v. Reformed Dutch Church, 6 Paige Ch. 600, 3:1118 248. In a will of personal estate, a general residu- ;ary bequest carries to the residuary legatees not ■only what is not disposed of to others, but also whatever is not legally disposed of, so as to pass to ■the peisons intended as the objects of the testator's if amUy. It is otherwise as to real estate. James v, James, i Paige Ch. 115, 3: 367 247. A will of personal property or of chattels real. which goes to the personal representatives, and uot to the heir of the testator, has reference to the state of the property at the time of the testator's death. And a general residuary bequest in such a will, of all the testator's property not before dis- posed of, carries to the residuary legatee not only the personal estate which the testator did not at- tempt to dispose of by his will, but also every other part of the personalty which upon the testator's death is found not to have been effectually other- wise disposed of by the will. Van KlcecH v. Reformed Dutch Church, 6 Paige Ch. 600, 3: 1118 248. A general residuary bequest of personal es- tate, or of chattels real, carries to the residuary legatee, not only such estate and such interests therein as the testator did not attempt to dispose of by his will, but also such as, by lapse or otherwise, have not in fact been effectually disposed of by li-'-'. King V. Strong, 9 Paige Oh. 94, 4; 688 249. Although, as a general rule,a residuary legatee is entitled as well to what remains as to whatever faUs by lapse, invalid disposition or casualty, yet to entitle him to a lapsed or void legacy, he must be legatee of the residue generally and not partially. King V. Woodhull, 3 Bdw. Ch. 79, 6: 578 250. Where it is manifest that the residue given is confined to a particular fund or property, the re- siduary legatee will be kept to it strictly. Ibid. 251. To exclude a lapsed disposition from the gift o f the residue, very special words and express terms must be used. Jbid. 252. A bequest of residue, after payment of debts and legacies, is broad enough to allow the residuary legatee to take a lapsed legacy, Jbid 253. 'Where there is a general residuary clause in a will, if a speciUc legacy is revoked or becomes lapsed, it falls into the residue, to be disposed of under the general clause ; but if the residue is given to several persons In common, and one of them dies or his legacy is revoked, his share will go to the next of kin, and not to the other residuary Tega- Flhyd V. Barker, 1 Paige Ch. 480, 2: 753 e. Extent of Interest CUveii; Absolute or lAmited; lAfe or Fee. See also infra, 275-277. 254. Where the testator devised all his real and per- sonal estate to his executors and trustees with di- ^tiiions to them to lay out certain portious of his .auds into village lots, and to sell them from time LO time as thoy might be wanted for building lots, and with power to sell any other parts of the estate chey might deem necessary to fulfill the objects of his will, and gave to his widow the possession and • lireotlon of his dwelling-house and Walnut Grove Varm, and an annuity of $3,000. and a further an- nuit.v of 8500 to keep up the garden and improve : he property, and a Iso the use of his library and cer- lain pleasure carriages, horses, etc.; the widow was not entitled, under the provisions of the Revised .-Statutes, to the fee of the dwelling-house and Wal- nut Grove farm, but only to the use and enjoyment V'^rcof during her life. Fuller V. Tates, 8 Paige Ch. 325, 4: 446 255. Where a testator devised all his property to his ■wife and two other persons, to be kept for her use and support so long as she should continue his •widow and untU his youngest child should become of age, when the property was to be divided, it con- stituted an absolute devise to the widow of a par- ticular estate in the premises, which vested the legal title in her during the minority of the chil- dren. Sanford v. Jackson, 10 Paige Ch. 286, 4: 971 256. Testator bequeathed to his wife, to her sole use, control and disposition, $5,000, from out of the residue of his estate, and, at her own option, to have the amount in cash, after his executors should have collected it, or take that sum out of his notes, bonds, mortgages, etc., and in case of deficiency, then such deflciency to be made oiit of real estate— and, by a "postscript" or informal codicil, the testator added: '• And in case my beloved wife does not demand or require said sum to be paid to her from out of my said real estate, said estate shall be and remain chargeable and liable to her as a Hen for said amount of $5,000 which said lien she may give, grant or be- queath In any way she may deem proper." Held, WILLS, II. e. 553 that the wife took a gift of the $5,000 out and out. «and the power to appoint did not limit It. Croclieron y. Ja/jues, 3 Edw. Ch. SOT, 6: 688 257. A testator gave to his wife during widowhood the use of all the houses and lauds that he thereoy «ave to his daughter J W : " Item, I give unto my fcelovea daughter J W my house and lot of land where I now live, which she is to have after ler mother s decease or day of marriage, bounded as follows [describing them by metes and bounds], containing within said bounds twenty acres more or less. Also one piece of woodland lying near N.bound- ed [describing it lilsewise by metes and bounds] •containing within said bounds ten acres more or less.to her and her heirs forever after her mother's decease or day of marriase." The question was whether the daughter took a fee or life estate in fthe house and lot as well as in the woodland. Held, that she took a fee in both ; that there is but one gift although there are two properi.ies, and the words " to herand her heirs forever " apply to both of the latter. Summers v. Burtis. i Edw. Ch. 728, 6: 1035 258. Where L S by his will gave to his wife the one "third cf the residue of his personal estate after his -debts and legacies were paid, and also the use of all the residue of the personal estate, and the occupa- tion and enjoyment of the farm on which he, the testator, lived, so long as she remained his widow; -and in case of her marriage, he gave to her, during life, the use and occupation of one thiMof his real -estate; and, in that event, dlrecteJ that the income of the remaining two thirds should be applied to the education and maintenance of his children; and .after the youngest child became of age, he directed his executors to divide all his real and personal es- tate equally among his children, to have and to hold to them and their heirs forever, and declared that he intended the bequest and devise to his wife should be in lieu of dower ; the wife elected to take under the provisions in the will,— it was held that the widow was entitled to the use of the whole es- tate during her widowhood ; that one third of the ' personal estate was hers absolutely, and, in case she married, that she would have the use of one third of the real estate for life in lieu of dower. Coventujven v. Shider, 2 Paige Ch. 122, S: 839 259. It was also held that the children of the testa- tor could compel the widow to account for all the personal estate, and that their share of the same .should be invested, and the income paid to the widow during her lijfe or widowhood, and that the principal, after her death or marriage, should be divided among them according to the provisions in the will. Ibid. 260. Where a testator ,being seised of a dwelling- .bouse and farm, and of otlier estate, both rcai m^c personal, gave a pecuniary legacy to his daughter, payable at twenty-one, or on her marriage; and *ave to his wife the house and farm and his furni- ture for life, and one third of his personal estatt Absolutely, and then concluded as follows: "And, after the death of my wife, in case I should have no more children, I give, devise, and bequeath unto my said daughter EL my said dwelling-house and farm, together with all the rest and residue of my persona] and real estate,— HeU{, that the wife did not takealife estate in sucli residue by implication. Baf hftone V. Dj/efemon, 3 Paige Ch. 9, 3:37 261. Where the testatrix, subsequent to the Revised Statutes, devised certain lands to her three daugh- ters and their respective heirs, subject to the pay- ment of certain suras of money for debts and lega- cies: and further directed that the lands should re- main in the bands of her executors for the beneflt of her daughters during their respective lives, and then the remainder to be given up to their heirs; and made the three daughters her residuary dev- isees and legatees,— rjTcW, that the executors took no estate in the premises under the will: that estates .for life were vested immediately in the three daugh- ters, as tenants in common, subject to the payment of the debts and legacies, with a remainder in fee to such persons as should be the heirs of the several danghters at the time of their respective deaths. KnUM V. Weatharwax, 7 Paige Ch. 182, 4: 116 262. Bequest to executors of $20,000, to be invested and belQ in trust tor a daughter Catliarme; the in- come to be paid to her for her life and not to be sub- ieot to marital rights; with power to her to dispose of the principal by will, " but that the said Catha- rine, otherwise than by such will, shall have no power of disposing of the said sum of $20,000." And the testator gave all the residue of bis estate, real and nersoniu, to her absolutely. BeW,, that the daughter had only the Income and a limited power of appointment over the principal,, and did not take the $20,000 absolutely as a gift. Magoffen v. Pattmi, 3 Edw. Ch. 65, 6: 678 .263. D p by his will, after providing for his wife, divided his real estate into five potiiuus whiuli wti u nearly equal. He first gave one of the portions to his executors in trust, and they were to nold it for the separate use of his daughter J during her life; but the will was silent as to the trust estate after her death. The next portion he gave to his son T in fee. The next portion he gave to his executors in trust for the use of the wire of his son H during her lite, and on her death the estate was to descend to H's children. The fourth portion was given to trustees in like manner, for the use of his son E during life, and after his death the estate was to go to E's right heirs. And the fifth and last portion he gave in part to his son D in fee. and in part to D for life, with remainder to his right heirs. The residue of his estate the testator gave to his executors in trust to divide it among his children and daughter- in-law before named, to and for the same estates, uses, limitations and trusts, etc., as before provid- ed. He authorized his executors to sell any of the real estate, and on their selling any they were to ar- range it so as to make up the share out of which it was sold equal to the other shares, so that no one of his children or such devisees should be losei-s by such sales, or less benefited by his bounty thereby devised to them severally and respectively. At the date of the will, his daughter J had a large family of children, and her husband was, in the testator's opinion, unfit to manage her estate No reason or circumstance appeared which couli have Induced the testator to omit a provision for thesr children. On the construction of the will.— ifeJcJ, tha;. che effect of the devise was to vest the first parcel in the trus- tees in trust for J for lite, with remainder to her children. Slva-ges v. CargiU, 1 S. 318, 7: 344 264. Where the testator, who died previous to the adoption of the Eevised Statutes, devised his estate to his executors as trustees to receive the rents and profits thereof for the use of his children for the term of six years, and then to divide the same among his children or their issue then living, and to give conveyance therefor; and directed that in each deed or conveyance to any of the testator's children there should be inserted a clause limiting tfce grant or interest to be conveyed, to the grantee for life, with remainder over to the right heirs of such grantee, their heirs and assigns f ore ver,— i?c»fl, that the executors or trustees were bound to convey the shares of the several children of the testator in such a manner as to give to the first taker an estate tor life only, with remainder to such persons as might be his legal heirs at the time of his death, accord- ing to the provisions of the Kevised Statutes abolishing the rule in SheHev's Case. Woodv. Burnham, 6 Paige Ch. 513, 3: 1082 265. J. P., by will, devised the residue of rents and profits of real and personal estate to bis children C. B., J. I. P., D. D., W. P., and P. R. P. to be equal- ly divided between them and their legal heirs: and in case any of his said children died without issue, his or her share shotild revert to the remaining children; but in case of one dying and leaving is- sue, then the part which such child would have been entitled to should make a share for his or her child. There was a power to his executors to sell all the real estate, add all the personalty to it and divide the same Into five parts, and dispose of one tilth to the said C. B. or her legal heirs, one fifth to the said J. I. P. or his legal heirs, one fifth to the said P. R. P. or his legal heirs, one fifth part at in- terest, such interest to be paid to the said D. D. and in the event of her death before her husband, to appropriate tlie interest to the benefit of her children as they came of age; and if she survived him, then she was to be put into the-#ull possession- of the one fifth. And the remaining one fifth was to be placed at interest for W, P. (another child) ; and in case of his death leaving no issue, then this fifth was to be divided between the testator's sur- viving children and his legal heirs, but should he reform in his habits, then he was to have entire possession of this fifth part. The will directed the executors to sell a house in Broad Street and out of the proceeds to pay a legacy; and the residue of the purchase money was to be divided into six equal parts, one was to be given to his wife and the remaining five sixths were to be distributed among his children and their legal heirs in the same manner as had been before directed with regard to the real and personal estate after the death of hia 556 WILLS, II. t, 1. wife. The widow survived all the children, except W. P., and then died. W. P. was living, hut had never any children. C. K., D. D., J. I. P. and P. R. P. were all dead leaving children. Prior to the deaths of P. B. P. and J. I. P., they had respective- ly assigned their rights in the testator's estate by way of mortgage, without their widows having joined. Held, that the children took an estate for life in the property, and that the remainder in fee went to the children of the devisees, {. e. all the children of the devisees, and not merely those horn at the time of making the will or at the death of th6 testator; that the lands passed by a devise of the rents and profits, and were vested in the dev- isees, subject to the power of sale in the trustees; and when this was executed the proceeds belonged to the devisees for life in remainder in like manner as the land; that the proceeds of the Broadway house, after setting apart a sixth for the widow, stood upon the same footing; that as J. I. P. and P. E. P. had only a life estate, their widows had no dower; and the mortgages only operated upon their shares of the rents and profits: -that WvP's share was to be put out during his life and after- wards divided amongst his brothers and sisters' children per stirpes. Shares of infants to be paid to general guardians, and where there were no gen- eral guardians, to be paid into court; the shares of femes covert (if of age) to be paid over on joint re- ceipts of themselves and husbands. Smith V. Post, 2 Edw. Ch. 623, 6: 490 286. T, by his last will, after giving to his nephews E, N, S, etc., each £1,000 as they came of age, de- vised two houses and lota, " with every right agree- able to the deeds of the same," to E, to be delivered to him as soon as he came to the age of twenty-one years ; and if he died " before he came to age, and without male issue," he devised the same to N, "to be delivered to him as soon as he comes to the age of twenty-one years." " The first possessor (B), as soon es his first male child shall come to the age of twenty-one years, it is my will that the right of the said houses be to him, his heirs and assigns forever; but not to be disposed of before his eldest son comes to age :" whoever gets the houses, to have no claim to the £1,000 before left him, but his share to be equally divided with the other legatees. E arrived at the age of twenty-one years, but had no issue. It was held that by the words, "dying without male issue," E took an estate tail by the English law, or an estate in fee under our statute ; that the fee vested in R on his attaining the age of twenty- one years or having male issue, either event being BufBoient for that purpose. Boosevelt v. Thurman, 1 Johns. Ch. 220, 1 : 119 267. The clause, that the first taker was not to dispose of the estate before his eldest son came of age, did not engraft an executory devise on the preceding fee, but was intended by the testator as a temporary restriction on the power of ahenation, and, being repugnant to the nature of the estate, was void. Ibid. t. Vested or Contingent Interest. 1. In Beal Property. See also Eeai. Property, I. d. 268. Where the testator devised his estate to trus- tees for a term of years, depending upon the mi- norities of several infants, with contingent remain, ders for life In eight and a half twelfths thereof, to seven children and two grandchildren, if they should survive the trust term and become entitled by the happening of the contingency ; with a pow- er, in that event, of appointing the ultimate re- mainder in fee in their respective shares among their descendants ; and gave substituted contingent remainders in the shares of such of the seven chil- dren and two grandchildren as might happen to die during the continuance of the trust term,— HeJd, that the remainders to the seven children and two grandchildren, in their several shares, were valid as contingent remainders limited on a term of years ; and that, if such remainders became vested in interest, upon the termination of the trust, the ultimate reaaalnders in fee to their descendants, respectively, were also valid, as they must vest in interest, if ever, at the termination of one lite in being at the death of the testator ; but that the substituted contingent remainders In the shares of such of the seven children and two grandchildren as might happen to die during the trust term were not limited in such a manner that they must neces- sarily vest in interest during the continuance, or at the termination, of any two lives in bein^ at th« death of the testator, and were therefore void. Hawley v. James, 5 Paige Cai. 318, 3 ! 7 3* 269. Where the sister of the testator, at the time ot the milking ot nis will and at his death, had but one child, and he devised the residue of his real and per- sonal estate to such sister, to hold the same to her and her children forever, with a devise over, in case .ihe should die, and all her children should die, leav- ing no children,— fleW, that under the Revised Stat- utes the sister took an estate for life in the prop- arty, and that the child took a vested remainder in tee, subiect to open and let in afterborn children: and that the limitation over after the death of all the children of the sister without issue was void, bpi'^ir too reniote as to the afterborn children. Barman v.Osborti, 4 Paige Ch. 336, 3: 460 270. Where a testator declared it to be his will that his wife should continue to reside with his children in his dwelling-house, and retain in her possession the plate, furniture, etc., during her •widowhood, if his children should coiutiraie to live with her ; and in case of her remarriage, and hia children should not continue to live with her, that she should deliver the plate, furniture, etc., to hlA executors for the use of his children ; and that the executors should receive the rents and income of his estate untU the youngest child should attain the age of fourteen, and should apply so much thereof as should be necessary for the support of bis minor children ; and that from and immediately after the youngest child attained the age of four- teen years, if his wife should then have married, he devised the dwelling-house to his son Philip in fee, and devised all the residue of his estate to his childien as tenants in common,— Held, that the wife took an estate in the dwelling-house to continue after the youngest child arrived at the age of fourteen if she then remained unmarried and the children lived with her ; and that Philip took a vested remainder in fee in the dwelling- house after the youngest child became fourteen, t<>. commence in possession so soon thereafter as the wife's estate should have terminated by her mar- riage or otherwise : and that such remainder to him was not Intended by the testator to be Umlted up- on the contingency of the widow's having married a second time before the youngest child arrived at the age of fourteen. Vrostty V. Wendell, 6 Paige Ch. 548, 3: 109» 271. Whether, upon a devise to A for life, with re- mainder to his heirs, the persons presumptively entitled as his heirs have a vested interest in the remainder, so that a decree against them for the specific performance of an agreement made by the testator to sell the devised premises will bar other persons who may be the actual heirs of the tenant for life at the time of his death,— guore. Knight v. WeMherwax, 7 Paige Ch. 182, 4: lie 272. Where a mortgagor of real estate, after the giving of the mort^a^e, devised and bequeathed the rents, and profits, and income, of his real and personal estate to his wife for life,- with remainder in fee to the children of his brother, who should be living at the time of her death; and to the issue of such of the children as should then have died leav- ing issue: and the testator further authorized and empowered his executors, or the survivor of them, to sell his real estate, and to invest the proceeds thereof in permanent securities for the benefit of the devisees thereof,— Held, that the children of the brother who were in estte at the death of the testa- tor took vested remainders in fee, as tenants in common, in the mortgaged premises, subject to open and let in afterborn children, and subject also to be devested by death during the continuance of the life estate of the widow of the testator, or to bedefeated by the execution of the power of sale given to the executors hv the will. Nodine v. Qreenfleld, 7 Paige Ch. 544, 4: 267 273. Where a testator devised to each of his six children an equal undivided sixth part ot his real estate for life, and, after the decease of each child, devised the same to the children of such child and to their heirs and assigns forever,— lfe!<(, that the devise in remainder was not to such of the testa- tor's grandchildren as should survive their parents, but that one sixth of the estate in remainder was given to all the children of each child of the testa- tor, as to a class; that each grandchild, the moment it came into existence, took a vested interest in the remainder in fee, subject to open and let in after- born children; and that such of them as died leaving issue transmitted that interest, by descent, to his or WILLS, II. f. 2. 557 "her Issue, even in the lifetime of the tenant for life, as a vested remainder in fee; but that the parent from whose side the estate came was the heir at law of such of the srrandchildren of the testator as had •died without Issue, after the death of the testator «nd In the lifetime of such parent. Carpenter v.Schermerhom, 2 Barb. Ch. 814, 5:656 274. J. P. by will devised the residue of his estate to executors, in trust to pay rents to wife until his youngest child came of aire. In case the youngest <;hild came of age during the wife's life, the execu- ■tors were to sell; and, after reserving an annuity for -the wife, to divide the residue equally among his inlne children, or else to make a similar division by partition. In case the youngest child came of age «f ter the wife's death, then a sale and division equal- ly among the nine, or else a partition and similar •division. "And in case any of my children shall die after me, and after having attained the age of twenty-one years, then the share, portion or interest of the child so dying shall go to the heirs, devisees or legal representatives of the child so dying." There was a declaration that the provision to the widow was in lieu of dower. All the nine children flurvlved the testator, and attained their majority, l)ut four died afterwards and before the youngest had come of age. These were, (1) A., who left in- fant children and a husband, who administered and became their general guardian; (2) B., who died in- testate, leaving a widow and two infant children, and one C. administered upon his estate; (3) J. P., Jr., who left a widow and will, and gave all to her; and <4) G., who died intestate, without issue and unmar- ried, and his brother R. admiuistered. The mother, wife of the t«stator, was alive. The executors had «old the estate. Held, that the nine children did not '-*n tlip orinri'^lf^ of '-r'ln'n"- li'^ -innutties. Irving v. De Kay, 9 Paige Cb. 521, 4: 80O- S. C. 2 Ch. Sent. 17, 5:1085 296. Held, also, that the trust to receive the rents and pi-unis, after LUe uchlu of tiie widow of lae testator and previous to the division of the estate- and to apply so much thereof to the support of the ourviving members of the family as the executors should consider best, was void; as this rendered the trust estate, or so much thereof as was not necessary to be sold to pay debts and legacies, inalienable for- a term in gross,and not determinable at the expira- tion ol not more than two lives in being at the deaths of the testator. Ibid. WILLS, II. g. 55» 297. Held, also, that althouerh the trust to provide tor the surviving member of the family after the death of the widow of tlie testator whs iiiegii . and void, yet as It was wholly disoonneotod froui thp trust to receive the rents, etc., and apply thert' to the support of the widow and such of the familj as chose to live with her,— which was necessarjlv limited to the lite of the widow,— such void trust diil uot render the trust estate invalid in the hands ol the tri.8tees, during the life of the widow. Ihid. 298. Held, further, that the power to divide the es tate in 1840 was a mere power in trust, whloli did not require the continuance of the legal estate in the trustees to sustain it; and that if the power to sell at the end of an absolute terra, not depending on lives in being at the death of the testator, woulrl render the estate inalienable until February, 1810 that part of the power would alone be void, and could not prevent the execution of the residue ol the power authorizing a division or partition of the property. ihM. 299. Held, also, that the provlsiODS of the will did not deprive the widow of the testator of her dower in the real estate of her husband, so as to require her to elect between such dower and the provision made for her by the will. rbid. 300. Although some of the objects for which a trust is created, or some future interests limited upon the trust estate, are illegal or invalid, if any otthe purposes for which the trust was created ai'e legal and valid, and would authorize the creation of such an estate, the legal title vests in the trus- tees, during the continuance of the valid objects of the trust ; except in those cases where the legal and valid objects of the trust are so mixed up with those which are Illegal and void tnat it is impossible to sustain the one without giving effect to the other. And every disposition by the testator of an interest or right in the rents and profits of his real estate, which are to accrue after nie death, which disposition, if valid, would have the effect of sus- pending the power of alienation of the entire fee for a longer period than is allowed by law, and every other future estate or interest limited upon the trust which would have that effect, must be considered and treated as absolutely void and inoperative, in deteimining the question £is to the validity of the devise of the legal estate to the trustees, or as to the validity of the other trusts of the will. Bawley v. James, 5 Paige Ch. 318, 3: 734 301. Where the testator devised and bequeathed to his Wife the use of his mansion house for life, to- gether with his furniture, books, plate, etc., and an annuity of S3,600 in lieu of dower; and then devised and bequeathed all his estate, real and personal, to his executors in trust for the purposes of his will: and directed them to convert the personal estate into cash and invest the same upon bonds and mort- gages or stocks, and to sell a part of bis real estate, and invest the proceeds thereof in the same man- ner; and to lease the residue of the real estate so that the interest and income of the whole property might form a general fund, out of which he direcU ed his executors to pay the annuity to the widow; and to divide the residue of that fund, as it should accrue, equally among his seven children and the representatives of his two deceased children, quar- terly, for the term of twenty-one years from the date of the will; at the expiration of which time, or as soon thereafter as the executors should deem it discreet to do so, he directed them to divide the real and personal estate among his heirs or their legal representatives: such representatives to take such share only a? their immediate ancestor would have been entitled to if living, and the children of the testator to take life estates merely, with remainders in fee to their descendants or those who should then be heirs of the testator,— ff«W, that the devise and bequest in trust to the executors, and the several t rust estates and Interests depending thereon, and c he several remainders limited upon the trust term, were void; but that the specific devise and bequest of the mansion house, furniture, books, and plate '. the widow were valid. Hone V. Van SchaicH, 7 Paige Ch. 221, 4: 132 30e. And where the testator by a codicil to such will gave to each of his grandcluldren who sIhhiM ue living at the time of his death a legacy of $6,000. to be paid to them ■ respectively upon their attaining the age of twenty-one or marrying, but not to be paid without the approbation in writing of the pa- rents or the surviving parent of the legatee, who If ere to fix a pre . sr time for the payment to the legatee after his or her arrival at the age of twenty- 5ne or marrying; and directed that such legacies be paid out o( his personal property, and that the rest of Ills real and personal estate should remain sub- ject to the provisions of the original will,— fleid,. that such legacies, being independent of the illegali trusts of the original will, were valid. Ibid. 803. H. H. was one of the children and heirs of J. H. deceased. The latter, by will, devised all his real and personal estate to his executors, upon trust to convert the personalty into cash and invest the proceeds, and to lease such part of the real estate as was situated within the City of New York, and, if deemed discreet, to sell that part of it which wa» out of the city. The rents and profits (to be re- ceived by his executors) were to form one general •fund. An annuity and some legacies were to be given out of it; and all the residue of income of this general fund was to be divided equally among the eirs who were named (among them the above H. H.) and to be paid to them upon their own re- ceipts. Upon the decease of either of the testator'9 sons before a partition, thereafter directed, leaving issue, such sons had power to appoint by will, as to> their proportions of the income: should either son die intestate leaving issue, then the same was to be paid to their respective widows for the support of themselves and their children; and if no widow sur- vives them, then to the guardians of the oinldren. After the expiration of twenty-one years from the date of the will, and as soon as the executors should deem it discreet, all the estate, real and personal, was to be divided by the executors, among the tL'Stator'9 heirs' or. their legal represfentatives, the latter to take the share of their ancestor. In making parti- tion, if both parents were dead and their children had attained the age of twenty-one years or were married, the share of the parent was to be parti- tioned amongst such children and paid over; and the shares of those who had not attained such age or were not married were to be invested and leased until such p«;riod or marriage and the dividends, etc., paid to their guardians. In making the parti- tion if both parents were alive and had issue, then, with regard to* the personal estate forming the share of such parent (heir of the testator) the exec- utors were to invest the same under the direction of the parent and pay it into the hands of the latter; and the real estate, forming the share of such pa- rent, was to be leased during his life and the rents to be paid in like manner to him; and upon- the decease of both parents the personal property was to be paid over and the real estate divided as before directed in the case of the death of both pa^ rents before partition. In making the partition, where both parents were dead leaving no issue, the share of real and personal property, which would have fallen to the parent, was then to be distributed, according to the Statute of Distributions, among the testator's surviving children and their legal rep- resentatives. Two of the testator's heirs were ap- pointed executors— one of them being the cestui que trust H. H. Held, that the absolute ownership of the persona] estate was unduly suspended; and it was not an answer to the objection founded upon the statute to say that the events provided for might not arise. Also, fteM, that as H, H. was here a trus- tee as well as a cestui que trust, the trust, as to him, could not be supportfd. Craig v. Hone, 2 Edw. Ch. 554, 6: 501 304. Where the testator devised and bequeathed to the children of his daughter B then in being, and to such children as she should thereafter have, one third of his real and personal estate to be equally divided among them, share and share alike; and in case of the death of any one of them without issue and under the age of twenty-one, their shares to go to the survivors and the children of such as had died leaving issue, with a limitation over to E, their mother, in case they should all die under age and without issue, if she should then be living, and if not living, then to her sister O and her heirs ; and the testator then charged the property devised and bequeathed to the children of E, with her support, and directed his executors to take upon them the management of the property until the children of B should respectively attain the age of twenty-one : and from the rents, profits, and increase of the property to defray the expense of the support of E and of the maintenance and education ot her chil- dren, and to accumulate the surplus, if any, forthe benefit of the children respectively, until they should attain the age of twenty-one; and the will then declared that it was the express desire and will ot the testator that no part of the share or in- terest in his estate given to tne children of E should go out of the hands and management of his execu- 560 WILLS, IL g. itors until such children should respectively attain the age of twenty-one, or until euardians should •iae appointed to manage the same for them ; and the :testator died leaving his daughter E surviving him, ■who then had three children, all under twenty-one .years of age; and the father of the children ob- tained the appointment of guardian of their estate, — Held, that by the will no part of the capital of the '«state was given to the infant children of E until they respectively arrived at the age of twenty-one. Beld, aim, if there had been no trust clause m the "Will, that the executors could not have been required to pay over any part of the principal of their re- spective shares to them or to their general guar- -mans while they were under the age of twenty- one. Bradley v. Amidon, 10 Paige C!h. 235, 4: 958 305. He^, further, that the testator by his will con- templated a distribution of the capital of the fund -among the children of B during her life, as they should respectively attain the age of twenty-one, ■ and that her support was a charge upon the estate in the hands of the devisees and legatees after they -should respectively arrive at the age of twenty- one ; and that the trust to the executors to receive the rents and profits, and apply so much as might be necessary for her support, was restricted as to each share to the time when the owner should have attained the age of twenty-one. Held, also, that ■as to the shares of the personal estate to be paid over to the children respectively,as they arrived at the age of twenty-one, the court could direct it to be paid over to the legatees presumptively entitled to such shares, during the lifetime of their mother, upon their giving security to protect the contin- f:ent interests of af terborn children in that part of be fund. ItM. 306. Held, further, that the direction In the will to the executors, to tal^e upon themselves the man- agement of the property until the children of E respectively attained the age of twenty-one. and from the rents to provide for her support as well .as for the maintenance and education of her chil- dren who had not attained the age of twenty- one, was a valid trust ; and that the legal title to the real as well as to the personal property vested in the trustees, by implication, during the minorities of the respective legatees and devisees, to enable such trustees to collect and receive the rents, etc., and apply them to the purposes of the trust, and to accumulate the surplus, if any, for the benefit of those entitled thereto during their respective minorities, as directed by the will. Ibid. 307. Held, also, that the executors, after provid- ing for the support of the mother, should pay over from time to time, to the general guardian of the children, so much of the residue of the rents jind profits belonging to them respectively as was necessary for their support and education ; taking his receipts thei-efor as such general guardian. Tbid. 308. Where the testator devised his real and per- sonal estate to trustees, in trust to suffer his wiuow to occupy his SharOn farm, with the stock, so Ions as she made it her permanent residence, and to sell and convert all the rest of his estate into money; and also to sell the farm and stock after the death or removal of his widow, and to Invest the proceeds -of the estate; and after paying certain annuities to his widow and others during her life, to pay to his two sons and three of his daughters certain speci- "fled annuities during their respective lives, out of the income of his estate; and to divide the residue •of the annual income equally between such five children; and if either died without issue, his or her annuity and share of the income to be divided among the survivors, or, If leaving issue, then to such issue during the life of such widow, and after lier death the principal of the share to go to such issue, and the principal of the share of either child who died leaving issue after the death of the widow of the testator to go immediately to such Issue,— Held, that the trust as to the Sharon farm was valid, as a devise of the legal estate therein to ithe widow during her life or residence thereon, by the operation of the provisions of the Hevised Stat- utes turning certain trusts into legal estates in the ceetuii que trust; that the devise to the executors and trustees was valid as a power in trust to sell all the ■testator's real estate and to convert it into person- alty for the purposes of the will; and that tlir Sharon farm was to be considered as converted into personalty at the death or removal of the widow, and the residue of the real estate from the death of •the widow. Held, also, that the life estate of each child in his or her share of the estate was valid, as welltin the proceeds of the Sharon farm after the death or removal of the widow, as in the other property from the death of the testator; and that the limitations of the respective shares to the chil- dren of such of them as should leave issue were also valid; as the absolute ownership of cich share could not thereby be suspended beyond two lives being at the death of the testator. De Peyster v. Clendining, 8 Paige Ch. 295, 4: 434 309. But the testator having directed that, if any of his five children should die without issue, the in- come of uis or her share shouia go to the suri'ivora for life, with remainder to their children, after the death of the widow,— Held, that the limitation over t.i t bo survivors and to their children was void, as it might suspend the absolute ownership for more than'two lives in being at tlie death of the testator. Ibid. 310. Where the testator died possessed of a large real and personal estate, leaving a widow and six children, some of whom were minors, and by his will, after giving various pecuniary legacies to his widow and children and others, directed his execu- tors to provide for the support and education of his minor children, out of the Income of his teal and personal estate, until they arrived at the age of twenty-one or married ; and also directed his exec- utors to invest the residue of his personal estate In real property, or in bonds and mortgages, or other permanent securities, until the death of the widow and until the youngest child arrived at the age of twenty-five, and then to sell the real estate so pur- chased, together with that of which the testator died seised, and to divide all that then remained of the estate among the six children or their issue, and to invest the share of each child in the name of the executors, and to pay over the income there- of to the children respectively for life ; and that, upon the death of the children, their several shares should go to their issue, and if any child died with- out issue, the share of such child should go to the other children or their issue,— Held,that the execu- tors took an estate for years in the real property of the testator, by implication, to enable them to receive the rents and profits thereof for the sup- port and education of the minor children until the youngest arilved at the age of twenty-one or married ; but that there was a resulting trust, in favor of the heirs at law of the testator, for so much of the rents and profits as were not wanted for that purpose ; and that the reversion in the real estate after the expiration of that term de- scended to the heirs at law, subject to the power in trust to the executors to sell after the death of the widow and after the youngest child arrived at the age of twenty-flve. -Held, also, that there was an implied trust of accumulation of the Interest or income of the personal estate, by the executors, until the time appointed for the division of the property among the children, which trust of ac- cumulation was void under the provisions of the Revised Statutes; and that such Interest or in- come belonged to the widow and children of the testator, as property not legally disposed of by his will. Vail V. Vaa, i Paige Ch. 317, 3: 452 311. A testator having three sons and four daugh- ters living, and six grandchildren, the issue of a de- ceased daughter and of her husband G, by his will gave to three of bis daughters each one eighth of his real and personal estate absolutely, and another eighth to G- and his children; and then devised and bequeathed the remaining half of his estate to his executors in trust to rent, invest, and improve the same, and receive and collect the rents and income, and out of the income to pay yearly annuities, un- equal in amount, but each considerably less than one eighth of the Income, to each of his three sons, J, H, and M. and to his daughter H A. The latter was to cease on her surviving her husband, and she was then to take one fourth of the half absolutely: and if her husband survived her, her annuity was to continue to him for life, and the eighth of the estate subject to that annuity was to vest In her is- sue by representation. On the death of the sons J or H leaving a widow, she was to have the annuity of her husband during her life. The trustees were clothed with a discretionary power to increase the annuities of the respective sons, and the daughter H A, during their lives. If the net income of the trust fund exceeded the annuities, the surplus as to three fourths accruing after a month from the tes- tator's death was to accumulate equally for the benefit of the issue of J, H, and H A respectively during their minorities, and to be paid to them re- WILLS, II. h, i. 561 specti vely at twenty one. So lontr as either of those three were without issue, the surplus of the income of their trust shares, after satisfying the annuities to them or the husband or widows, as the case might be, was to be paid to the three other daugh- ters, and to the issue of H A, to G, and to the issue of H and J, if either had any, -all taking per atirpen. On the death of M, who it was supposed would aever have, issue, the testator gave one fourth or the trust fund to the same devisees as last above expressed: and the surplus income of that fourth, while he lived, was "to go to the same persons and classes. On the death of J and H respectively, other two fourth parts of the trust fund were given to their respective issue, subject to the respectiv<> annuities to their widows. But if either of thoso sons left no issue, the respective fourth parts, sub- ject to the widows' annuities, were given to thp three daughters ilrst named, to O or his issue, to H A or her issue, and to the issue of either J or H, 11 any there were; all bestowed per stirpes. Held, on the construction of the will, that the devise in trust of the half of the estate was to be construed and taken as a devise of separate and distinct shares, each consisting of one fourth part of such half, on distinct trusts In respect of each; and that the power of alienation was not suspended, as to any portion of the estate, beyond two specified lives in being at the death of the testator; and that there was no absolute suspension for a month or for an designated neriod. Mason v. afoson, 2 Sandf. Ch. 432, 7: 658 312. By the will, one seventh of the estate was fiveu to C, and then, after bequests to others, a urther interest in another seventh and' in the fur- niture was given to her. The will then made some deductions from the seventh part ilrst bequeathed to her. The next clause required the executors, as ber trustees, to take and receive the full net amount which should be coming to her as directed. Held, that the trustees were to receive the further bequests, to her, as well as the seventh part first given to her by the wiil. Bunner v. Storm, 1 Sandf. Ch. 357, 7: 358 h. Power to SeU or Dispose of Property. 313. A devise to executors, with authority to sell the real estate of the testator for the payment of debts, applies as well to a joint and several bond •executed by the testator as surety for his co- obligors as to any other debt. Berg v. RadcUff, 6 Johns. Ch. 302, 8: 133 314. The words "rents and profits," in a devise, may be so construed as to authorize a sale of the land, when necessary to raise a sum so as to effect the object of the testator. Sehermerhome v. SchermerTiome, 6 Johns. Ch. 70, 8: 58 315. As, where S devised all his estate to his wife lor life, and after her death to his son A in fee, on condition that he should comfortably maintani N 331. Held, also, that the legal effect of the will, so- far as related to the interests of the widow and A B T and E S in the amount of the 850,000 legacy, was the same as if the testator had ordered 850,000 of his personal estate to be set apai"t and invested so asto- produce an income, and that the capital of the fund should be paid to E .S when she arrived at twenty- one, if she lived to attain that age, and had limited successive estates in the income of the 850,000 for the lives of the widow and A E respectively, un- less the contingency sooner happened by which the capital became payable to E S. ibid. 332. Held, further, that upon the arrival of E S at the age of twenty-one she would be entitled to the payment of the capital of the 850,000 as her abso- lute property. ibid.. 333. Whether the life estate of A B T in the income of the amount of the 850,000 legacy was not invalid,, on the ground that it might suspend the absolute- ownership of that part of the fund for a longer pe- riod than two lives in being at the death of the tes- tator— guare. /bid. 334. Where a testator who had three sons and two dauchters made his will subsequent to the Revised Statutes, and devised and bequeathed his real and personal estate in trust to permit his widow to en- joy the use of the rents and income thereof during her life or widowhood, subject to the payment of taxes, assessments, insurance, and the interest upon the incumbrances, and upon condition that his- eldest daughter should live with her and be sup- ported out of such rents and income; and by the second and third clauses of the will the devisee in trust was directed, after the death or intermarriage of the widow, to pay the renta of lot No. 26, after payment of taxes, assessments, and insurance, and' keeping down interest on incumbrances, to his son P for life ; and the rents and income of lot No. 30, to his son S for life ; and by the fourth clause h& gave a similar beneficial interest in the rents and profits of lot No. 28 to his eldest daughter, who was- the devisee in trust, and directed her to apply so much of the rents and profits of these lots respect- ively as could be spared conveniently to the pay- merit of the principal of the incumbrances thereon after the death or intermarriage of the widow; and furtherdircctedthatif either of those three of hi» children should marry and leave issue, the rent of his or her lot, instead of being paid to the parent, should be applied byVtho devisee in trust for the sup- port and education of such issue; and by thp fifth clause he further directed that if either of thfr three died without leaving issue, the rents of that share should go to the survivor or survivors in equal portions ; but if either died leaving issue, the rent to go to such issue; and by the sixth clause ho devised lot No. 51 to those throe children In fee from and after the death or marriage of his widow, but upon condition that if either should sell his or her interest therein without the consent of the others, it should be forfeited to the others, and thatthj- wholc income of this lot should bo applied to satis- fy the incumbrances on Nos. 2ti,28, and 30: and by the seventh clause he devised to his youngest daughter,, after the death or marriage of the widow, another of his lots free from the control of her husband, the^ rents to be paid to her on her separate receipt ; an* by the eighth clause he devised to his son D, after the death or marriage of the widow, lot No. 32 for lite, with remainder in fee to his heirs, subject tO: the incumbrance thereon ; and by the ninth clause he devised lot No. 5 to his eldest daughter in fee- with thef urniture and fixtures, etc., from and after WILLS, II. 1. 563 the death or marriage of the widow ; ij,nd by the tenth clause he declared and directed that if either of bis children should die without leaving issue, the share or portion of his estate which by his will was given to such child should go to his survivors ; but if either died leaving issue, such issue should take the share of the parent ; and by the eleventh clause he devised and bequeathed the residue of his estate to all his children in fee, and appointed his eldest daughter trustee for all and every of the purposes of his will,— HeM, that the general intention of the testator, as indicated by his will, was to give to his wife the rents and income of his estate during her life or widowhood, subject to the charges for as- sessments, etc., and to the charge of the support of his eldest daughter if she continued to reside with her mother ; and, after the death or remarriage of the widow, to give to his five children in severalty the use or income of specific portions of the same property for life, subject to the charges and in- cumbrances upon their several lots or portions ; and with remainder in fee in the same specific por- tions'of the estate to the issue of the same children who had the life estates in their respective shares ; and that if either of the five children died without leaving issue, his or her share or portion of the es- tate should go to the survivors in fee ; and that this general intention of the testator might be carried into effect, either oy giving legal estates to the ob- jects of his bounty to the extent of their beneficial interests in their several portions of the property, or through the medium of a trustee to receive the income and apply it to their use, without suspending the power of alienation of any portion of the prop- erty for a longer period than is allowed by the Bevised Statutes. Parks V. Parltii, 9 Paige Ch. 107, 4: 637 335. Held, also, that the interest of the widow in the income of the property during her life or widowhood being entirely distinct from the subse- quent interests therein which were given to the children and their issue respectively, the devise or bequest to her was valid, whether the legal estate was vested in her, or was in the eldest daughter a£> trustee to receive the income for her use and bene- fit, even if the limitation of the subsequent inter- ests in different portions of the same property were not authorized by law ; but that under the provi- sions of the Bevised Statutes the legal title to the real estate was in the widow, during her life or widowhood, and not in the eldest daughter as the trustee for her. Ibid. 336. Held, also, that the devise of the lots, Nos. 26 and 30, as contained in the second and third clauses of the will, created valid trusts of the legal estate during the lives of the testator's sons P and S, un- der the provisions of the Revised Statutes ; and that the trust to apply the rents and profits to keep down the interest and to reduce the principal of the incumbrances on those lots was also valid. Ibid. 337. HeJd, also, that the three children only took an estate for their respective lives in lot No.51,under the sixth clause of the will, in connection with the general clause limiting the shares of the several children over to their issue or to the survivors of such as should die without leaving issue ; and that the other son and the two daughters took also vested interests for Ufe in their several lots, under the fourth, seventh, eighth, and ninth clauses of the will, subject to the life interest of the widow there- in ; and that the testator's eldest daughter and his son D took the legal title in their several lots to the extent of their beneficial interests therein ; but whether the youngest daughter took a legal estate in her lot, or only an interest in the income thereof as a trust estate, —gtKEre. Ibid. 338. HOd, further, that none of the issue of the children would take any interest in the shares of their parents, after the termination of their lives, as an interest in a trust estate; but that the inter- ests to which such issue would be entitled,under the tenth clause of the will, were remainders in fee of the le^ estate in the portions of the parents re- spectively. Ibid. 339. Whether the direction in the fourth clause of the wai, in case of the marriage of either of those children and the birth of issue, to substitute such issue in the place of the parent during his or her natural life, is valid,— gucBre. Ibid. 340. Whether the restriction in the sixth clause of the will, as to the alienation by either of the three children of their interest in lot No. 51, without the consent of the others, is valid,— qucere. Ibid. 341. Where a testator, who held several mortgages against his brother, bequeathed one half of his re- siduary personal estate to his wite, and the other half to the children of his brother, to be paid to them at twenty-one ; and by his will directed his executors not to foreclose the mortgages until af- ter his brother's death, as it was the testator's wish that until that time the interest of the mortgages should be used and applied to the support of the brother and such of his children as should not have received their shares of the personal estate be- queathed to them,— Held, that the brother and his children were entitled to the whole of the interest on the mortgages, including the interest in arrear at the death of the testator ; and that upon the death of the brother, the principal of the mortsages only could be collected for the Benefit of the testa- tor's residuary legatees. Gardner v. Gardner, 6 Paige Ch. 455, 3: 1059 342. Where the testator devised his real and per- suuui estate to trustees for a term, to receive the rents, profits, and income thereof in the mean time, for the payment of annuities and other legacies, and to raise portions for grandchildren, with "a contingent remainder in eight and a half twelfths of the estate to seven of his children and two of his grandchildren, and no valid direotir;!i for accumula- tion was given,— Held, that eight twelfths of the surplus income of the estate belonged to the seven children and two grandchildren of the testator, as being the persons presumptively entitled to the next eventual estate vro f auto; and, as the contin- gent remainder as to the other three and a half twelfths of the estate was void, that the heirs at law were entitled to the surplus rents and profits of the real estate, and the widow and next of kin to the surplus income of the personal estate included in the three and a half twelfths. Hawlei/ V.James, 5 Paige Ch. 318, 3:734 343. A testatrix devised a lot to executors in trust to leceive rents until heryoungest child attained twen- Ly-one years of age and apply the rents tor the ben- efit of her two youngest children until S360 should ba/e been so obtained for each, which amounts were to be placed in the savings bank to accumulate until they should attain twenty-one, unless the in- terest or principal should be necessary for support or education ; and after these sums (of $350) had been set apart, the rents of the lot were to be ap- propriated to the support of all her children (five) until the youngest became twenty-one, etc.; and, then, to sell the property and divide the proceeds equally among the children share and share alike or among those living and the representatives of those who should be dead, the representatives to take no aiore than the parent would have taken. The sole acting executor (after nine years of trust) died and this court had appointed a trustee who, on the com- ing of age of the survivor of the two youngest chil- dren, sold the lot. It did not appear whether such executor had laid aside either of the sums of $350 out of the rents or that its use was wanted for sup- port, etc. Three of the children had died, embracing one of the two youngest, two intestate, but one of the latter left a daughter and the other devising his share under the will to the surviving younger brother. The court held, that $350 could not now be taken from tbe purchase money of the lot for the youngest surviving child; and that it was to go in thirds, one third to the daughter of the deceased child and two thirds to the surviving younger brother. Be Mason, 4 Edw. Ch. 418, 6: 936 344. Where the testator by his will,af ter providing for the payment of his debts, and making certain specific bequests, gave the residue of bis real and Eersonal estate to his executors in trust to lease his ouse and lot on Market Street,and to lease and sell and convey the rest of bis property, and apply the proceeds and income thereof as follows: one fifth to his son in fee; three fifths to the support of his daughters, B, G, and H, respectively; and one fifth to the support of his daughter A, free from the control or debts of her husband; and should any of his daughters die leaving issue, the share given for her support to be applied to the support and edu- cation of such issue; but in case either of his said daughters should die without leaving issue, the use and income of her share which should then remain, to be divided among his surviving children or their heirs, except tbe share thereof to which his daugb- lor A would he entitled, which was to be vested in his executors, subject to the trust relative to her lifth of tbe estate,— Held, that, under tbe provisions nf the Bevised Statutes, the devise of the testator's louse and lot upon Market Street was inoperative ■nd void; as the trust to receive the rents and prof- 564 WILLS, II. 1. its during the lives' of his four daughters would suspend the power of alienation for more than two lives. Held, also, that the devise of the residue of the real estate was valid, as a power in trust to the executors to sell such estate for the benefit of lega- tees and convert the same into personalty for all the legal purposes of the will; and to invest the share of each daughter as personal estate, and to receive the interest or income thereof for her use. But as the power to lease such real estate and re- ceive the rents during the lives of the four daugh- ters might suspend the alienation beyond the limits allowed by law, the trust to lease the same and re- ceive the rents thereof as real estate was therefore void; and that the land descended to the heirs at law cf the testator, subject to the right of the legatees to have the same immediately converted into per- sonal estate by the execution of the power in trust - se!i, I-leM, further, lliat oactj of the daughters of Uie ti'stator was entitled to the whole Income of her Hf th of the estate for her support during life, and to so much of the principal of the f uid, in addition thereto, as might be necessary for th..; purpose from time to time; and that the residue of '. ■ > prin- cipal of the share of each daughter who should leave issue at-.the time of her death would belong absolutely to such issue under the provisions of the Will. Van Vechten v. Tan VeghUn, 8 Paige Ch. 104, 4:36S 845. Where the testator directed in his will that his !^(>u sbouid be discharged from all notes which he 'icld against him, and from all charges made against 4jlm by the testator for loans or advances, and all elalms against him for the occupation ra* rents of certain premises specified,— H«W, that the son was entitled to a discharge from all such claims against him which existed at the death of the testator, and not merely those which were in existence at the ■late of the will. Ibid. 846. A testator, by the fourth codicil to his will, re- roked a certain part of the third codicil, and instead thereof he directed his executors to pay $500 out of one share, or the fourth part of his estate, to the widow of his deceased son, and to pay over the re- mainder of that share to H in trust to invest the flame and to pay over to his grand-daughter S the in- come thereof semi-annually until her eldest child flhould arrive at the age of twenty-one years; and at that period to divide the fund, as it might then exist. Into as many shares as there might then be children of S, and to pay over to each child his or her share, upon their arriving at the age of twenty- one years respectively. The testator's property consisted of personal estate entirely. On a bill by Sagainst her nusband, and her children who were then living, and against th"? suhst.itntPd trustee, claiming that the fourth codicil was void so far ai> it limited the remainder in one of the shares to her children,— Held, that the fair construction of the fourth codicil was that the testator referred to the eldest child of S at the time of making such codicil as the child upon whose arrival at the age of twenty- one S's estate in the income of that fourth of. the testator's property should terminate; and not to the eldest of her children who should attain the age of twenty-one. Butler V. Butler, 3 Barb. C!h. 304, 6: 910 347. Held, alw, that the fourth codicil should be construed as if the testator had directed the trus- tee to pay the income of the fund to S until her oldest child then in existence, or who might be in existence at the testator's death, should arrive at the age of twenty-one years, or until the time when such child would have arrived at the age of twenty-one years if it had lived to attain its major- ity ; and in case such eldest child should live to at- tain its majority, then that such one fourth of the estate should be divided into as many shares as there were children of S then living, and that one share should belong to each child, and should be payable when they respectively arrived at the age of twenty-one : the income In the mean time to be accumulated for the benefit of such of them as were minors. Ibid. 348. Held, further, that this contingent remainder to the children ot ci was so iimitea that it must vest in interest, if ever, during the continuance of one life in being at the time of the death of the testator, which time, in a will, is to be deemed the time of the creation of the estate. Ibid. 849. And the eldest child of S who was in ease at the death of the testator having lived to attain the age of twenty-one years,— flfrfd, that the contin- gency contemplated by the testator then occurred; and that the children of S who were then llvlnjj thereupon became the absolute owners of the whole of the fund in controversy. Ibid. 850. Where a testator, desiring to make a certain provision for his son which would give him a sure and ample support during his life, by bis will di- rected his executors to invest in bonds and mort- gages and In New York State stocks a sum of money sufficient to produce in legal interest at least $500 per annum, to be held by such executors in trust for the legatee, and such income to be used by them in his support and maintenance; such in- vestment to be made, as near as con venlontly might be, in equal sums in bonds and mortgages and In New York State stocks,— Held, that the investment should be so made by the executors as to raise the full sum of $500 annually; that the testator did not intend that his executoi.' should invest a capital which, at 7 percent inter ot, would produce $500 annually, but an amount sufficient to produce at least $500 in legal interest or income, at the rates at which such capital could be kept invested during the probable continuance of the life of his son ; and that in making the investments upon bonds and mortgages the executors might invest such a sum as would, at six per cent, produce $250 an- nually. Oraig v. Oraig, S Barb. Ch. 76, 6: 884 351. Held. also, that as to the other half of the in- vestment directed to be made in public stocks of the State the executors had no discretion, so long asthere were any such stocks to be pui'chased at par, whatever might be the annual iucome there- from; and that in making the first investment the executors were authorized to purchase, above par, 5 per cent stock enough to produce aa income of $250 annually, if they could not get It at par; but that after having once made such investment in stocks the executors would not be authorized to diminish the capital of the fund invested, by pur- chasing other stock at a rate beyond its par value, in case the first stock should be paid off. Ibtd. 352. Where there is a devise of the income and avaUs of property to a person for life, without any devise or bequest to the executors as trustees of such property, the legatee will take a legal estate in such property, if there is nothing else in the will to show that the testator intended to create a vah'd trust of the estate for his benefit. For a devise of the rents and profits of land for life, without any- thing more, is but another mode of making a de- vise of the land Itself during the same period. Ibid, 353. But where the wUl clearly shows that the tes- tator iutended a legatee should receive the rents and profits of the real estate embraced in one share of his property, as well as the .income of the per- sonal estate included therein, through the medium of his executors, toe executors take the legal title to that share of the real estate during the continu- ance of the beneficial interest of the legatee therein, as trustees, by implication, to enable them to rent the premises, and to receive the rents and profits thereof,' and pay them over to the legatee or apply them to his use Ibid. 3S4.A testator devised his real estate to five grand- sons in fee, and ordered that the eldest should have the use and profits of the same, for the mainte- nance of the five, till they respectively became twenty-one years of age, when the lands were to be equally divided between them. The youngest grandson never received any maintenance from the premises. Held, that the devise of the use and profits created no charge upon or trust affecting the land; and that the youngest devisee had no claim in respect of the same against one who had purchased the undivided fifth of the premises de- vised to the eldest. OrandaU v. Hoysradt, 1 S. 40, 7: aso 355. Where a testator bequeaths to his children a contingent Interest for life, in the Income which may accrue from a residuary fund after the hap- pening of a particular event, they are not entitled, under the will, to the income of the fund previous to that time; and, no valid bequest being made of such previous income, it must be distributed as in cases of intestacy. Vail V. Tan, 4 Paige Ch. 317, S: 458 356. In a devise providing that certain Income shall be paid to a person until her eldest child reaches the age of twenty-one years, the term "eldest child" means the child who shall first arrive at that age. Butler V. Butler, Hofl. Ch. 344, 6: 1167 WILLS, n. j, k. 565 J. Condtttom OeneraUy. 357. A testator having by his will bequeathed to each of his three daughters who should marry, an outfit of a specified vaJue, two of the daughters subsequently married during the life of their father, who died a short time thereafter without having given to either of them any marriage portion. Held, that each was entitled to her outfit, under the will, in the same manner as she would have been if she had married after the testator's death. Van Vechten v. Fan Teghten, 8 Paige Ch'. 104, 4: 362 338. Where the testator, by his will, authorizes his executors and trustees, upon the marriage of either of his daughters, to bestow a marriage portion up- on her, if they should then think it discreet and proper : and one of the daughters afterwards mar- ried in the lifetime of the testator, who was then in health, and lived more than a month afterwards. —Held, that the executors and trustees were not au- thorized to give her a marriage portion out of the HavJUv V. James. 5 Paige Ch. 318, 3: 734 359. A testator, by his will, gave to his daughter "during her separation from W C, her husband, $1,000, a year," which he charged on his real es- tate ; and the daughter was, in fact, living separate from her husband when the will was executed ; but they afterwards Uved together, and were liv- ing and cohabiting together at the time of the testator's death; and about three months after his death they again separated, and continued to live separate for a year. Hdd, that, the legacy de- pending on a separation which existed at the time the will was executed, and with a view to that fact, was lawful and proper ; and the separation having ceased when the will took eftect by the death of the testator, there was an end of the legacy ; and that a voluntary separation of the parties afterwards would not entitle the wife to it. Cooper V. Bemsew, 5 Johns. Ch. 459, 1: 1141 360. Where a legacy or devise is given to the lega- tee or devisee upon a condition, either express or implied, such legatee or devisee cannot in equity be permitted to take the benefit of the legacy or devise without performing the condition ; and if he accepts the legacy, or enters into possession of the estate devised, or sells the same, without a previous performance of the condition, the court of chan- cery will compel him to perform it. Spofcn-d V. Manning, 6 Paige Ch. 383, 3: 1030 361. Where a father who had a lite estate only in real property, the remainder in fee belonging to his children, sold such property in fee and gave a bond to the purchaser to secure to him a convey- ance of the premises by the children when they be- came of age ; and the father afterwards died, dur- ing the minority of some of the children, leaving a large real and personal estate which he by his will gave to his chfldren on condition that they con- firmed such sale of the premises ; and the children afterwards took possession of the property devised under the will, — Held, that the grantees of the prop- erty sold and conveyed by the father were in equity entitled to be protected against the legal title of the children to the remainder, after the death of their father, in the premises thus conveyed. Ibid. 362. Where the testator devised a farm and the SLuuK HUU farming utuiiails thereon to his son VV for eight years, subject to an annual rent of 850, to be paid to the testator's grandson K, for the use of the farm and the stock thereon; and at the end of the eight years the testator devisad the farm to K, upon condition that he settled and resided on the farm, and, in case he sold the farm, that the pro- ceeds of such sale should be equally divided among the testator's lawful heirs; and the testator then gave several legacies to be paid by B in yearly pay- ments, the first payable at the end of one year after the testator's decease ; and after the death of the testator, W took possession of the farm and con- tinued in possession during the eight years, and paid the yearly rent of $50 from time to time as it became due to K until his death ; and K, who died within the eight years, had not at the time of his death either taken possession of the farm, other- wise than by receiving such rents, or paid the leg- acies , but after his death his father had offered to pay the legacies,— ffeld, that an estate in fee in the farm vested In E on the decease of the testator, subject to the right of W to occupy it for eight years at an annual rent of $50 ; and that the condi- tion that B should settle and reside upon the farm was a condition subsequent, the nonperformance ot which did not devest the estate previously vested in him. Held, also, that the legacies were a personal charge on K in respect to the estate devised, so far at least as the rents of the premises were insufficient to pay the same, and that having accepted the es- tate devised, by receiving rents, ho was bound to pay off the legacies ; and that this personal charge, independent of the provisioas of the llevised Stat- utes rendering words of perpetuity in a grant or devise unneoepsary, was sufficient to g've B an es- tate in fne in the premises. MclMChlad V. McLachlan, 9 Paige Ch. 5,S4, 4: 805 k. lAmttation Over ; Survivorship. 363. A gift to the widow of testator's deceased son,of the income of a certain fund during widow- hood, the fund to be raised from sales of real es- tate and invested, and afterwards to be divided among the daughters of said son,— is valid. Ai-nold V. Gilbert, 3 Sandf . Ch. 531, 7: 946 364. A limitation over to the mother, in case of the death of the daughter without leaving lawful is- sue, is valid as to personal estate; although, previ- ous to the Bevised Statutes, such a limitation as to real estate would have created an estate talL Bathbonev. Dyckman, 3 Paige Ch. 9, 3: 37 365. A testator devised a farm to his son N for lif e> and after N's death directed his executors to sell the same, and to divide the proceeds equally amongst all his children except his sou S; but if any of them should not then be alive, then such re- spective shares should go to their respective heirs. He further directed that the heirs of a should take the share made b / iucluding his name in the num- ber of shares, whether he were living or dead at the time of the distribution. Held, that the heirs of N were entitled to a like share in the distribution of the proceeds. Coles V. Brnym, i S. 123, i: 104S 366. In a limitation to the survivors of a class of dev- isees or legatees, where any of the class are tn esse at the death of the testator, so as to be capable of taking a vested interest, the survivorship is usually construed with reference to that time, so as to ■ ive the representatives of such of the class as die after the testator the right to a share o£ the devise or bequest to the class. MouxM V. Caraw, 1 Paige Ch. 328, 4: 176 367. Where a remainder after the termination of a particular estate is limited to certain specified indi- viduals or to the survivors of them, the court will refer the survivorship to the death of the testator, and not to the termination of the particular estate, where it is necessary to give effect to the probable intention of the testator in providing for the sur- viving issue of such of the objects ot his bounty as may happen to die during the continuance of the particular estate. iMiett V. Buloid, 3 Barb. Ch. 137, 5: 847 368. But it seems this rule of construction will not be applied to a case where the particular estate is given to a class, with remainder to the survivors upon the death of some of the class without leaving issue. Ibid. 369. Where the residuary estate of the testator is given to a class of persons, with remainder in the shares of such of them as die without issue, to the survivors, there is no benefit of survivorship, among the surviving members of the class, as to the share of one of the class who has died without issue; the surviving members of the class take their re- spective portions of that share absolutely. Ibid. 370. Where a testator, by the residuary clause of his will, gave, devised, and bequeathed to his wife and to his child or children all the rest and residue of his estate, share and share alike, and to the heirs of such child or children who might die leaving lawful issue; and in case either his wife or children should die without leaving lawful issue, then the share of such one dying to go and be divided amongst the survivor or survivors of them, — Held, that the limitation over to the survivors of the class was suflBcient to show that an indefinite failure of issue was not intended by the testator, but a failure of issue at the death of the first taker; and that the limitation over to the surviving legatees was there- fore vaUd. Ibid. 371. Held, also, that the bequest" to the widow, as well as to the children, was absolute in its terms, subject only to the contingency of the death of the legatee without leaving issue surviving. Ibid. 372. And two of the testator's daughters having 566 WILLS, II. k. died Icavlner issue, and leavinfc their busbands sur- vlvintr them,— Held, further, that they were entitled to an absolute estate and interest in their respective parts of the testator's residuary prouertr: and that after their deaths respeotivply the tame bplonsed to their liusbauds, under the provisions of the Re- vised Statutes relative to the distribution of intes- tates' estates. ■">(((. 373. Where a testator died in 1789, leaving two sons and five daughters surviving him, and by his will devised certain lands to his son P and his heirs, and certain other lands to his sons P and A and their heirs, and then directed that if one of his sons should die without issue, or if both should die without is- sue, his or their share or portion of the lands thus devised should go to the "reviving" son and his five Bisters, their respective heirs and assigns, each an equal portion thereof forever; and if both sons should die without issue, such shares or portions should go to their said five sisters, their heirs and assigns forever, in equal portions; and P died in 1839, without issue, having survived his brother A and his five sisters, all of whom had issue Uving at the death of P,— Held, that the word "reviving" must be understood to mean "surviving," so as to limit the devise over, upon a failure of issue of P at tlie time of his death, and not upon an indefinite failure: that P did not take an estate tail, but a determina- ble fee in the lands devised to him, and the limita- tion over upon his death without issue was therefore valid. Pond V. Bergh, 10 Paige Ch. 1«, 4: 919 374. HOd, aJso, that the issue of A were entitled to one sixth of the lands of P, under such limitation, notwithstanding A died in the lifetime of his brother ; and that the contingent Interests of A and his five sisters under this executory devise were descendible to their heirs, and were capable of being devised by them in the lifetime of P, their brother. Ibid. 375. And one of the sisters having died after the death of the father, during the lifetime of hei toother P, and having devised to three of her chil- dren all the land or real estate and all the money or personal estate which she was to get out of her father's estate, which her father devised and be- queathed to her in and by his will, — J7eld, that her contingent interest or estate in the lands devised to her brother P by the will of her father passed to her devisees under her will. Ibid. 376. Where the testator, who had a contingent in- terest in remainder, under an executory devise, m the lands in which his brother had a determinable freehold estate, devised thesame to his sons, by the description of "all my right, title, and interest to the real estate which may fall to me from the estate of my brother,"— Held, that the testator's contin- gent interest in such lands was sutficiently de- scribed in the will to pass the same to the sons; the brother who had the determinnhle fee in such Ifluds being living at the time of making the will. Ibid. 377. Where the testator died previous to the adop- tion of the Revised statutes, and by his will, which was made some time before his death, devised his estate to his wife for life, and directed his execu- tors to sell the same after her death and to convert it Into money for the purposes of distribution; and then gave one fourth of the proceeds to his son, if then living; but in case of bis death before that time, the testator directed that his share should be equally divided amongst the children of such son, the survivors or survivor of them; and the son died in the lifetime of the testator, leaving three chil- dren, one of whom died in the lifetime of the tes- tator, leaving a child, — Held, that the two surviving children of the son were entitled to the whole of that share of the estate, to the exclusion of the child of their deceased brother; and it aeernx the result would have been the same in this case if the testa- tor had died after the adoption of the Revised Stntutes. _, ilfoTOatt V. Carow, 7 Paige Ch. 328, 4: 175 378. Where the testatrix devised her real estate to trustees, in trust to divide the rents and profits equally among her three children, or their issue, during the life of the children and of the survivor of them, with cross-remainders in case of the death of either without issue during that time; and, upon the death of the survivor, to sell the estate and di- vide the proceeds thereof among the issue of such children thus: if all left issue, then one third to the issue of each ; if two left issue, one half to the issue of each ; and if only one left issue, then such issue to take the whole ; the issue of each to take as tenants in common ; and if any grandchild of the testatrix died in the lifetime of ttB parent. leaving issue, and which issue should be living at the death of the surviving child of the testatrix, then such issue to take such share as the parent of such issue would have been entitled to If living; and the two sons of a daughter of the testatrix died in the lifetime of their mother, the one leaving two children and the other four,— HeW, that these grandchildren of the daughter took per Mrpee, as the representatives of their deceased parents re spectlvely, and not per capita. Ouehney v. Henry, i Paige Ch. 846, 3: 464 379. Where a testator, having two sons and a daugh- ter, devised a certain portion of his real estate to one of his sons in fee, and directed that, in the event i>f such son's intermarriage and thereafter dying without leaving lawful issue, the real estate so de- vised should go to. descend, and be the property of his daughter, ner heirs and assigns forever, she sur- rivingnim; and the devisee afterwards, in the life- time of his sister.'Uied intestate, without issue and without ever having been married,— Held, that the limitation over to the sister did not take effect. JenWnsv. FonScTKKK*, 8 Paige Ch. 242, 3: 136 380. Where C died in 1815, and previous to his death devised to his three sons, W, I, and A, and the sur- vivors and survivor of them, the rents and profits of his real estate for the term of twenty years after his decease, to be divided equally between his said sons and the survivor of them; and if any one should die before the expiration of the twenty years leav- ing alawful child or children, such child or children to receive such portion of the rents and profits as would have belonged to the father if living ; and after the expiration of the said term of twentyyears C gave and devised such real estate to his said three sons, their heirs and assigns forever, equally to be divided between them ; and if any son should die before a division of the estate,leaving a lawful child or children, such child or children to receive such portion of the estate as the father would have been entitled to if living; and if either son should die be- fore such division, without leaving children him surviving, the portion of such son so dying should belong to the survivor or survivors, their heirs or assigns forever ; and W, one of the sons, died In 1824, leaving children; and in 1820 1, another of the sons, conveyed all his interest in the premises to E L, from whom such interest passed by conveyance to the third son, A, and I died after the expiration of the twenty years, but before any division of the property,— Held, that if I had died before the expi- ration of the twenty years without leaving issue, one half of his share would, under the will, have be- longed to the children of W, and the remaining half would have belonged to A; but that, at the ex- piration of the twenty years, one third of the prop- erty became absolutely vested in possession in I, who was then living, and before any actual division of the same; and that, as the remainder devised to I was vested in interest at the time of the conveyance to E li as a conditional fee, the title to the same be- came absolute, under that conveyance,at the expi- ration of the twenty years. Ckimn V. Clagon, 6 Paige Ch. 541, 3: 1094 381. S. by will, after giving legacies to Louisa and ols other daughters, directed that there should be paid to each of them the further sum of {25,000 on their attaining twenty-five years of age; and In case of the death of any one of them under that age leaving issue living at the time when payment would have been made, such issue to take the sum which would have been paid to the parent. Louisa died under the age of twenty-five years, but left Issue. Held, to be a valid executory bequest, under the statute, in such children, and that the money Sid go to the wife's administrator. Stewart v. VaU, 3 Edw. Ch. 51*7, 6: 743 382. A testator gave real and personal estate in trust to be applied for the use of six brothers and sisters, until the youngest of them or the sur- vivor of them should arrive at the age of twenty- one, upon which the trustees were to convey the estate, or what remained, to those six persons or the survivor or survivors of them, their heirs and assigns forever, share and share alike. And If either of the six should die before the coming of ago of their youngest brother or sister, leaving lawful issue, the share of the one so dying should be con- veyed to such issue. One of the sisters married, had issue,— a son,— and died before the youngest ol the six became twenty-one, leaving her chud and husband surviving. Held, waiving the question as to her own interest, that on her death her son took WILLS, II. 1, 1, 2. 567 a, vested remainder in tee in the real estate, and b vested interest in the personal property, to the ex- tent of her sixth part. Beediman v. Schermerhorn, 3 Sandf. Ch. 181, ,7:817 383. Also, that on the son's death his father be- came entitled to his share of both the real.and per- sonal estate. fbid. 384. C, by her will, directed her property to be converted into money and Invested at interest; ana after (riving: legacies, ordered as follows; "That all «nch residue of said interest money or other profits as there shall be, after such payments as above mentioned, be equally divided amonir my children or the survivor or survivors of such as shall die childless yearly and every year share and share alike during their natural lives; and that if either of my said children shall die leaving a child or children, then the part or share of which the parent of such child or children was receiving the interest during his life shall immediately vest m and be the {)roperty of such his child or children as shall be iving at his death." Held, that this did not come within the provisions of the Kevised Statutes (1 Kev. Stat. 773, § 1) providing against the suspension of -ownership of personal property for a longer period than two lives; and that the clause was good. Cromwell v. Cromwell, 2 Edw. Ch. 495, 6: 480 385. Where the owner of real estate, who died pre- vious to the adoption of the Revised Statutes, de- vised the same to his daughter and only heir dur- ing her life, and no longer, and after her death to her child or children, if she sh ould have any , and to their heirs and assigns forever ; and by a subsequent clause of his will declared his will to be that in case his daughter should die and leave no lawful issue his executors should seU his estate and distribute the proceeds thereof among certain collateral rela- tives; and the daughter of the testator afterwards married and had one child, who died after the death of its father, but in the lifetime of its mother,— Held thatthechildof thedaughter,uponitsbirth,became seised of an absolute remainder in fee in the prop- erty, snbject to open and let in atterborn children; and that the limitation over to the collateral rela- tives of the testator was void, being limited upon an indeflnite failure of issue of the daughter. Macomb v. M'Uer, 9 f aige Ch. «)5, 4: 695 386. And it being admitted that the daughter of the testator was physically incapable of having any other children,— iJefd. that she had become entitled to an absolute estate in fee in the premises devised, by the merger of her life estate in the remainder in fee to which she was entitled as the heir at law of her deceased child. Ibid. Sli'l.&. testator making his will and dying before the Uevlsed ;:)tatutes ilniM) devist;a uuusi^s to his gratiU- daugbter H, "her heirs and assigns to her and their sole and only use forever." Also, he bequeathed to her some stock; and named a trustee^to receive the rents and dividends and apply the sftne to her education and maintenance until she should attain twenty-one years or be married; and in either of which events "the house and stock are to be at her own disposal." The devise was followed by these words: "And in case my said grand-daughter shall die without leaving lawful issue, then and in such case I give, devise and bequeath the said houses, etc., to my daughters A. B. and S., their heirs and assigns forever." Bcld, that the limitatiou over was too remote and. therefore^ void; and that the grand-daughter H. took and could convey an ab- ,fi0lutj6 fC6 Ferrte v. Gibson, 4 Edw. Ch. 707, 6:1037 1. Acceptance or Election of Oift. 1. In General. 388. A person shall not claim an interest under an instrument (either deed or will) without giving full effect to the same as far as he can, and renouncing any right which would defeat it. Leonard v. Crommelin, 1 Edw. Ch. 206, 6: 118 389. Where there is an absolute devise of an estate for lite to some of the heirs of the testator, and the devise of the estate in remainder in the same prop- erty to others is invalid, the devisees of the life es- tate will not be compelled to elect between the life interest thus devised to them and their shares in the remainder which is cast upon them by opera- tion of law as heirs of the testator. Bowers v. Smith, 10 Paige Ch. 193, 4: 940 390. The giving of a mortgage upon devised estate I by the devisee Is an acceptance of the devise, and renders the devisee personally liable for the pay- ment of legacies charged upon the estate. Dodge V. Manning, 11 Paige Ch. 334, 6: 15S 391. A devise and bequest by the testator of all his real and personal estate to his children, in general terms, to be equally divided between them, will not be construed to include a particular estate whic^ one of the children lias in some portion of the tes- tator's real property: so as to compel such child to elect between such particular estate and an equal share of the property which the testator was au- thorized to devise. Sanford v. Jaclcson, 10 Paige Ch . 266, 4:971 392. But where the testator 'devises a particular farm to all his children, together with his personal property, to be equally divided between them, without making any exception of or reference to a particular estate which one of the children has in such farm, the child who has such a particular es- tate in the farm will not be permitted to set it up in opposition to the devise of such farm by the will, but he will be put to his election between his partic- ular estate in the farm and the equal share of the property given to him by the will. Ibid. 393. Where a will is set aside as to the main pro vi - sions, but sustair;ed as to certain legacies given to heirs of the testator, the legatees must relinquish their legacies, ou coming in as heirs at law. Arnold v. Gilbert, 3 Sandf. Ch. 531, 7: 946 394. The testator gave a legacy to one of his heirs, who was excluded from the real estate by the will. On the devises being declared void, the heir was put to an election between the legacy and her share as an heir at law. Thompson v. Clendening, 1 Sandf. Ch. 387, 7: 369 395. If residuary legatees might come in and take the land itself, Instead of the proceeds, it is too late, after a sale by the executors, to make their elec- tion. Osgood V. Franklin, 2 Johns. Ch. 21, 1: 281 2. Effect on Dower of Provision for Wife. 396. Where upon declaring the trusts in a will voi'' the widow was directed to elect between her dower right and certain valid provisions made for her in the will, and appeals were taken, pending which the widow died without making an election, the vice- chancellor, to whom the suit on the will was remit- ted by the appellate court, had jurisdiction to per- mit the widow's administrator to make the election granted to her, although the time limited for her election elapsed in her lifetime. Howland v. HecTcacher, 3 Sandf. Ch. 519, 7: 948 397. Where the testator devis'^": ah interest in his real estate to his wife in lieu of dower, and she de- clines to accept such provision, but elects to take her dower, it xeeras that the provision intended for hsr by the testator in lieu of dower is a contingent ii>torc6t in real estate, wiiich, in the event contem- plated by the testator, goes to the devisee of the real estate or to the rnsiduarv devisee. Bowers v. Smith, 10 Paige Ch. 193, 4: 940 S. 0. 3 Ch. Sent. 22, 5:1107 398. Where the testator devised certain lands to his widow, and also bequeathed to her an annuity in lieu of her dower in his real estate; and the wid- ow, within two months after his death, executed a deed of relinquishment of the provisions made by the will, and elected to take her dower, and pro- cured the deed to be recorded, and gave notice of such election to the testator's executors and trus- tees, who recognized her right to dower, and made payment to her out of the rents and profits of the estate on account of her dower,— Held, that this was a valid election by the widow to take her dow- er , and was equivalent to an actual entry oh the land, or the commencement of proceedings for the recovery of her dower, within the provisions of the Kevised Statutes. Hawley v. James, 5 Paige Ch, 318, 3: 734 399. It the widow gives notice to the person who is in possession of the lands of which she isendowa- ble, of her election to have her dower instead of the testamentary provision in lieu of dower, and such person thereupon admits her right, and voluntarily pays her a part of the rents and proHts of the land, as and for her dower therein, — it is in equity a valid election by her, and is equivalent to an entry on the lands, or an assignment of dower, for the pur- pose of determining such election. Ibid. 400. It is not necessary, for the purpose of mak' 668 WILLS, IL 1, 3. ing a valid election by the widow, that she should make entrv upon, or commence proceedings for the recovery of dower in, every distinct parcel of the lands in whicb she is entitled to claim dower. It is sufficient, if she has not accepted oC the pro- vision made for her la lieu of dower, that she actually commences proceedings, within the year, for the recovery or assignment of her dowerin any part of the lands as to which her right of, election exists; or that she enters upon any part of such lands, claiming her dower therein. Ibid. 401. To constitute a case of election under the Revised Statutes, the jointure, or other pro%'i8ion made for the wife in lieu of dower, must be a pro- vision in which she has a benetlcial interest; a mere power in trust for the sole benefit of others is not sufficient, although such power In trust is declared by the will of the testator to be in lieu of the wid- ow's right of dower. But the testator may make the execution of a power in trust, for the benefit of others, dependent upon the relinquishment by the widow of her right of dower in his real estate. Ibid. 402. A widow cannot be deprived of her dower by a testamentary disposition in ner tavor, so as to put her to an election, unless the testator has mani- fested his intention to deprive her of dower, either by express words or by nccessarj* implication. And where the provision in her favor is not in terms given in lieu of dower, the intention to deprive her of dower miisf. bo clear and manifest, founded upon the fact that the claim of dower would be inconsis- tent with the will, or so repugnant to its provisions as to disturb and defeat them. Fuller V. Tales, 8 Paige Ch. 335, 4: 446 403. To put the widow to her election between her dower and a testamentary disposition in her favor, the will itself must show that the testator prooably contemplated the subject of her dower, and that he intended the testamentary provision for her should exclude her from all claim to dower, if she elected to take such provision. Ibid. 404. To bar the widow of her dower, by implica- tion, and to compel her to elect, where the testator has not in terms declared his intention on the sub- ject by his will, the provisions of the will, or some of thom. must be absolutely inconsistent with the claim of dower, so that the intention of the testator will be defeated as to some part of the property de- vised or bequeathed to others, if the widow takes her dower in addition to the provision made for her by the will. Sanford v. Jackson, 10 Paige Ch. 268, 4: 97 1 S. C. 3 Ch. Sent. 26, 6: 1103 405. To compel the widow to elect between her dower and tliu pro visiun made for Uer by the will, it is not sufficient that the provisions of the will ren- der it doubtful whether the testator intended she should have her dower in addition to the provision of the will in her favor. But to deprive her of her dower, the terms and provisions of the will must be such as to show an evident intention on the poit; Q'f the testator to exclude the claim of dower. "JlfiM. 406. A testator, possessed of a large real and person- al estate, bequeathed to his wife his household furniture, etc., and her comfortable support and maintenauce out of his estate, to be, from time to time, rendered and paid to her by his executors, and the use of one room in his dwelling-house, dur- ing all such time as she should continue to be his widow, and no longer ; and devised the rest of his estate to his children. Held, that though the charge of a comfortable 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 inconsistent in the two claims, and no ex- press declaration of the testator on the subject ; and that therefore the widow was not to be put to her election. Smith v.Kniskem,i Johns. Ch. 9, 1:745 407. Where a testator deviseu a house and lot to his wife for life, with power to dispose of the same by her will to their descendants in lee, with the power of selection, as she might think proper ; which de- vise, together with certain legacies, was, by the will of the testator, to be in lieu of his wife's right of dower ; and the testator then devised the residue of his estate not before bequeathed and devised to his wife, to trustees in trust lor the purposes of the will ; and the widow afterwards elected to take her dower instead of the provision made for her in the will,- Held, that the whole legal and equitable interest in the house and lot, subject to the widow's right of dower therein, descended to the heirs at law of the testator, and did not go to the trustees under the will. _ „. „ _„^ James v. James, i Paige Ch. 115. 3: 36T 408. Where a testator, possessed of real and per- Bonai estate, aevisea to nis wife his household luf' niture, etc., and a comfortable support and main- tenance out of his estate, to be from time to time rendered and paid to her by his executors, etc.,— Heia, that though the charge of a comfortable sup- port and maintenance might fall upon the real a» well as the personal estate, yet, there being no ex- press declaration of the \xs6atiOV on the subject, or anything inconsistent in the two claims, it did not afllcct the widow's right of dower; and she was nut^ therefore, to be put to her election. Smith v. Kniskem. 4 Johns. Ch. 9, 1: 746- 409. Where testator devised all his estate to his ex- ecutors, with power to sell any of the lands which should be necessary to fulfill the objects of his will, and gave his widow the possession and direction of his dwelling-house and a certain farm .together with certain annuities, the widow was entitled to dower in addition to the devises and bequests. Fuller V. Tales, 8 Paige Ch. 325, 4: 44» 410. Where a testator devised all his property, real and personal, to his wife and to two other persons, to be kept for her use and support so long as she- should continue his widow, and until bis youngest cliild should become of age, and then directed that all bis property should be divided equally among his children; and she survived the testator, and after- wards maiTied a second time,— Held, that the devise In her favor was not inconsistent with her claim of dower in the testator's real estate after his young- est child arrived at the age of twenty-one, and that her acceptance of the devise was no bar to sucb claim of dower. Sanford v. Jackson, 10 Paige Ch. 266, 4: 971 S. C. 3 Ch. Sent. 26, 6: 110» 411. A devise of all the testator's real and personal estate to a trustee, to be sold and converted intO' money, and to pay the widow an annuity out of the income of the mixed fund composed of the pro- ceeds of the real and personal property, is not of it- self sulBcient to show that the testator intendedi this provision for the widow to be in lieu of dower, so as to compel her to elect between such annuity and her dower in the real estate. Wood V. Wood, 5 Paige Ch. 596, 3: 844 412. Where a testator devised to his wife for life the house and lot where he resided, ana gave to her various specific legacies which were large in pro- portion to his whole property, it was held that these gifts were not inconsistent with her claim of dower in the residue of his real estate, which was devised ^' his brother and sisters, or in that of which be died intestate; and that she siiould not be put to her election between her dower and the pro- visions made for her bv tho will. Havens y. Havens, 1 Sandf. Ch. 324, 7: 346' 413. Where a test-ator gave to his wife $500, to b& left in the hands of his executors to be paid to her for her support, at any time, or at all times, as her need might require; and also gave her what household goods she needed ; and, after bequeath- mg pecuniary legacies to his grandchildren, direct- ed his farm, etc., to be sold by his executors, who- sold it for $6,000; and the wife, after the death of the testator, accepted the legacy, which was paid to her out of the proceeds of the sale of the f arm,— it was held that the legacy was not, according to a fair construction of the will, given in lieu or in bar of dower, but a mere pecuniary bequest ; that th» acceptance of it by the widow did not affect her right to dower ; and that the purchaser of the larmi took it subject to the claim of dower, Adsit V. Adsit, 2 Johns. Ch. 448, 1: 446- 414. Where a legacy to the wife is not declared by express terms to be in lieu of dower. It will not be so intended, unless such intention can be deduced, by clear and manifest implication, from the pro- visions of the will, so that the claim of dower would be inconsistent with the will or repugnant to the dispositions made by the testator ; it must, in fact if admitted, disturb and defeat the will. Ibid' 415. A provision that testator's widow should, from time to time receive such sums as she should request, prior to the distribution of his estate, to enable her to maintain his family, does not require her to elect between that provision and her dower Irving v. De Kay, 9 Paige Ch. 521, 4: 8 OO 416. A husband conveyed real estate in fee. with WILLS, II. m. 569" out Ills wife joining:. Afterwards, by will, he be- queathed to the wife a third of the remainder of liis real and personal estate as and for her rigut of dower dui-iner her life. She accepted it. Held, that it was a relinquishment of her claim for dower out of the realty whlcn bad been conveyed by the hus- band alone, as well as of the lands whereof the hus- band was spispd at the time of making Dhe wil I. Steele v. FHsher, lEdw. Ch. 435, 6: 199 417. Where a husband and wife agreed to separate, and articles of separation were executed by them, and also by a trustee, which articles contained a provision for the payment of an annuity of $125 per annum to the wife during her life, as alimony, m consideration of which she agreed to release her right to dower in the estate of her husband ; and afterwards the husband mttde his will, and therein directed his executors to sell his real estate, and to invest one third part of the net proceeds of the sale at interest, and to pay such interest to his wife during her life, which provision he declared should be in full recompense for, and a bar of, her dower in such real estate,— HcIA that the wife was entitled to the provision secured to her in the articles of separation, and also to the provision made in her favor by the will of her husband. Careon v. Murray, 3 Paige Ch. 483, 3: 841 m. Obligation of Devisee or Legatee ; Charge upon Realty. 418. If a will clearly indicates that the personal estate is to be exonerated from debts, the court will not disappoint the intent. Isenhart v. Brown, 1 Edw. Ch. 411, 6: 190 419. A devise of real and personal estate to pay just debts does not revive a debt barred by the Statute of limitations or discharged by a bankr rupt's oertiflcate. Boosevdt V. Ma/rh, 6 Johns. Ch. 366, 8: lai 420. If lands are devised or descend tt the heir charged with «ne payment of a pecuniary legacy to some third person, payable at a future day or upon some subsequent event, and the legatee happen to die before the time appointed for payment, the law favors the heir and considers the legacy lapsed. ' No/rah v. Wheeler, 2 Edw. Ch. 156, 6: 349 421. The real estate is not charged with the pay- ment of legacies, unless the intention of the testa- tor to that elfect is expressly declared and clearly to be inferred from the language and dispositions of the will. Lupton V. lAipton, 2 Johns. Ch. 614, 1:518 422. The usual clause, "devising all the rest of his real and personal estate not before devised," is not sufficient to show an intention to charge the real estate; nor is the mere direction that all debts and legacies are to be paid. But if the real estate be devised "after payment of debts and legacies," it is charged with the payment of them. ibid. 423. Where land is devised subject to the payment of legacies, and the devisee dies before payment, the legatees have a specific lien upon the income of the land after his death, as well as upon the land itself, and their legacies must be paid out of the same, in preference to the creditoi's and legatees of Hallett V. Hallett, 2 Paige Ch. 15, 8: 793 424. If the estate and the income which accrued after the death of the devisee should prove insuf- ficient for the payment of the legacies, the balance, to the extent of the rents and profits received by the devisee in his lifetime, will constitute a debt against the residue of his estate, to be paid in a due course of administration. IbUl. 425. Where the legatees seek a sale of the estate, to satisfy the legacies charged thereon, the devisee or his heirs cannot require them to litigate a claim of third persons which, if valid, is paramount to the title under the will of the devisor. Ibid. 426. In such cases, the right acquired under the will, whatever it may be, must be sold subject to all paramount claims. Ibid. 427. Where a testator devised certain real estate to his widow for life, or during her widowhood, and, after her death or marriage, devised the same to his nephew in fee, provided he paid the legacies men- tioned In the wlU, and directed that the legacies should be paid by the nephew, his heirs, executors, or administrators, whenever he or they should come into possession of the premises devised,— it was held that a payment of the legacies was a condi- tion of the devise ; and that If the devisee or his heirs should refuse to accept the devise and pay th& legacies, the estate would descend to the heirs at law of the testator, but it would, in equity, b8 ci iro*pfli,ie -with the DPVTnent of the legacies. Btrdsoll V. Hewlitt, 1 Paige Ch. 32, z : 550 428. If the devisee accepts the devise, he becomes personally liable for the legacies. Ibid. 429. The legacies, however, are, notwithstanding' the personal liability of the devisee, an equitable charge upon the estate. Ibid. 430. A legacy carries interest from the time it bo comes payable. Ibid 431. A C made his will, and after specific be quests devised as follo'ws: "I give and bequeath all' tne remainder of my estate, both real and personal, to my two sons P C and N C, to my said two sons,, their heirs and assigns forever." He appointed them exoutors, and added: "Hereby empowering my said executors, should my personal estate be- insuificient to pay my debts and the before men- tioned legacies, to sell any of my lands which I may leave at my decease, at their discretion, and to- give deeds of conveyance for the same sufBcient in law." Held, not to be a case in which the real estate became equitable assets for the payment of debts. The creditors of A had a right of action, against the sous personally, and their judgments attached upon the lands devised, the legal title being in the son. PasealiK v. Canfteld, 1 Edw. Ch. 201, 6:111 432. Where the testator by his will devised his farm, to his son, subject to the life estate of his wife m n Sart of the same, and then gave to each of his two aughters a legacy of $1,000, to be paid by his son- in six annual payments from the death of his moth- er, and made tbeson also his residuary devisee and^ legatee,— fleJd, that the legacies to the daughter* were an equitable charge upon the farm devised to the son; the personal estate of the testator being in- Euflicient to pay the legacies. Harris v. Fly, 1 Paige Ch. 421, 4: 813 433. Where an equitable charge upon the land de- vised is created by the wlii rf the testator, a subse- quent purchaser from the devisee, who is obliged to make title to the premises through the will, has constructive notice of the charge, and takes the- land subject thereto. iiiid.. 434. A charge of a legacy upon the real estate of the- testator. either in aid of or in exoneration of the personal property, may be created by implication. And where the real estate is devised to the persoa> who by the will is directed to pay the legacy, in re- spect to such devise, or is devised upon condition^ that the devisee pay the legacy, such real estate is in equity chargeable with the payment of the lega- cy, unless there is something in the will to rebut the presumption that the testator intended to charge the estate devised. Ibid. 435. Where the real estate devised is charged with, the payment of a legacy, anu by the deatu of the legatee the devisee of the real estate becomes enti- tled to the legacy under the Statute of Distribu- tions, there is an equitable merger of the charge: and a subsequent purchaser from the devisee will' in equity be entitled to bold the premises dis- charged of the lien of the legacy. IbiA. 436. A legacy charged upon real estate becomes' lapsed by the death of the legatee before the time appointed for payment only iii those v^sun m wmci. the payment was postponed by the testator in ret- erence to the situation and circumstances of the leratee, and not where it was postponed for the convenience of the estate, or of the person charged, with the payment of the legaov. ihieJ. 437 A charge in the will was to pay "my bond for 81,500, given to H O for money loaned for my son's use " There was no such bond, but the testator had delivered to H O a bond payable to M S for $1 500, for the purpose described, H O having made the loan for M S and received the Interest as agent. Held, that the bona lo M S was intended and was a valid charge under the devise. Smiih v.Wyckoff, 3 S. 77, ■?! '!"?7 438 The children of a deceased legatee, although exclusively entitled to the legacy, cannot recover the same from the owner of the real estate upon which it is charged, without administering upon the estate of the legatee. Jenkins v. Freyer, 4 Paige Ch. 47, s. am 439 Where land is devised, charged with the pay- inVnt of a legacy, and the devisee accepts of tlia ™evise, he is persoiaUy and absolutely liable for the .670 WILLS, II. n. logaoy ; and "he has no right to require of the lega- tee, before payment, a security to refund, In case of a deficiency of assets to pay debts, etc. _ , _ eien V. Fisher, 6 Johns. Ch. 33, 8: 45 440. The devisee, in such case, is liable to pay in- terest on the legacy from the time it was payable, though the payment was not demanded by the slegatee. HM. 441. And where the devisee said that, If the legacy had been demanded, he would not have paid it, and admitted a sufficiency of assets, he was decreed to pay the costs of a suit against him by the legatee. Ibid. 443. Where husband and wife sue for the wife's legacy, tiie court will direct a suitable provision to be made out of it for the maintenance of her and her children, before decreeing payment of the leg- acy to the husband. IMd. 443. Where an administrator was sued for a legacy charged on land aeviaea to the Intestate ana ac- cepted by him,— Held, that the charge being personal on the devisee, his personal representative waf bound to pay the legacy as a personal debt : and that the legatee was to be considered as a creditor, and not bound to tender security to refund, in case of a d<>flo.iency of assets, etc. ibid. 36, 2!*7 444. It is only when the suit is against executors ■and administrators as such, that the legatee can be required to give security to refund. Ibid. 445. Where a legatee is compelled to sue for the legacy, he is entitled to Interest and costs. Ibid. 446. Where real estate isdevised, charged with the payment ot a legacy, no actiuu at law will lie against the devisee for the legacy, unless he has promised to pay the same, or nas done some act from which a promise to pay can be implied; but it he neglects or refuses to pay the legacy, the court of chancery will give th( of chancery will give the proper relief to the Ijnckwood v. Sfocftftolm, U Paige Ch. 87, 5: 66 u. Bight and Time of Enjoyment ; Time of Pay- ment of Legacy. 447. Where no time is fixed in a will for the pay- meat of a legacy, it is payable at the expiration of one year from the time of the testator's death, and will not commence drawing interest until that time. Burtis V. Dodge, 1 Barb. Ch. 77, 5: 306 448. As a general rule, legacies are payable at the end of one year, even though assets are uuc produc- tive or the executors have not reduced the property into possession; and there is no exception on the ground of a legatee's not being in a situation to re- ceive or omitting to demand. Miiish V, Hasrue, 1 Bdw. Ch. 174, 6: 101 449. Where a testator, after devising all his real es- tate to his son, chai'gea with tiic huppurt of his wife, directed that his son should, at the expiration of three years from the date of his, the testator's, decease, or the decease of hjs wife, pay certain sums for the lands which the testator had given him; and the widow of the testator survived him more than three years and then died,— HeW, that the legacies were payable Immediately upon hei ene(lt such pur- •chase is directed to be made are not yet iu exist- ence or ascertained. LorHtard v. Coster, 5 Paige Ch. 172, 3: 674 507. In cases of mixed trusts of both real and per- sonal property, the court of chancery is trequeutiy compelled to decide questions as to the validity and •effect of contingent limlt^ations in a will to persona who are not in esse, in order to make a final decree, and to give the proper instructions and directions to the executors and trustees in relation to the ex- ecution of their trust. Bowers v. Smith, 10 Paige Ch. 193, 4: 9*0 508. Upon a bill filed by a party interested in an estate,* or the construction of the will of the testa- tor, and to settle the ngnts of the complainant under the same, if there is a particular clause in the will in the construction of which the complainant has no interest, and where some who are to be af- fected by the construction of that clause are not in existence, or are not before tbe court as parties, and their rights,'lf any, depend upon a contingency which may never happen, the court will not settle the construction of that clause ex parte, when the only parties interested therein who are before the court do not ask for a decision of the question which may arise upon that clause of the will. Parts V. Parks, 9 Paige Ch. IW, 4: 687 509. There is no occasion for an executor who comes to have the trusts of a will defined, to bring testimony for the purpose of invalidating the mar- riage of a defendant who claims an interest in the estate through it. Bogert v. Bogert, 2 Edw. Ch. 399, 6: 444 Editorial Notes. Abatement of legacy 1: 512, 3: 985 Acceptance of gift ; effect of 2: 550, 4: 214, 806, 6: 190 Ademption ; of gift or legacy 2: 288, 7: 340 by advancements 7: 794 by disposal of the property 7: 787 After-acquired personalty passes ; after-ac- quired lands do not ; changes by statute l:6a«, 630, 6:885 Alienation of trust property; provision against 3: 888 Appointment in will 5 : 835 Codicil ; effect of 2: 151. 3: 1118 Capacity to make 1: 1038, 2: 604, 7: 879 "Cliildren" defined ; use of word 3: 442, 6: 101, 780 Class : legacy to; child, when in esse 8: 886 Conditional devise 1: 1141, 2: 550, 3: 1030 legacy ; performance enforced 6:112 Construction Of will 1: 96, 119, 2:286, 668, 792, 839, 3: 674, 4:468, 919, 5: 523, 988, 6:885, 7:558,652 fundamental principles of 4: 118, 7: 827 general rules of 4: 175, 627 not affected by subsequent statute 4 : 497 intention to govern 2: 286, 889, 3: 735, 1083, 1096, 4: 72. 450, 627, 800, 920, 958, 6: 385 how far intention apparent ; how mani- fested 6: 385 words transposed, supplied, and rejected 3:37 meaning adopted which will render it valid 5: 910 subsequent clauses, indicating subsequent intention, to prevail 4:627 absolute bequest to wife construed 6:769 transposition of words 3 : 839 will and codicil construed together i: 1101 when devise and bequest take effect 4:363 law of domicile controls testamentary dis- position 4:527 words causing descent per capita, instead oi per stirpes 4:616,6:827,7:358 contingent interests , 3:452 dedication by will to specific objects 3: 986 Devisee ; executory, as trustee 1: 878 duty of, to pay debts ; contribution on deficiency of assets 1:573 Election ; between gift by will and rights given by law 1 : 446, 2: 45, 7: 369 when widow must elect as to dower 1: 446, 745, 3: 867, 845, 995, 4: 447, 801,971, 6:190, 7:942 clause directing provision for widow and children 7: 634 Equitable conversion 4: 835, 6: 578, 646,678, 994, 1115, 7: 618 by devise of lands or its price 6: 349 devisee entitled to claim fund on conver- sion 5: 861 Execution of 4: 514, 896, 5 : 855 use of mark for signature 4: 897 knowledge of contents of will 4: 897 subscription to 4:896, 5:549 acknowledgment by testator 4: 514, 897, 5; 550, 856 574 WITNESSES. Execution; attestation by witnesses 4: 515, 5: 550, 856 signature of witnesses 4:897 Executors; gift to, for care and pains 6: 358 Executory devise; remainder over to sur- vivor 4: 512 absolute gift to first taker 7: 327 Extrinsic evidence; to aid construction 1:128,4:920, 5:974 of intention 4:616 to show wliat person intended 3: 432, 6: 106 Fund; brealiing in upon 3:980,5:101 protecting against creditors 8: 838 Illegitimate child; rights of, under will 4: 617 cannot take under devise to children 5:974 Income; bequest of 1:230,3:995,5:824,6:380 devise of, will pass property 5:824, 6: 490 Interest due on legacy, when 6: 245, 423 Investment of fund; direction for 3: 845 direction to invest to produce annuity 5: 824 Jurisdiction; for construction of will 3: 482, 841, 985, 4: 941 to set aside will 5 : 979, 6: 1043 to enforce payment of legacy 6; 369 no jurisdiction in equity to reform 5: 695 in equity for probate . 3: 959 Lapse; of legacy 6: 349 by death of legatee 2: 550, 4: 215, 5: 379 death of devisee in lifetime of testator 4:176 lapsed devise descends to heir 5:825 of devise in trust where object fails 4: 129 of lien on death of legatee 3: 985 Legacy defined 7: 346 how regarded 5: 983 by implication 3: 37 specific 2: 286, 611, 3: 1118, 7: 369 when to be paid 5: 825, 6: 101, 880 payment of residuum 3: 845 payment primarily out of personalty 2: 47 when a charge upon real estate 1: 513, 3: 45, 550, 4: 314, 806, 5: 84, 155 to debtor, not satisfaction of debt; right of retainer of d^bt 6: 320. 439 Suits to recover 2: 45 by husband and wife for wife's legacy B: 206 against devisee 5:66 by legatee on behalf of himself and others 2: 698 bar of statute 2; 1035 Legatees; who are 5: 567 as tenants in common 1:1101 Lien of legatees; cannot be devested 3: 337 on land devised 2: 550 Limitation; words of 2: 839, 3: 37, 136, 6: 646, 82« on failure of issue 2: 839, 3: 460, i: 695 of chattel interest 1 : 994 of personal property 1:1101 to survivor 5: 847 Lost will; bill to establish 3: 893, 6: 92, 7: 313 Maintenance; provision for 8: 929 "Money" construed 1: 183 Nuncupative will 2: 673 "Rents and profits" construed 2: 58 "Or" means "and" 6: 385 Pious and charitable uses; gifts to 8:497,1135,7:587 Posthumous child; rights of, under will S: 983, 6: 345 Power under wilj; execution of 6: 1043 in trust; devise of 4: 435 Precatory bequests 4: 805 Probate; conclusiveness of 2: 959, 8: 585, 4: 200, .993, 5: 978, 6: 133 of foreign will 4:537 proof sufScient to establish 4: 515, 5: 549, 7: 71 proof of due execution of will 2: 850, 5: 549, 856 presumption in favor of due execution of 4:896, 5:550 mere defect of memory of subscribing witness 5: 549 against positive testimony of subscribing witness 5: 550 death or failure of memory of witness 3: 975, 4: 897, 5: 550 surrogate must determine questions of fraud 5: 695 ■ burden of proof of undue influence 7:879 Public uses; gifts to, when void 8: 1135 Rent and profits ; right to,f ollows legal estate 3:845, 4:116 devise of, creates estate tail 6: 549 "Representatives" defined as next of kin ; who take under such description 6: 646 Residuary clause; what includes 3: 723, 3; 367, 1118, 5: 618, 6: 578 exception from 3; 111ft presumption in favor of residuary legatee 4:632 residuary devise . 4: 805, 5: 835, 6: 111* void devises and bequests do not.fall into- residuum 3: 1118 value of remainder; how ascertained 1: 1155- Resulting trust in favor of heirs 3: 736 Revocation of will 1: 574, 918, 2: 386, 4:80, 5: 195, 856 by sale of lands devised 4: 81, 6: 508 Suit to construe 3: 734, 4: 622' who may bring; remedy at law 4: 940' Suspension of alienation; when illegal 4:357,5:733,6:578, 7:1192 Unincorporated societies, bequests to' 6:1115 Validity of; dependent upon statute 4: 435 valid parts may be sustained, when 3: 786, 4: 356, 485, 800 of married woman's will of real estate 6:133 Vesting; of estates favored by law 4: 367 of remainder 4: 434 of legacy 5: 533, 7: 365, 693 present bequest; to be distributed at a time subsequent to death of testator 5:523^ of executory devise 5:910 in grandchildren as a class 5: 657 WITNESSES. I. In General ; Securing Attendanob. n. FBlyiI.EGE ; COHPELLINO TSSItUONT. in. Competency. a. In GeneraL b. Parlieii. c. Interest of WUnesi. WITNESSES, I. -III. b. 575. d. Husband and Wife. e. Corporators. f . Objections. IV. Examination. V. Impeaching. Editorial Notes. Costs for, see Costs. See also Affidavit, 19 ; Depositions ; Habeas Corpus, 3 ; Husband and Wife, 331 ; Mobt- OAGE, 30 ; Production and Inspection of Books AND Papers; Practice, VI. d ; Hef- ERENCE, 35. I. In General; Securing Attendance. 1. A witness will not be compelled to attend be- fore a master for examination at a t;reater dlstfmce than forty miles from his place of residence, except under special circumstances. iMwrence v. Dahin, 1 Ch. Sent. 29, 5: 1059 2 Although a complainant obtains a reference, yet the master may grant a summons under it to a defendant for a witness to be examined. Fream v. Dickinson, 3 Edw. Ch. 300, 6: 665 8. After bill dismissed, defendant cannot be ex" amlned as party. Copous V. Kauffman, 8 Paige Ch. 683, 4: 653 S. C. 1 Ch. Sent. 5, 5: lOSii n. Privilege; Compelling Testimony. 4. It is inconsistent with the spirit of the Consti- tution to compel a party to be a witness against himself in a case where the eSect of the disclosure which he is required to make will subject him to a penalty or a forfeiture. lAVingston v. Han-is, 3 Paige Ch. 528, 3:361 6. Under the Act to perpetuate the testimony of witnesses (1 B. L. 454), a witness is bound to gi ve evi- dence in the same cases and to the same extent that he would be were he called as a witness upon the trial of the cause. Beffip, 1 Paige Ch. 601, 8:767 6. The Act does not authorize the examination of a witness who could not be compelled to testify upon the trial. . Ibid. 7. No witness is bound to answer a question which would either criminate himself, render him infamous, or subject him to a penalty or forfeiture. ibid. 8. A witness who is neither a nominal nor a real Sarty to the suit is not excused from giving evi- ence, although his testimony might be used against him in a ciril suit, unless it will subject bim to some loss or disadvantage in the nature of a penalty or forfeiture. Ibid. 9. Whether the real plaintiif tn a suit at law upon a usurious note, who nas brought his suit in the name of another as the nominal plaintiff, can be compelled to testify as to the usury, under the pro- visions of the Act of 1837 on that subject,— qwsre. Beggs v. BuUer, 9 Paige Ch. 228, 4: 678 10. A witness cannot be called upon to give testi- mony showing that he had been guilty of receiving usury, to establish another species of defense to the action, although he is the real plaintiff in the suit; as the statute only protects the plaintiff from in- dictment when he is called upon to establish the defense of usury. Vilas V. JaneSy 10 Paige Ch. 76. 4: 893 11. If illegal or improper questions are put to a defendant upon bis examination before a master, he is not bound to answer them, but may appeal from the decision of the master to the court; but If he improperly refuses to answer questions which are relevant and proper, he will be compelled to pay the oosts of an application to the court to compel him to answer, and may be otherwise punished lor the contempt. Qilum V. Albert, 7 Paige Ch. 278, 4: 1R4 12.The witness who demurs toa question puttohim in the examiner's office cannot bring the matter before the court. It is for the party who puts the question to do so ; and if he does not, no one else ought or can. Mowaa V. Graham, 1 Edw. Ch. 13, 6: 43 III. Competency. a. In General. 13. A person convicted of perjury, but who is afterwards pardoned by the governor, is, notwith- standing, an incompetent witness. Holridge v. Oillespie, 2 Johns. Ch. 35, 1: 386^ 14. Although persons are alleged to have joined in conspiring to obtain the execution of a deed, yet (not being parties) they are competent witnesses. Cruger v. Douglas, 4 Edw. Ch. 433, 6: 930. 15. A party to a negotiable instrument is, af terit has been discharged, a competent witness to show usury in the transaction. Dew V. Dunham, 2 Johns. Ch. 192, 1 : 346 16. A party to a negotiable instrument shall not be allowed to impeach it for usury, where it is in the hands of a bona ftde holder. But it seems that he is a good witness in other cases, if not interested. Topping v. Van Pelt, Hoff.Ch. 646, 6: 1339' 17. The payee of a note given without considera- tion to one who has passed it with a guaranty of payment is an incompetent witness for the maker to prove the note usurious in its inception.. Ramsay v; Harris, Clarke Ch. 330, 7: 1 34. 18. The maker of a promissory note is a competent witness for the surety In a suit by the latter to en- join the holder from collecting it from such surety because of extension of time to the maker. Miller v. McCan, 7 Paige Ch. 451, 4: 33T 19. When the holder of a note with sureties has given time to the maker, the latter is a competent witness in a suit in favor ot the sureties against the holder to prove such indulgence. Holmes v. Dole, Clarke Ch. 71, 7: 54 20. A mortgagor who has executed a mortgage al- leged to be usurious cannot be examined as a witness to prove the usury by a subsequent purchaser of the property, even though he is indemulfled by such subsequent purchaser. BardweU v. Howe, C. 281, 7: lie- 21. Where the holder of a usurious bond andi mortgage Hies a bill of foreclosure against the mortgagor, and makes a subsequent judgment creditor of the latter a party to the suit,f or the pur- pose of obtaining a decree which will destroy the lien of the judgment upon the premises in the hands of the purchaser under such decree; and the mort- gagor suffers the bill to be taken as confessed, -such mortgagor is a competent witness for the judgment creditor, to prove the mortgage usurious ; as a. dismissal of the bill as to the judgment creditor will not prevent a decree of foreclosure and sale as against the mortgagor, and a decree over against him for the deficiency on such sale. Post v. Dart, 8 Paige Ch. 639, 4: 673- 22. A person who has fraudulently acquired title to land, and fraudulently conveyed it, though by a mere quitclaim deed without covenants, is not a: competent witness for his grantee',in a suit brought against him by a person claiming it as a bona ^de purchaser. Roberts v. An^rson, 3 Johns. Ch. 371, 1: 653- 23. Where the assignee of a bond and mortgage de- livered it to his assignor, with authority to give it up to the mortgagor upon receiving from him a conveyance of the mortgaged premises; and a deed was given and the bond given up to he canceled; without notice to either party that the assignee had assigned his interest in the bond and mortgage to & third party,— the original assignor was a competent witness for the mortgagor. In a foreclosure suit brought by the last assignee, to prove his agency and authority and the agreement made by bim t(> receive the conveyance and to discharge the peiv sonal liability of the mortgagor. iJecd V. Aforble. 10 Paige Ch. 409, 4:1031 24. Application was made to D for a loan to be obtained from his father-in-law H. D negotiated, die loan for $2,d00,' and on taking the mortgage gave his notes for SUOO of the amount; but the loan was all advanced by H, to whom the mortgage was •jiven. D took a mortgage to himself for 8300, for Ills trouble in doing the business. In a suit by H to foreclose his mortgage,— ifcW, that D was a com- ipfnnt witness tor H. Hetfteld v. Newton, 3 S. 56 1. 7; 958 b. Parties. 25. Whether a naked trustee, who is plaintiff, can' be a witness, though liable for costs,— see Cook V. Mancius, 5 Johns. Ch. 95, 1: 1031 576 "WITNESSES, III. c. 26. A mere trustee may be examined as a witness lin favor of either party. Bardwell v. Howe, Clarke Ch. 281, 7:115 27. An executor against whom a bill was taken .fyro mnfesso, in a suit by legatees, is a competent witness for the other defendants or devisees. Ziupton V. iupfoTi, 2 Johns. Ch. 614, 1:518 28. It seems that a gruardian ad litem is a compe- tent witness, he bein?, at most, liable only for costs, which are not of course, but discretionary and ac- cording to circumstances. BM. 29. Whether a party charged with combining with others in a fraud against, which relief is sought, and therefore made defendant, but no particular relief prayed against him, may be a witness for his codefendants, though liable for costs,— awere. Neilson v. HTDonald, 6 Johns. Ch. 201, 2: 100 30. A defendant who is charged by the plaintiff as -fraudulently colluding with his coaefendant in re- gard to the transactions sought to be impeached '«annot be a witness for his codef endant, especially when he has an interest in the cause arising from fais liability for costs and his ultimate responsibility, ■if the charge is proved. Whipple V. Lansing, 8 Johns. Ch. 613, 1: 734 31. And the cause, after issue, having been re- -ferred to a master, by consent, to take an account, he cannot be allowed to be examined before the master, even as a witness de bene esse. Ibid. 32. A complainant cannot examine a sole def end- - ant as a witness against himself, because no decree can be had against a party defendant upon facts to which he is examined as a witness. Palmer v. Van Doren, 2 Edw. Ch. 192, 6: 364 33. If there be more defendants than one, an ex- amination of a defendant may be had ; and you may fet a decree against another defendant upon such acts ; but you cannot have a decree against the party examined, embracing such facts. Ibid. 34. A defendant who appears to have no interest in the cause, but is made a party pro forma only, may be examined as a witness for his codef endant, notwithstanding the plaintiff has filed a replication to the answer of such defendant. Kirk V. Hodflson, 3 Johns. Ch. 550, 1 : 486 35. Where one of the complainants who is a neces- -sary party, but who has no pej^onal interest in the * subject-matter of the litigation, is a material wit- ness to prove the facts necessary to sustain the suit, the proper course, where the nature of the case will admit of such a change of parties, is to move to .'Strike out the name of such nominal complainant . and to make him a party defendant, so that he may be examined as such witness. JEcftford V. De Kay, 6 Paige Ch. 565, 3:1104 36. A party complainant cannot be examined as a witness against the defendant, either in behalf of himself or of his co-complainants. Ibid. 37. A complainant, who may be made liable for costs if be does not succeed in establishing the •claim set up in the bill, is not a competent witness to prove the facts necessary to sustain the suit, al- though he has no personal interest in the subject- matter of the litigation. ibid. 38. A defendant in the cause may examine a mere nominal complainant, with his assent, as a witness against the real complainant. But a defendant, who has a common interest with the complainant In the suit, cannot examine such complainant as a witness against a defendant for the purpose of sus- taining the claim made by the bill. Ibid. 39. Where a defendant admits that he is primarily liable to the complainant tor the payment of the demand for which the suit is brought, he may be examined, either by the complainant or by bis code- fendants, as a witness in the cause. Bradley v. Boot. 5 Paige Ch. 632, 3: 860 40. Where the complainant examined a witness ■against the original defendants in the cause, and it ■appeared upon such examination that the witness was primarily liable for the payment of part of the -claim for which the suit was brought, and he was thereupon made a defendant, by a supplemental bill, and suffered such bill to be taken as confessed against him,— ■Held, that the complainant was not precluded from having a decree against the def end- ■ant who had thus been examined as a witness be- )f ore he was a party to the suit. Ibid, 41. If a complainant examines a defendant who is primarily liable for the payment of the demand for which the suit is brought, as a witness against a co- defendant who is on^ secondarily liable, he cannot have a decree against either of such defendants, upon that part of the case to which he examine one of them as a witness. iMo. 42. Where P sold a lot of land to the complainant, and took back a bond and mortgage for part of the purchase money, which he afterwards assigned to B upon a vaUd consideration, upon a bill filed by the purchaser against P and B to set aside the sale and the bond and mortgage, upon the ground of an alleged fraud of P m the sale,— Held, that P, who had suffered the bill to be taken as confessed against him, and who had been released by B, his codef end- ant, was a competent witness for such codef endant, to disprove the alleged fraud. Holgate v. Palmer, 8 Paige Ch. 461, 4: 503 43. A defendant who suffers the bill to be taken as confessed, and thereby enables the complainant to obtain a decree against him individually, notwith- standing his testimony in favor at a codefendant, is a comnetent "n^tness for such codefendant, al- though he would have been directly interested in the matters to which he is examined if he had put in an answer denying the allegations in the com- plainant's bill. ibid, 44. But in a matter of contract, where it is impos- sible to obtain a decree against a defendant who suffers the bill to be taken as confessed, if the com- plainant fails in his suit against the other defend- ants who were joint contractors with him, the de- fendant against whom the bill is taken as confessed cannot be examined as a witness in favor of his co- defendants, to sustain their defense. ibid. 45. A defendant who has put in his answer, set- ting up the defense of usury, cannot be made a competent witness for a codefendant, to establish the alleged usury, by giving a stipulation abandon- ing his defense to the suit, and consenting that the bill may be taken as confessed against him, and that the complainant may take a decree against him for the amount he may prove to be due. Mann v. Cooper, 1 Barb. Ch. 185, 5: 348 46. it seems a defendant, after having pat in his answer, has no right to abandon his defense for the purpose of rendering himself a competent witness for a codefendant, without the consent of the com- plainant, and without obtaining the sanction of the court. ibid. 4'. The proper course for the defendant, in such a case, is to apply to the court, upon notice to the complainant, for leave to withdraw his answer and be examined as a witness for his codefendant. Ibid. 18. To entitle a complainant to an order author- izing him to be examined as a witness to prove the facts stated in hisbUl, against an absent defendant who has not appeared in the cause, it should be stated in the bill, and sworn to, that the complain- ant has not the means of proving the matters which he wishes to establish, except by his own oath, with- out an answer and discovery from the absent de- fendant. Anmii/moux, 1 Barb. Ch. 408, 6: 434 49. Upon an application for leave t3 examine a co- defendant as u wimess. there must be au aiUUavit that the person proposed to be examined is not in- terested in the matters as to which he is to be exam- ined. An affidavit of the solicitor that he is advised and believes such person to be a competent witness is not sufficient. American L. Ins. & T. Co. v. Sackett, 1 Barb. 585, 6: 504 S. C. 6 Ch. Sent. 21, 6: 1199 50. Where two judgment debtors have a joint and common interest in setting aside a judgment for usury, one of them cannot, by filing a bill in his own name and making the other a def endant in the suit, call the latter as a witness to establish the charge of usury. BoimMon V. Mien, 11 Paige Ch. 321, 5: 150 51. Upon an application for leave to examine a code Cendant as a witness, there must be an affidavit that the person proposed to be examined is not in- terested m the matter as to which he is to be exam- ined. Amerimn L. Ins. ., 2 Paige Ch. 40 (2: 800). Acker v. Phoenix, 4 Paige Ch. 305 (3: 447); ev. 143: pay. 5; spec. p. 3. Ackerson, Patterson n., lEdw. Ch. 96(6: 73). Patterson v., 2 Edw. Ch. 427 (6: 454). Adams e. Beekman, 1 Paige Ch. 631 (2: 779); real prop. 39; wills, 280. Dewey v., 4 Edw. Ch. 21 (6: 785). «. Joslyn, 3 Ch. Sent. 88 (5: 1129). Pratt v., 7 Paige Ch. 615 (4: 300). Smilh v., 6 Paige Ch. 435 (8: 1051). 0. Stevens, Clarke Ch. 536 (7: 193); costs, 338, 431, 530. B. Winne, 7 Paige Ch. 97 (4: 80); wills, 65, 489. Addison v. Burckmyer, 4 Sandf. Ch. 498 (7: 1185); insolT. & assign. 59; partn. 55. Adsit V. Adsit, 2 Johns. Ch. 448 (1: 446); wills, 413, 414. ^tna Fire Ins. Co.. Pentz v., 9 Paige Ch. 568 (4: 818). Pentz v., 3 Edw. Ch. 841 (6: 682). Agent of Auburn Prison, Hayden «., 1 Sandf. Cb. 195 (7: 293). Agnew, McWhorter v., 6 Paige Ch. Ill (3: 919). AUrenfeldt v. Ahrenfeldt, Hoff. Ch. 47, 497 (6: 1059, 1221); husb. & w. 253; par. & c. 14, 15. V. Ahrenfeldt, 4 Sandf. Ch. 493 (7: 1183); in- fants, 35-37, Aikin v. Martin, 11 Paige Ch. 499, 5 Ch. Sent; 6, 7 (5: 212, 1166); proc. 16-18; ref. 57; wit. 117. «. Morris, 2 Barb. Ch. 140, 6 Ch. Sent. 64, 65(5: 588, 1215); mort. 281;prac. 61-63. e. Salterlee, 1 Paige Ch. 289 (2: 651); set- off, 113, 114. Ainslev, Be. 1 Edw. Ch. 576 (6: 252); receiv. 202. Ainslie v. Kortright, 1 Ch. Sent. 33 (5: 1060). V. Radclifl, 7 Paige Ch. 439 (4: 2iJ2); ex. & ad. 201-204. > Akroyd v. Klug, 1 Ch. Sent. 39 (5: 1062); act. or suit, 18; contempt, 32. Albany, Caldwell v., 9 Paige Ch. 572 (4: 819). Albany City Bank, Jewett v., Clarke Ch. 57, 59, 179, 241 (7: 50, 51, 85, 103). V. Schermerhorn, 9 Paige Ch. 372 (4: 736): contempt, 27-31, 47, 51; receiv. 149-152, 174. B. Schermerhorn, 10 Paige Ch. 263 (4 970); receiv. 153, 154. ■ 0. Schermerhorn, 1 Ch. Sent. 86 ( 5: 1077). s. Schermerhorn, 3 Ch. Sent. 27 (5: 1109). ■0. Schermerhorn, Clarke Ch. 214, 297, 366 (7: 96, 121. 144); contempt, 4; cred. bill, 249; receiv. 113-116. Albany County s. Durant, 9 Paige Ch. 182 (4: 659); taxes, 16. Albany Ins. Co. v. Lansing, 7 Johns. Cb. 142 (2: 248); mort. 35, 36. Lansing v.. Hopk. Ch. 102; (2: 357). Albert, Gihon s., 7 Paige Ch. 278 (4: 155). Aibertson, Booth v., 2 Barb. Ch. 313 (5: 656). Alcott V. Avery, 1 Barb. Ch. 347. 5 Ch. Sent. 70 (5: 411, 1189); bks. & bkg. 69-73, 75, 77, 78; exec. 6, 59. Alderman v. Putter, 6 Paige Ch. 658 (3: 1142); plead. 598, 599. Aldrich v. Putney, 11 Paige Ch. 304, 4 Ch. Sent. 52 (5: 108, 1152); spec. p. 75, 76. V. Reynolds, 1 Barb. Ch. 43, 613. 6 Ch. Sent. 32 (5:292, 516, 1203); dam. 22- 25; mort. 412; usury, 8, 98. Alexander, Armour v., 10 Paige Ch. 571 (4: 1095). Jenks »., 11 Paige Ch. 619 (5: 255). ParkistB.. 1 Johns. Ch. 394 (1: 184). Allen, Abbot v., 2 Johns. Ch. 519 (1: 472). V. Adams, 3 Ch. Sent. 71 (5; 1123). V. Allen, 3 Ch. Sent. 26 (5: 1108). Boughton c, 11 Paige Ch. 331 (5; 150). Grosvenor v.. 9 Paige Ch. 74 (4; 613). Grosvenor v., Clarke Ch. 275 (7: 113). V. Low, 1 Ch. Sent. 40 (5: 1063). V. Randolph, 4 Johns. Ch. 693 (1: 983); as- sign. 25; plead. 36B, 496, 497. Russell v., 10 Paige Ch. 219 (4: 965). AUerton b. Johnson, 3 Sandf. Ch. 73 (7: 775); bound. 1; spec. p. 59; ven. &pur. 6. Alley. Van Wyck v., Hopk. Ch. 552(3: 520). Alsop, Pierce v., 3 Barb. Ch. 184 (5: 867). 583 684 TABLE OF CASES DIGESTED. Alston V. Jones, 10 Paige Cn. 98 (4: 903); app. a, 3. s. Jones, 3 Barb. Ch. 897, 2 Ch. Sent. 68 (5: 947, 1096); app. 2, 3; husb. & w. 211, 225; parties, 154; plead. 128, 710. Alvord V. Kimball, 2 Oh. Sent. 38 (5: 1089). Knapp v., 10 Paige Oh. 205 (4: 946). V. Reed, 4 Ob. Sent. 68 (5: 1158). American Bible Society v. Hague, 10 Paige Ch. 549 (4: 1086). t). Hague, 4 Bdw. Oh. 117 (6: 818); abate- ment, 2; plead. 22fi. Hornbecko., 2 Sandf. Ch. 133 (7: 537). American Fire Ins. Co., De Peyster «., 6 Paige Ch. 486 (3: 1071). Lowene v.. 6 Paige Oh. 482 (3: 1070). American Ins. Co. v. Coster, 3 Paige Ch. 333 (3: 173); costs, 24; ship. 8-13, 31. V. Fisk, 1 Paige Ch. 90 (2: 573); admiralty, 1, 2; equity, 50; jud. sale, 31-33. e. Oakley, 9 Paige Ch. 259, 496 (4: 693, 789); app. 133; atty. & sol. 25, 26, 30, 31; corp, 54, 55; jud. sale, 13, 14, 76-78, 84. e. Oakley. 1 Ch. Sent. 64, 2 Ch. Sent. 16 (5:1070,1084); atty. & sol. 35,26,31; Corp. 54, 55. V. Simers, 8 Ch. Sent. 70(5:1123); jud. sale, 41; master, 1. American Life Ins. Co., Stoney v., 11 Paige Ch. 635 (5: 261). American Life Ins. &T. Co. v. Bayard, 3 Barb. Ch.610, 5 Oh. Sent. 47 (5: 1029, 1181); plead. 276, 380, 381,358. Davis «., 4 Edw. Oh. 308 (6: 888). Fellows v.. 1 Sandf. Oh. 203 (7: 296). «. Gault, 3 Ch. Sent. 78 (5: 1125). «. Mumford. 3 Ch. Sent. 11 (5: 1082). New York Dry Dock Co. v., 11 Paige Ch. 384(5:171). New York Dry Dock Co. «., 3 Sandf. Ch. 315 (7: 829). e. Sackett, 1 Barb. Ch. 585, 6 Ch. Sent. 21 (5: 504, 1199); plead. 248-250; wit. 49. 51. Smith v., Clarke Ch. 307 (7: 127). Stoney v., 4 Edw. Ch. 332 (6: 896). American Mut. Ins. Co., Herckenrath ®., 3 Barb. Ch. 63 (5: 818). American Tract Society, Banks «.,4Sandf. Ch. 438 (7: 1163). Ames V. Blunt. 2 Paige Ch. 94 (2: 837); chan. & V. c. 11-31. V. Blunt, 5 Paige Ch. 13 (3:607); insolv. & assign. 142, 143. Amidon, Bradley »., 10 Paige Oh. 235 (4: 958). Amory «. Mayor, etc. of N. Y. 1 Ch. Sent. 82 (5: 1075). Amos, Thorp v., 1 Sandf. Ch. 26 (7: 225). Amy V. Grillet, 2 Ch. Sent. 65 (5: 1095). Anable v. Pulver, 5 Ch. Sent. 27 (5: 1175) Anderson v. Anderson, 1 Edw. Ch. 380 (6: 179); husb. & w. 276. Purser 0., 4 Edw. Ch. 17(6: 783). V. Rapelye, 9 Paige Ch. 483 (4: 785); usury, 75, 126. V. Rapelye, 3 Oh. Sent. 19 (5: 1035); usury, 75. Roberts s., 2 Johns. Ch. 302 (1: 348). Roberts «., 3 Johns. Ch. 371 (1: 653). ■ Wal-worth v., 4 Edw. Ch. 381 (6: 879). t. White, 10 Paige Oh. 575 (4: 1096); app. I 4, 8 ; reviv. 11-14, 30, 63, '64. Anderson ®. While. 4 Oh. Sent. 6 (5: 1130). Andrews, Be, 1 Johns. Ch. 99 (1: 74); guard. & w. 21-33. Vance v., 3 Barb. Ch. 370 (5: 679). Angel, Wiley v., Clarke Oh. 317 (7: 97). Annan, Merrilt «., 7 Paige Ch. 151 (4: 103). Annin, Tice s. , 3 Johns. Ch. 135(1: 317). Anonymous. Hopk. Oh. 38, 101 (3: 330, 357),- peti. 1; plead. 266. 10 Prtige Ch. 30, 41 (4: 8C9, 877); infants 156. 1 Barb. Ch. 73, 408 (5: 304, 434); prac. 199; wit. 48. 3 Edw. Ch. 136 (6: 600): prac. 64. Clarke Oh. 423, 531 (7: 160, 193); costs, 550; mort. 317. Anstice v. Brown, 6 Paige Ch. 488 (3: 1056); aliens, 37-39, 42; cosis, 79. Anthon, Tompkins «., 4 Sandf. Oh. 97 (7: 1039) Apthorp ». Comstock, 2 Paige Oh. 482 (2: 997); equity, 86: ev. 356; new tr. 15-17; prac. 181, 189. Apthorpe v. Comstock, Hopk. Oh. 143(3: 373); conlr. 106; equity, 100-103; injunc. 385; proc. 1. Arden ®. Arden, 1 Johns. Oh. 313 (1: 153); ev. 76; ex. & ad. 365; lim. of ac. 71-73; ref. 115. e. Patterson, 5 Johns. Ch. 44 (1: 1003); atty. & sol. 75, 76; champ. 4; insolv. & assign. 14; judg. d. & o. 193. Souveroey v., 1 Johns. Oh. 340 (1: 136). Sterryt)., 1 Johns. Oh. 63, 361 (1: 60, 133). B. Walden, 1 Edw. Oh. 631 (6: 273); writ. & proc. 15. Argall, Mills b., 6 Paige Ch. 577 (3: 1109). Armour ®. Alexander. 10 Paige Ch. 571 (4: 1095); pub. lands. 5-7. V. Alexander, 4 Oh. Sent. 13 (5: 1188). Armsby v. Wood, Hopk. Oh. 339 (2; 403); wit. 127. 128. Armstrong «. Byrne, 1 Edw. Ch. 79 (6: 66); insolv. & assign. 47, 130. D. Mackie, 2 Edw. Ch. 436 (6: 454). See Mix v. Mackie. Wiggins »., 2 Johns. Oh. 144 (1: 324). Arnhout. Be, 1 Paige Ch. 497 (2: 729); costs, 366; incomp. pers. 28-30. Arnold, Bank of Ogdensburgh v., 5 Paige Ch. 38(3:617). V. Gilbert, 2 Ch. Sent. 56 (5: 1093). V. Gilbert, 3 Sandf. Oh. 581 (7: 946); eq. conv. 31; perpetu. 13, 38; power, i; wills, 4, 363, 393. V. Patrick, 6 Paige Oh. 310 (3: 1000); deed, 14; escrow, 5; ven. & pur. 99. Arnoux«. Steinbrenner. 1 Paige Oh. 83(2: 569); costs, 198. Arredondo, Ward v., Hopk. Oh. 213 (2: 397>. Artcher, Mohawk & Hudson R. R. Co. ■». 6 Paige Ch. 83(3: 907). Arthurs. Case, 1 Paige Oh. 447 (3: 710); in- junc. 81; wat. & w. cos. 81. Ashwortha. Wrigley, 1 Paige Ch. 301 (3.655); mun. corp. 51-54. Aspinall «. Pirnie, 4Edw. Ob. 410 (6: 932): ex & ad. 371. Astor, Clapp v., 2 Edw. Ch. 379 (6: 436) Dodd®., 2 Barb. Oh. 395 (5: 689). Gardner v., 3 Johns. Ch. 53 (1: 540). V. Miller, 3 Paige Ch. 68 (3: 816); cov. 34, 25; Ian. & ten. 14; mort. 80, 86, 363. TABLE OF CASES DIGESTED. 585- Astor e. Romayne, 1 Johns. Ch. 810 (1: 153); raoit. 332-334. Ruckman v., 9 Paige Ch. 517 (4: 799). Ruckman s., 3 Bdw. Ch. 378 (6: 693) «. Turner. 11 Paige Ch. 436, 4 Ch. Sent. 79 (5: 189, 1161); mort. 413, 414; receiv. 69. e. "Ward, 8 Edw. Ch. 371 (6: 693); chan. & V. c. 28. Willis v., 4 Edw. Ch. 594 (6: 987). Astreen v. Flanagan, 8 Edw. Ch. 279 (6: 656); gift, 20; par. &c. 8; trusts, 70. Atherton, Rankin «., 8 Paige Ch. 143 (6: 91). Atkinson. Be, 3 Paige Ch. 314 (2;880); wills, 125, 126. Atlantic Ins. Co., Callaghan v., 1 Edw. Ch. 64 (6: 61). ». Lamar, 4 Ch, Sent. 62 (5: 1155); ref. 87. V. Lemar, 10 Paige Ch. 885. 505 (4: 1023, 1069); app. 344; plead. 732; ref. 37. «. Lunar, 1 Sandf. Ch. 91 (7: 353); disco v. 24, 40. e. Storrow, 5 Paige Ch. 285 (3: 730); costs, 583; insur. 80-33. e. Storrow, 1 Edw. Ch. 631 (6: 359); insur. 34, 35. Attorney-General o. Bank of Chenango, Hopk. Ch. 596 (3: 586); bks. & bkg. 72, 73; in- junc. 310, 211. e. Bank of Columbia, 1 Paige Ch. 511 (2: 735) ; corp. 158, 159; plead. 146;receiv. 93, 94. e. Bank of Niagara, Hopk. Ch. 354 (2: 448), bks. & bkg. 1, 74; corp. 170-173; equity, 18; quo war. 3. e. Cohoes Company, 6 Paige Ch. 133(3:928); injunc. 76, 307. e. Life & Fire Ins. Co. 4 Paige Ch. 354 (3: 413); receiv. 188, 189. V. Life & Fire Ins. Co. 9 Paige Ch. 470 (4: 780) , bks. & bkg. 5; bills & n. 43; corp. 35. V. Life* Fire Ins. Co. 2Ch. Sent. 11 (5: 1082); bona fide p. 16; corp. 35. Attorney-General v. Purmort, 6 Paige Ch. 620 (8: 856); estop. 18. V. Utica Ins. Co. 3 Johns. Ch. 371 (1:472); bks. & bkg. 1-8; corp. 14-16; equity, 23-37; injunc. 189; quo war. 1, 2. Attwood V. Coe, 4 Sandf. Ch. 412 (7: 1154); disco V. 74. Atwater v. Fowler, 1 Etlw. Ch. 417 (6: 198); ev. 5; laches, 2; lim. of ac. 9; partn. 107, 108. Mohawk Bank®., 3 Paige Ch. 54 (3: 810). Auburn Academy «. Strong, Hopk. Ch. 278' (3: 421); academies, 1, 3; visitation. Auburn & Rochester R. Co., Kyle «.,3Barb. Ch. 489 (5:736). Augur V. Winslow, Clarke Ch. 258 (7:108); mort. 488, 581. Austin v. Dickey, 3 Edw. Ch. 378 (6: 695); re- ceiv. 29. V. Pigueira, 7 Paige Ch. 56 (4: 58); costs, 23;. cred. bill, 50, 113, 114; injunc. 239: mun. Corp. 8; receiv. 15, 88. Russell B., 1 Paige Ch. 192(2: 612) Avery, Alcott «., 1 Barb. Ch. 347, 5 Ch. Sent. 70 (5: 411. 1189). v. Averv, 8 Oh. Sent. 40(5: 1113). Keirstefi v., 4 Paige Ch. 9 (8: 819). Miller «., 2 Barb. Ch. 583 (5: 763). V. Petten, 7 Johns. Ch. 211 (2: 271); con- trib. 9; parties, 27. Pomeroy v., 9 Paige Ch. 591 (4 :828). Ayer s. Yeoman, 1 Ch. Sent. 37 (5: 1058). Aymars. Bill, 5 Johns. Ch. 570(1: 1178); mort. 84, 85. V. Rofl, 3 Johns. Ch. 49 (1: 538); husb. & w. 14. Aymer v. Gault, 3 Paige Ch. 384 (3: 909) ; costs,. 40; interpl. 44; ref. 5; rev. stat. Ayres v. Valentine, 3 Edw. Ch. 451 (6: 463);. plead. 300. B Babcock, Pratt «., 10 Paige Ch. 395 (4: 984). Bacon v. Bronson, 7 Johns. Ch. 194 (3: 265): fraud. 3-4, 11. Badeau v. Rogers, 3 Paige Ch. 209 (2: 878); costs, 41, 42; interpl.5-7, 43. «. Tylee, 1 Sandf. Ch. 370 (7: 835); interpl. 18; Ian. & ten. 56. Badger, Storm b., 8 Paige Ch. 130 (4: 371). Badgley «. Bruce, 4 Paige Ch. 98 (8: 359); dower, 76, 78. Baggot V. Eagleson. HofE. Ch. 877 (6: 1178); plead. 578. «. Henry, 1 Edw. Ch. 7(6:40). Bailey «. Bailey, 6 Ch. Sent. 87 (5: 1305). e Inglee, 2 Paige Ch. 378 (3: 905); parties, 14, 49. , , «. LeRoy, 3 Edw. Ch. 514 (6: 487); plead. 846: spec. p. 82. «. Lincoln, 1 Ch. Sent. 21 (5: 1057). New York Life Ins. & T. Co. s., 3 Edw. Ch. 416 (6: 709). Wakeman «., 8 Barb. Ch. 482 (5: 981). Baker «. Clark, 1 Ch. Sent. 15 (5: 1055). Howell v., 4 Johns. Ch. 118 (1: 784). Jackson v.. 2 Edw. Ch. 471 (6: 470). Baker v. Kingsland, 10 Paige Ch. 336 (4: 1013); ev. 88, 102; ex. & ad. 443; judg. d. & 0. 184. V. Kingsland, 3 Ch. Sent. 73 (5:1124); judg. d. & o. 162; ex. & ad. 443. v. Kingsland, 3 Edw. Oh. 13a (6: 601); plead. 589. Parker v., 8 Paige Ch. 428 (4: 490). Parker v., Clarke Ch. 136, 323 (7: 73, 98). Potter v., 4 Paige Ch. 290 (3: 441). Balbi V. Duvet, 3 Edw. Ch. 418(6: 710); costs, 199 Balchenu' Crawford, 1 Sandf. Ch. 380 (7: 366);. ev. 337; interpl. 42. Balcom v. New York Life Ins. & T. Co. 11 Paige Oh. 454, 4 Ch. Sent. 84 (5. 196, 1163); plead. 406, 463,501, 563. Balde«. Smith, 5 Ch. Sent. 11(5: 1167); accord. & sat. 3; receiv. 80, 103. Baldwin s. Baldwin, 6 Ch. Sent. 36 (5: 1304). Champlin v. , 1 Paige Ch. 563( 2: 753). V. Eddy, 3 Ch. Sent. 4 (5: 1101). Fitch v., Clarke Oh. lOS, 436 (7: 64, 161). King «., 2 Johns. Ch. 554 (1: 487).. ■580 TABLE OF CASES DIGESTED. Baldwin v. Lalson, 2 Berb. Ch. 306 (5: 653); atty. & sol. 11, 13; judg. d. & o. 367; parties, 58. Leavitt v., 4Edw. Ch. 289 (6: 883). e. Salter, 8 Paige Oh. 473 (4: 508); spec. p. 58, 77, 78. «. Slater, 1 Oh. Sent. 87 (5: 1077). n. Williamson, Hopk. Ch. 117 (2: 368); costs, 283 Ballagh, Curtis «., 4 Edw. Oh. 635 (6: 1001). Ballantyne, Smith®., 10 Paige Ch. 101 (4: 904). Ballou, Murray v., 1 Johns. Ch. 566 (1: 247). Bamber, Hall v., 10 Paige Ch. 296 (4: 984). Bame, New«., 3 Sandf. 191 (7:831). New «., 10 Paige Ch. 503 (4: 1067). Bancker v. Hitchcock, 1 Ch. Sent. 88 (5: 1078); receiv. 70. V. Hitchcock, 2 Sandf. Oh. 21 (5: 1086). Bangs, City Bank «., 2 Edw. Oh. 95(6:328). City Bank v., 3 Paige Ch. 570 (3: 1033). City Bank v.. 3 Paige Ch. 36 (3: 47). . City Bank v.. 4 Paige Ch. 385 (3: 439). Paterson v., 9 Paige Ch. 627 (4: 843). V. Strong, 10 Paige Oh. 11 (4: 866); plead. 350; prin. & s. 17-31. Bank, Albany City, Jewett «., Clarke. Oh. 57, 59, 179, 241 (7: 50, 51, 85. 103). Albany City, v. Schermerhorn, Clarke Ch. 214, 397, 366; (7: 96, 121, 144); See Bank of Monkob «. Sckebmbrhorn. Brooklyn, v. Waring, 2 Sandf. Oh. 1 (7: 483). Butchers & Drovers, ». Willis, 1 Edw. Ob. 645 (6: 277); judg. d. & o. 394. Chautauque County, Lowry v., Clarke Ch. 67 (7: 53). Columbia, Attorney-General i>., 1 Paige Ch. 511 (3: 735). •Greenwich, v. Loomis, 3 Sandf. Oh 70 (7: 512). ■ Highland, Lee v., 1 Sandf. Ch. 311 (7: 606). Lumberman's, Crosby v., Clarke Ch. 234 (7: 101). Newburgh, Reed v., 1 Paige Oh. 215 /o. 822) Newburgh, Reed B., 6 Paige Ch. 337 (3: 1011) Niagara, Be, 6 Paige Oh. 213 (3: 959); receiv. 205-207. -Niagara, Attorney-General c, Hopk. Ch. 354 (2: 448). Niagara, Rosevelt v., Hopk. Oh. 579 (2: 530). ■Ogdensburph, o. Arnold, 5 Paige Oh. 38 (3:617); dower, 31; mort. 861; receiv. 73, 74. ■Plattsburgh, v. Piatt, 1 Paige Oh. 464 (2: 716); costs, 547. Rochester, v. Emerson, 3 Ch. Sent. 1 (5: 1100); costs, 333; cred. bill, 14; judg. d. & o. 41, 49; mistake, 3; mort. 408. Hochester, ». Emerson, 10 Paige Ch. 115, 359 (4: 909, 1011); costs, 333: cred. bill, 14, 221; equity, 104, 121; exec. 10; judg. d. &o. 41, 49; mort. 403; prac. 1; ref. 118. Tradesmen's, d. Hyatt, 2 Edw. Ch. 195 (6: 865); plead. 455. •United States, v. Housman, 6 Paige Ch. 526 (4: 1088); deed, 37, 38, 45; fraud. conv. 34, 35. Western Reserve, v. Potter, Clarke Ch. 432 (7: 168). •Western Reserve, v. Stryker, Clarke Oh. 880 (7: 148). Bank of America v. Pollock, 4 Edw. Ch. 215 (6: 856); cred. bill, 141; trusts, 34. of Chenango, Attorney-General v., Hopk. Oh. 596 (3: 536). of Monroea. Keeler, 1 Cb. Sent. 63 (5: 1070); ref. 14. of Monroe v. Keeler, 9 Paige Oh. 349 (4: 688); cred. bill, 208, 210; ref. 14. of Monroe v. Schermerhorn, Clarke Oh. 214, 297, 303, 366 (7: 96, 121, 123, 144); injunc. 271, 283; receiv. 79, 95, 213; ref. 15. of Monroe v. Strong, Clarke Oh. 76 (7: 56); usury, 19. of Monroes. Widner, 11 Paige Oh. 529, 5Ch. Sent. 3 (5: 338, 1165); app. 71. of Orange Oounly v. Pink, 7 Paige Ch. 87 (4: 76); app. 338; insolv. & assign. 43. of Orleans ». Austin, 5 Oh. Sent. 23(5: 1173). of Orleans, Boughton « , 2 Barb. Ch. 458 (5: 714). of Orleans v. Plagg, 3 Barb. Ch. 316 (5: 915); notice, 18; plead. 333; ven. & pur. 117. of Orleans «. Skinner, 1 Ch. Sent. 70 (5: 1072); plead. 149. of Orleans v. Skinner, 9 Paige Ch. 305 (4: 711); chan. & v. c. 35; injunc. 328, 328; plead. 149. of Orleans, Torrey v., 9 Paige Oh. 649 (4: 858). ot the State of N. Y., Commercial Bank of Buffalo B., 4 Edw. Ch. 32 (6: 788). of Utica V. Dill, 1 Paige Ch. 466 (2: 717); equity, 44, ■15. of Utica V. Pinch, 1 Barb. Oh. 75 (5: 305); judg. d. & o. 369; lis. pend. 4: plead. 159. of Utica V. Finch, 3 Barb. Oh. 293 i'5: 906). of Utica V. Mersereau, 8 Barb. Oh'. 528 (5: 998). of Ulica V. Messereau, 7 Paige Ch. 517 (4: 255); discov. 69; plead. 480, 431. of Utica V. Utica, 4 Paige Ch. 399 (3: 487); equity, 53: taxes, 1. 18, 19. of Wooster v. Spencer, Clarke Ch. 386(7: 150); receiv. 89. Bank Commissioners v. Bank of Buffalo, 6 Paige Ch. 497 (3: 1076); atty. & sol. 34; bks. & bkg. 42-54, 69-71. 0. Bank of Western N. Y. 1 Ch. Sent. 38 (5: 1062); receiv. 38. V. City Bank of ' Buffalo, 1 Oh. Sent. 50, 84 (5: 1066, 1076). «. City Bank of Buffalo. 2 Ch. Sent. 73 (5: 1099). V. La Fayette Bank, 4 Edw. Ch. 277 (6: 881); int. 18. 0. The James Bank, 2 Ch. Sent. 12 (5: 1083): bks. & bkg. 66. V. The James Bank, 9 Paige Oh. 457 (4: 774); bks. & bkg. 66-68; parties, 199. Banks v. American Tract Society, 4 Sandf. Ch. 438 (7: 1163); estop. 26; ancient lights, 1, 2; conlr. 60; judg. d. & o. 124, 142, 143; prac. 84. Hawn v., 4 Edw. Ch. 664 (6: 1011). V. Walker, 1 Barb. Oh. 74 (j: au5); affldavit, 8. 11. Walker, 3 Barb. Oh. 438 (5: 963); aliens, 17, 18, 35-28; mort. 230, 284; plead. 687. V. Walker, 2 Sandf. Oh. 344 (7: 619); mort. 382, 283; ven. & pur. 44-46. e. Walsh, 3 Ch. Sent. 78 (5: 1125) TABLE OF CASES DIGESTED. 587 Banks v. "Wilkes, 3 Saudf. Ch. 99(7: 785); ex. & ad. 123; trusts, 180. Banta v. Banta, 3 Edw. Ch. 295 (6: 663); ev. 291; husb. & w. 332. V. Garmo, 1 Sandf. Ch. 883(7: 368); subr. 40. Baptist Church in Hartford D.'Witherell, 3 Paige Ch. 396 (3: 159); relig. soc. 18-32, 42. 43. Baptist Missionary Convention, Chaffee «., 10 Paige Ch. 85(4:896). Barber v. Spencer, 11 Paige Ch. 517 (5: 318); setoff, 14, 71-73. Barbier v. Barbier, 5 Ch. Sent. 48 (5: 1183). Barclay v. Brown, 7 Paige Ch. 345 (4: 142); app. 73, 73; judg. d. & o. 19. V. De Peyster. 1 Ch. Sent. 34(5: 1061). o.Macanly, 3 Ch. Sent. 56 (5: 1118); courts, .15; parties, 128, 130. Marshall v., 1 Paige Ch. 159 (2: 600). V. Talman, 4 Edw. Ch. 123 (6: 830); corp, 173, 174; courts, 13, 14; insolv. & as sign. 129. Bard ®. Chamberlain, 3 Sandf. Ch. 31 (7: 758) corp. 1; ev. 372. o. Chamberlin, 5 Ch. Sent. 73 (5: 1191) plead. 360, 388. t. Fort, 3 Barb. Ch. 632, 6 Ch. Sent. 69 (5 1038, 1216); prac. 101, 103. e. Mayor, etc. of N. Y., 1 Ch. Sent. 82 (5 1076). Bardeau, King v., 6 Johns. Ch. 38 (2: 47j. Bardwell v. Howe, Clarke Ch. 281 (7: 115); usury, 14; wit. 30, 26. Baremore, Giles «., 5 Johns. Ch. 545 (1: 1169). Bargy, Satterlee v., 3 Paige Ch. 143 (3: 90). Barhydt, Schermerhorn v., 9 Paige Ch. 38 (4: 597). Baring v. Moore, 4 Paige Ch. 166 (3: 388); judg. d. & o. 338. «. Moore, 5 Paige Ch. 48 (3: 633); jud. sale, 83, 118. Barker, Be, 3 Johns. Ch. 333(1: 358);incomp. pers. 1. 3, 4, 100. Cooke v., Hopk. Ch. 117(3: 368). ». Elkins, 1 Johns. Ch. 465 (1: 310): injunc. 103; new tr. 6. Floyd v., 1 Paige Ch. 480 (3: 723). Hammersley v., 3 Paige Ch. 372 (2: 948). Little v., Hoff. Ch. 487 (6: 1218). Slorrs v., 6 Johns. Ch. 166 (2: 88). Union Bank v., 3 Barb. Ch. 358 (3: 933). V. Woods, 1 Sandf. Ch. 139 (7: 365); husb. & w. 176; wills, 381. Barlow v. Barlow, 3 Ch. Sent. 69 (5: 1097). Richards v.,l Paige Ch. 138, 323 (2: 591,664). Todd v., 2 Johns. Ch. 551 (1: 486). Barnard v. Darling, 1 Barb. Ch. 76. 218, 5 Ch. Sent. 53 (5: 305, 360, 1184); cred. bill, 226; plead. 139; receiv. 37, 35, 36; review, 7. Mclntyre v.. 1 Sandf. Ch. 52 (7: 336). Barnes v. Greenzebach, 1 Edw. Ch. 41 (6: 53); wills, 196, 204. V. Lyman, 1 Ch. Sent. 4 (5: 1052). Barnett o. Pardow, 1 Edw. Ch. 11 (6: 41) prac. 137. Barney ®. Griffin, 4 Sandf. Ch. 553 (7: 1305) insolv. & assign. 89, 40, 120. Barnum v. Hempstead, 7 Paige Ch. 568 (4 278): insolv. & assign. 68, 69, 98, 99. Sears v.. Clarke Ch. 139 (7: 74). Barr v. Manhattan Co. 4 Ch. Sent. 14 (5; 1139). Barrere «. Barrere, 4 Johns. Ch. 187 (1: 809): husb. & w. 363; infants, 40. Barrett, Chase v., 4 Paige Ch. 148 (3: 381). Barron v. Richard, 3 Edw. Ch. 96 (6: 585); nuis. 4, 5; plead. 1. Barrow v. Rhinelander, 1 Johns. Ch. 550 (1: 342); comp. 7, 8; int. 90; prac. 116-118. V. Rhinelander, 3 Johns. Ch. 130, 614 (1: 562, 734); app. 110; costs, 339; pledge & col. sec. 8, 9; ref. 93; trusts, 211. V. Richard, 8 Paige Ch. 351 (4: 457): injunc. 34, 35; nuis. 6. Barry «. Barry, Hopk. Ch. 118 (2: 363); husb. & w. 318. «. Merchants Exchange Co. 1 Sandf. Ch. 280(7: 329); bks. &bkg. 6; corp. 38, 48- 50; mort. 43. Bartholomew v. Yaw, 1 Ch. Sent. 35 (5: 1061) usury, 174. 9. Yaw, Clarke Ch. 16 (7:39); usury, 175, 176. V. Yaw, 9 Paige Ch. 165 (4: 651); usury, 106, 174. Bartle, Suydam «., 9 Paige Ch. 394 (4: 706) Suydam v., 10 Paige Ch. 94 (4: 991). Bartlett v. Bartlett, Clarke Oh. 460 (7: 171) husb. & w. 343, 343. 0. Gale, 4 Paige Ch. 503 (3: 533); ev. 110; mort. 107, 108. 9. Janeway, 4 Sandf. Ch. 396 (7: 1147). V. Van Zandt, 4 Sandf. Ch. 396 (7: 1147) parti. 114, 115. Wheeler «., 1 Edw. Ch. 333 (6: 157). Barton v. Farbore, 3 Ch. Sent. 59 (5: 1094) courts, 59. V. May, 3 Sandf. Ch. 450 (7: 915); mort. 504 spec. p. 94. Bassford, Denison v., 7 Paige Ch. 370 (4: 198), Bates, De Forest »., lEdw. Ch. 394 (6: 184). «. Delavan, 5 Paige Ch. 299 (3:726); conf. of 1. 33: courts, 27-39; ev. 99; spec, p, 80; ven. & pur. 50, 68. 9. Lyons, 7 Paige Ch. 85 (4: 76); cred. bill,49. Baxter, Corning®.. 6 Paige Ch. 179 (3: 946). V. Lansing, 7 Paige Ch. 350 (4: 184); equity, 135: Ian. & ten. 39. 40. Bay V. Coddinglon, 5 Johns. Ch. 54 (1: 1006) bills & n. 38, 29. «. Tallmadge, 5 Johns.Ch. 305(1: 1091); bail 1-6. V. Van Rensselaer,' 1 Paige Ch. 423 (3: 701) app. 59. Bayard, American Life Ins. & T. Co. v., 3 Barb. Ch. 610 (5 :1029). V. Hoffman, 4 Johns. Ch. 450(1: 898); fraud- conv. 30-33; insolv. & assign. 56. Lawrence «., 7 Paige Ch. 70 (4: 64). Bayeaux v. Bayeaux, 8 Paige Ch. 333 (4: 450); wills, 3. Beach v. Beach, 11 Paige Ch. 161, 4 Ch. Sent. 29 (5: 92, 1144); husb. & w. 304; plead. 671. ». Bradley, 8 Paige Ch. 146 (4:377); habitual d. 8, 9. Fulton Bank v., 1 Paige Ch. 429 (2: 703). Fulton Bank 9.,3Paige Ch. 185, 307(2: 866, 920). Germain v., 9 Paige Ch. 332(4: 680). Haines v., 3 Johns Ch. 459 (1: 683). Beacham's Assignees v. Eckford's Exrs. 2 Sandf. Ch. 116 (7: 531); costs. 12; ev. 195; int. 11, 12; partn. 110-113. rss TABLE OF CASES DIGESTED. Bear, Miller v., 3 Paige Ch. 466 (3: 234). Beardsley, Getman's Exrs. «., 2 Johns. Ch. 274 (1:376). Young v., 11 Paige Ch. 93 (5:68). Beaty «. Beaty, 2 Johns. Ch. 430 (1: 487); In- soIt. & assign. 134. Beatty v. McNaughton, 1 Barb. Ch. 319, 6 Ch. Sent. 46 (5: 401, 1208); app. 100; prao. 196. Bechtel d. Cutter, 2 Ch. Sent. 72 (5: 1098); re ceiv. 84. Beck T. Burdett, 1 Paige Ch. 305 (2: 657); cred. bill, 25, 26, 254; insolv. & assign. 32. Becker, Evarts v., 8 Paige Ch. 506 (4: 522). Goldey v., 1 Edw. Ch. 271 (6: 135). Harrington i>.. 2Barb. Ch. 75 (5: 562). «. Ten Eyck, 6 Paige Ch. 68 (3: 902); sber. 1-4. Bedell D. Bedell, 2 Barb. Ch. 99, 6 Ch. Sent. 57 (5: 571, 1212): plead. 668 -670. v. Bedell, 1 Johns. Ch. 604 (1: 262); husb. & w. 879, 414. v. Hoffman, 2 Paige Ch. 199 (2: 872); costs, 254, 255; interpl. 3, 4, 8. Beebe v. Coleman, 8 Paige Ch. 392 (4: 476); Ian. &ten. 2,3; ven. &pur. 31. Beeckman v. Schermerhorn, 3 Sandf. Ch. 181 (7: 817); desc . & dist. 13; wills, 382, 383. Beekman, Adams d., 1 Paige Ch. 681 (2: 779). Frost v., 1 Johns. Ch. 288 (1: 143). v. Gibbs, 8 Paige Ch. 511 (4: 523); mort. 375, 397 e. McComb, 1 Ch. Sent. 50 (5: 1066). v. Peck, 3 Johns. Ch. 415 (1: 667); judg. d. & o. 353, 357. «. Saratoga & Schenectady R. R. Co. 3 Paige Ch. 45 (3: 50); em. dom. 4, 5. 8- 15; carriers, 1, 2. Stagg v., 2 Edw. Ch. 89 (6: 320). Stevens v., 1 Johns. Ch. 318 (1: 155). Van Cortlandt v., 6 Paige Ch. 492 (3: 1074). v. Van Rensselaer, 3 Ch. Sent. 25 (5: 1108). «. Waters, 8 Johns. Ch. 410 (1: 666); plead. 315, 216; writ & prcc. 11. Beekman Iron Co., Many v., 9 Paige Ch. 188 (4: 661). Beers v. Chelsea Bank, 4 Edw. Ch. 277 (6: 878); receiv. 209. V. Leavltt, 2 Ch. Sent. 59 (5: 1094). Beggs n. Butler, 1 Ch. Sent. 52 (5: 1067); par- ties, 78. 69; usury, 129. v. Butler, Clarke Ch. 517 (7: 188); parties, 78, 79; prin. & s. 46; usury, 116. e. Butler, 9 Paige Ch. 226 (4: 678); equity, 73; parties, 78, 79; usuiy, 129; wit. 9. Belcher, Souza®., 8 Edw. Ch. 117(6: 593). Belden, Jewett v., 11 Paige Ch. 618 (5: 255). Phillips v., 2 Edw. Ch. 1 (6: 285). Whitney o., 1 Edw. Ch. 386 (6: 182). Whitney v., 4 Paige Ch. 140 (3: 378). Belknap v. Belknap, 2 Johns. Ch. 468 (1: 452); drain acts, 1, 2; injunc. 93. t. Tremble, 2 Paige Ch. 277 (2: 905); app. 215 t. Trimble, 3 Paige Ch. 577 (3: 281); app. 11; injunc. 79, 89; wat. & w. cos. 26, 27. Bell n. Bell, 5 Ch. Sent. 65 (5: 1187). Pishell v., Clarke Ch. 87 (7: 45). e. Hunt, 3 Barb. Ch. 391 (5: 945); interpl. 1, 2; parties, 145. c. Locke, 8 Paige Ch. 75 (4: 350); injunc. 173. Bell D. Mayor, etc. of N. T., 2 Ch. Sent. 73 (5- 1098). e. New York, 10 Paige Ch. 49 (4: 881)^ dower. 10, 89; int. 85; mort. 80, 472,. 482-484, 510, 519-522. Bellinger «. Shafer, 2 Sandf. Ch. 293 (7: 599); improv. 2; trusts, 240, 300-302. Bend, Oakey v., 3 Edw. Ch. 482 (6: 733). Bender, Scouten v., 31 Barb. Ch. 647 (5: 580). Benedict®. Gilman, 4 Paige Ch. 58 (3:340); costs, 148; improv. 1; mort. 208, 309, 437, 537, 528. Lockwood v., 3 Edw. Ch. 472 (6: 729). B. Lynch, 1 Johns. Ch. 370 (1:175); contr. 65; ev. 186; spec. p. 66, 88, 89. St. John v., 6 Johns. Ch. Ill (3: 71). v. Smith, 10 PEige Ch. 126 (4: 913); atty. & sol. 27-29; mort. 534; prin. & a. 30; wit. 69. 0. Smith, 3 Ch. Sent. 7 (5: 1102); mort. 534. V. Toleston, 1 Ch. Sent. 32 (6: 1060). Bennett v. Bvrne, 2 Barb. Ch. 216, 6 Ch. Sent. 69 (5: 620, 1216); guard. & w. 11. 12. 17, 18, »7. Cummins v., 8 Paige Ch. 79 (4: 352). Hawley »., 5 Paige Ch. 104(3: 646). Hawley v., 4 Paige Ch. 163 (3; 887). Hillyer v., 3 Edw. Oh. 223 (6: 634). Marvin v., 8 Paige Ch. 812 (4: 441). People, ex rd. Hawley, v., 4 Paige Ch. 282 (3: 437). v. Winter, 2 Johns. Ch. 205 (1: 349); judg. d. & o. 312. Bennington Iron Co. z. Campbell, 2 Paige Ch. 159 (2: 853); costs, 895; plead. 173, 174, 177-180, 603-609. Benson, Carpenter v., 4 Sandf. Ch. 496 (7: 1184). De Moll v., 4 Edw. Ch. 297 (6: 884). «. Le Roy. 4 Johns. Ch. 651 (1: 66tf); equity, 111, 112; ex. & ad. 1S9. 190. 311; injunc. 108; trusU, 3. v. Le Roy, 1 Paige Ch. 122 (2: 5i5); wit. 134-126. Mc Whorter v.. Honk. Ch. 28 (3: S31). Rogers v., 5 Johns. Ch. 431 (1: 1133). Bentle;- ■». Boyd, 6 Ch. Sent. 60 (5: 1313). Berg s. Radcliff. 6 Johns. Ch. 303 (3: 183); bonds, 1, 3; ex. &ad. 452; wills, bi3. Berger, Crosby »., 11 Paige Ch. 377 (5: 168). Crosby v., 3 Edw. Ch, 038 (6: 754). Crosby c, 4£dw. Ch. 210, 354 (6: -55, 870). V. Duff, 4 Johns. Ch. 368 (1: 870); power, 21, 33. Bergh, Pond v., 10 Paige Ch. 140 (4: 919); Berrien, Goodhue v., 2 Sandf, Ch. 030 (7: 634). v. McLane, Hoff. Ch. 421 (6.1194); atty. & sol.50, 51, 73. Berry v. Cross, 8 Sandf. Oh. 1 (7: 747); joint- 8. CO. 1. James «., 1 Paige Ch. 647 (2: 786). v. Mutual Ins. Co., 2 Johns. Ch. 0U3 (1: 508); mort. 9, 60, 61; real prop. 48. 63-67. Thompson v., 3 Johns. Ch. 895 (1: 660). Bertine v. Variaii, 1 Edw. Ch. 343 (6: 165); accounting, 7; ev. 77; guard. L w. 56; lim. of ac. 35; plead. 10. Besley v. Lawrence, 11 Paige Ch. 581, 5 Ch^ Sent. 11 (5: 240, 1167); marsh, of a. & a. 4, 15. Best V. Slow, 2 Sandf. Ch. 298 (7: 601)- ev^ 148; spec. p. 21-23, 36. Bettis, Brownings., 8 Paige Ch. 568 (4: 545)^ TABLE OF CASES DIGESTED. C89 Belts D. Betts, IJohns. Ch. 197(1:111); ev. 313, 313. Kingsland v., 1 Edw. Ch. 596 (6: 359). Minor v., 7 Paige Ch. 596 (4: 292). Price v., 6 Paige Ch. 44 (3:892). Bibby v. Gouverneur, 4 Edw. Ch. 535 (6: 966); jud. sale 88. V. Myer, 10 Paige Ch. 230(4: 952); app. 131, 387; wills. 79; writ & proc. 33. V. Myer, 3 Ch. Sent. 18 (5: 1105). Bickford v. Bickford, 1 Ch. Sent. 16 (5: 1105), Bickneli e. Field, 8 Paige Ch. 440(4:495); chan. & V. c. 36; courts, 33; judg. d. & o. 266-368. Bigelow®. Bush, 6 Paige Ch. 343(3:1013); mort. 334-387. Harrington v., 11 Paige Ch. 349(5: 158). Bill, Aymar ®. , 5 Johns. Ch. 570 (4: 1178). Billings ®. Rattoon, 6 Johns. Ch. 189 (1: 1053); prac. 58. Billington v. Forbes, 3 Ch. Sent. 91 (5:1130). «. Forbes. 10 Paige Ch. 487 (4: 1061); jud. sale, 83. Bingham, Bleeker v., 3 Paige Ch. 346 (3: 138). Birbeck, Williams «., HofE. Ch. 359 (6: 1173). Bird, Card v., 10 Paige Ch. 436 (4: 1038). Birdsall ®. Hewlett, 1 Paige Ch. 33 (2: 550); costs, 69; int. 30; wills, 283-285, 427-430. s. Waldron, 2 Edw. Ch. 315 (6: 413); spec. p. 57; ven. & pur. 53-55. Bisbee, Jenkins v.. 1 Edw. Ch. 377 (6: 178). Bisby, GleasonB., Clarke Ch. 551 (7: 197). Bishop V. Breckles, Hoff. Ch. 534 (6: 1235); partn. 134. Christie «>., 1 Barb. Ch. 105 (5: 316). Mowry «., 5 Paige Ch. 98 (3: 643). ». Thompson, 3 Ch. Sent, 40 (5:1113). Bissell, Georgia Lumber Co. v., 9 Paige Ch. 325 (3: 678). Hilton »., 1 Sandf. Ch. 407(7: 377). Sandford c, 1 Johns. Ch. 383 (1: 180). Blachly, Wiser v., 1 Johns. Ch. 437, 607 (1: 301, 368). Wiser v., 3 Johns. Ch. 488 (1: 460). Black, Martin v. 3 Edw. Ch. 580 (3: 769). Martin v., 9 Paige Ch. 641 (4: 848). Blackett v. Laimbeer, 1 Sandf. Ch. 366 (7: 363); cred. bill, 93; dep. 15. Mackay v., 9 Paige Ch. 437 (4: 765). Blackmar ®. Van Alstyne, 1 Ch. Sent. 14 (5: 1055). Blackwell, Merritt b., 1 Edw. Ch. 466 (6: 212). Blade «. Blade, 4 Ch. Sent. 75 (5: 1160). Blain, Mitchell v., 5 Paige Ch. 588 (3: 841). Blair, Herrick v., 1 Johns. Ch. 101 (1: 74). Blake, Folsom b., 3 Edw. Ch. 442 (6: 719). Swords v., 3 Edw. Ch. 113(6: 591). Blatchford, Holford s., 3 Sandf. Ch. 149 (7: 344). Rawdon'®., 1 Sandf. Ch. 344 (7: SUS). Bleakley, Be. 5 Paige Ch. 311 (3: 731); atty. & sol. 7, 74. V. White, 4 Paige Ch. 554(3: 598); pay. 7, 8. Bleeker v. Bingham, 3 Paige Ch. 246 (3: 188) act. or suit, 8; plead. 696, 697. ». Graham, 3 Edw. Ch. 647 (6: 536); bail, 7 interpl. 9, 10. Bloodgood D. Clark, 4 Paige Ch. 574 (3: 567) app. 94, 231, 283; prac. 49; receiv. 84- 87. Goodyear v., 1 Barb. Ch. 617 (5: 518). Kane v., 7 Johns. Ch. 90 (3: 331). ®. Randall, 3 Ch. Sent. 40 (5: 1113). Bloodgood's Exrs., Carter v., 3 Sandf. Oh. 393 (7:85). Bloom, Haviland v., 6 Johns. Oh. 178 (3: 93). Slee v., 5 Johns. Ch. 366 (1: 1111). Slee v., 7 Johns. Ch. 137 (2: 246). Bloomer, Hughes «., 9 Paige Ch. 369(4: 696). Johnston «., 3 Edw. Ch. 328 (6: 677). Peale «., 8 Paige Ch. 78 (4: 351). «. Sherman, 3 Edw. Ch. 453 (6: 464); arbi. 10-13. ». Sherman, 5 Paige Ch. 575 (3: 835); arbi. 7-9. Bloomfield «. Snowden, 3 Paige Ch. 355 (2: 941); injunc. 192, 251, 253. Blossom ®. Farnham, Clarke Ch. 158 (7: 79); prin. & s. 7. Blunt, Ames »., 3 Paige Ch. 94 (2: 827). Ames «., 5 Paige Oh. 18 (3: 607). 0. Hay, 4 Sandf. Ch. 362 (7: 1134); injunc. 231, 344; judg. d. .& o. 146; parties, 160; plead. 360. Blyer ®. Monholland, 2 Sandf. Oh. 478 (7: 669); mort. 98, 99; prin. & s. 5. Boardman v. Halliday, 3 Ch. Sent. 31 (5: 1106); offlc. 7; sher. 6-9. V. Halliday, 10 Paige Ch. 333 (4: 953); insolv. & assign. 19, 30; offic. 7; sher. 6-9. Post v., Clarke Oh. 338, 533 (7: 134, 190). Post «., 10 Paige Ch. 580 (4: 1098). Bodine v. Edwards, 3 Oh. Sent. 46 (5: 1114); jud. sale, 94, 99. Edwards v.. 4 Edw. Oh. 393 (6: 883). . ■». Edwards, 10 Paige Oh. 504 (4: 1068); cred. bill, 74; trusts, 46. Edwards v., U Paige Ch. 223 (5: 115). ». Piatt, 4 Ch. Sent. 64 (5: 1156). Bogardus, Christie o., 1 Barb. Oh. 167 (5: 340). Clark D., 3 Edw. Oh. 387 (6: 439). V. Clark, 4 Paige Oh. 623 (3: 585); judg. d. & o. 134H36. V. Clarke, 1 Edw. Oh. 266 (6: 133); judg. d. &o. 131; parti. 19. D. Trinity Church, 4 Paige Ch. 178 (3: 394); adv. p. 8, 9; colo. 1.; plead. 29, 156, 377, 378; prac. 197. «. Trinity Church, 4 Sandf. Ch. 369, 638 (7: 1187, 1335); adv. p. 3, 4, 6, 7, 10-12; corp. 44, 45; eject. 1; ev. 60, 61,314^317, 319; plead. 221; prac. 136: pub. lands, 2-4; Stat. 19, 20. Bogart V. Perry. 1 Johns. Ch. 53(1: 56); exec. 37; judg. d. & o. 239, 240; uses, 4. V. Van Velsor, 4 Edw. Oh. 718 (6:1031); ev. 285; ex. & ad. 68, 69: judg. d. & o. 169: receipt, 1; trusts, 124. Bogert V. Bogert, 2 Edw. Oh. 399 (6: 444); ev. 223; pay. 33; prac. 175; proc. 35; wills, 509; wit. 123. Cuyler v., 3 Paige Oh, 186 (3: 109). «. Furman, 3 Oh. Sent. 91 (5: 1129). ■B. Furman, 10 Paige Ch. 496(4: 1065); desc. & dist. 21, 33; eq. conv. 22; ex. & ad. 28; ref. 126. ■B. Haight, 1 Oh. Sent. 73 (5: 1078). V. Haight, 9 Paige Ch. 297 (4: 708); injunc. 224; insolv. & assign. 89, 90. Hertell v., 9 Paige Oh. 52 ;4: 605). Scudders., 1 Edw. Ch. 373 (6: 176). Taylor v., 5Paige Ch. 33 ( 3: 615). Boisgerard «. Delafleld, 4 Ch. Sent. 30 (5: 1141). ■B New York Banking Co. 3 Sandf. Ch. 33 (7: 492) bks. & bkg. 32-34, 64. 500 TABLE OF CASES DIGESTED. Bokel V. Bokel, 8 Edw. Ch. 376 (6: 694); ev. 826. Boker «. Curtis, 2 Edw. Ch. Ill (6: 329) injunc. 355 Bolard, Wood v., 8 Paige Ch. 556 (4: 540). Bolt «. Rogers, 3 Paige Ch. 154 (3: 95); contr. 76; ex. & ad. 52. Bolton V. Gardner, 8 Paige Ch. 273 (3: 151); costs, 128, 130; plead. 836, 379, 441, 442; trusts, 185, 186. Lawrence v., 3 Paige Ch. 294 (3: 159). Bonaffe v. Fowler, 7 Paige Ch. 576 (4: 281): Corp. 126. 127. Bond n. Howell, 11 Paige Ch. 233 (5: 119); prac. 74, 88, 89. Bool, Clute «., 8 Paige Ch. 83 (4: 353). Boorum, Leggett »., 2 Edw. Ch. 680 (6: 530). Booth «. Albertson, 2 Barb. Ch. 313 (5: 656); husb. & w. 216. Borradaile v. Borradaile, 1 Edw. Ch. 40 (6: 52); husb. & w.13. Borst B. Boyd, 3 Sandf. Ch. 501 (7: 935); adv. p. 1; champ. 1; dep. 32, 33; insolv. & assign. 74, 75; mortg. 77, 79. 135, 489, 505; parlies, 147. 148; plead. 259. Bosley, Bradley o. 1, Barb. Ch. 125 (5: 324). Bostwick, Be, 4 Johns. Ch. 100 (1: 778); in- fants, 83, 88, 89. Cornell v., 3 Paige Ch. 160 (3: 98). Green v., 1 Sandf. Ch. 185 (7: 389). Botsford ®. Burr, 2 Johns. Ch. 405(1: 426); contr. 88; ev. 145, 161, 164-166, 188; trusts, 65-68. Botts «. Cozine, 2 Edw. Ch. 588 (6: 512); act. or suit, 19. V. Cozine, Hoff. Ch. 79 (6: 1070); insolv. & assign. 118, 119; reviv. 8; ven. & pur. 3. Bouchaud, Dias i>. 3 Edw. Ch. 485 (6: 734). Bias B., 10 Paige Ch. 445 (4: 1044). Plet v.,i Edw. Ch. 30 (6: 787). Bouck B.Wilbur, 4 Johns. Ch. 405 (1: 388); arbi. 38, 34. Boughton V. Allen, 11 Paige Ch. 321, 4 Ch. Sint. 66 (5: 150, 1157); parties, 2; wit. 50. V. Bank of Orleans, 2 Barb. Ch. 458 (5: 714); exec. 23, 24, 39; judg. d. & o. 216; prin. & 8. 15, 16, 50, 51: sher. 10. V. Philips, 6 Paige Ch. 834, 483, (3: 1010, 1051); costs, 92, 321; ex. & ad. 169. Boutwell, Knickerbacker v., 2 Sandf. Ch. 3l9 (7: 609). Bowden «. Duncan, 4 Sandf. Ch. 621 (7: 1231). See Smack v. Ddncan. V. McLeod, 1 Edw. Ch. 588 (6: 257); char. uses, 27; relig. soc. 24, 25. Bowen b. Cross, 4 Johns. Ch. 375 (1: 873); plead. 269, 270. «. Idley, 1 Edw. Ch. 148 (6: 92); parties, 189; wills, 88. V. Idley, 6 Paige Ch. 46 (3: 893); plead. 222, 223, 227; wills, 85, 96. Bowers «. Smith, 10 Paige Ch. 193 (4: 940), 8 Ch. Sent. 23 (5: 1107); ex. & ad. 153; husb. & w. 232; infants, 108: trusts, 77; wills, 244, 245, 389, 397, 505, 507. Bowman ®. Marshall, 1 Ch. Sent. 27 (5: 1059); plead. 734; prac. 84, 85. V. Marshall, 9 Paige Ch. 78 (4: 615); prac. 84, 85. 0. Rainetaux, HofE. Ch. 150 (6: 1096); disci. 4; ex & ad. 80; insolv. & assign. 81. Bowne, Campbell v., 5 Paige Ch. 34 (3: 615). Coles «., 10 Paige Ch. 526 (4: 1076). Parsons v., 7 Paige Ch. 354 (4: 186). Boyce d. Boyce, 2 Ch. Sent. 24 (5: 1087); app, 32. Boyd, Borst v., 3 Sandf. Ch. 501 (7: 935). Brisbane., 4 Paige Ch. 17 (3: 333). Bullock v., 3 Edw. Ch. 293 (6: 405). Bullock v.. Hofe. Ch. 294 (6: 1148). Corey v., 3 Sandf. Ch. 501 (7: 935). V. Dodge, 10 Paige Ch. 43 (4: 878); costs, 142. V. Dunlap, 1 Johns. Ch. 478 (I: 315); fraud. conv. 65-69; prac. 155. V. Hovt, 5 Paige Ch. 65 (3: 629); act or suit,38:cred.bill, 119; parties, 167; plead. 309, 730; waste, 3. 0. M'Lean, 1 Johns. Ch. 583 (1: 254); ev. 161, 168-170; trusts, 65-68. «. Murray, 3 Johns. Ch. 48 (1: 538); injunc. 157; receiv. 44. People, ex rel. Wyckofl, «., 2 Edw. Ch. 516 (6: 488). V. Vanderkemp, 1 Barb. Ch. 273, 5Ch. Sent. 61 (5:883, 1186); app. 213, 214;bankcy. 15; dam. 6; exec. 5, 6, 14, 60; judg. d. & o. 85, 86; new tr. 20; parties, 72; prac. 94; prin. & a. 35, 36; review, 27. Boynton v. Jackway, 8 Ch. Sent. 47 (5: 1115); writ of asst. 6. V. Jackway, 10 Paige Ch. 307 (4: 988); writ of aS8t.6; moit. 229. D. Rawson, Clarke Ch. 584 (7: 207); cred. bill, 250, 367, 370; lis. pend. 19. Brace, Child «i., 4 Paige Ch. 309 (3: 449). Tone v., Clarke Ch. 291, 503 (7: 119, 184). Tone «., 8 Paige Ch. 597 (4; 557). Tone B., 11 Paige Ch. 566 (5: 336). V. Weed, 1 Ch. Seut. 36 (o: 1063). Bradford, Hawley b., 9 Paige Oh. 200 (4:667). B. Kimberly, 3 Johns. Cb.''431 (l:673);partn. 99, 100; prin. & a. 50. Myers d., 4 Johns. Ch. 434(1: 893). «. Read, 2 Sandf. Ch. 163 (7: 549); exec. 19, 20; judg. d. & o. 182. Bradhurst v. Bradhurst, 1 Paige Ch. 331 (2: 668); annuity, 8-11; ex. & ad. 61; perpetu. 23. ■D. Hal8ey,2Ch. Sent. 59(5: 1094). Bradish b. Gibbs, 3 Johns. Ch. 528 (1:704); husb. & w. 127-130, 177. V. Gibbs, 8 Johns. Ch.586 (1: 709); power, 23-26. Bradley «. Amidon, 8 Ch. Sent. 20 (5: 1106). V. Amidon. 10 Paige Ch. 285 (4: 958); guard. & w. 37; trusts, 13; wills, 304-307. Beach »., 8 Paige Ch. 146 (4: 377). V. Bosley, 1 Barb. Ch. 135, 5 Ch. Sent. 43 (5: 824, 1180): contr. 109, 110; equity, 89, 98, 99, 117; ven. & pur. 13, 14, 79, 80, 95. «. Root, 5 Paige Ch. 632 (3:860); assign. 14; judg. d. & o. 63; wit. 39-11. Bradstreet v. Schuyler, 3 Barb. Ch. 608 5 Ch. Sent. 43 (5: 1028, 1180); plead. 89. Bradt, Hallenbeck?., 2 Paige Ch. 816 (2: 924).. v. Kirkpatrick, 7 Paige Ch. 63 (4: 60); app. 125; courts, 54; plead. 477. Bradwell v. Weeks, 1 Johns. Ch. 206, 835, (1: 114, 158); aliens, 19-31; app. 85, 188; infants, 102. Brady, McCoskeru,, 1 Barb. Ch. 829 (5: 404) ®. Waldron, 2 .Johns. Ch. 148(1:828); in- junc. 50. TABLE OF CASES DIGESTED. C91 Braker «. Devereaux, 8 Paige Oh. 513 (4: 534); joint, ten. 7; parti. 37-29, 31, 33. BrandrethB. Lance, 8 Paige Oh. 34 (4; 330); in- junc. 4. 175, 176. Brasher's Exrs. v. Cortlandt, 3 Johns. Ch. 342, 400, 505 (1: 363, 424, 466); app. 132; in- comp. pars. 72-74, 83-85, 105, 106; jud. sale, 37, 28; parties, 30; prac. 6, 12, 71, 83. Brayton, Mickless., 10 Paige Ch. 138(4: 918). V. Smith, 6 Paige Oh. 489 (3: 1073); mun. Corp. 10, 56. Breckles, Bishop v., Hoff. Ch. 534 (6: 1235). Breevoort®. Jackson, 1 Edw. Ch. 447 (6:204). «. McJimsey, 1 Edw. Oh. 551 (6: 243); in- junc. 155. Bregaw v. Claw, 4 Johns. Ch. 116 (1: 784); plead. 224. Brewers. Staples, 3 Sandf. Oh. 579(7:964); marsh, of a. & s. 18, 23; mort. 159; subr. 34. Brewster o. Brewster, 4 Sandf. Ch. 22(7:1009); parties, 46; trusts, 359, 360. Lloyd v., 4 Paige Oh. 537 (3: 551). Lloyd D., 5 Paige Ch. 87 (3: 639). Patterson v., 4 Edw. Ch. 352 (6: 902). e. Power, 10 Paige Ch. 563 (4: 1091); ev. 171; exec. 23; judg. d. & o. 311-217; mort. 429; trusts, 75. Simpson ®., 9 Paige Ch. 345 (4: 687). Brice, Van Rensselaer v., 4 Paige Ch. 174 (3: 392). Brick Presbyterian Church, Be, 3 Edw. Oh. 155(6:607); ceme. 4; deed. pers. 1 ; relig. soc. 16, 17. Bridgeno. Carhartt, Hopk. Oh. 234(3:405); mort. 58, 59, 373. Bridges v. Canfield, 3 Edw. Ch. 208, 317 (6:371, 375): costs, 296, 297. Briggs, Craig v., 4 Paige Ch. 548 (3: 556). Dix v., 9 Paige Oh. 595 (4: 830). «. Law, 4 Johns. Ch.22 (1: 750); in June. 140. Pennimanu., Hopk. Oh. 300 (2: 429). Varick v., 6 Paige Ch. 323 (3: 1005). Bright, Garr v., 1 Barb. Ch. 157 (5: 337). Brinckerhofl ®. Brown, 7 Johns. Oh. 217 (2: 273); ev. 331, 333. v. Foote, HofE. Ch. 391 (6: 1147); ev. 314; usury, 97. Hope «., 3 Edw. Ch. 445 (6: 730). Hope «., 4 Edw. Oh. 348, 660 (6: 901, 1010). «. Lansing, 4 Johns. Ch. 65 (1: 765); estop. 29-33; ev. 47; costs, 155-157. e. Lawrence, 2 Sandf. Oh. 400 (7: 640); comp. 4; deed, 11 ; gift, 8-13; mort. 533- 525; plead. 320. «. Bemsen, 8 Paige Ch. 488(4: 514); wills, 38-43, 117, 118. e. Thallhimer,2 Johns. Ch. 486 (1:459); mort. 357. Brinderoagle v. German Reformed Church, 1 Barb. Oh. 15, 5 Ch. Sent. 23 (5: 281, 1173); judg. d. & o. 175; parties, 131. BrinkerhofE v. Brown, 4 Johns. Oh. 671 (1: 975); cred. bill, 30-33, 30, 255, 256. 11. Brown, 6 Johns. Ch. 139 (2: 79); cred. bill, 99, 100; plead. 673. «. Marvin, 5 Johns. Ch. 320 (1 : 1096); equity, 46; judg. d & o. 233, 323; partn. 54; pledge & col. sec. 14, 18. Seavine v., 5 Johns. Ch. 329 (1: 1099). BrintnallT Knickerbacker v., 3 Barb. Oh. 71 (5: 560). Brisban «. Boyd, 4 Paige Oh. 17(3: 333); contr. 12; parties, 21-23; prin. & a. 32-34. Bristol V. Morgan, 3 Edw. Ch. 142 (6: 603)^ mi-'-t. 346. Briltain, Quin v., Hofl. Ch. 353 (6: 1170). Quinn«., 3 Edw. Oh. 814(6: 671), Brockway b. Oopp, 3 Paige Oh. 578 (3: 1037); app. 263. v. Oopp, 3 Paige Oh. 539(3: 266); ev. 4; parties, 190. B. "Wells, 1 Paige Oh. 617 (1: 773); costs, 148, 149; max. 3. Brodie b. Oronly, 3 Edw. Ch. 355 (6; 687); in- junc. 356. Daniels »., 3 Edw. Ch. 375 (6: 655). Bromley, Tyack-B., 4 Edw. Oh. 258 (6: 871). Bronson, Bacon ■»., 7 .Johns. Oh. 194(2: 265). Taliott v., 4 Paige Oh. 501 (3: 533). B. Ward, 3 Paige Oh. 189 (3: 111); app. 60, 61, 205. Brooklyn, Meserole b., 8 Paige Ch. 198 (4: 398). Brooklyn Bank, Clarke b., 1 Edw. Ch. 361 (6: 172). ®. Waring, 3 Sandf. Oh. 1 (7: 483); bills & n. 33, 33; comp. 6; usury, 82. Brooklyn Lyceum, Be, 3 Edw. Oh. 392(6: 701); Corp. 11. Brooks B. Gibbons, 4 Paige Ch. 374 (3: 476); cred. bill, 19; ex. & ad. 165; plead. 663. Lyon B., 2 Edw. Oh. 110 (6: 329). Stephens b., Clarke Ch. 180 (7: 71). Brower «. Brower, 3 Edw. Oh. 621 (6: 527); re- ceiv. 196. B. Fisher, 4 Johns. Ch. 441(1:895); costs, 30; incomp. pers. 3. People, ex rel. Morrison, v., 4 Paige Ch. 405 (3: 491). BroTyn, Ife, 3Edw. Ch. 384(6: 697); Ian. & ten. 69. Anslice *., 6 Paige Ch. 448 (3: 1056). Barclay b., 7 Paige Ch. 245 (4: 142). BrinckerhofE B., 7 Johns. Ch. 217(3: 273), Brinkerhofl b„ 4 Johns. Oh. 671 (1: 975). Brinkerhoffi v., 6 Johns. Oh. 139 (2: 79). B. Brown, 1 Barb, Ch. 189, 5 Oh. Sent. 44 (5: 349, 1181); equity, 1; chan. & v. c. 30-33; courts, 16; ex. & ad. 475, 488, 490-495. B. Brown, 4 Edw. Oh. 343 (6: 899); ex. & ad. 487. B. Campbell, Hopk. Oh. 233 (2: 404); trusts, 199 Champion v., 6 Johns. Ch. 398 (2; 163). B. Cheesebrough, 4 Ch. Sent. 22 (5: 1142). Coles v., 4 Sandf. Ch. 123 (7: 1048). Crippen v., 11 Paige Ch. 628 (5: 359). CusUman «., 6 Paige Ch. 539 (3: 1093). ®. Dewey, 1 Sandf. Oh. 56 (7: 338); mort. 17; usjiry, 81, 84. B. Frost, 3 Oh. Sent. 19 (5:1105); jud. sale, 73-75. B. Frost, 10 Paige Ch. 343 (4: 963); jud. sale, 73-75, 95; mort. 467. B. Frost, HofE. Oh. 41 (6: 1057). B. Haff, 5 Paige Ch. 235 (3: 699); injunc. 332; mun. corp. 39, 40; spec. p. 10, 35, 58. Hamersley b., 2 Johns. Oh. 428 (2: 436). Higbie «., 1 Barb. Ch. 320 (5: 401), ®. Hutchinson, Clarke Ch. 408 (7: 156). See Hutchinson b. Bbown. IsenhartB., 1 Edw. Oh. 411 (6: 190). Isenhart v., 2 Edw. Ch. 341 (6: 423). ■592 TABLE OP CASES DIGESTED. Brown v. Lynch, 1 Paige Ch. 147(2: 595);trusts, 33, 50; wit. 68. e. Mayor, etc. of N. T., 2 Ch. Sent. 38(5: 1090). V. Morgan, 3 Edw. Oh. 378 (6: 656): cred. bill, 173. V. Rathbone, 3 Ch. Sent. 24 (5: 1107). V. Rickets, 4 Johns. Oh. 303 (1: 848); costs, 98; int. 56; ref. 132; trusts, 146. Ricketts, 3 Johns. Ch. 435(1:435); plead. 383-385; prac. 59. «. Ricketts, 3 Johns. Oh. 63. 553 (1: 544, 'M4); ex. & ad. 149, 151, 153; parlies, 10, 11, 107. 108; prac. 156-158. Sills «.. 1 Johns. Ch. 444 (1: 303). e. Southworth, 1 Ch. Sent. 77(5: 1074); dep. 1, 3, 4, 16-18. e. Southworth, 3 Oh. Sent. 46(5: 1091). «. Southworth, 3 Oh. Sent. 41 (5: 1118). V. Southworth, 9 Paige Ch. 351 (4: 738); dep. 1, 8. 4, 18, 16-18. StaEEord b., 4 Paige Oh. 88, 360 (3: 855, 470). V. Story, 1 Paige Oh. 588 (2: 768); costs, 122 125 0. Story', 2 Paige Oh. 594 (3: 1044); plead. 641; reviv. 48. Story n., 4 Paise Oh. 118 (8: 365). Thomas «., 9 Paige Ch. 370 (4: 735). Thompson v., 4 Johns. Ch. 619 (1; 957). West Point Foundry Asso. v., 3 Edw. Ch. 384 (6: 658). "Williams v.. 4 Johns. Oh. 683 (1: 979). iBrownell b. Curtis, 3 Oh. Sent. 18 (5: 1105); plead. 351. V. Curtis, 10 Paige Ch. 210 (4: 948) cred. bill, 75, 219, 220; ex. & ad. 40; insolv. & assign. 61; plead. 88,351-353, 375; prac. 16. Vechte v., 8 Paige Oh. 212 (4: 404). Browning, Be, 2 Paige Ch. 64 (2: 814); dep. 11; jud. sale, 49, 50. V. Bettis, 1 Ch. Sent. 3 (5: 1051); cred. bill 188, 184; receiv. 84. V. Bettis, 8 Paige Ch. 568 (4: 545); cred. bill. 183. 184, 305-207. Parker v., 8 Paige Ch. 338 (4: 473). Brownsont). Reynolds, Hopk. Oh. 416 (2: 470); prac. 70. Bruce, Badgley v., 4 Paige Ch. 93 (8: 859). Bruchhausen v. Dillingham, 4 Oh. Sent. 81 (5: 1163). Bruen v. Bruen, 4' Edw. Ch. 640 (6: 1003)- plead. 806, 657, 733. Cowperthwait v 8 Edw. Ch. 339 (6: 681). Iddingss., 4 Sandf. Oh. 238, 417(1:7084, 1155.) V. Hone, 4 Ch. Sent. 3 (5: 1184). V. Stevens, 8 Ch. Sent. 86 (5: 1137). Taylor v., 2 Barb. Oh. 301 (5: 651). Waddell v., 4 Edw. Oh. 671 (6: 1014). Brugiere. Millandon v., 11 Paige Ch.l63 (5:93). Brumley ®. Panning, 1 Johns. Oh. 501 (1: 228); injunc. 51. Tyack v., 1 Barb. Oh. 519 (5: 479). V. Westchester County Mfg. Society, 1 Johns. Oh. 366 (1: 173). Brush 0. Anderson, 2 Oh. Sent. 71 (5: 1098); discov. 57, 58; proc. 26. Ferris v., 1 Edw. Ch. 572 (6: 251). Keyes »., 2 Paige Ch. 311 (3: 923). Smith v., 1 Johns. Oh. 459 (1 : 308). Sutherland v., 7 Johns. Ch. 17 (2: 306). Brush ®. Vandenburgh, 1 Edw. Oh. 21, 649 (6: 45, 378); dep. 13; injunc. 266, 326; spec. p. 99, 100. V. Wilkins, 4 Johns. Ch. 506 (1: 918); ev. 81; wills. 57-61. Bruyn B. Middle District Bank, 1 Paige Ch. 584(2: 761); bks. & bkg. 77, 78. Bryan v. Knickerbacker, 1 Barb. Oh. 409, 6 Ch. Sent. 3 (5: 435, 1193); cred. bill. 194, 195; pers. prop. 8: trusts, 35-37. Stafford v., 1 Paige Oh. 239 (3: 631). Stafford v., 3 Paige Oh. 45 (3: 806). Buchan v. Sumner, 3 Barb. Ch. 165, 6 Oh. Sent. 78 (5: 599, 1218); equity, 114- 116; judg. d. & o. 82. 48-45, 203. 329, 247; partn. 25-37, 81-84, 96, 97; ven. & pur. 133." Buchannan, Duffy v., 1 Paige Ch. 453 (2: 712). Buck 9. Buck, 11 Paige Oh. 170, 4 Ch. Sent. 45 (5: 95, 1149); app. 197, 198; plead. 245, 246; spec. p. 106. r>. Grimshaw, 1 Edw. Ch. 140(6: 89); custom & u. 3; sale, 6-8. Buckingham v. Huntington, 4 Ch. Sent. 8 (5: 1136). Bucklin, Hayden v., 9 Paige Oh. 513 (4: 796). Budd, Lynde v., 2 Paige Ch. 191 (2: 868). Buffalo Weetern Ins. Co. v. Eagle Fire Ins. Co. 1 Paige Oh. 284 (2: 649); mort. 314, 315. Bulkley, Hart v.. 2 Edw. Ch. 70(6: 312). V. Van Wyck, 5 Paige Ch. 586(3: 819); costs. 581; ev. 119; infants, 118; plead. 134. Bull, Burrell v., 3 Sandf. Oh. 15(7: 752). Bullions, McGeoch »., 2 Barb. Oh. 34 (5: 546). Bullock ». Boyd, 2 Edw.Oh.298 (6: 405j; acct. stated, 1-3. V. Boyd, Hoff. Oh. 394(6: 1184); discov. 33; fac. 3 4; int. 83, 84; prin. & a. 8; usury, 33, 113. White v., 8 Edw. Ch. 453 (6: 733). Buloid, Lovett v., 8 Barb. Ch. 137 (5: 847). V. Miller, 4 Paige Ch. 473 (3: 520); app. 16, 250; costs, 235. White «.. 3 Paige Ch. 164, 475(2: 857, 994). Bumpus V. Plainer, 1 Johnp. Oh. 213(1: 116); mort. 382; ven. & pur. 113, 114. Bunce, Trotter s., 1 Edw. Oh. 573 (6: 351). ■0. Vander Grift, 8 Paige Ch. 87 (4: 885); eq. conv. 23; husb. & w. 32. 88, 141. Van Tyne v., 1 Edw. Oh. 583 (6: 255). B. Woodrutr, Oh. Sent. 51 (5: 1087). Woodruff v., y Paige Oh. 443 (4: 768). Bunch, Mitchell v., 2 Paige Ch. 606 (2: 1049). Bundy, Clark »., 6 Paige Ch. 483 (3: 1050). Bunn V. Winlhrop, 1 Johns. Ch. 339 (1: 159); contr. 8-5; deed, 12, 41; settle. 8, 4; trusts, 378; wills, 3i0. Bunnell, Crane v., 10 Paige Ch. 333 (4: 999). Bunner v. Storm, 1 Sandf. Ch. 357 (7: 858); ev. 143; ex. & ad. 113; int. 45; power, 84; wills, 192, 313. Burbank, Newell v., 4 Edw. Oh. 586 (6: 966). Buroh V. Kent, 3 Oh. Sent. 37 (5: 1089) Stiles v., 5 Paige Ch. 183 (8: 657). Burchard v. Phillips, 11 Paige Ch. 66 4 Ch Sent. 30 (5: 59, 1144); max. 14; mort. 68, 367, 868. Burckmeyer, Addison v., 4 Sandf Oh 498 (7: 1185). Burdett, Beck v., 1 Paige Oh. 305(2: 657) Hyer «., 1 Edw. Ch. 825 (6: 158) Burger, Heyer »., Hoflf. Ch. 1 (6: 1043) TABLE OF CASES DIGESTED. 593 Burger e. Tobias, 1 Ch. Sent. 6 (5: 1053); prac. 19; receiv. 134, 135. «. Tobias, 4 Ch. Sent. 37 (5: 1144); dep. 30. Burgess v. Gregory, 1 Edw. Ch. 449 (6: 305); costs, 384. «. Smith, 3 Barb. Ch. 376, 6 Ch. Sent. 67 (5: 643, 1316); courts, 35; discov. 47, 48; injunc. 104. Burhans v. Burhans, 3 Barb. Ch. 398 (5: 690); deed. 35; parti. 13, 13, 36, 103; plead. 533, 533. Burke, Be, 4 Sandf. Ch. 617(7: 1330); guard. & w. 53; infants, 94, 95. Burlage v. Morrison, 3 Ch. Sent. 66 (5: 1096). Burley «. "Webster, 3 Ch. Sent. 64 (5: 1095). Burnet v. Denniston, 5 Johns. Ch. 35(1:999); mort. 180, 358, 347, 348, 511, 513; real prop. 11. Higinbotbam «., 5 Johns. Ch. 184 (1: 1050). V. Sanders, 4 Johns. Ch.'503 (1: 917); costs, 174-176. iBurnhan:, Green «., 3 Sandf. Ch. 110(7: 790). Knapp v., 11 Paige Ch. 330 (5: 153). LoYeland «., 1 Barb. Ch. 65 (5: 303). Wood v., 6 Paige Ch. 513 (3: 1083). Burns v. Morse, 6Paige Ch. 108 (3: 918); fraud. conv. 18;lnjunc. 346; writ &proo. 1. Burr, Be. 3 Barb. Ch. 308, 6 Cb. Sent. 70 (5: 616, 1317);1noomp. pers. 118, 119. Botsford «., 3 Johns. Ch. 405 (1: 436). e. Burr, 3 Edw. Ch. 448 (6: 463); husb. & w. 310; prac. 192. e. Burr, 1 Ch. Sent. 37 (5: 1062). «. Burr, 3 Ch. Sent. 9 (5: 1102); app. 136, 165, 166, 174. 4>. Burr, 4 Ch. Sent. 16 (5: 1140). V. Burr, 10 Paige Ch. 30, 166 (4: 870, 939); app. 136, 165, 166, 174; husb. & w. 285. e. Stanley. 4 Edw. Ch.37(6: 786); tender, 3. s. Stanley, 3 Ch. Sent. 20 (5: 1086). Burrall, Gregory v., 3 Edw. Ch. 417 (6: 451). V. Jewett, 3 Paige Ch. 134 (2: 845); assign. 13; courts, 38, 39; pat. 1-5. «. Leslie, 6 Paige Ch. 445 (3: 1055); costs, 50; receiv. 191, 193. V. Raineteaux, 2 Paige Ch. 331 (3:931); plead. M6, 117. Burras v. Loolier, 3 Edw. Ch. 499 (6: 481); parties, 141. e. Looker, 4 Paige Ch. 337 (3:415); plead. 136; prac. 363. Burreir v. Bull, 3 Sandf. Ch. 15 (7: 753); coot. 36; Ian. & ten. 34, 35; trusts, 397; wit. 79, 80, 90, 91. Burroughs. Miller v., 4 Johns. Ch. 436(1: 896). Burrows, Mohawk Bank v., 6 Johns. Ch. 817 (1: 137). Burtis®. Burtis, Hopk. Ch. 557 (3: 522); husb. & w. 31, 349-263. Cogswell «., Hoflf. Ch. 198 (6: 1114). «. Dodge, 1 Barb. Ch. 77, 5 Ch. Sent. 44 (5: 806, 1181); ex. & ad. 184, 364, 378, 379; int. 31, 41; wills, 447. Summers «., 4 Edw. Ch. 728 (6: 1035). Burtnett, Griffin v., 4 Edw. Ch. 672 (6: 1014). Bush, Bigelow v. , 6 Paige Ch. 343 (3: 1013). Johnson c, 3 Barb. Ch. 207 (5: 875). Bushnell «.- Harford, 4 Johns. Ch. 301 (1; 848); infants, 131; injunc. J30. Bushwick & Newtown Bridge & Tump. R. Co. V. Bbbets, 3 Edw. Ch. 353 (6: 686); courts, 1. Butcher «. Benhelmer, 6Ch. Sent. 80(5: 1321). Butchers & Drovers Bank d. Willis, 1 Edw. Ch. 645 (6: 377);cred. bill, 236. Butler, Beggs v.. Clarke Ch. 517 (7: 188). Beggs «., 9 Paige Ch. 336 (4: 678). V. Butler, 3 Barb. Ch. 304(5: 910); real prop. 23; wills, 138,346-349. 7). Butler, HofE. Ch. 344 (6: 1167); perpetu. 11. 12; wills, 356. V. Emmett, 8 Paige Ch. 13 (4: 326); ex. & ad. 438, 444-446, 453; judg. d. & o. 50; jud. sale, 37, 66. «. Halsey, 4 Sandf. Ch. 354 (7: 1131); infants, 163; judg. d. & o. 77, 78; peti. 4, 5. Ledyard v., 9 Paige Ch. 132 (4: 637). Mann v., 2 Barb. Ch. 862 (5: 675). V. Stoddard, 7 Paige Ch. 163 (4: 108); fraud, conv. 37; sale, 4, 5. Butts V. Genung, 5 Paige Ch. 354 (3: 707); costs. 131; ex. & ad. 136-139; parties, 119; plead. 314. Byam v. Stevens, 4 Edw. Ch. 119 (6: 819); injunc. 379, 880; rem. of cause, 9. Byinglon v. Lawrence, 3 Ch. Sent. 70 (5: 1097). V. Wood, 1 Paige Ch. 145 (3: 594); ref. 11, 87, 89-91. Wood v., 3 Barb. Ch. 887 (5: 686). Byrne, Be, 1 Edw. Ch. 41 (6: 53); infants, 140. Armstrong v., 1 Edw. Ch. 79 (6: 66). Bennett «.. 3 Barb. Ch. 216 (6: 620). Chase v., 3 Edw. Ch. 493 (B: 478). V. Rnmsine, 1 Edw. Ch. 318 (6: 155); judg. d & o. 48. v. RoMSrtiie, 3 Edw. Ch. 445 (6: 461); cont. 47; judg. d. & o. 48; prac. 344. c. <3able, Moore v., 1 Johns. Ch. 385 (1: 180). Cadwell, Piatt v., 9 Paige Ch. 386 (4: 742)^,^ Cady Westcolt v., 5 Johns. Ch. 334 (1: 1101). •Caeeer o. Howard, 1 Barb. Cb. 3«8, r- Ch. Sent. 68, 6 Ch. Sent. 30 (5: 430, 1189. 1199); receiv. 98-100. 131, 133. ■Caines «. Fisher, 1 Johns. Ch. 8 (1: 39); prac. 76-79. Verplank v., 1 Johns. Ch. 57 (1: 58). Cairnes, Emmons «., 11 Paige Ch 380 (5: 169). JaMeii-«.,'3 Barb. Oh. 350 (5: 929.) Ch. Dig. Cairns B. Chabert, 8 Edw. Ch. 312 (6:070); life ten. 6, 7; receiv. 89. V. Chaubert, 1 Ch. Sent. 37 (5: 1062). V. Chaubert, 9 Paige Ch. 160 (4: 649); ex. & ad. 389, 390; wills, 329. 458, 459. Emmons «., 2 Sandf. Cb. 369 (7: 639). Mackie v., Hopk. Ch. 373 (2: 45-5). V. Mackie, Hopk. Ch. 9 (3: 334). Caldwell*. Albany, 3 Ch. Sent. 27 (5: 1087); app. 147. 38 694 TABLE OF CASES DIGESTED. Caldwell ». Albany, 9 Paige Ch. 572 (4: 819); app. 67, 71. e. Lieber, 7 Paige Ch. 483(4: 240); costs, 13; ev. 127; partn. 101-104. Calf, Vreedenburgh v. , 7 Paige Ch. 419 (4 : 213). Vreedenburgh v., 9 Paige Ch. 128 (4: 635). Callaghan v. Atlantic Ins. Co. 1 Edw. Ch. 64 (6: 61); insur. 4-10; warranty. Camel, McCartee «., 1 Barb. Ch. 455 (5: 453). Camman, Prince v., 3 Edw. Ch. 413 (6: 708). Cantmet, Eagle Fire Ins. Co. »., 2 Edw. Ch. 127 (6: 335). Cammeyer v. United German Lutheran Churches, 4 Edw. Ch. 223 (6: 859); relig. see. 39. V. United Lutheran Churches, etc., 2 Sandf. Ch. 186 (7: 558); aliens, 24; char, uses, 21, 22; contr. 31; covenant, 18; ev. 46: parties, 155; release, 10; relig. soc. 7-11,32, 34; sale, 1, 2. Camp V. Niagara Bank, 2 Paige Ch. 283 (2: 908); costs, 57. Campbell, Farnham «., 10 Paige Ch. 598 (4: 1107). Bennington Iron Co. v., 2 Paige Ch. 159 (2:855). V. Bowne, 5 Paige Ch. 34 (3: 615); ex. & ad. 161; infants, 121. 122: parties, 178, 179; plead. 361. Brown «., Hopk. Ch. 233 (2: 404). n. Johnston, 1 Sandf. Ch. 148 (1 : 275); ex. & ad. 62, 63, 74; parties, 96, 172. e. Macomb, 4 Johns. Ch. 534 (1: 927); mort. 335-338; prin. & s. 42, 43. V. Mesier, 6 John. Ch. 21 (2: 41); judg. d. & o. 62. V. Mesier, 4 Johns. Ch. 334 (1: 858); contrib. 6-8; int. 15; judg. d. & o. 31. V. Morrison, 7 Paige Ch. 157 (4: 105); equity, 68; injunc. 226, 227, 264; usury, 142. V. Western, 3 Paige Ch. 124 (3: 84); arbi. 13, 20, 27; parties, 29. Whitmarsh v., 1 Paige Ch. 645 (2: 785). Whilmarsh ■»., 2 Paige Ch. 67(2: 815). Woodworth v., 5 Paige Ch. 518 (3: 812). Canajoharie & Catskill R. R. Co., Be, 3 Ch. Sent. 13 (5: 1104); corp. 105, 134; receiv. 172. Canajoharie & Palatine Church v. Leiber, 2 Paige Ch. 43 (2: 805); spec. p. 102, 103. Candler ®. Peltit, 1 Paige Ch. 168, 427 (2: 603, 702); cred. bill, 161, 162; injunc. 17, 150; plead. 240-242; ref. 77. Canfield, Bridges «., 2 Edw. Ch. 208, 217 (6: 371, 375.) V. Morgan, Hopk. Ch. 224 (2: 401); costs, 43- 45. Pascalis v., 1 Edw. Ch. 201 (6: 111). Canfield, Rhoadfes »., 8 Paige Ch. 545 (4: 536). Cantillon, De Riemer o., 4 Johns. Ch. 85 (1: 772). Cantine, Van Ness s., 4 Paige Ch. 55 (3: 339). Capron, Lansing v., 1, Johns. Ch. 617 (1: 267). Card ®. Bird, 3 Ch. Sent. 88 (5: 1128). v. Bird, 10 Paige Ch. 426 (4: 1038); app. 28, 29; judg. d. & o. 248; mort. 72, 184. Carey, Be, 6 Ch. Sent. 13 (5: 1196). ®. Hatch, 2 Edw. Ch.l90 (6:363); plead. 98. Cargill, Sturgess., 1 Sandf. Ch. 318 (7: 344). Carhartt, Bridgen v., Hopk. Ch. 234 (2: 405). Oarll, Smith v., 5 Johns. Ch. 118 (1: 1029). Carmichael'sExrs., Thompson®., 1 Sandf. Ch. 387(7:369). Oarmichael, Thompson v., 3 Sandf. Ch. 120 (7: 794). Carow V. Mowatt. 1 Edw. Ch. 9 (6: 41); parties,. 34, 180. V. Mowatt, 2 Edw. Ch. 57 (6: 307); ex. & ad. 3, 4, 99-102, 192; parties, 168. Mowatt B., 7 Paige Ch. 328 (4: 175). Carpenter v. Acby, Hoff. Ch. 311 (6: 1155);. judg. d. & o. 18. V. Benson, 4 Sandf. Ch. 496 (7: 1184); proc. 20—22 ®. Griffin, "l Ch. Sent. 72 (5: 1073); Ian. &. ten. 4, 5. V. Griffin, 9 Paige Ch. 310 (4:713): Ian. & ten. 4, 5. V. Mutual Safety Ins. Co. 4 Sandf. Ch. 408 (7: 1152); spec. p. 12. D. Rapelye, 3 Ch. Sent. 85 (5: 1127). V. Schermerhorn, 2 Barb. Ch. 314 (5: 656); estop. 17, 19; lim. of ac. 89, 90; partis 117, 119, 120; ref. 127; wills, 273. Taylor »., 11 Paige Ch. 292 (5: 140X Taylor v., 3 Sandf. Ch. 603 (7: 720). White «., 2 Paige Ch. 217 (2: 882). Carroll, Hanley «., 3 Sandf. Ch. 301 (7: 860)v V. Roosevelt, 4 Edw. Ch. 211 (6: 85^; prac. 264. V. Sand, 3 Ch. Sent. 35 (5: 1111); Injunc. 359 V. Sand, 10 Paige Ch. 298 (4: 985); bonds, 10; injunc. 258, 359. Slatter v., 2 Sandf. Ch. 573 (7: 708). Carshore ®. Lawrence, 1 Ch. Sent. 27 (5: 1058). Carson v. Murray, 3 Paige Ch. 483 (3: 241); dower, 49; husb. & w. 423, 434, 428, 439; wills, 417. Carter, Be, 3 Paige Ch. 146 (3: 92); habitual d. 12-15. Carter v. Bloodgood's Exrs. 8 Sandf. Ch. 293 (7: 858); judg. d. & o. 176; wills, 152, 153, 165, 202. V. Carter, 1 Paige Ch. 463 (3: 716); husb. & w. 99. Grimstoue v., 3 Paige Ch. 421 (3: 214). Jolly v., 2 Edw. Ch. 209 (6: 372). Pitcher v., 4 Sandf. Ch. 1 (7: 1001). V. Rockett, 8 Paige Ch. 437 (4: 493); inSur. 24-26. . «. United Ins. Co. 1 Johns. Ch. 463(1: 209); equitv, 39. Cary «. Clark, 3 Edw. Ch. 374(6: 655); injunc. 375. «. Smith, 3 Ch. Sent. 89 (5: 1139). Arthur v., 1 Paige Ch. 447 (2: 710). Case V. Abeel, 1 Paige Ch. 393, 630 (3: 689. 778); partn. 151-153; ref. 100, 130-184; trusts, 156, 233, 234. Chappell ».. 2 Ch. Stnt. 4 (5: 1080). Haight »., 4 Paige Ch. 535 (3: 545). Miller v., Clarke Ch. 395 (7: 153). V. Towle, 8 Paige Ch. 479 (1: 510); app. 239. V. Towle. 1 Ch. Sent. 19 (5: 1056). ®. Towle, 3 Sandf. Ch, 426 (7: 650); wills. 291. Casilear v. Simons, 6 Ch. Sent. 14 (5: 1197); receiv. 30, 135, 136. Cassidy v. Cassidy, 1 Barb. Ch. 467, 6 Ch. Sent. 12 (5: 458, 1196); desc. & dist. 35, 36; infants, 99; parti. 118. V. Meacham, 3 Paige Ch. 311 (3: 167); cred. bill, 43, 145. Shattuck v., 3 Edw. Ch. 152 (6: 608). Cassilear v. Simons, 8 Paige Ch. 373 (4: 436)i. TABLE OP "CASES DIGESTED. 595; Casw«ll; Lansing »,; 4 Paige Oh. 519 (3: 548): Catlin, OoutantD., 3 Sandf. Oh. 486 (7:673). V. HarQed, 3 Johns, Oh. 61 (h 543); costs, : ■ jl48. , e. Valentine, 2 Oh. Sent. 37 (5: 1087); nuts. 3, 3. e. Valentine, 9 Paige Oh. 575 (4: 821) ;in- junc. 72, 287; nuis. 2, 3. Cayuga Bridge Oo. ®. Magee, 2 Paige Oh. 116 (2: 837); corp. 17, 19; Injunc. 365. Cazeaux, Isnard v., 1 Paige Oh, 39 (2; 553). Chabert, Cairns v., 3Edw. Oh. 312(6: 670). Chaffee v. Baptist Missionary Convention, 3 Oh, Sent. 67 (5: 1096); app. 97-99. e. Baptist Missionary Convention, 10 Paige Ch. 85 (4:896); app. 97-99, ev. 11 ; infants, 144; wills. 43-53, 119. Chalabre v, Cortelyo.u, 3 Paige, 605 (3: 1049); ex. & ad. 388. Chamberlain, Bard «., 3 Sandf. Ch, 31 (7: 758). McOormlck®., 11 Paige Oh. 543 (5: 329). Talbot v., 3 Paige Oh., 319 (3: 124). Chambers, Stewart i>., 2 Sandf. Ch. 382 (7: 634). Champion «. Brown, 6 Johns . Ch. 398 (2: 163); equity, 31 ; ex. & ad. 42, 53, 54; parties, 83; spec. p. 13, 107-109. Champlin v. Baldwin, 1 Paige Ch. 562(2: 753); disc. & dist. 15, 16. V. Champlin, 3 Edw. Oh. 328, 362 (6: 418, 430); plead. 345; rules. V. Champlin, 3 Edw. Oh. 571 (6: 766); trusts, 191. «. Champlin, 4 Edw. Oh. 328(6: 861); par- ties, 99; qaia timet, 2. e. Champlin,. Hoff. Oh. 55(6: 1062); account- ing, 14; par. & c. 5; spec. p. 14. Fonda®., IJohns. Oh. 63 (1: 76i). atty. & sol. 9. t>. Haight, 10 Paige Oh. 274 (4: 975); real prop. 26; trusts, 194, 195, 292. Holbrook v., Hoff. Ch. 55 (6: 1095). V. Laytin, 1 Edw. Ch. 467 (6: 313). V. Laytin, 6 Paige Oh. 189 (3: 950); cont. 103, 105; mort. 285; ven. & pur. 101. «. Mayor of N. Y., 3 Paige Oh. 573 (3: 269); injunc. 83, 84,336. t>. Parish, 3 Edw. Oh. 581 (6: 769); parties, 48; plead. 293; spec. p. 115. «. Parish, 11 Paige Ch. 405; 4 Ch. Sent. 73 (5: 178. 1159); ev. 9; conlr. 33-36: plead. 318, 491;prin. &a. 33. Williamson »., Clarke Ch. 9(7: 37). "Williamson v., 8 Paige Oh. 70 (4: 348). Chance v. Isaacs, 3 Edw. Ch. 348 (6: 435); set- off, 82. V. Isaacs, 5 Paige Ch. 593 (3: 843); set-off, '83. Miller ■»., 3 Edw. Ch. 399 (6: 703). Chapin, Hadlev v., 11 Paige Oh. 345 (5: 134). Potter v., 6 Paige Oh. 639 (3: 1135). e. Powers, 7 Paige Ch. 145 (4: 100); cont. 85, 86. «. Weed, Clarke Oh. 564 (7: 172); trusts, 169. Chapman, Kidd v., 3 Barb. Ch. 414 (5:696). V. Munson, 3 Paige Ch. 347 (3: 183); costs, 315, 306, 314, 815, 345, 508, 572. «. Robertson, 6 Paige Ch. 627 (3:1128): confl. of 1. 5, 10, 34-27; set-off, 50; usury, 107. '■ Wells v., 4 Sandf. Oh. 312 (7: 1115). Wildes T., 4 Edw. Ch. 669 (6: 1013). Chappel, Meach«., 8 Paige Ch. 135 (4:. 373). Charles, M'Dowl v., 6 Johns. Ch. 132 (3: 77), Charrier, M'Laren v., 5 Paige Ch. 530 (3: 8i7). Charruaud v. Oharruand, 1 Oh. Sent. 9 (5: 1053). «. Charruaud, 3 Edw. Ch. 273 (6: 651); prac. 148. Chase «. Barrett, 4 Paige Ch. 148 (3:381).' partn. 4-7; spec. p. 114. i ». Byrne, 3 Edw. Ch, 493 (6: 749); accord & satis. 3. ] V. Chase, 1 Paige Ch. 198 (2: 615). , V. Dunham, 1 Paige Ch. 572 (3: 757); plead. 335. Chaubert, Cairns v., 9 Paige Ch. 160 (4: 649). Chautauque County Bank, Lowry v., Clarke i Oh. 67 (7: 53). Chazournes v. Mills, 2 Barb. Oh. 466 (5: 717); ' plead. 580, 581, 660, 688. Cheesebrough v. Millard, 1 Johns. Ch. 409 (1: 190); contrib. 13, 35; subr. 9-13. Cheeseman, Quincy v., 4 Sandf. Oh. 405 (7: 1150). Cheesman «. Thorne, 1 Edw. Ch. 639 (6: 371); parti. 10, 11. Chelsea Bank, Beers v., 4 Edw. Oh. 377 (6: 878). Cherry v. Monro, 3 Barb. Ch. 618 (5: 775); marsh, of a. & s. 16; max. 3; parties, 187, 188; prin. & s. 3; subr. 30. Chester, Shaw «., 3 Edw. Oh. 405 (6; 446). Ohesterman v. Gardner, 5 Johns. Ch. 39 , (1: 997); fraud, 6; mort. 117; new tr. 31; vend. & pur. 61. Child V. Brace, 4 Paige Ch. 309(3: 449); cred. bill, 33, 58, 121. Childs, Be. 6 Oh. Sent. 79 (5: 1231). ■B. Clark, 3Barb. Oh. 53 (5: 814); land. &ten. 41-49; mort. 88; new tr. 30. Theological Sem. of Auburn v., 4 Paige Ch. 419(3:497). . Chipman v. Sabbaton, 7 Paige Oh. 47 (4: 54); receiv. 129. Chittenden «. Fisher, 5 Ch. Sent. 7 (5: 1166). Christie, Be, 5 Paige Ch. 242 (3: 702); incomp. pers. 35-37. V. Bishop, 1 Barb. Oh. 105, 5 Ch. Sent. 40 (5: 316, 1179); ev. 105, 106, 300-203, 346; judg. d. & o. 166, 288; prac. 95. ■B. Bogardus, 1 Barb. Ch. 167, 5 Ch. Sent. 42 (5: 840, 1180); injunc. 145, 146, 838- 343. V. Davis, 6 Oh. Sent. 11 (5: 1196). V. Herrick, 1 Barb. Ch. 354, 5 Ch. Sent. 52 (5: 375, 1183); mort. 248, 350; parties, 41. Vermilya «., 4 Sandf. Oh. 376 (7: 1139). Christmas, Skinner®., Clarke, Ch. 368(7: 111). Christy v. Christy, 6 Paige Oh. 170 (3: 943); costs, 189, 363, 415, 416; prac. 73; ref. 43. Trowbridge v., Clarke Ch. 271 (7: 112). Church V. Church, 3 Sandf. Ch. 434 (7: 910); dower, 15, 16, 25; costs, 135. Francis v.. Clarke Ch. 475 (7: 176). ti. Ide, Clarke Ch. 494(7:182); courts, 63; ev. 268. Price v., Clarke Ch. 358, 429 (7: 142, 162). Churchman, Goodhue «., 1 Barb. Ch. 596 ■ (5; 509). Cipperly, Lawyer v., 7 Paige Ch. 281 (7: 156). City Bank v. Bangs, 3 Edw. Ch. 95 (6: 323); reward, 1-5; search war. 1, 2; stolen prop. 696 TABLE OF CASES DIGESTED. City Bank o. Bangs, 8 Paige Cli.570 (3: 1033); interpl. 46-49; plead. 646, 647. e. Bangs, 3 Paige Ch. 36 (3: 47); discoy. 73; wit. 85-87. «. Bangs, 4 Paige Ch. 385 (3: 439); app. 163- 164; max. 1. City Bank of Buffalo, Jfo, 3 Ch. Sent. 65 (5: 1121). 10 Paige Ch. 378 (4: 1019); ex. & ad. 174. 175; injunc. 107, 111; Corp. 190, Ifll; reviv. 15-19. Davenport v., 9 Paige Ch. 12 (4: 590). Clapp «. Astor, 3 Edw. Ch. 379 (6: 436); annuity, 14; corp. 113. Clapper «. House, 6 Paige Ch. 149 (3: 935); judg. d. & o. 42; wills. 393, 488. Clark, Bloodgood »., 4 Paige Ch. 574 (3: 567). «. Bogardus, 1 Ch. Sent. 7 (5: 1053). «. Bogardus, 3 Edw. Ch. 387 (6: 439); hona fide p. 11; ev. 79; wills, 483. Bogardus v., 4 Paige Ch. 633 (3: 585). «. Bundy, 6 Paige Ch. 433 (3: 1050); dep. 2; costs, 333. Cary v., 3 Edw. Ch. 384 (6: 655). Childs,®., 3 Barb. Ch. 53 (5: 814). «. Clark, 8 Paige Ch. 153 (4: 379); ex. & ad. 51, 66, 111, 312; guard. & w. 54; Burro. 15; wills, 455. «. Clarke, 7 Paige Ch. 607 (4: 397); app. 183 199 300 «. Dakin. 3 Barb. Ch. 36; 5 Ch. Sent. 34 (5: 547, 1178); cred. bill, 36; exec, 15, 16; judg. d. & o. 35, 383, 307; recelv. 83. «. Ely, 3 Sandf. Ch. 166 (7: 550); bills & n. 34; prin. & s. 48. 49; trusts, 380. «. Fisher, 1 Paige Ch. 171 (2: 604); surro. 4; wills, 8-11. c. Hall, 7 Paige Ch. 382 (4: 198); judg. d. & o. 69; spec. p. 121, 132. «. Halle, Clarke Ch. 349 (7: 139); setoff. 32. e. Havens, Clarke Ch. 560(7:200); mort. 323 «. Hone, 2 Edw. Ch. 376 (6: 435). King «.. 3 Paige Ch. 76 (3: 64). Lane «., Clarke Ch. 309 (7: 128). D. Martin, 4 Edw. Ch. 434 (6: 937); Iniunc. 308. 0. Mauran, 3 Paige Ch. 373 (3: 193); insolv. & assign. 150; sale, 33. Noyes v., 7 Paige Ch. 179 (4: 114). «. Phelps, 6 Johns. Ch. 314 (3: 104); plead. 335-337, 340-344, 897. f). Quigg, 3 Ch. Sent. 47 (5: 1091). Balhbone v., 9 Paige Ch. 648 (4: 853). Rose v., 8 Paige Ch. 674 (4: 518). Smith «., 4 Paige Ch. 368 (3: 473). Spottiswoode v., 3 Sandf. Ch. 638 (7: 733). Whitall v.. 3 Edw. Ch. 149 (6: 345). e. Willoughby, 1 Barb. Ch. 68, 5 Ch. Sent. 37 {5: 303. 1178); ref. 80, 86, 105, 134, 125 Clarke, Bogardus v., 1 Edw. Ch. 366 (6: 133). «. Brooklyn Bank, 1 Edw. Ch. 861 (6: 172); Corp. 87. Coster v., 3 Edw. Ch. 405, 411, 438 (6: 705, 708,i714. Lynch v., 1 Sandf. Ch. 583 (7: 443). «. Sawyer, 3 Barb. Ch. 411 (5: 879); disci. 4; wills, 89, 90. «. Sawyer, 3 Sandf. Ch. 351 (7: 879); dep. 21 ; ev. 196; judg. d. & o. 683; prac. 191 ; wills, 13-18 103, 103. Clarke, Tucker a., 2 Sandf. Ch. 96 (7: S23). ■Wickes«., 3 Edw. Ch. 58(6: 570). Wickes «., 8 Paige Ch. 161 (4: 384). Clarkson v. De Peyster, Hopk. Ch. 274, 424, 505(3:419,473, 503); guard. & w. 63, 63; int. 89, 96; pay. 34. 35; proc. 35. «. De Peyster, 3 Paige Ch. 330, 336 (3: 171, 178); cred. bill, 3, 27. 38, 102; hush. & w. 217; int. 68, 69; plead. 718. Livingston b., 4 Edw. Ch. 596 (6:988). Clason V. Clason, 6 Pa.iee Ch. 541 (3: 1094); parti. 71: wills 143, 380. Cooper v., 3 Johns. Ch. 521 (1: 703>. Degraw v., 11 Paige Ch. 136 (5: 84). V. Lawrence, 3 Edw. Ch. 48 (6: 566); annuity, 17-19; parties, 104. Claw, BregawB., 4 Johns. Ch. 116(1: 784). Clendening, Thompson «., 1 Sandf. Ch. 387 (7: 369). De Peyster v., 8 Paige Ch. 295 (4: 434). Cleveland v. Cleveland, 1 Ch. Sent. 33 (5: 1061); bush. &w. 399. «. Loder, 7 Paige Ch. 557 (4: 273); usury, 20, 61, 63, 67. Sedgwick v., 7 Paige Ch. 287 (4: 159). Clinch e. Eckford, 8 Paige Ch. 412(4:483): ex. & ad. 381,383. Clowes D. Dickenson, 5 Johns. Ch. 335 - (1: 1068); contrib. lft-21; cred. bill. 174, 175. Farmers' Loan & T. Co. »., 4 Edw. Ch. 575 (6: 980). Hawley «., 2 Johns. Ch. 122 (1: 316). V. Pelton, 1 Ch. Sent. 54 (5: 1067). Clutes. Bool, 8 Paige Ch. 83 (4: 353); accum. 1; annuity;, 1; cred. bill. 199-301; in- solv. & assign. 77; plead. 575. Mohawk & Hudson R. R. Co. «., 4 Paige Ch. 384(3: 480). Wood v., 1 Sandf. Ch. 199 (7: 295). Coal Co. V. Dyett, 2 Edw. Ch. 115 (6: 331); plead. 251, 353; prac. 43. Coatesworth, Heacock «., Clarke Ch. 84 (7: 58). Coats V. Holbrook. 3 Sandf. Ch. 586 (7: 713); costs, 263; injunc. 165, 169-173; trade m. 1. 8, 9. Cobb V. Goodhue, 11 Paige Ch. 110, 3 Ch. Sent. 100 (5: 74, 1133); asso. 1, 2; judg. d. & o. 84. Hatch v., 4 Johns. Ch. 559 (1: 936). Cochran v. Fitch, 1 Sandf. Ch. 1^ (7: 272); judg. d. & o. 144, 145. Hicks v., 4 Edw. Ch. 107 (6: 814). Cock, Holmes »., 2 Barb. Ch. 426 (5: 701). Codd ®. Codd, 2 Johns. Ch. 141, 324 (1: 333, 356); hash. & w. 307; infants, 39; suppli. 1. 2. Coddington, Bay «., 5 Johns. Ch. 54 (1: 1006). V. Comslock, 11 Paige Ch. 235 (5: 120); prac. 25. Dean v., 3 Johns. Ch. 301 (1: 347). Codrington. Cumberland v., 3 Johns. Ch. 339 (1:601). Codman v. Whiting, 1 Ch. Sent. 43 (5: 1064). Codwise, Dickinson «., 4 Edw. Ch. 841 (6:899). Dickenson «., 11 Paige Ch. 189 (5: 103). Dickinson «., 1 Sandf. Ch. 314 (7; 304). Gelslon v., 1 Johns. Ch. 189 (1: i08). Mason «., 6 Johns. Ch. 183, 397 (3: 94, 181)^ Withers v., 3 Sandf. Ch. 350 (7: 632). TABLE OP CASES DIGESTED. 597 Coe, Attwood v., i Sandf. Ch. 412 (7: 1154). V. Whitbeck, 11 Paige Ch. 42. 4 Oh. Sent. 19(5: 51, 1141); cred. bill, 53, 54; parties, 120-122; partn. 140, 141. Coffin, Mapes e., 5 Paice Ch. 296 (3: 725). Coggeshall c. Pelton, 7 Johns. Oh. 392 (3: 297); char, uses, 17. ». Burtis, HofE. Ch. 198 (6: 1114); def. 23; ev. 91, 92; prac. 138, 139. t>. Cogswell, 2 Edw. Ch. 231 (6: 380); life ten. 8-10; wills, 322, 823. Cohoes Company, Attorney General e., 6 Paige Ch. 133 (3: 928). Coit «. Horn, 1 Sandf. Ch. 1 (7: 215); injunc. 120. Colthe V. Crane, 1 Barb. Ch. 21. 5 Ch. Sent. 26(5: 283, 1174); app. 144, 150, 154, 155. 194; judg. d. & o. 94. Colburn, Ensign c, 11 Paige Ch. 508 (5: 313). Colden, Delafield v., 1 Paige Ch. 139 (2: 562). Fabreo., 1 Paige Ch. 166 (2: 603). Prelinghuysen «., 4 Paige Ch. 204 (8: 404). «. Haskins, 3 Edw. Ch. 311 (6: 670); costs, 382. De Peyster e., 1 Edw. Ch. 63 (6: 60). Cole «. Hallcnback, 8 Oh. Sent. 22 (5: 1107). Cole, Monell v., Clarke Ch. 221 (7: 98). «. Savage, Clarke Ch. 861, 482 (7: 143, 179); injunc. 227; mort. 503; plead. 325-327; usury, 1-4, 143, 152. «. Savage, 4 Ch. Sent. 7 (5: 1136); usury, 1, 153, 159. 160. •. Savage, 10 Paige Ch. 588 (4: 1099); cloud on title, 10; usury, 1, 159, 160. Oolegrove c. Horton, 11 Paige Ch. 261, 4Ch. Sent. 61 (5: 128, 1155); ev. 13; ex. & ad. 96, 97; peti. 6, 7. Coleman, Beebe v., 8 Paige Oh. 393 (4: 476). V. Gage, Clarke Ch. 295(7: 130); injunc. 302. e. Harmon, 6 Ch. Sent. 20 (5: 1199). Goles v. Bowne, 3 Oh. Sent 101 (5: 1133). •. Bowne. 10 Paige Oh. 526 (4: 1076); cont. 40, 41; ev. 304, 305; plead. 324. e. Brown, 4 Sandf. Oh. 123 (7: 1048); wills, 365. Thorn «., 8 Edw. Oh. 380 (6: 678). Collier, Wilber v., 3 Barb. Ch. 427 (5: 959). Wilbur c. Clarke Oh. 315 (7: 130). Collin o. Collin, 1 Barb. Ch. 630, 6 Oh. Sent. 34 (5: 323, 1204); wills, 178-181, 187, 188 190 Collins o. Collins, 2 Paige Ch. 9 (2: 791); husb. & w. 68; infants, 38. «. Hoxie, 1 Ch. Sent. 32 (5: 1060). e. Hoxie, 9 Paige Oh. 81 (4: 616); app. 248, 249; bastardy; ex. & ad. 83; wills, 191, 206, 207. Winslow «., 8 Paige Oh. 88 (3: 69). Colt v. Fulton, 1 Oh. Sent. 45 (5: 1065); cred. bill, 67. Qibert c, Hopk. Ch. 496 (2: 500). 0. Wilder, 1 Edw. Oh. 484 (6: 219); partn. 24. Colton V. Dunham, 3 Paige Ch. 267 (2: 901); pay. 12; prin. & a. 48; usury, 15-18. Farnham v., Clarke Ch. 35 (7:44). V. Ross, 3 Paige Oh. 396 (2: 959); plead. 11- 14, 71, 72; wills, 91-95. Colvin V. Colvin. 2 Paige Ch. 385 (2: 953); husb. & w. 421. Apthorpe »., Hopk. Ch. 143 (7: 372). Comstock, Apthorp «., 2 Paige Ch. 482 (2: 997). Comstock. Coddinglon v., 11 Paige Ch. 235 (5: 130). , «. Dalley, 3 Ch. Sent. 92 (5: 1130). Mills e., 5 Johns. Ch. 214 (1: 1061). Commercial Bank of Buffalo v. Bank of Statei of N. Y., 4 Edw. Oh. 82 (6: 788); bks. & bkg. 58. Commercial Bank of Lake Erie «. Meach, 7 Paige Ch. 448 (4: 335); cred. bill, 115- 123, 123. Comstock, Willoughby «., 3 Edw. Ch. 424 (6: 712). Conant v. Delafleld. 3 Edw. Ch. 201 (6: 62S); discov. 67, 68. II. Sparks, 3 Edw. Ch. 104 (6: 588); cred. bill, 149-151. Concklin d. Hall, 3 Barb. Oh. 136, 6 Ch. Sent. 61 (5: 587, 1213); infants, 158-162; jud. sale, 96. Conde, Jones o., 6 Johns. Ch. 77 (2: 60). Cone, Wood v., 7 Paige Ch. 471 (4: 236). Oongden e. Lee, 3 Edw. Oh. 304 (6: 667); cred. bill, 165; receiv. 76. Congdon Be, 2 Paige Ch. 566 (2: 1030); in- fants, 59-62. Congress Steam Sugar Refinery, Shirley v., ^ Edw. Oh. 505 (6: 483). Conklin, Me, 8 Paige Ch. 450 (4: 499); atty. & sol. 59. 60. ». Conklin, 3 Oh. Sent. 64 (6: 771); parti. 74; perpetu. 48; wills, 166. Hoppockfl., Sandf. Ch. 582 (7: 1217). Connecticut v. Jackson, 1 Johns. Ob. 13 (1: 41); int. 81, 90, 92. V. Sheridan, Clarke, Oh. 533 (7: 192). Conner, Kellogg «., 10 Paige Oh. 811 (4: 990). Connett, Hackett v., 3 Edw. Ch. 78 (6: 313). Connolly v. Pardon, 1 Paige Oh. 291 (2: 651); ev. 174. Conner, Ray «., 3 Edw. Ch. 478 (6: 732). Oonsequa v. Fanning, 2 Johns. Oh. 481 (1: 457); ev. 86,87; prac. 57;ref. 33,34; wit. 116. e. Fanning. 8 Johns. Oh. 364, 587 (1: 650, 726); accounting, 8-11, 28, 24; Cduf. of 1. 12, 14; int. 19, 74; prac. 315-217. Constable, McVickar o., Hopk. Ch. 102 (2: 357). Coofi. Be, 1 Oh. Sent. 19 (5: 1056). V. Cook, 1 Barb. Oh. 639, 6 Oh. Sent. 27 (5: 527, 1201); infants, 29-31, 41. e. Cunningham, 1 Ch. Sent. 8 ^5: 1053). Ellsworth v., 8 Paige Ch. 643 (4: 575). Gott v.. 7 Paige Ch. 521 (4: 256). V. Grant, 1 Paige Ch. 407 (2: 695); act. or suit. 38, 34. o. Lee, 6 Paige Oh. 158 (3: 938); infants, 169, 170. «. Mancius, 8 Johns. Ch. 427 (1: 672). e. Mancius, 4 Johns. Ch. 166 (1: 803). «. Mancius, 5 Johns. 89 (1: 1019) mort. 257; parties, 68, 69; plead. 192, 483, 483; wit. 25 Woodruff v., 2 Edw. Oh. 259 (6: 393). Cooke v.. Barker, Hopk. Ch. 117 (2: 363); pay. 33 Dale o., 4 Johns. Oh. 11 (1: 746). Morehouse v., Hopk. Ch. 226 (2; 403), V. Smith, 3 Sandf. Oh. 333 (7: 873) cied. bill, 178; fraud, conv. 24; insulv. & assign. 12, 62. Oooledge r>. Cooledge, 1 Barb. Ch. 77 ('>: 30G)-, judg. d. & o. 15. Coon, Pells v., Hopk. Oh. 450 (2: 484). 698 TABLE OF CASES DIGSbTED. Cooney, McCabe p., 2 Sandf. Ch. 314 (7: 608), Coope v. Lowerre, 1 Barb. Ch. 43, 5 Ch. Sent. 36 (5: 393, 1178); ex. & ad. 5-9. Cooper, Be, 2 Paige Ch. 34 (2: 802); guard. & w. 28, 29. «. Clason, 3 Johns. Ch. 521; (1; 703);hu8b. & w. 433, 434. Corning v., 7 Paige Ch. 587 (4: 287). Mann v., 1 Barb. Ch. 185 (5: 348). «. Norwood, 2 Edw. Ch. 623 (6: 528); plead. 132. e. Bemsen, 3 John. Ch. 382 (1: 656); husb. & w. 432. c. Remsen, 5 Johns. Ch. 459 (1: 1141); wills, 359 Renwick v., 10 Paige Ch. 803 (4: 9850. Robbins v , 6 Johns. Ch. 186(2: 95.) Stevens »., 1 Johns. Ch. 425 (1: 196). Young D., 3 Johns. Ch. 295(1: 624). Copland, Rawson v., 3 Barb. Ch. 166 (5: 859). Rawson v., 2 Sandf. Ch. 251 (7: 582). Copeland, Wotten v., 7 Johns. Ch. 140 (2: 247). Copous o. Kauffman, 1 Ch. Sent. 5 (5: 1052); wit. 3, 96, 97. «. Kauffman, 3 Edw. Ch. 370 (6: 692); in- comp. pers. 99. e. Kauffman, 8 Paige Ch. 583 (4: 552); app. 239; cred. biU, 3; 112; ref. 58, 59; wit. 3 96 97 Copp, Brockway v. , 2 Paige Ch. 578 (2: 1037). Brockway ?>., 3 Paige Oh. 539 (3: 266). Corbett, Johnson v., 11 Paige Ch. 265 (5: 129). Corey d. Boyd, 3 Sandf. Ch. 501 (7: 935). e. CorDelius, 1 Barb. Ch. 571, 6 Ch. Sent. 22 (5: 499, 1200); cred. bill, 56, 57; exec. 3, 32, 33, 38;judg. d. & o. 33, 34, 1'13. V. Ingold, 3 Sandf. Ch. 501 (7: 935). Corlies v. Andrews, 6 Cb. Sent 70 (5: 1217). Willis v.. 2 Edw. Ch. 281 (6: 401). Cornelius, Corey v., 1 Barb. Cb. 571 (5: 499). Cornell v. Bostwick, 3 Paige Ch. 160 (3: 98); plead. 150; ref. 6. Jackson e. , 1 Sandf. Ch. 348 (7: 354). Lawrence v., 4 Johns. Ch. 542, 545 (1: 930, 981). Lupton v., 4 Johns. Ch. 262 (1: 884). e. Watson, 1 Edw. Ch. 83 (6: 6'^; abs. & abscon. d. 10. Corning v. Baxter, 6 Paige Ch. 179 (3: 946); abs. & abscon. d. 4, 5; ref. 7-10; e. Cooper, 7 Paige Ch. 587 (4: 287) prac. 32; ref. 64, 72. Gillman, 1 Barb. Ch. 649, 6 Ch. Sent. 39 (5: 530, 1206); prac. 26. Heartt v., 3 Paige Ch. 566 (3: 276). «. Lowerre, 6 Johns. Ch. 439(2: 178); injunc. 89. Soule B., 11 Paige Ch. 412 (5: 181). ». Stebbins, 1 Barb. Ch. 589, 6 Ch. Sent. 29 (5: 506, 1202); cred. bill, 65, 203, 233, lim. of ac. 21. V. White, 2 Paige Ch. 567 (2: 1081); cred. bill, 261, 262; exec. 99. Cornwell, Mortimers., HofE. Ch. 351 (6: 1169). Corse, Haxtun ®., 2 Barb. Ch. 506 (5: 732). Haxtun «., 4 Edw. Ch. 578 (6: 984). Corsetti, De Rivafinoli u., 4 Paige Ch. 264 (3: 429). Cortelyou, Ohalabre v., 2 Paige Ch. 605 (3: 1049). Cortlandt, Brasher's Exrs. u, 2 Johns. Ch. 242, 400, 505 (1: 863, 424, 466). Corwin, Williams v. Hopk. Ch. 471 (2: 491). Coster, Be, 2 Johns. Ch. 503 (1: 466); mort. 167-169. American Ins. Co. «., 3 Paige Ch. 323 (3; 173). «. Clark, 3 Ch, Sent. 38, 65 (5: 108», 1096); review, 6. «. Clarke, 3 Edw. Ch. 405, 411, 428 (6: 705. 708, 714); dower, 18; jud. sale, 55; paitn. 28, 49, 94; plead. 77; prac. 224, 225. «. Coster, 3 Sandf. Ch. Ill (7: 791); wills, 76. s. Griswold, 4 Edw. Ch. 364 (6: 907); injunc. 96, 370; plead. 162, 201, 202; prin. & 8. 45; quia timet, 4. Lorillard v.. 5 Paige Ch. 172 (3: 674). D. Murray, 5 Johns. Ch. 522 (1: 1162); lim. of ac. 43-47, 51. Murray, 7 Johns. Ch. 167 (2: 257); plead. 356. RadclifE v., Hoflf. Ch. 98 (6: 1077). Shaw i>., 8 Paige Ch. 839 (4: 452). Costigan v. Mohawk & Hudson R. R. Co., 5 Ch. Sent. (No. 3) 9 (5: 1169). Mohawk & Hudson R. B. Co. v., 2 Sandf. Ch. 306 (7: 604). Cotheal, Fitch »., 3 Sandf. Ch. 29 (7: 495). Cotterill d. Jee, 3 Ch. Sent. 7 (5:1102). Couch v. Ulster & Orange Turnpike Co., 4 Johns. Ch. 26 (1: 752); injunc. 87, 281; tump. 1. Coutant «). Catlin, 3 tSanf. Ch. 485 (7: 672); costs, 78; highw. 22-25. V. Feaks, 2 Edw. Ch. 330 (6: 418); ev. 284; judg. d. & o. 118. «. Schuyler,lPaigeCh.316(2:662); gift,l,2. Covenhoven, Dewall c, 5 Paige Ch. 581 (3: 837). c. Shuler, 2 Paige Ch. 122 (2: 839); costs, 200; Ufe ten. 11. 12; wills, 135, 136, 141, 148, 151, 258, 259. Covell -B. Tradesman's Bank, 1 Paige Ch. 181 (2: 589); bills & n. 36-88; assign. 7; equity, 133, 138. Cowdin «. Cram, 3 Edw. Ch. 331 (6: 638); mun. corp. 50. Cowen, Trustees of Watertown v., 4 Paige Ch. 510 (3: 536). Trustees of Watertown v., 5 Paige Ch. 510 (3: 808). Cowing, Slirnermaun «., 7 Johns Ch. 375 (2: 292). Cowles V. Cowne, 10 Paige Ch. 526 (4: 1076); ev. 51; spec. p. 79, 80. Cowman v. Kingsland, 4 Edw. Ch. 627 (6: 999); discov. 64; judg. d. & o. 344 V. Lovett, 4 Ch. Sent. 7 (5: 1186X v. Lovett, 10 Paige Ch. 559 (4: 1090); judg. d. & o. 316; plead. 115, 229, 230; ref. 40. o. Macy, 1 Ch. Sent. 84 (5: 1076). V. Sedgwick, Hoff. Ch. 60 (6: 1063); cont. 72: usury, 112, 118. Cowperthwait d. Bruen, 3 Edw. Ch. 339 (6: 681). Cox, Williams e., 3 Edw. Ch. 178 (6: 617). Minuse «., 5 Johns. Ch. 441 (1: IISE^. ij. Wheeler, 7 Paige Ch. 248 (4: 143); mort. 179, 359, 374; subr. 83. Coxe V. Smith, 4 Johns. Ch. 271 (1: 887); lim. of ac. 56; parti. 23, 24. Cozine, Botts v., HofE. Ch. 79 (6: 1070). Botts V. 2 Edw. Ch. 583 (6: 512). e. Graham, 2 Paige Ch. 177 (2: 863); plead, 87, 369, 493, 690, 691. TABLE OF CASES DIGESTED. sod Craft, People «. , 7 Paige Ch . 325 (4: 174). Craig V. Biiggs, 4 Paige Ch. 548 (3: 556); affi- davit, 13. «. Craig, 3 Barb. Ch! 76 (5: 824); accuta. 8-11; annuity, 7; gift, 3-6; husb. & w. 53; trusts. 106, 107; -wills, 245, 350-358. Dickey »., 5 Paige Ch. 288 (8: 720). Ellis «., 7 Johns. Ch. 7 (2: 203). «. Hone, 2 Edw. Ch. 376, 554 (6: 435, 501); cred. bill, 202; debtor & c. 10; ex. & ad. 55, 56; perpetu. 7. «. Tappin. 2Sandf. Ch. 78 (7: 515); costs, 34; fraud, conv. 40; mort. 44, 45, 63, 535; plead. 86; pub. lands, 1 ; wills, 303. Williams v., 2 Edw. Ch. 297 (6: 407). Crain, Van Home «., IPaige Ch. 455 (2: 713). Cram. Cowdiii v., 3 Edw. Ch. 221 (6: 688). B. Mitchell, 11 Paige Ch. 156, 4 Ch. Sent. 35 (5: 90, 1146); appeal, 151-153. «. Mitchell, 1 Sandf. Ch. 251 (7: 318); insolv. & assign. 29, 30, 44; prin. & a. 47. e. Munro, 1 Edw. Ch. 123 (6: 83); land. & ten. 8, 10. Cramp, Hubbell v., 11 Paige Ch. 310 (5: 146). CrandallD. Hoysradt, 1 Sandf. Ch. 40(7: 230); costs, 186; wills, 354. Potter «., Clarke Ch. 119 (7: 68). Talk v., 1 Sandf. Ch. 179 (7: 286). Winchester »., Clarke Ch. 371 (7: 146). Crane v. Bunnell, 10 Paige Ch. 333 (4: 999); bills & n. 39; equity, 103; injunc. 102. e. Burnell, 3 Ch. Sent. 47 (5: 1118). Coithe v., 1 Barb. Ch. 21 (5: 283). t>. Ford, Hopk. Ch. 114 (2: 362); equity, 29; receiv. 158-161. V. Gibson, 2 Ch. Sent. 24 (5: 1087). Hart »., 7 Paige Ch. 37 (4: 50). «!. Hubbel, 7 Paige Ch. 413 (4: 210); usury, 73, 86. «. Kitchen, 4Ch. Sent. 75 (5: 1160). V. O'Connor, 4 Edw. Ch. 409 (6: 922); judg. d. & o. 209. Scribner «., 2 Paige Ch. 147 (2: 850). e. Ward, Clarke Ch. 393 (7: 152); mort. 305. Waring ■o., 5 Paige Ch. 79 (3: 821). Crary, Ross v., 1 Paige Ch. 416 (2: 698). Crawford, Balchen«.,l Sandf. Ch. 880 (7:866). Speiglemyer ®., 6 Paige Ch. 254 (3: 975). Watt «., 11 Paige Ch. 470 (5 : 201). - Cregier, Be, 1 Barb. Ch. 598, 6 Ch. Sent. 31 (5: 510. 1203); curtesy, 5; dower, 20-24. Crippeu «. Brown, 11 Paige Ch. 628, 5 Ch. ; nt. 12 (5: 259. 1167); costs, 386, 361, Ud6, 412, 413, 424, 425, 452, 461, 511, 513, 545. «. Crippen, 11 Paige Ch. 216, 2 Ch. Sent. 37, 47, 4Ch. Sent. 52(5:113, 1088, 1091, 1152); costs, 338, 334, 852, 353, 365, 366, 371, 372, 394, 470-472, 497, 498, 502, 522, 593. e. Heermance, Clarke Ch. 133 (7: 72); usury, 72. e. Heermance, 1 Ch. Sent. 45 (5: 1065). «. Heermance, 9 Paige Ch. 211 (4: 672); codtr. 65; costs, 9; spec. p. 84; usury, 87; vend. & pur. 43. ■0. Thompson, 4 Ch. Sent. 52 (5: 1152). Crittenden, JJe,2Ch. Sent. 88(5: 1090);ref.75. Crocheron v. Jaques, 3 Edw. Ch. 207 (6: 628); wills, 256. Smith v.. 2 Edw. Ch. 501 (6: 482). Crolius*. Mayor, etc. of N. Y., 1 Ch. Sent. 82 (5: 1075). Cromer «. Pinckney, 3 Barb. Ch. 466 (5: 974); ev. 183; eX. & ad. 147, 148; willss 159, 197, 206, 215-217. Cromtoelin, Leonard «., 1 Edw. Ch. 206 (6: 112). Cromwell v. Cromwell, 3 Ch. Sent. 7 (5: 1102). V. Cromwell. 2 Edw. Ch. 495 (6: 480); per- petu. 86; wills, 384. ®. Cunningham, 4 Sandf. Ch. 884 (7: 1143); Chan. & V. chan. 33. Cronley, Brodie »., 2 Edw. Ch. 255(6: 687). Crookshank, United States a., 1 Edw. Ch. 233 (6: 121). Cropsey, Robinson ©., 2 Edw. Ch. 138(6: 340). Robinson «., 6 Paige Ch. 480 (3: 1069). Crosby v. Berger, 8 Edw. Ch. 588 (6: 754); confl. of 1. 42; plead. 481. ». Berger, 4 Edw. Ch. 210, 254 (6: 855, 870}; ev. 241; plead. 717. V. Berger, 11 Paige Ch. 377, 4 Ch. Sent. 68 (5: 168, 1156); ev. 229-231. «. Crosby, 2 Ch. Sent. 15 (5: 1084); ev. 224. L'Amoureux v., 2 Paige Ch. 422 (2: 972). ■ B. Lumberman's Bank, Clarke Ch. 234, (7: 101); attach. 11; cred. bill, 9; injuiic. 25. Webb B., 11 Paige Ch. 193 (5: 104). c. Wendell, 6 Paige Ch. 548 (3: 1096); wills, 135, 186, 270. Crosier'B.' Acer, 7 Paige Ch. 137 (4: 97); contr. 75, 77; equity, 105, 106; judg. d. & o. 250; prac. 267. Cross, Be, 2 Ch. Sent. 3 (5: 1079); incomp. pers. 117. Berry v., 3 Sandf. Ch. 1 (7: 747). Bowen v., 4 Johns. Ch. 375 (1: 873). ®. Cross, 3 Paige Ch. 139 (3: 89); ev. .22-26; par. & c. 9. Croton Ins. Co., Be, 2 Barb. Ch. 360 (5: 674); Corp. 183, 184. 8 Barb. Ch.642 (5: 1041); Corp. 175. 6 Ch. Sent. 76 (5: 1220); corp. 175;- prin. & s. 85; receiv. 178-180. Croton Turnpike ». Ryder, 1 Johns. Ch. 611 (1: 265); injunc. 184, 185; tump. 2. Crowder b. Hopkins, 3 Ch. Sent. 24 (5: 1108). B. Hopkins. 10 Paige Ch. 183 (4: 987); acknowl. 4, 5; ev. 93, 249, 315; pub. lands, 8, 9, 12. Cruger v. Cruger, 4 Edw. Ch. 433 (6: 980>. ». Douglas, 4Edw. Ch. 433(6: 930); deed, 47; equity, 120; husb. & w. 240, 241; trusts, 29-32; wit. 14. B. Halliday, 3 Edw. Ch. 565 (6: 764); plead. 68; trusts, 119, 120. B. Halliday, 11 Paige Ch. 314, 4 Ch. Sent. 64 (5: 148, 1156); plead. 289, 290; trusts, 102, 103. Leavitt b., 1 Paige Ch. 421 (2: 700). Wells B., 5 Paige Ch. 164 (3: 671). Crumb, Expaite, 2 Johns. Ch. 439 (1:439); guard. & w. 25. Cuddeback b. Kent, 5 Paige Ch. 92 (3:640); guard. & w. 57-60. Cudney b. Early. 4 Paige Ch. 209 (3: 406); bound. 5; injunc. 154. Cumberlan 1, Codrington v., 8 Johns. Ch. 229 (1: «U1). Cumming b. Mayor, etc. of Brooklyn, 11 Paige Ch. 596 (5: 246); equity, 55; mun, Corp. 7-9. B. Waggoner, 7 Paige Ch. 603 (4: 295); ref. 43. TABLE OF CASES DIGESTED. 600 Cumming «. Williamson, 1 Sandf. Ch. 17 (7: 221); power, 10; prac. 8, 9; trusts, 198. Hamilton a., 1 Johns. Ch. 517(1: 229). Cummins'!!. Bennett, 8 Paige Ch. 79(4:352): abatement, 5; costs, 307; injunc. 371; iudg. d. & o. 108; prac. 240, 257. Cumpston, Leitch v., 4 Paige Ch. 476 (3: 522) Cunningham, Cromwell v., 4 Sandf. Ch. 384 (7: 1143). V. Erwin, Hopk. Ch. 48 (2: 338); new tr. 24^ 27. v. Freeborn, 1 Edw. Ch. 28, 256 (6: 47, 130); insolT. & assign. 1-3, 26; plead. 427, 578. e. Freeborn, 3 Paige Ch. 557 (3: 273); ev. 333, insolv. & assign. 15, 145; trial, 2, 3. «. Littlefield, 1 Edw. Chr 104 (6: 76); partn. 17, 124. «. Mayor, etc. of Brooklyn, 5 Ch. Sent. 14 (5:1186). . D. Pell, 5 Paige Ch. 607 (3: 850); corp. 80; cost, 73; iudg. d. & o. 81; parties, 47. v. Pell, 6 Paige Ch. 655 (3: 1141); abs. and abscon. d. 6; contempt, 40; parties, 185; plead. 197; writ. & proc. 12. Carrie v. Hart, 2 Sandf. Ch. 353 (7: 623); as- sign. 6; insolv. & assign. 18, 27, 28, 41, 42. Hays ■»., 3 Sandf. Ch. 585 (7: 966). Currie d. Steele, 5 Ch. Sent. 22 (5: 1173). Curtis V. Ballagh, 4 Edw. Ch. 635 (6: 1001); jadg. d. & o. 317. Boker v., 2 Edw. Ch. Ill (6: 329). Brownell v., 10 Paige Ch. 210 (4: 948). V. Curtis, 2 Ch. Sent. 19 (5: 1085). V. Ellsworth, 5 Ch. Sent. 2 (5: 1164). «. Ellsworth, 6 Ch. Sent. 73 (5: 1218). Ell .worth «. , 10 Paige Ch. 105 (4: 905). «. Engel, 2 Sandf. Ch. 287 (7: 596); husb. & w. 118-120. «. Engle. 4 Edw. Ch. 117 (6:818); prac. 43. Curtis, Hannat... 1 Barb. Ch. 263 (5: 37g. V. Hitchcock, 3 Ch. Sent. 87 (5: 1128), Ua V. HUchtct^lb Paige Ch. 399 (4: W. iudg d. & o. 265; lis. pend. 2a-2tH mort. 439, 440. «. Leavilt, 4 Ch. Sent. 73 (5: 1169). « Leavitt 6 Ch. Sent. 76 (5: 1220) I. Leavitt, 4 Edw. Ch. 246 (6: 867); plead. 208 209 e. Leavitt, li Paige Ch. 386(5: 172); equity, 17, 18; plead. 208, 209. MeKiiJstry v., 10 Paige Ch. 503 (4: 1067). V. Hasten, 11 Paige Ch. 15 (5: 39); plead. 518, 519, 564. ^ „„„ V. Tyler, 2 Ch. Sent. 3 (5: 1080); plead. 307; subr. 3, 4. «. Tyler, 9 Paige Ch. 432 (4: 762); mort. 226;. plead. 307; subr. 3, 4. i>. Van Wyck, 3 Ch. Sent. 54 (5: 1117). Curtiss «. Engle, 2 Ch. Sent. 29 (5: 1088). u. Rochester, Qlarke Ch. 336 (7: 135). V. Tripp, Clarke Ch. 318 (7: 130); mort. 160;. wit. 74. V. White, Clark Ch. 389 (7: 151); covenant, 28. Cushman c. Brown, 6 Paige Ch. 539 (3: 1093); costs, 271. Cushney v. Henry, 4 Paige Ch. 345 (3: 464); real prop. 6; trusts, 187, 244; wills. 378. Cuyler «. Bogert, 3 Ch. Sent. 12 (5: 1103). V. Bogert, 3 Paige Ch. 186 (3: 109); discov. 70, 71; plead. 357, 409, 468. D. Ensworth, 6 Paige Ch. 32 (3: 886); cred. bill, 6; subr. 29. Ellsworth v., 9 Paige Ch. 418 (4: 757). V. Moreland. 6 Paige Ch. 273 (3: 983); app. 22; cred. bill, 68, 69; exec. 83. Cutler, New York Life Ins. & T. Co. «., 3- i Sandf. Ch. 176 (7: 815). D. Daggett 9. Daggett, 5 Paige Ch. 509 (3: 808); husb. & w. 273. Dakin, Clarke v., 2 Barb. Ch. 36 (5: 547). ». Demming, 6 Paige Ch. 95 (3: 913); ex. & ad. 315, 316, 372; infants, 1; surro. 2. Dale«. Cooke, 4 Johns. Ch. 11 (1:746); set- off, 36-38. Lawrence «., 3 Johns. Ch. 23(1: 529). Boorbach v., 6 John. Ch. 469 (2: 187). ®. Roosevelt, 5 Johns. Ch. 174 (1: 10471); in- junction, 134. «. Roosevelt, 6 Johns. Ch. 255 (2: 117); prac. 177, 218-220; spec. p. 105. V. Rosevelt, 1 Paige Ch. 35(2: 552); ev. 100, 101; injunc. 393, 394. Williamson v., 3 Johns. Ch. 290 (1: 622). Danforth v. Woods, 11 Paige Ch. 9, 4 Oh. Sent. 16 (5: 37, 1140); fraud, conv. 643; husb.&w. 174; judg. d. &o. 5, 112,157. Daniels s. Brodie, 3 Edw. Ch. 275 (6: 655): reviv. 32, 33. Darke, Riker v , 4 Edw. Ch. 668 (6: 1012). Darley, Weed «., 3 Edw. Ch. 277 (6: 656). Darling, Barnard «., 1 Barb. Ch. 76, 218 (5: 305, 360). Darrow, Reed «., 2 Edw. Ch. 412 (6: 449). Dart B. Palmer, 1 Barb. Ch. 92, 5 Ch. Sent. 44 (5: 312, 1181); parties, 15; plead. 73, - ^1, 322, 726, 727. Dart, Post v. , 8 Paige Ch. 639 (4: 573). Dashwood, Hunters., 2 Edw. Ch. 415(6:450), Davenports. City Bank of Buffalo, 1 Ch. Sent. 20 (5: 1057); bks. & bkg. 56. 0. City Bank of Buffalo, 9 Paige Ch. IS (4: 590); bks. & bkg. 56, 57; receiv. 138 Hartson v., 2 Barb. Cn. 77 (5: 563). 9. Hazen, 1 Ch. Sent. 36 (5: 1061). Storm v., 1 Sandf. Ch. 135 (7: 268). Davies, Skidmore n., 10 Paige Ch. 316 (4: 99)* Stuyvesant v., 3 Edw. Ch. 537 (6: 753). v. America u L. Ins. & T. Co. 3 Ch. Sent, 99(5: 1132). Davis c. American L. Ins. & T. Co., 4 Edw, Ch. 308 (6:8 88); set-off, 45. v. Clarke, 4 Ch. Sent. 85 (5: ll63). Deklyn s., Hopk. Ch. 135 (2: 369). V. Fargo, Clarke Ch. 470 (7: 175). V. Hawley, 11 Paige Ch. 434 (5: 188); costSj 453, 454, 459, 534, 537. Henry v., 7 Johns. Ch. 40 (2: 213). Hewlett v., 3 Edw. Ch. 338 (6: 681). TABLE OP CASES DIGESTED. 60! Davis, Kerr*., 7 Paige Ch. 53 (4: 57). La Roque d., 2 Edw. Cli. 599 (6: 518). t. Mapes, 2 Paige Cli. 105 (2: 831); plead. 405, 416, 417, 445, 614. New York Life Ins. & T. Co. «., 10 Paige Ch. 507 (4: 1069). e. Perrine, 4Edw. Oh. 62 (6: 798); bills & n. 19; fraud, conv. 71; prin. &s. 37. • Southern Life Ins. & T. Co. v., 4 Edw. Ch. 588 (6: 985). Spader c, 5 Johns. Ch. 280(1: 1083). Stuyvesant v., 9 Paige Ch. 427 (4: 760). Davison, Be, 6 Paige Ch. 136 (3: 929); infants, 90, 91. «. De Freest, 3 Sandf.Ch. 456 (7: 918); eq. conv. 24; infants, 73-75; judg. d. &. o. 93, 168; mort. 417; real prop. 14. Didier v., 2 Barb Ch. 477 (5: 721). Didier v.. 10 Paige Ch. 515 (4: 1072). Didier v., 2 Sandl. Ch. 61 (7: 508). March v., 9 Paige Ch. 580 (4: 823). Davoue «. Fanning, 2 Johns. Ch. 252(1: 365); power, 11; trusts, 155, 166-168; wills, 318. e. Fanning, 4 Johns. Ch. 199(1: 813); ex. & ad. 149;3iidg."d. & o; 154, 198, 309, 354; parties, 105; plead. 535, 704, 728. Dawes, Moran v., Hopk. Ch. 365 (2: 452). Day, Be. 4 Ch. Sent. 16(5: 1140). Grosvenor v., Clarke Ch. 109 (7: 65). Haight c. 1 Johns. Ch. 18 (1: 44). «. Perkins, 6 Ch. Sent. 43 (5: 1207). «. Perkins, 2 Sandf. Ch. 359 (1: 625); dam, 7; flxt. 2; mort. 33, 34; partn. 8, 18, 93; plead. 329. «. Potter, 2 Ch. Sent. 61 (5: 1094). «. Potter, 9 Paige Ch. 645 (4: 851); ev. 13; ex. & ad. 421; plead. 650; reviv. 73, 85, 86. Sea Insurance Co. e., 9 Paige Ch. 247, 369 (4: 688, 735). «. Sizer, Clarke Oh. 199(7: 91); compromise, 3; cont. 101. V. West, 2 Edw. Ch. 592 (6: 515); dower, 43. Dayton v. Conklin, 2 Ch. Sent. 54 (5: 1093); perpetu. 9. Skinner®., 2 John. Ch. 226, 526(1: 356, 475). Skinner d„ 5 Johns. Ch. 191, 251 (1: 1053, 1106). Dean d. Coddington, 2 Johns. Ch. 201 (1: 347); mort. 330, 331. Livingston v., 2 Johns. Ch. 479 (1: 457). «. Payfer, I Ch. Sent. 76 (5: 1074). Deas V. Harvie, 2 Barb. Ch. 448 (5: 710); dis- cov. 32, 43-45; bills & n. 15-17; costs, 174. Deaves v. Heyer, 2 Johns. Ch. 154 (1: 328). DeBevoisea. Sandford, HofE. Ch. 192 (6: 1112); trusts, 175, 285. Debraine, O'Connor©., 3 Edw. Ch. 330 (6:637). De Cala, Pardee ®., 7 Paige Ch. 132 (4: 95). De Carters «. LaFarge, 1 Paige Oh. 574(2: 758); costs. 480; prac. 208, 209. De Caters v. De Chaumont, 2 Paige Ch. 490 (2: 1001); insolv. & assign. 123, 124; trusts, 157, 158. Decaters v. La Farge, 2 Paige Ch. 411 (3: 967). De Caters d. Le Ray Chaumont, 3 Paige Ch. 178 (3: 105); prac. 20; trusts, 170. De Chaumont, De Caters v., 2 Paige Ch. 490 (2: 1001). Decker v. Miller, 2 Paige Ch. 149 (3: 851); costs, 62, 63; ex. & ad. 34, 209-211. Decouche v. Savetier, 3 Johns. Ch. 180 (1:587); confl. of 1. 80, 37, 38; lim. of ac. 50, 52. V. Savetier, 3 Johns. Ch. 217 (1:597); lim. of ac. 69, 70. Deen v. Haight, 6 Ch. Sent. 13 (5; 1196). De Forest v. Bates, 1 Edw. Ch. 394 (6: 184); assign. 16; equity, 132; fac. 5. Rogers 8., 3 Edw. Ch. 171 ,'6: 614). Rogers v., 7 Paige Ch. 272 (4: 152). DeFreest, Davison®., 3 Sandf. Ch. 456 (7: 918), Knickerbacker o., 2 Paige Ch. 304 (2: 918). Degraw v. Clason, 11 Paige Ch. 136, 4 Oh. Sent. 36 (5: 84, 1147); annuity, 12; cred. bill, 189, 19U; receiv. 118, 119, 130; trusts, 10. 262. DeKay, .Be, 4 Paige Ch. 403 (3: 490); trusts, 303. Eckford «., 8 Paige Ch. 89 (4: 856). Eckford «., 6 Paige Ch. 565 (8: 1104). Irving v., 10 Paige Oh. 319 (4: 993). Irving v., 9 Paige Oh. 521 (4: 800). Toole v., Sandf. Oh. 385 (7: 1143). Waddell v., 2 Sandf. Ch. 494 (7: 675). Deklyn V. Davis,, Hopk. Oh. 135 (2: 369). De Klyn v. Watkins, 3 Sandf. Oh. 185 (7: 818); courts, 18, 19; injunc. 15, 16. Delafleld v. Golden, 1 Paige Oh. 189 (2: 592); claims, 2; costs, 60; trusts, 45. , Conant v., 3 Edw. Ch. 201 (6: 626). Le Fort v., 3 Edw. Oh. 33 (6: 560)). State v., 8 Paige Ch. 537 (4: 539). Delaucey, Blmendorf®.,Hopk. Ch. 555 (3:521). Seymour®., Hopk. Ch. 436(2: 478). Seymour v., 6 Johns. Oh. 222 (3: 106). Delaney v. Carroll, 6 Oh. Sent. 37 (5: 1205);, ref. 85. Delano v. McOmber, 4 Oh. Sent. 28 (5: 1144). Delaplaine v. Hitchcock, 5 Edw. Ch. 321. (6: 893); plead. 27; prin. & s. 34. V. Lawrence, 4 Oh. Sent. 16 (5: 1140); app.. 10, 30. V. Lawrence, 10 Paige Oh. 602 (4: 1109); app. 10, 30; appear. 3; jud. sale, 34, 97. De Launay, Leavitt v., 4 Sandf. Oh. 281, 480- (7: 1105, 1179). Delavan, Bates v., 5 Paige Oh. 299 (3: 726). Kew York Fire Ins. Co. v., 8 Paige Ch. 419 (4: 486). V. Payn, 8 Paige Oh. 459 (4: 503); costs, 539. Delaware & H. Canal Co. v. Elting, 3 Ch. Sent. 39 (5: 1109); insolv. & assign. 52. a. New York & Erie R. Co. 1 Oh. Sent. 76 (5: 1074). Delevan v. Spies, 1 Oh. Sent. 50 (5: 1066). v. Spies, 2 Ch. Sent. 55 (5: 1093). Delmonico ®. Guillaume, 2 Sandf. Oh. Z6Q' (7: 627); partn. 81, 90-93. De La Vergne «. Evertson, 1 Paige Ch. 181 (3: 608); costs, 20, 31; exec. 70-73; judg. d. & o. 358; parlies, 1. Du Luze V. Loder, 3 Edw. Ch. 419 (6: 710); prac. 265. Demarest, Van Bergen v., 4 Johns. Oh. 3T (1:755). fl. Wynkoop, 2 Johns. Oh. 461 (l:451);hu3b. & w. 143-144; ven. & pur. 110. V. Wynkoop, 3 Johns. Oh. 139 (1:566); costs, 193, 304, 305; ex. & ad. 35; lim. of ac. 36. 91-94; mort. 435-437, 468, 469, 502.. De Meyer, Souzer v.. 2 Paige Oh. 574 (2: 1035)., Deming, Freeman «., 4 Edw. Oh. 498 (6: 989).. Freeman v., 3 Sandf. Ch. 327 (7: 870). Demming, Dakin v., 6 Paige Oh. 95 (.3: 913). «03 TABLE OF CASES DIGESTED. De JIoU 0. Benson, 4 Edw. Ch. 497 (6: 884);- accounting, 32; ev. 10, 74, 111; ref. 101,i 108. V. Slarkey, 3 Barb. Ch. 403 (5: 950); bona fide p. .5. Demorey, Leacraft ».. 4 Paige Ch. 134 (3: 371) De Mevei, Voorhees ■o., 3 Sandf. Ch. 614 (7: 976). Denison v. Bassford, 7 Paige Ch. 370 (7: 193); plead. 94, 289, 288. Denning v. Smith, 3 Johns. Ch. 333, 409 (1637, 665); loan off. 1-7; plead. 498; proc. 4; ven. & pur. 56, 116. Dennis, Mills s., 3 Johns. Ch. 367 (1: 651). Underbill v., 9 Paige Ch. 203 (4: 668). DennistoH, Burnet «., 5 Johns. Ch. 35 (1 : 999). V. Vischer, 4 Ch. Sent. 20 (5: 1141). e. Vischer, 5 Paige Ch. 61 (3:638); costs, 602, 603. V. Visscher, 3 Ch. Sent. 31 (5: 1086). Denston e. Morris, 3 Ch. Sent. 39 (5: 1109). ®. Morris, 3 Edw. Ch. 37 (6: 299); parties, 114; plead. 705; trusts, 49; ven. & pur. 48-49. Denton v. Denton, 1 Johns. Ch. 364, 441 (173, 303); husb. & w. 350; mun. corp. 9, 29- 31. , V. Graves, Hopk. Ch. 306 (2: 431). «. Jaclcson, 3 Johns. Ch. 536(1:333); dep. 36. e. Jackson, 2 Johns. Ch. 330 (1: 394); corp. 3-6;easm. 18; Hempsted, town of; town, 1-6. Depau 9. Moses, 3 Johns. Ch. 349 (1: 643); ex. & ad. 133, 133; injunc. 158. De Peyster, Be. 4 Sandt. Ch. 511 (7: 1190); trusts, 336, 337. 7). American Fire Ins. Co. 6 Paige Ch. 486 (3: 1071); corp. 185-187; insur. 14, 49. Clarkson »., Hopk. Ch. 374,434, 505 (3: 419, 473, 503). Clarkson o., 3 Paige Ch. 330, 336 (3: 171, 178). n. Clendining, 3 Ch. Sent. 40 (5: 1113). V. Clendining, 8 Paige Ch. 295 (4: 434); ex. & ad. 31, 33; perpetu. 84; trusts, 90 wills, 146, 308, 309, 456. V. Golden, 1 Edw. Ch. 63 (6: 60); prac. 198. v. Ferrers, 11 Paige Ch. 13, 4 Ch. Sent. 15 (5: 38, 1139); ex. & ad. 387; trusts, 118. Depeyster v. Graves, 2 Johns. Cn. 148 (1:327); injunc. 217, 361, 363. o. Hildreth. 3 Barb. Ch. 109. 6 Ch. Sent. 43, 61 (5: 576, 1207, 1214); cloud on title, 5; exec. 68; injunction, 144; judg. d. & o. 330; mort. 69; prac. 38; real prop. 91. Scott «., 1 Edw. Ch. 513 (6: 339). Da Riemer «. Cantillon, 4 Johns. Ch. 85 (1: 773); costs, 361; deed, 32; injunc. 135; judg. d.&o. 194. Daring, Gardner »., 2 Edw. Ch. 131 (6: 337). De Rivaflnoli «. Corsetti, 4 Paige Ch. 164 (3": 429); mun. corp. 13, 38; quia timet, 1. De Rose, Re, 1 Ch. Sent. 52 (5: 1067). V. De Rose, Hopk. Ch. 100 (3: 357); costs, 112. «. Fay, 5 Ch. Sent. 1 (5: 1164). «. Fay, 3 Edw. Ch. 369 (6: 692); atty. & sol. 48-46. V. Fay, 4 Edw. Ch. '40 (6: 791); costs, 533. De Rottenham, Murray »., 6 Johns. Oh. 52 (8: 52). Derring. Gardiner »., 1 Paige Ch. 573 (3: 757). De Ruyter d. St. Peters Church, 3 Barb. Ch. 5.55 (5: 731); contr. 58; mort. 376, 377, 436; new tr. 19. 0. St. Peters Church, 8 Barb. Ch. 119 (5 : 840); corp. 34, 194; ev. 3; relig. soc. 6. Des Arts, Moore «., 8 Barb. Ch. 636 (5: 783). Deshay, Logan o., Clarke Oh. 309 (7: 94). Desplaces ®. Goris, 1 Edw. Ch. 350 (6: 168); plead. 53-55, 408, 433, 563. V. Goris, 3 Edw. Ch. 433 (6: 453); ev. 34. ■». Goris, 5 Paige Ch. 253 (S: 707); prac. 136. Devanbagh v. Devanbagh, 5 Paige Ch. 554 (5: 827); ev. 135; husb. & w. 33-34. V. Devanbagh, 6 Paige Oh. 175 (5: 945); husb. & w. 35-27. Devaucene «. Devaucene, 1 Edw. Oh. 373 (6: 136); asst., writ of, 8. Deveau ®. Fowler, 3 Paige Ch. 400 (3: 961); partn. 33, 50, 51. Develin, Kerr «., 4 Edw. Ch. 55 (6: 796). Devereaux, Braker ».,8 Paige Oh. 513(4: 534). Walker »., 4 Paige CB. 339 (8: 415). Devoe v. Ithaca & Oswego R. R. Co., 5 Paige Ch. 531 (3:813); receiv. 60. Dewall ®. Covenhoven, 5 Paige Ch. 581 (3: 837); husb. & w. 308, 809, 330. Dewey ». Adams, 4 Edw. Ch. 21 (6: 785): insolv. & assign. 45. Brown v., 1 Sandf. Ch. 56 (7: 238). Hart «., 3 Paige Ch. 807 (3: 877). Dexter v. Stewart, 7 Johns. Ch. 53 (2: 218); insolv. & assign. 65. Dey ■». Dunham, 3 Johns. Oh. 183(1: 340); ac- counting, 12; ev. 123; fraud, conv. 61; insolv. & assign. 63, 64; judg. d. & o. 10; mort. 10; new tr. 12, 18; plead. 513; real prop. 53-55; usury, 35, 177, 178; wit. 15. Dey, Manchester «., 6 Pa,ige Ch. 295 (3: 993). De Zeng v. Mann, 4 Ch. Sent. 33 (5: 1143); peti. 3. ■ • Dias V. Bouchard, 3 Ch. Sent. 89 (5: 1139); prac. 15. v. Bouchaud, 3 Edw. Ch. 485 (6: 734); subr.- 16. s. Bouchaud, 10 Paige Oh. 445 (4: 1044); app. 245; duties, 3; insolv. & assign. 155-159; lim. of ac. 16; parties, 13, 81, 87, 90, 91, 115; plead. 333, 723, 734; prac. 15. ■». Glover, Hoflf. Ch. 71 (6: 1068); acknowl. 13, 13; estop. 16; husb. &w. 44; release, 5; spec. p. 120. v. Merle, 2 Paige Ch. 494 (3: 1003); contempt, 15, 16. D. Merle, 4 Paige Oh. 259 (3: 437); mort. 526; plead. 237, 339. Souillard b., 9 Paige Ch. 393 (4: 746). Diaz V. Glover. 1 Ch. Sent. 8 (6: 1053). Dibble, Rogers v., 3 Paige Ch. 338 (3: 184). Rogers «., 8 Paige Ch. 9 (4: 335). Dickenson, Clowes b., 5 Johns. Ch. 235 (1: 1068). 8. Codwise, 11 Paige Ch. 189, 4 Ch. Sent. 48 (5: 103, 1161); app. 50; judg. d. & o. 102, 103. Dickerman v. Gardner, 1 Ch. Sent. 73(5:1073). Dickerson, Randolph o., 5 Paige Ch. 517 (3: 811). ^ «. Tillinghast, 4 Paige Ch. 315 (3: 409); ven. & pur. 131, 133. Dickey, Austin »., 3Edw. Ch. 378 (6: 695) «. Craig,5Paige Ch. 383 (3: 730); injunc. 159. TABLE OF CASES DIGESTED. 603 Dickey. Morrell v., 1 Johns. Ch. 153 (1: 96). Dickinson «. Codwise, 4 Edw. Ch- 341 (6: 899); plead. 538; ref. 106. e. Codwise, 1 Sandf. Ch. 214 (7: 304); abate- ment, 3; husb. & w. 43, 155; trusts, 38- 41; wit. 73. Pream«., 3 Edw. Ch. 300 (5: 861). Graham «., 3 Barb. Ch. 169 (5: 861). Didier v. Davison, 3 Barb. Ch. 477; 3 Ch. Sent. 93(5: 731, 1130); lim. of ac. 8, 43, 96-101; plead. 31. «. Davison, 10 Paige Ch. 515 (4: 1063); act. or suit, 1; plead. 31, 35, 349. ». Davison, 3 Sandf. Ch. 61 (7: 808); lim. of act. 31, 103, 103; plead. 36. Diefendorff v. Heath, 6 Ch. Sent. 33 (5: 1303); notice, 4. Dietericht. Schmidt®., 1 Edw. Ch. 119 (6: 81). Dikeman ®. Dikeman, 11 Paige Ch. 484, 4 Ch. Sent. 84 (5: 307. 1163); asses. 7-10; contrib. 27; taxes, 15. Dill, Bank of Utlca«., IPaigeCh. 468(3:717); Dimond, Lovett v., 4 Edw. Ch. 33 (6: 785). f>. Thompson «., 3 Edw. Ch. 398 (6: 665). Oinneford, Hamblin v., 2 Edw. Ch. 539 (6: 4: 98). Disosway ». Carroll, 1 Ch. Sent. 14 (5: 1055). t. Carroll, 3 Ch. Sent. 57, 71 (5: 1118, 1133); plead. 409, 438. Ditmas, Vroom v., 4 Paige Ch. 526 (3: 515). Vroom v., 5 Paige Ch. 538(3: 816). Dix o. Briggs, 2 Ch. Sent. 37 (5: 1089); courts, 52. V. Briggs, 9 Paige Ch. 595 (4: 830); courts, 52; plead. 395. ■Dixon D. Ely, 4 Edw. Ch. 557 (6: 973); mun. Corp. 37. .Dobbs V. Dobbs, 3 Edw. Ch. 377 (6: 695); husb. & w. 333. Dobson «. Racey, 3 Sandf. Ch. 60 (7: 770); fraud, conv. 33; prin. & a. 40. Dodd «. Astor, 2 Barb. Ch. 395 (5: 689); app. 270; plead. 356; prac. 37. Duncan v., 3 Paige Ch. 99 (3: 839). Dodge, Boyd v., 10 Paige Ch. 43(4: 878). Burtis »., 1 Barb. Ch. 77 (5: 306). «. Dodge, 7 Paige Ch. 589 (4: 388); husb. & w. 333; ref. 39. Gregory d., 3 Paige Ch. 90 (3: 70). Gregory u., 4 Paige Ch. 557 (3: 560). ». Manning, 11 Paige Ch. 334, 4 Ch. Sent. 65 (5: 155, 1157); ev. 203; ex. & ad. 253- 355; mort. 433; wills, 390. Sherman »., 6 Johns. Ch. 107 (2: 69). V. Strong, 3 Johns. Ch. 328(1: 357); injunc. 137, 138. Varlck v., 9 Paige Ch. 149 (4: 644). 'Doe V. Green, 3 Paige Ch. 347 (2: 938); atty. & sol. 10; costs, 363, 362, 387-389. 405, 406, 439-444, 465, 466. 567. B. Roe, Hopk. Ch. 276 (2: 420); injunc. 310. Dole, Holmes v., Clarke Ch. 71 (7: 54). Prentice, v., Clarke Ch. 71(7: 54). .Donaldson, New York Fire Ins. Co. «., 3 Edw. Ch. 199 (6: 635). Donavan ®. Finn, Hopk. Ch. 59 (3: 342); equity, 41-43. Donnelly, Hawley v., 8 Paige Ch. 415 (4: 485). King D., 5 Paige Ch. 46 (3: 621). .Doolittle «. Lewis, 7 Johns. Ch. 45(2:215); ex. & ad. 157, 158, 473-474, 468; mort. 349, 350; power, 30-33. Dorr V. Peters, 3 Edw. Ch. 133 (6: 599). Post v.. 4 Edw. Ch. 413 (6: 933). ■0. Shaw, 4 Johns. Ch. 17 (1: 748); marsh, of a. & s. 11-13. Dorsheimer, McCoun o., Clarke Ch. 144 (7: 75). Dougherty «. Van Nostrand, Hofl. Ch. 68 (6: 1066); partn. 149, 150. Douglas, Cruger v., 4 Edw. Ch. 433 (6: 930). V. Douglas, 3 Edw. Ch. 390 (6: 700); lim. of ac. 14. Monroe v., 4 Sandf. Cb. 136(7: 1049). ». New York & Erie R. Co., 1 Ch. Sent. 84 (5: 1076). Safford v., 4Edw. Ch. 537 (6: 967). Douglass V. New York & E. R. Co., Clarke Ch. 174 (7: 84); release. V. Peele, Clarke Ch. 563 (7: 301); ev. 193. V. Rhodes, 6 Ch. Sect. 75 (5: 1319). V. Sherman, 3 Paige Ch. 358 (3: 943); plead. 196; reviv. 9, 10, 44-46, 89; wills, 334. B. Viele, 3 Sandf. Ch. 439 (7: 913); parti. 103 122 V. White, 3 Barb. Ch. 621, 6 Ch. Sent. 13 (5: 1033, 1109); accord. & sat. 1; bills & n. 18; injunc. 139. e. Wiggins, 1 Johns. Ch. 435 (1: 200); In- junc. 48. Dougrey v. Topping, 4 Paige Ch. 94 (3: 357); estop. 39";, injunc. 277. Douw V. Shelden, 3 Paige Ch. 333 (3: 927); courts, 56-58. Dowdall V. Lenox, 3 Edw. Ch. 367 (6: 396); usury, 9-11, 71. Downing Be, 3 Ch. Sent. 13 (5: 1183). Dows ». McMichael, 3 Paige Ch. 345 (3: 937); plead. ^44; prac. 81, 173. n. McMichael, 6 Paige Ch. 139 (3: 931); ev. 98; plead. 373; judg. d. &o. 151,189; prac. SeO. Doyle Be. Clarke Ch. 154 (7: 78); infants, 44. Purdy «., 1 Paige Ch. 558 (3: 751). Drake, Garr «., 3 Johns. Ch. 543 (1: 483). Melick «., 6 Paige Ch. 470 (3: 1065). V. Pell, 3 Edw. Ch. 351 (3: 646); wills, 374- 377. Draper ®. Gorden, 4 Sandf. Ch. 210 (7; 1079); dep. 34; judg. d. & o. 121; pay. 11; plead. 6:i5-627; trusts, 43. «. Holland, 3 Edw. Ch. 272 (6:654); atty. & sol. 19. Drew V. Dwyer, 1 Barb. Ch. 101, 5 Ch. Sent. 44 (5: 315, 1181); cred. bill, 16, 17; exec. 4; injunc. 375. Duane, Haggerly, «., 1 Paia;e Ch. 321 (3: 661). Dubois, Leggett v.. 2 Paige Ch. 211 (3: 879). Leggett v., 1 Paige Ch. 574 (2: 757).' Le"'gett«., 3 Paige Ch. 477 (3: 38S). Leggett v., 5 Paige Ch. 114 (3: 649). Sagory v., 3 Sandf. Ch. 466 (7: 933). Dudley, New Orleans Gas Light & Banking Co. v., 8 Paige Ch. 453 (4: 500). Thompson v., 3 Edw. Ch. 137 (6: 001). Duel, Sprague »., Clarke Ch. 90 (7: 60). Spraguc v., 11 Paige Ch. 480(5: 305). Duif, Berger v., 4 Johns. Oh. 368 (1: 870)." V. James, 3 Ch. Sent. 65 (5: 1096). Duffleld, Whitlock v.. 3 Edw. Ch. 366 (6: 433). Whitlock v., 7Ho£E. Ch. 110 (6: 1081). Duffy V. Buchannan, 1 Paige Ch. 453 (3: 713): prin. & a. 55-57. 604 TABLE OF CASES DIGESTED. Duke of Cumberland «. Codrington, 3 Johns. Cb. 254, 610; act. or suit, 7; ex. & ad. 278, 289-292: mort. 3-7; prin. & a. 19; trusts, 1, 2. Dumond e. Magee, 2 Johns. Ch. 240 (1: 362): plead. 96. 0. Magee, 4 Johns. Ch. 318 (1 : 853); husb. & w. 408-410. V. Sharts, 2 Paige Ch. 182 (2: 895); contr. 66; highw. 1; ven. & pur. 40. Dumont v. Nicholson, 2 Barb. Ch. 71 (5: 561); ref. 73. . Duncan, Bowden v., 4 Sandf. Ch. 621 (7: 1231). 0. Dodd, 2 Paige Ch. 99 (2: 839); infants, 82; jud. sale. 91. ». Lyon, 3 Johns. Ch. 351(1:644); discov. 62; equity, 66, 67; partn. 164-167; set off, 15, 22, 33. Smack v., 4 Sandf. Ch. 621 (7: 1231). Van Amlen v., 4 Sandf . Ch. 621 (7: 1231). Dunham, Chase v. 1 Paige Oh. 572 (2: 757). Colton v., 2 Paige Ch. 267 (2: 901). Dey v., 2 Johns. Ch. 182 (1: 340). Fanning v., 4 Johns. Ch. 35 (1: 775). Fanning v., 5 Johns. Ch. 123 (1 : 1030). e. Gates, 3 Barb. Ch. 196 (3: 871); ev. 114- 116. c. Gates, Hofl. Oh. 185 (6: 1110); ev. 327- 329; plead. 656. «. Jackson, 1 Paige Oh. 629 (2: 778); mun. Corp. 14, 15. 9. Minard, 4 Paige Cb. 441 (3: 506); ey. 73; jud. sale, 56; mort. 142; parti. 91, 110. o. Osborn, 1 Paige Ch. 634 (2: 780); dower, 5-9 fl. "Winans, 2 Paige Ch. 24 (2: 797); prac. 210-212. Dunkin v. Van Denbergh, 1 Paige Ch. 623 (2: 775); set-off, 99, 101-104. Dunkley n. Van Buren, 3 Johns. Ch. 330 (1:639); mort. 399-402. Dunlap. Boyd v., 1 Johns. Ch. 478 (1: 215). Dunn e. Dunn, 4 Paige Ch. 435 (3: 499); husb. & w. 430; writ & proc. 23, 24. Dunn «. Ferine, 3 Johns. Ch. 508 (1: 699). V. Ferine, 4 Johns. Oh. 140 (1: 793). Dunning «. Merrill. Clarke Oh. 252 (7: 106); usury, 96, 100. Dunscomb v. Dunscomb, 1 Johns. Oh. 50S (1: 225); costs, 97; curt. 4; int. 55, 83, 82 Durant, Albany County »., 9 Paige Ch. 18a (4: 659). Durell «. Haley, 1 Paige Oh. 492 (2: 727); sale, 16-18. Durkee. Ketchum v., 1 Barb. Oh. 480 (5: 444). Ketchum v., Hoff. Ch. 538 (6: 1237). Durlaud d. Bull, 1 Ch. Sent. 7 (5: 1053). Duryea v. Spring, 1 Ch. Sent. 72 (5: 1073). Dustan v. Dustan, 1 Paige Oh. 509 (2: 734);. ex. & ad. 295-297. Dutch Church in Garden St. v. Mott. 7 Paigfr Ch. 77 (4: 67); char, uses, 3. 23; spec. p. 60; trusts, 241. Duvet, Balbi a, 3 Edw. Ch. 418 (6: 710). Dwight, Wood v., 7 Johns. Ch. 295 (2: 299). Dwyer, Drew v., 1 BarJ». Oh. 101 (5: 315). McKamara v., 7 Pai« Oh. 259 (4: 139). Dyckman v. Kernocnan, 2 Paige Ch. 26' (2: 798); injunc. 106, 148; prac. 230. Bathbone v., 3 Paige Ch. 9 (3: 37). Dyer, iJe, 5 Paige 534 (3: 818); guard. & w. 30, 32-34. Dyer's Heirs v. Potter's Heirs, 2 Johns. Oh. 153(1:328;) costs, 163. Dyett, North American Coal Co. v., 4 Paig& Ch. 273 (3: 433). North American Coal Co. «., 7 Paige Oh. * (4: 37). North American Coal Co., »., 2 Edw. Ch. 115(9:331). Warner «., 3 Edw. Ch. 497 (8: 481). Dykerso. Leather Mfrs., Bank, 11 Paige Ch.. 613, 5 Oh. Sent. 10 (5: 252, 1167); bks, & bkg. 60-63; check, 2, 3. o. Wilder, 3 Edw. Oh. 496 (6: 738; discov. 49. Dyson v. Mayor, etc. of N. Y., 1 Oh. Sent. 22 (5: 1076). E. Eager v. Price, 2 Paige Oh. 333 (2: 932); cred. bill, 170-172, 187; injunc. 242; plead. 256-258; prac. 242. e. Wiswall, 3 Paige Ch. 369 (2: 947); plead. 600-603; proc. 3. Eagle Fire Co. ®. Lent, 1 Edw. Ch. 301 (6: 148); infants, 9-11. V. Lent. 6 Paige Oh. 685 (3: 1133); infants, 6; mort. 76, 331, 286; spec. p. 113. 0. Pell, 1 Ch. Sent. 32 (5: 1060). Eagle Fire Ins. Co. ®. Cammet, 2 Edw. Oh. 127 mort. (6: 335); 223, 234. V. Flanagan, 4 Edw. Ch. 559 (6: 975); ref. 114. V. Pell, 2 Edw. Oh. 631 (6: 53L). Scott v., 7 Paige Ch. 198 (4: 133). Western Ins. Co. v., 1 Paige Ch. 284 (2: 649). Eagie Fire Works, Be, 8 Paige Ch. 385 (4: 472); receiv. 17-19, 32. Eagle Iron Works, Jfe, 3 Edw. Ch. eSS^ (6: 908); corp. 179; receiv. 92. Eagleson, Baggoto., Hoff. Ch. 377(6:1178). V. Shotwell, 1 Johns. Ch. 536(1: 237); usury,. 59,60. ' ' Eames «.. Sanger, 3 Paige Ch. 556 (3: 273);. app. 88-91. Eameston ». Lyde, 1 Paige Ch. 637 (2: 781);. cred. bill, 92, 133, 134, 163, 252, 253, 274. Earl «. Grim, 1 Johns. Ch. 494 (1: 220); wills, 140, 229, 230. Early, Cudney v., 4 Paige Ch. 209 (3: 406). Eastburn v. Kirk, 1 Johns. Ch. 444 (1: 203);. injunc. 329; prac. 46, 47. 9. Kirk, 2 Johns. Ch. 317 (1: 393); app. 14; arbi. 35; costs, 1, 209; prac. 205. Eastman, Giddings v., Clarke Ch. 19 (7: 40). Giddines «., 5 Paige Ch. 561 (3: 830). Easton, Se, 3 Ch. Sent. 23 (5: 1086); ex. & ad. 303, 304. TABLE OF CASES DIGESTED. 605 Jiaston's Will, Be, 6 Paige Ch. 188 (3: 948); wills, 26, 137-132. Jlaston, Lansing D., 7 Paige Oh. 364(4: 190). Eaton, Pendleton v., 3 Johns. Ch. 69 (1: 546). Ebbets, .Bushwick & Newton Bridge* Tpk. R. Co. «., 3 Edw. Oh. 353(6: 686). Thompson «., Hopk. Ch. 272 (2: 419). Bckford. Clinch «., 8 Paige Ch. 412 (4: 483). «. De Kay, 6 Paige Ch. 565 (3: 1104); wit. 35-38, 77. «. De Kay, 8 Paige Ch. 89 (4: 359); deed, 25; guard. & w. 61. Kelly v., Paige Ch. 548 (3: 824). Swift v.. 6 Paige Ch. 23 (3: 882). Eckford'sExrs., Beacham v., 2 Sandf. Ch. 116 (7:531). Uddy, Lansing v., 1 Johns. Ch. 49 (1: 55). «. Tfaver. 6 Paige Ch. 521 (3: 1186); ex. &ad. 418; subr.lB. 27; ven.& pur. 147. Sdgar. Whitbeck v., 2 Barb. Ch. 106 (5: 575). Whitbeck v., 4 Sandf. Ch. 427 (7: 1159). Edgarton, Higbie e., 3 Paige Ch. 253 (3: 141). Hdgerton v. Peckham, 11 Paige 352 (5: 159); spec. p. 92. «. Bodine, 3 Ch. Sent. 25 (5: 1108); chan. & v. chan. 27. V. Bodine, 4 Ch. Sent. 49 (5: 1151). lEdwards v. Bodine, 4 Edw. Ch. 292 (6: 883); dam. 20. Bodine «., 10 Paige Ch. 504 (4: 1068). e. Bodine, 11 Paige Ch. 223(5: 115); dam. 19, 21; injunc. 344; master, 9; ref. 46. Jackson v., 2 Edw. Ch. 58a (6: 512.) JacksoQ »., 7 Paige Ch. 386 (4: 200). Legette., Hopk. Ch. 530 (2:512). Varick v., Hoff. Ch. 382(6: 1180). Varick «., 11 Paige Ch. 289 (5: 139). lEells V. Rogers, 6 Ch. Sent. 13 (5: 1196). Egan, Parmelee v., 7 Paige Ch. 610 (4: 298). Egberts v. Pemberton, 7 Johns. Ch. 208 (2: 270); cred. bill. 15. V. Wood, 3 Paige Ch. 517 (3: 255); insolv. & assign. 93, 94, 116. 140, 141; parties, 28; partn. 32, 62-65, 154-156. Eights e. Woodwortb, 1 Ch. Sent. 81 (5: 1075); clerks, 2. «. Woodworth, 9 Paige Ch. 391 (4: 746); costs o49 iEIdred «. Hall, i Ch. Sent. 54 (5: 1068); cont. 26. s. Hall, 9 Paige Ch. 640 (4: 848);receiv. 127. Eldridge B. Howell, 1 Ch. Sent. 64 (5:1070). e. Howell, 4 Paige Ch. 457 (3: 514); app. 55, "58. 75, 76, 192, 193. Blkins, Barker®., 1 Johns. Ch. 465 (1: 210). Ellas «. Lockwood, Clarke Ch. 3H (7: 128); accounting, 15; eq. 113; trusts, 37, 42. Ellice, Stewart «., 2 Paige Ch. 604 (2: 1049). Ellingwood, Schenck «., 3 Edw. Ch. 175 (6: 61^. V. Stevenson, 4 Sandf. Ch. 366 (7: 1136); cont. 28, 24; mun. corp. 44. Elliot, Pell «., Hopk. Ch. 86 (2: 352). Elliott V. Lewis, 3 Edw. Ch. 40(6: 563); ex. & ad. 103, 362; hush. & w. 34. Palmer «., 4 Edw. Ch. 643 (6: 1004). V. Pell, 1 Paige Ch. 363 (2: 640); judg. d. & o. 91, 92, 117, 311; mort. 25, 26; plead. 643. Ellis v. nralg, 7 Johns Ch. 7 (3: 203): int. 13, 14. «. Harrison. 3 Ch. Sent. 86 (5: 1128). Ellis v. Messervie, 11 Paige Ch. 467,4Ch. Sent. 79 (5: 200, 1161); ev. 54; mort. 119, 121, 122; parti. 116; prin. & a. 29. Peck 11., 2 Johns. Ch. 131 (2: 320). Starr v., 6 Johns. Ch. 398 (2: 161). Ellison, iJ«,5Johns. Ch.261 (1:1076); infants, 2 3 V. Moffatt.l Johns. Oh. 46(1: 54); lim. of ac. 40. EUithorp, Roosevelt v., 10 Paige Ch. 415 (4: 1033). Ells B. Tousley, 1 Paige Oh. 280 (2: 647); exec. 51, 52; jiidg. d. & o. 213, 214. Ellsworth «. Cook, 1 Oh. Sent. 19(5: 1056). ». Cook, 8 Paige Ch. 643 (4: 575); cred. bill. 179; curt. 1, 2; injunc. 208; pa-ti. 111. «. Curtis, 2 Oh. Sent. 72 (5: 1098); plead. 555. V. Curtis, 10 Paige Ch. 105 (4. 905); disc). 7, 8; disco V. 59; plead. 574. «. Cuyler, 2 Ch. Sent. 6 (5: 1081). «. Cuyler, 9 Paige Ch. 418 (4:757); cred. bill. 4; trusts, 264; ven. &.pur. 185. Thompson «.', 1 Barb. Ob. 624 (5: 520). EUwood, Marvin v., 11 Paige Oh. 365 (5: 164). Elmendorf v. Danbury, 3 Oh. Sent. 86 (5:. 1128. , e. Delancey, Hopk. Ch. 555 (2: 521); plead. 298. Gouverneur s., 4 Johns. Ch. 857 (1- 867). Gouverneur «., 5 Johns. Oh. 79(1: 1016). Elmer, People v., 3 Paige Ch. 85 (8: 68). Elmore, Sailly v., 5 Paige Ch. 497 (2: 1004). Elridge «. Hill, 2 Johns. Ch. 381 (1: 378); equity, 35; bill of peace, 2. Ely, Clark »., 2 Sandf. Ch, 166 (7: 550). Dixon 0., 4 Edw. Ch. 557 (6: 973). 11. Sprague, OlarKe Oh. 351 (7: 140); bks. & bkg. 25, 26, 35; corp. 97. Emerson, Bank of Rochester v., 10 Paige Oh. 115, 859 (4: 909, 1011). Emery, Reed «., 8 Paige Oh. 417 (4: 485). Emmett, Butler «., 8 Paige Ob. 12 (4: 326). Jacot v., 11 Paige On. 142 (5: 86). Morris Canal Co. ■»., 9 Paige Ch. 168 (4: 653). Emmons v. Cairnes. 11 Paige Ch. 880. 4 Ch. Sent. 66 (5: 169, 1157); costs, 564. 565, 612. «. Cairns, 2 Sandf. Ch. 869 (7: 629); costs, 564, 565; life ten. 13; perpetu. 40-42; " wills,' 503. Empie v. Printup. 2 Oh. Sent. 29 (5: 1088). Engel, Curtis n., 3 Sandf. Oh. 287 (7: 596). e. Underbill, 3 Edw. Oh. 249 (6: 645); mort. 201. Engle, Curtis s., 4 Edw. Oh. 117 (6: 818). Englehart s. Blasser, 4 Sandf. Oh. 10(5: 1137). Ensign v. Colburn, 11 Paige Ch. 503, 5 Oh. Sent. 1 (5: 213, 1164);contr. 82; fraud 1; injunc. 55; spec. p. 20. Jay v., 9 Paige Oh. 330 (4: 679). Ensworth, Cuyler v., 6 Paige Ch. 33 (3; 886). v. Lambert, 4 Johns. Ch. 605(1: 951); mort. 256; plead. 220. Erwin, Cunningham v., Hopk. Ch. 48 (2: 338). Galatian «., Hopk. Ch. 48 (2: 338). Eustaphieve, Hatch c, Clarke Ch. 68 (7: 52). Evans v. Evans, 9 Paige Ch. 178 (4: 658); partn. 157-159; receiv. 48. V. Evans, 1 Ch. Sent. 40 (5: 1063); partn. 157-159. Innes v., 3 Edw. Ch. 454 (6: 723). 606 TABLE OP CASES DIGESTED. Evans, Rhodes «., Clarte Ch. 168 (7: 82). s. Van Hall, Clarke Ch. 32 (7: 41);contr. 25; judg. d. & o. 119; prac. 45; prin. & a. 37. Evarts v. Becker, 8 Paige Ch. 506 (4: 528); abs. & abscon. d. 3, 8, 12, 13. Everett, Hurd v., 1 Paige Ch. 124 (2: 585). Johnson v., 9 Paige Ch. 636(4: 846). Everingham, Fitzburgh v., 6 Paige Ch. 29 (3: 885). FitzhuKh v., 2 Edw. Ch. 605 (6: 520). Everit, Be, 2 "Edw. Ch. 597 (6: 517); ex. & ad. 41; judg. d. & o. 47. e. Watts, 10 Paige Ch. 82 (4: 895); partn. 9; plead. 392. «. Huffman, 1 Paige Ch. 648 (2: 786); mort. 311. e. Watts, 2 Ch. Sent. 71(5:1098); plead.392.. Everit «. WatU. 3 Edw. Ch. 486 (6: 733); plead. 892. „ ^ Everson d. Hinds, 2 Barb. Ch. 117, 6 Ch. Sent. 59 (5: 579, 1213); costs. 240, 241, . e. Kirtland. 8 Paige Ch. 628 (3: 587); ven. & pur. 7, 8. Everteon, De La Vergne e., 1 Paige Ch. 181 (2: 608). «. Evertson, 5 Paige Ch. 644 (3: 866); guard. & w. 64, 65. Manhattan Co. v., 4 Paige Ch. 276 (3: 434). Manhattan Co. v., 6 Paige Ch. 457 (3: 1060). 0. Ogden, 8 Paige Ch. 275 (4: 427); plead. 348; reviv. 43, 84. B.Tappen, 5 Johns. Ch. 497 (1: 115i); contriS. 18; dower, 85-87; ex. & ad. 357-360. 395, 396; int. 97; trusts, 174, 183. " "■ Vedder »., 8 Paige Ch. 281 (3: 154): - F. Faber i>. Mayor, etc. of N. Y., 1 Oh. Sent. 82 (5: 1075). Fabreu Colden, 1 Paige Ch. 166(2: 606); husb. & w. 54; parties, 97. Fairbanks v. Fairbanks, 2 Edw. Ch. 208 (6: 372); ref. 65. Falconer v. Freeman, 4 Sandf. Ch. 565 (7: 1210); abs. & abscon. d. 17; at- tach. 8. Fanning, Bruraleyo., 1 Johns. Ch; 501(1: 223). Consequa v., 2 Johns. Ch. 481 (1: 457). Consequa v., 3 Johns. Ch. 364, 587 (1: 650, 723). Davoue «., 2 Johns. Ch. 252 (1: 365). Davoue v., 4 Johns. Ch. 199 (1: 813). V. Dunham, 4 Johns. 35 (1: 755); injunc. 337, 372 V. Dunham, 5 Johns. Ch. 122 (1 : 1030); usury, 34, 83, 144, 145. Fargo, Davis v., Clarke Ch. 470 (7: 175). Farley v. Farley, 1 Ch. Sent. 36 (6: 1061). B. Parley, 7 Paige Ch. 40 (4: 53^ app. 47, 48; new tr. 10. Parmer «. Walter, 2 Edw. Ch. 601 (6: 519); duress, 2. Farmers' Bank, Washington & Warren Bank «., 4Johns.Ch. 62(1:764). Farmers' Fire Ins. & Loan Co. Merritt »., 2 Edw. Ch. 547 (6: 980). Farmers' Loan & T. Co. s. Clowes, 4 Edw. Ch. 575 (6: 980); corp. 43. D. Jewett, 3 Ch. Sent. 53, 70. 91 (5: 1116, 1122, 1129); plead. 91. v. Maltby, 8 Paige Ch. 361 (4: 462); mort. 109; real prop. 82; ven. & pur. 130. e. Mayor, etc., of N. Y., 1 Ch. Sent. 825 (5; 1076). Farmers' L. & T. Co. v. Millard, 3 Ch. Sent. 55 (5: 1093). «. Millara, 9 Paige Ch. 620 (4: 840); cosU, 146, 147. ». People, 1 Sandf. Ch. 139 (7: 371); escheat. e. Perry. 4 Ch. Sent. 75 (5: 1160). e. Perry, 3 Sandf. Ch 339 (7:875); corp. 30- 53; ev. 831; mort. 81,33. «. Held, Edw. Ch. 414 (6: 709); infants, 165; waiven plead. 865. Farmers' Loan & T. Co. e. Seymour, 9 Faig Ch. 638 (4: 808); mort. 392, 298; parties 142, 143, 149. V. Smith, Clarke Ch. 540 (7: 194); usury, 86. Walworth d., 4 Sandf. Ch. 51 (7: 1019). V. Williams, 5 Ch. Sent. 37 (5: 1175). Farnam, Proctor «., 5 Paige Ch. 614 (3: 853); duress, 1. Farnham t>. Blossom, Clarke Ch. 158 (7: 79). e. Campbell, 4 Ch. Sent. 4 (5: 1135); receiv. 117. «. Campbell. 10 Paige Ch. 598 (4: 1107); cred. bill, 164, 351; receiv. 117. «. Colton, Clarke Ch. 35 (7: 44); mort. 418, . 480, 431. 456. Farr b. Pymer, 3 Ch. Sent. 80 (5: 1085). Farrington «. Freeman, 2 Edw. Ch. 572 (6: 509);.injunc. 354. Valentine v., 2 Edw. Ch. 53 (6: 305). Faure v. Winans. Hopk. Ch. 383 (2: 423); mort. 37 38 Fay, DeRosea., 3 Edw. Ch. 369(6: 693). De Rose «., 4 Edw. Ch. 40 (6: 791). V. Jewett, 2 Edw. Ch. 323 (6: 416); plead. 572. Pendleton e., 2 Paige Ch. 303 (3: 874). Pendleton v., 3 Paige Ch. 204 (3: 117). . Peaks, Coutant v., 3 Edw. Ch. 330 (6: 418). Feldberg v. Kellogg, 1 Edw. Ch. 27 (6: i7)r costs, 301. Fellows e. American Life Ins. & T. Co., 1 Sandf. Ch. 203 (7: 296); usury, 65, 66. c. Fellows. 4 Johns. Ch. 25 (1: 751); injunc. Harrington, 3 Barb. Ch. 652 (5: 1046); int Felt V. Kinney, 3 Cb. Sent. 92(5: 1130). Fenton v. Lumbermahs' Bank, Clarke Ch. 286, 860 (7: 116, 143); attach. 10, 12; corp. 207; cred. bill, 177; prac. 39, 853. Miller »., 11 Paige Ch. 18 (5: 40). Peabody v.. 3 Barb. Ch. 451 (5: 968). Ferguson v. Ferguson. 1 Barb. Ch. 604, 6 Ch. 27 (5: 512, 1201); ev. 295. V. Kimball, 8 Barb. Ch. 616, 5 Ch. Sent. 64 (5: 1031, 1 187) ; courts, 61 , 62 ; mort. 826; new tr. 21; ven. & pur. 15», 180. TABLE OF CASES DIGESTED. 607 Ferguson e. Smith-, 2 Johns, Ch. 139 (1:323); husb. & w. 288-235; plead. 363; writ. & proo. 25, 26. Ferlat «. Gojon, Hopp. Ch. 478 (2: 493); husb. & w. 8. Ferrers, De Peyster «., 11 Paige Ch. 13 (5: 38). Ferrier v. Ferrier, 4 Edw. Ch. 296 (6: 884); husb. . Everingbam, 6 Paige Ch. 29- (3: 885); cred. bill, 223; receiv. 31. Fitzhugh V. Evermgham, 2 Edw. Ch. 605- (6: 520); discov. 7; proc. 19. Johnson »., 8 Barb. Ch. 360 (5: 833). Plagg, Bank of Orleans c. 3 Barb. Ch. 316 Flagler «. Flagler, 11 Paige Ch. 457, 4 Ch. Sent. 81 (5: 197, 1161); wills, 226. Flanagan, Astreen o., 3 Edw. Ch. 279 (6: 656). Eagle Fire Ins. Co. v., 4 Edw. Ch. 559- ' (6: 975). Flowers, New York Chemical Co. »., 6 Paige Ch. 654 (3: 1141). Floyd V. Barker, 1 Paige Ch. 480 (2: 723);. wills, 253. o. Jayne, 6 Johns. Ch. 479 (2: 190); new tr. 1-3. Fly, Harris v., 7 Paige Ch. 421 (4: 213). Pobes «, Meeker, 3 Edw. Cli. 45i (6: 722). Fogal, Mills v.,i Edw. Ch. 559 (6: 975). Folger, Be, 4 Johns. Ch. 169 (1: 803); costs,. 82 Folsom V. Blake, 1 Ch. Sent. 78 (5: 1073). e. Blake, 3 Edw. Ch. 442 (6: 719); usury, 99, 119. Rockwell v., 4 Johns. Ch. 165 (1: 802). Fonda, Champlin v., 4 Johns. Ch. 62 (1: 764). Tompkins v., 4 Paige Ch. 448 (3: 510). Van Home v., 5 Johns. Ch. a88 (1: 1118). Veeder v., 3 Paige Ch. 91 (3: 71). Foot, Qiiincy «., 1 Barb. Ch. 496 (5: 471). Foote,Brinckerhoff «., Hoff. Ch. 291 (6: 1147). Palmer v., 7 Paige Ch. 437 (4: 221), Forbes, Billington v., 10 Paige Ch. 487 (4: 1061). V. Whitlock, 3 Edw. Ch. 446 (G: 720); corp. 118. Ford, Crane v., Hopk.Ch. 114 (2: 363). Law v.. 2 Paige Ch. 3i0 (2: 921), Robeson v., 3 Edw, Ch. 441 (6: 718). Forman. Otis v., 1 Burb. Ch. 30 (5: 287). Forrest, Jackson v., 2 Barb. Oli. 576 (-"i: 760). Fort, Bard v., 3 Barb. Ch. C32 (5: 1038). o. Ragusin, 3 Johns. Cb. 146 (1 : 327); dep. 9. Foster s. Foster, 7 Paige Ch. 48 (4: 55); app^ 34, 45, 46, 171, 172, 179, 209, 213; par ties, 95; wills, 78. «. Jewett, 3 Ch. Sent. 24 (,5: 1107). V. Thompson, 1 Ch. Sent. 40 (5: 1063). «fi8 TABLE OP CASES DIGESTED. «. Wilber, 1 Paige Ch. 537 (3: 744); account- ing, 3; surro. 9-18. «. Wood, 6 Jolins. Ch. 87 (3: 63); equity, 78, 74. Fowler, Be, 3 Barb. Ch. 305 (3: 653); inoomp. pers. 8. Atwater v., 1 Edw. Oh. 417 (6: 193). Bonaffe «., 7 Paige Ch. 576 (4: 331). Deveau v., 3 Paige Ch. 400 (3: 961). Sutphen v., 9 Paige Ch. 380 (4: 700). Pranceschi v. Marino, 3 Edw. Ch. 586 (6: 771) ne ex. 11. Trancia v. Joseph, 3 Edw. Ch. 183 (6: 618) bills & n. 27. v. Oddie, 3 Edw. Ch. 455 (6: 723); cont. 17, P'rancis v. Church, Clarke Ch. 475 (7: 176) afifi. 16; mort.45S-460. Pranklyn d. K- eler, 4 Paige Ch. 383 (3: 479) costs, 242; plead. 49, 565; ref. 77. P'ranklyn v. Osgood, 3 Johns. Ch. 1 (1: 375). e. Robinson, 1 Johns. Ch. 157 (1: 98);partn 98; sliip. 6. ». Van Colt, 11 Paige Ch. 139, 4 Ch. Sent. 37, 61; (5: 81, 1147, 1155); mort. 364. 392 -396. -Tranklyn Bank, Be, 1 Paige Ch. 85, 349 (2: 570, 635); bks. & bkg. 76; receiv. 30. Miller v., 1 Paige Ch. 444(2: 708). Fraser o. Elder, 1 Ch. Sent. 2 (5: 1051). Prazerls.Weslern, 1 Barb. Ch. 230, 5 Ch. Sent. 50 (5: 361, 1183): deed, 43-44; trusts, 248- 350, 258; ven. & pur. 137. iFream v. Dickinson, 3 Edw. Ch. 300 (6: 665); wit. 3, 180. Freeborn, Cunningham v., 1 Edw. Ch. 38,256 (6: 47, 130). Cunningham v., 3 Paige Ch. 557 (3: 273). Preeland, Livingstone., 3 Barb. Ch. 510 (5: 9ai). e. Mauutihan, Hopk. Ch. 276 (2: 420); costs, 265. V. Nott, 8 Paige Ch. 431 (4: 491); prac. 23. Freeman v. Deming, 4 Edw. Ch. 598 (6: 989); injunc.381. v. Deming. 3 Sandf. Ch. 327 (7: 870): ac- counting, 37; bankcj. 5; bills & n. 35; bona fide p. 2; prac. 354. Falconer t>.. 4 Sandf. Ch. 565 (7: 1310). Farrington ®,, 2 Edw. Ch. 573 (6: 509). e. Kelly. Hoff. Ch. 90 (6: 1074); trusts. 52. v. Warren, 3 Barb. Ch. 635, 6 Ch. Sent. 71 (5:'l089, 1211); pi-ac. S3. Frelingliuvsen v. Colden, 4 Paige Ch. 204 (3: 404); asst., writ, of, 3, 8; receiv. 72. Pelletreauo., 4 Paige Ch. 204 (3: 404). French o. Kirkland, I Paige Ch. 117 (3: 583); drain, act. 5. 6. e. Shotwell, 4 Johns. Ch. 505 (1: 917); costs, 393 «. Shotwell. 5 Johns. Ch. 555 (l:1173);iudg. d. & o. 114; plead. 867; usury, 156, 157. French o. Shotwdl, 6 Johns. Ch. 335 (3: 111); judg. d. & o. 331; plead. 434. Freyer, Jenkins o., 4 Paige Ch. 47 (B: 336). Prisbie v. Farrington, 1 Oh. Sent. 42(5: 1064); parties, 38, 75. Frith V. Lawrence, 1 Paige Ch. 434 (3: 705); contr. 18-16. Frits, Be. 2 Paige Oh. 874 (8: 949); infants, 103-106. Frost e. Beekman, 1 Johns. Ch. 288(1: 143); costs, 173; deed, 16; escrow, 3; plead. 498; real prop. 74, 77-80, 89. e. Beekman, 1 Johns. Ch. 303 (1:149); Ik pend. 8; plead. 8; ven. & pur. 104, 116, 136, 137, 188. Brown v.. HoflC. Ch. 41 (6: 1057). Brown o., 10 Paige Ch. 243 (4: 962). - e. Frost, 1 Barb. Ch. 492, 6 Ch. Sent. 16 (5: 469, 1197); costs, 153, 364, 376. 60». 523. 556-558. e. Frost. 4 Edw. Ch. 733 (6: 1036); Um. of ac. 66; Day 25. e. Frost, 3 Sandf. Ch. 188 (7: 830); joint d. 9-11. V. Peacock. 4 Edw. Ch. 678(6: 1016); deed.lS; do^er, 72; real prop. 95. Wolfe ».. 4 Sandf. Ch. 72 (7: 1027). Fry V. Fry, 7 Paige Ch. 461 (4: 231); husb. & •w. 89, 161. Fryatt e. Lindo, 3 Edw. Oh. 339 (6: Ml); plead. 143. c. Woddle, 1 Ch. Sent. 77 (5: 1074). Puller, Hammond «., 1 Paige Oh. 197 (2: 61^. Van Valkenburghs., 6 Paige Ch. 10(3:87'!). v. Yates, 8 Paige Ch. 325 (4: 446); real prop. 13; wills, 254, 409. FuUerton e. Jackson, 6 Johns. Oh. 376-2%8 (1: 1081, 1083); courts, 46; guard, ft w. 20; infants. 97. 98. Pulton u Kosevelt, 1 Paige Ch. 178 (2: 607); costs, 123, 380; husb. & w. 237; infants, 136. «. Beach, 2 Paige Oh. 185, 807 (2: 866, 920); costs, 339, 594-600; plead. 85. 97, 100. Pulton Bank s. Beach, 1 Paige Ch. 480 (2: 703); usury. 134-136. e. New York & Sharon Canal Co. 1 Paige Oh. 219, 811 (2: 628, 659); iDjmc. 2^, 278; parties. 24, 185-187. V. New York & Sharon Canal Co. 8 Paige Ch. 31 (3: 45). e. New York & Sharon Canal Co. 4 Paige Ch. 127 (8: 872); app. 18, 54; corp. 66, 67; costs. 29, 33, 184, 682; new tr. 28, 29; plead. 80, 470. e. Vermilyea*.. 1 Paige Oh. 37 (2: 558). Purgison ads. Robinson, Hopk. Ch. 8 (3: 834); atty. & sol. 15; injunc. 243. Purguson v. Furguson, 1 Barb. Ch. 375(5: 604); husb. & w. 319, 830. 'Farm an, Bogert «., 10 Paige Oh. 496(4: 1065). G. •Oable V. Miller, 4 Ch. Sent. 22. 10 Paige Oh. 627. (4; 1U8. 5:1143); relig. soc. 33, 86-38. <3age. Coleman v., Clarke Ch. 395 (7: 130). dleason «., 7 Paige Oh. 131 (4: 91). Oahn, Neimcewicze., 8 Paige Ch. 614(3:205). Gaines e. Winthrop, 3 Bdw. Ch. 571 (6: SOffl: wills, 62. Galatian e. Erwin, Hopk. Ch. 48 (2: 338); in- fants, 132, 183; plead. 619-621. TABLE OP CASES DIGESTED. 609 Gale, Bartlett v., 4 Paige Ch. 503 (3: 533). Galliano v. Lane, 2 Sandf. Ch. 147 (7: 543); husb. & w. 140; infants. 168. •Ganse, Be, 3 Ch. Sent. 1, 46 (5: 1079, 1091). 9 Paige Ch. 416 (4: 756); incomp. pers. 12, 13. •Gansevoort v. Sanford, 1 Ch. Sent. 85 (5: 1076). ■Gardiner, Garniss «., 1 Edw. Ch. 128 (6: 85). v. Derring, 1 Paige Ch. 573 (2: 757); life ten. 4. 0. Garniss, Hopk. Ch. 306(2:431);mort. 312. «. Schermerhorn, Clarke Ch. 101(7: 63); jud. sale, 68, 70-73. •Gardner «. Aslor, 3 Johns. Ch. 53 (1: 510); raort. 173. Bolton v., 3 Paige Ch. 273 (2: 151). «. Champlin, 2 Ch. Sent. 66 (5: 1096). •0. Dering, 2 Edw. Ch. 131 (6: 337), judg. d. & o. 66. 67; prac, 226, 227. ■Chesterman «., 5 Johns. Ch. 29 (1: 997). V. Gardner, 5 Paige Ch. 170 (3: 673); app. 39, 40, 82, 87. «. Gardner,-6 Paige Ch. 455 (3: 1059); costs, 103; wills, 341. «. Gardner, 7 Paige Ch. 112 (4: 86); ex. & ad. 104, 348-353; husb. & w. 38, 102. o. Heyer, 2 Paige Ch. 11 (2: 792); ev. 178, 179. 184; wills, 208-212. Kettletas «., 1 Paige Ch. 488 (1: 725). ■. Day, 3 Ch. Sent. 19, 73 (5: 1085, 1098). V. Lowry, 1 Oh. Sent. 14 (5: 1055). V. Pendleton, 3 Johns. Ch. 384. 520, (1: 657, 703); costs, 71, 290, 291; lim. of ac. 50: plead. 365, 521, 522. v. Pendleton, 4 Johns. Oh. 549 (1 : 983); ex. & ad. 157; plead. 354; surro. 5, 6. Goodyear v. Bloodgooa, 1 Barb. Ch. 617 (5: 518); ex. & ad. 150, 318; parties, 9?. Gordon s. Draper, 4 Sandf. Oh. 310 (7t 1079). Gorham v. Gorham, 3 Barb. Ch. 24 (5: 801); incomp. pers. 87, 95, 96, 103, 104, 107, 108; parti. 42, 43, 82; plead. 664. Goris, Desplaces9.,l Edw. Oh. 350 (6: 168). Desplaces v., 2 Edw. Ch. 423 (6: 453). Desplaces v., 5 Paige Ch. 252 (3: 707). Gorman d. Low, 2 Edw. Ch. 334 (6: 416); eq. 48, 49; Stat. 17. Gott V. Cook, 7 Paige Oh. 521 (4: 256); costs, 38; eq. conv. 9; perpetu. 14, 15. 37, 54, 55; trusts, 21, 24,25, 251, 256, 261, 271; wills, 289. Gould V. Collins, 5 Oh. Sent. 58 (5: 1189). V. Spencer, 5 Paige Ch. 541 (3: 822); equity. 6; writ & pvoc. Gouverneur, BibbyB.,4 Edw. Oh. 535(6: 966). V. Elmendorf, 4 Johns. Oh. 357 (1: 867); plead. 634; prac. 238, 239. ®. Emendorf, 5 Johns. Ch. 79 (1: 1016); cont. 108; ven. & pur. 22. Hale v., 4 Edw. Oh. 207 (6: 854). V. Lynch, 2 Paige Ch. 300 (2: 916); notice, 22; ven. & pur. 97, 98, 150, 151. B. Mayor, etc. of New York, 2 Paige Ch. 434(2: 977); assess. 11-13; taxes, 17. 9. Tillotson, 3 Edw. Oh. 348 (6: 685); cond. 4-7. B. Titus, 1 Edw. Ch. 477 (6: 217). ■d. Titus, 6 Paige Ch. 347 (3: 1015); exec. 73; judg. d. ife o. 206, 219. Gove V. Pettis, 4 Sandf. Ch. 403 (7: 1150); costs, 226; plead. 712-714. Graff V. Kip, 1 Edw. Ch. 619 (6; 268); judg. - d. & o. 352. Graham, Bleeker v., 2 Edw. Oh. 647 (6: 536). Cozine v., 3 Paige Oh. 177(3: 863). B. Dickinson, 3 Barb. Oh. 169 (5: 861); eq. conv. 7; ex. & ad. 244, 275, 376. Luce v., 4 Johns. Ch. 170 (1: 804). McCarthy v., 8 Paige Oh. 480 (4: 511). Maurice v., 8 Paige Ch. 483 (4: 512). Mowatt v., 1 Edw. Oh. 13, 575, 642, 252. Murray v., 6 Paige Oh. 622 (3: 1126). ■B. Stagg, 2 Paige Oh. 321 (2: 936); eq. 64: plead. 144. V. Thompson. 1 Paige Ch. 384, 452 (3: 686, 713). V. Stebbins, 6 Paige Oh. 134 (3: 924); stock job. 1. 3. Grandin v. Hegeman, 5 Ch. Sent. 22(5: 1173). V. LeRoy, 2 Paige Ch. 509 (2: 1009); bills & n. 9; eq. 58; injunc. 316. Grant, Cook v.. 1 Paige Oh. 407 (2: 695). V. Grant, 1 Sandf. Oh. 235 (7: 312); ev. 247; wills, 34, 104-106, 120. Holmes v., 8 Paige Oh. 343 (4: 415). Jones®., 10 Paige Oh. 348 (4: 1005). Merchants' Fire Ins. Co. v., 3 Bdw. Oh. 544 (6: 498). Parker v., 1 Johns. Oh. 4-34,630 (1: 300, 371). Scott v., 10 Paige Ch. 485 (4: 1060). V. Van Schoonhoven, 1 Ch. Sent. 59(5: 1068> TABLE OF CA8ES DIGESTED. 6tl Grant «. Van Schoonhoven, 9 Paige Ch. 255 (4; 690); liusb. & w. 328, 231; infants, 148, 149; parties, 153. Gratacap v. Phyfe. 1 Barb. Cli. 485, 6 Ch. Sent. 18 (5: 466, 1198); ex. & ad. 319, 320, 325, 328-830, 333. Graves, Denton «., Hopk. Cli. 306 (2: 431). Depeyster «., 2 Johns. Ch. 148 (1: 327). «. Graves, 3 Paige Ch. 62 (2: 813); costs, 115, 357; husb. & w. 326, 377. V. Maguire. 6 Paige Ch. 379 (3: 1029); app. 135, 136. Outtrin v., 1 Barb. Ch. 49 (5: 295). Townsend «., 3 Paige Ch. 453 (3: 228). Gray v. Murray, 3 Johns. Ch. 167 (1: 580); ins. 29; prin. & a. 38, 49; ship. 7. V. Murray, 4 Johns. Ch. 412 (1: 886); prac. 231 222. Tappan «., 9 Paige Ch. 507 (4: 794). Tappen c, 3 Edw. Ch. 450 (6: 721). V. Thompson, 1 Johns. Ch. 82 (1: 67); costs, 96; int. 61. Greele v. Emery, 1 Ch. Sent. 16 (5: 1055). Green «. Bostwick, 1 Sandf. Ch. 185 (7: 389); receiv. 171, 185. V. Burnham, 3 Sandf. Ch. 110 (7: 790); cred. bill, 331. Doe v., 3 Paige Ch. 347 (3: 938). Garson «., 1 Johns. Ch. 308 (1: 151). Gates «., 4 Paige Ch. 355 (3: 468). e. Hicks, 1 Barb. Ch. 309; 5 Ch. Sent. 58 (5: 397, 1185); cred. bill, 128; receiv. 128; ref. 13, 49-52. Janeway v., 2 Sandf. Ch. 415 (7: 646). M'Kay, v., 3 Johns. Ch. 56 (1: 543). Morley «., 11 Paige Ch. 370 (5: 123). Phelps v., 3 Johns. Ch. 302 (1: 626). «. Seymour, 2 Sandf. Ch. 385 (7:855); corp. • 13, 13, 43, 164; mort. 376. Slayteru., 4 Johns. Ch. 38 (1: 756); lis pend. 16, 17; ven. & pur. 134, 135. Steward o., 11 Paige Ch. 533 (5: 335). «. Storm, 3 Sandf. Ch. 305 (7: 863); costs, 536;ev. 364, 274; mort. 324; set-off, 9, 43. Sweet v., 1 Paige Ch. 473 (3: 730). «. Winter, 1 Johns. Ch. 36, 60, 77 (1: 47, 60, 66); app. 104, 105; receiv. 173; trusts, 149, 153-154, 314-318, 337-329. Greene, Tolley »., 2 Sandf. Ch. 91 (7: 521). e. Wheeler, 1 Ch. Sent. 62 (5: 1070). e. Wheeler, 2 Ch. Sent. 43, 60 (5: 1090, 1091); costs, 326; prac. 135. «. Wheeler, 9 Paige Ch. 608 (4: 825); costs, 326. Greenfield, ISTodine v., 7 Paige Ch. 544 (4: 367). Greenwice Bank v. Loomis, 3 Sandf. Ch. 70 (7: 513); chanc. 33, 34; judg. d. & o. 308; lis pend. 11, 13; review, 15. Manhatten Co. v., 4 Edw. Ch. 315 (6: 890). Greenwich Fire Ins. Co., Lawrence v., 4 Paige Ch. 587 (3: 763). Greenzebach, Barnes v., 1 Edw. Ch. 41 (6: 53). Gregg, Wester velt v., 1 Barb. Ch. 469 (5: 459). Gregory, Burgess «., 1 Edw. Ch. 449 (6: 205). V. Burrell, 2 Edw. Ch. 417 (6: 451); judg. d. & o. 195. Gregory v. Dodge, 3 Paige Ch. 90 (3; 70), app. 101, 115, 116; judg. d. &o. 53. v. Dodge, 4 Paige Ch. 557 (3; 560); wit. 82, 109-111. v. Harmon, 6 Ch. Sent. 27 (5: 1201). Stevenson v., 1 Barb. Ch. 73 (5: 304). V. Reeve; 5 Johns. Ch. 232 (1: 1067); costs, 225; eq. 47. V. Valentine, 4 Edw. Ch. 282 (6: 880); cred. bill. 209. Gridley «. Garrison, 4 Paige Ch. 647 (3: 595); atty. & sol. 67; costs, 250; eq. 71, 73. Griffin Barney o., 5 Sandf. Ch. 552 (7: 1205). «. Burtnett. 4 Edw. Ch. 673 (6: 1014); mort. 55. Carpenter v., 9 Paige Ch. 310 (4: 713). «. Grifflith, 1 Ch. Sent. 70 (5: 1073). V. Griffith, HofE. Ch. 153 (6: 1067); lis pend. 89; notice, 15, 16, 31; plead. 509; ven. & pur. 107. V. Griffith, 9 Paige Ch. 315 (4: 715); notice,. 30; prac. 194, 195; ven. & pur. 106. V. Kempshall, Clarke Ch. 571 (7: 203); bail. 8; injunc. 126. Merchants' & Mechanics' Bank v., 10 Paige Ch. 519 (4: 1073). Mollan v., 3 Paige Ch. 402 (3: 306). «. Perkins, 4 Ch. Sent. 9 (5: 1137). Griggs, Tarbell v.. 3 Paige Ch. 307 (3: 119). Grim, Earls., 1 Johns. Ch. 494 (1: 330). V. Wheeler, 3 Edw. Ch. 334, 448 (6: 680), 731; plead. 173, 191,433. Grimshaw, Buck «., 1 Edw. Ch. 140 (6; 89). Grimstone v. Carter, 3 Paige Ch. 421 (3: 214)^ injunc. 334; real prop. 50; ven. & pur, 105, 118, 119. Griswold, Coster v., 4 Edw. Ch. 364 (6: 907). v. Inman, Hopk. Ch. 86 (2: 251); plead. 121. v. Jackson, 1 Ch. Sent. 30 (5: 1060). V. Jackson, 2 Edw. Ch. 461 (6: 467); judg, d. & o. 152, plead. 253; tender, 3. Grosvenor v. Allen, 1 Ch. Sent. 35 (5: 1058). ■B. Allen, Clarke Ch. 375 (7: 113); cred. bill, 176; judg. d. & o. 200; lien, 3. V. Allen, 9 Paige Ch. 74 (4:613); assign. 15; cred. bill, 5: judg. d. & o. 218; ven. & Dur. 138. o. Day, Clarke Ch. 109 (4: 65); mort. 303; prac. 328. Grout V. Van Schoonhoven, 1 Sandf. Ch. 336 (7: 350); expect. 2; husb. & w. 202-204; perpetu. 52; trusts, 257. Grover, Wakeman v., 4 Paige Ch. 23 (3: 325). Guernsey, Shepherd v., 9 Paige Ch. 357 (4: 730). Guild V. Peck, 11 Paige Ch. 475, 4 Ch. Sent. 81 (5: 203, 1162); app. 65; ex. & ad. 187; husb. & w. 39, 312, 213; judg. d. & 0. 105, 170. Guillaume, Delmonico v.. 2 Sandf. Ch. 36ft (7: 627). Guion ®. Knapp, 6 Paige Ch. 35 (3: 888); ven. &pur. 155-157. Gurnee, Phoenix Fire Ins. Co. v., 1 Paige Ch. 278 (2: 646). 612 TABLE OF CASES DIGESTED. H. Hackett v. Connett, 2 Edw. Ch. 73 (6: 313); judg. d. & o. 188; set-oflE, 28, 39, 34, 112. Hadley «. Chapin, 11 Paige Ch. 245, 4 Ch. Sent. 61 (5: 124, 1155); estop. 11; mort. 189, 190; ev. 206, 317: pay. 16, 17; wit. 92. B. Yost, 1 Ch. Sent. 60 (5: 1069). HafE, Brown s., 5 Paige Ch. ?35 (4: 699). WesterveltB , 4 Edw. Ch. 619 (6: 966). Westervelt «., 2 Sandf. Ch. 98 (8: 523). Haggarty v. Pittman, 1 Paige Ch. 298 (2: 654), receiv. 42. s. Duane, 1 Paige Ch. 321 (2: 664); money in c. 13. 0. Mayor, etc. of N. T., 1 Ch. Sent. 82 (5: 1075). «. Palmer, 6 Johns. Ch. 437(2:176); sale, 12. K. Taylor, 3 Ch. Sent. 29 (5: 1110). ». Taylor, 10 Paige Ch. 261 (4: 969); part. 52, 53, 174. Hague, American Bible Society v., 4 Edw. Ch. 117 (6: 818). American Bible Society v., 10 Paige Ch. 549 (4: 1086). Marsh 0., lEdw. Oh. 174(6: 101). Haight, Bogerts., 9 Paige Ch. 297(4: 708). «. Case. 4 Paige Ch. 525 (3: 545); injunc. 330 331 Champl'in d.', 10 Paige Ch. (4: 975). e. Day, 1 Johns. Ch. 18 (1: 44); equity, 109; 110; iniunc. 306. Troup v., Hopk. Ch. 239 (2: 407). Troup o., 6 Johas. Ch. 335 (2: 142). Haines r>. Beach, 3 Johns. Ch. 459 (1: 682); mort. 66, 443. Hale, Clark v., Clarke Ch. 349 (7: 189). ». Gouvernpur, 4 Edw. Ch. 207 (6: 854). e. James, 6 Johns. Ch. 258(2: 118); costs, 137; dower, 88-42. Haley, Durell v., 1 Paige Ch. 492 (2: 727). Hall ®. Bamber, 10 Paige Ch. 296(4:984); mort. 360. Clark v., 7 Paige Ch. 382 (4: 198). Concklin v., 2 Barb. Ch. 136 (5: 587). Eldred v., 9 Paige Ch. 640 (4: 848). s. Fisher, 1 Barb. Ch. 53, 5 Ch. Sent. 85 (5: 396, 1177); injunc. 105, 127; jud. sale, 107, 111. e. Fisher, 3 Barb. Ch. 637, 6 Ch. Sent. 70 (5: 1039, 1211); plead. Ig7. e. Harris, 1 Ch. Sent. 69 (5: 1072). Lattinec, 9 Paige Ch. 383 (4: 741). 0. Newell, 2 Oh. Sent. 24 (5: 1087). «. Rapalje, 1 Sandf. Ch. 399 (7: 374). ». Reed, 2 Barb. Ch. 500 (5: 730); cont. 124, 125; ignor. of 1, 2; mistake, 3, 4. Stuyvesant «., 3 Barb. Ch. 151 (5: 593). «. Tylee, 1 Sandf. Ch. 370 (7: 335). Wiswall B., 8 Paige Ch. 813 (3: 168). . Hanford, 3 Edw. Ch. 468 (6: 728); ev. 344. Hanley a. Carroll. 3 Sandf. Ch. 301 (7: 860); adv. poss. 2; husb. & w. 179; mort. 134 Hanna v. Curtis, 1 Barb. Ch. 263, 5 Ch. Sent. 61 (5: 378, 1186); ev. 205; notice, 6. Hannahs, Be, 1 Ch. Sent. 86 (5: 1077). Hannan v. Osborn, 4 Paige Ch. 386 (3: 460); desc. & dist. 17; joint, ten. 4-6;perpetu. 28, 24; wills, 269. Hannum v. Curtis, 5 Ch. Sent. 61 (5: 1186); ev, 205; prac. 44. Harden, Williams v., 1 Barb. Ch. 298 (5: 392). Harder e. Harder. 2 Sandf. Ch. 17 (7: 490); cont. 24. 59; eject. 3; ev. 204, 211; par- ties. 192; trusts, 64. Squire «., 1 Paige Ch. 494 (2: 728i. Hardman, Thompson v., 6 Johns. Ch. 486 (2: 176). Hare, Hallett »., 5 Paige Ch. 315 (8: 733). Harford, Bushnellt;., 4 Johns. Ch. 301 (1: 848) Harned, Catlin v., 3 Johns. Ch. 61 (1: 543). Harper, Monk v., 3 Edw. Ch. 109 (6: 590). Wilkes v., 2 Barb. Ch. 338 (5: 666). Wilkes v., 3 Sandf. Ch. 6 (7: 749). Harrington v. Becker, 2 Barb. Ch. 75, 6 Ch. Sent. 53 (5: 562, 1210); reviv. 39, 40. e. Blgelow, 4 Ch. Sent. 66 (5: 1157). V. Bigelow, 6 Ch. Sent. 74 (5: 1218). «. Bigelow, 11 Paige Ch. 349 (5: 158); contr. 70, 71. Fellows v., 3 Barb. Ch.65a(5: 1046). «!. Hughes, 1 Paige Ch. 569 (3: 756). Harris «. Ply, 7 Paige Ch. 421 (4: 313); ex. & ad. 345; mort. 318; plead. 498; will, 433- 436. Knickerbacker »., 1 Paige Ch. 209 (3: 619). Livingston v.. 3 Paige Ch. 538 (3: 261). Kamsey v., CL.rke Ch. 330(7: 134). «. Troup, 1 Ch. Sent. 72 (5: 1073). V. Troup, 8 Paige Ch. 423 (4: 488); cont. 84; ven. & pur. 27, 43. v. Youman, Hoff. Ch. 178 (5: 1107); infants, 130,134.135. Waller v., 7 Paige Ch. 167, 479 (4: 109, 239). c. Williams, 10 Paige Ch. 108 (4: 906); costs, 177. Harrison v. Hull. Hopk. Ch. 112 (3: 361); prac. 213. V. McMennomy, 2Edw. Ch. 251(6: 390); ev. 161. 172; mort. 314; prac. 223.. Harris «. Simons, 3 Edw. Ch. 394 (6: 701); reviv. 1. «. Williamson, 2 Edw. Ch. 430 (6: 455); bills & n. 1; sale, 34. Harsen, Meriam v., 2 Barb. Ch. 232 (5: 626). Meriam «., 4 Edw. Ch. 70 (6: 801). Hart V. Bulkley, 2Edw. Ch. 70 (6: 312); trusts, 269. e. Crane, 7 Paige Ch. 37 (4: 50); insolv. & assign. 82, 83. Currle «., 2 Sandf. Ch. 353 (7;«33). ■D. Dewey, 3 Paige Ch. 307 (2: 877); int. 23; pay. 37. e. Hart. 3 Edw. Ch. 207 (6: 371): ev. 890. ». Hooker, 6 Oh. Sent. 64(5: 1315). D. Mayor, etc. of Albany, 3 Paige Ch. 213, 381 (3: 121, 197); app. 121, 123; highw. 29; injunc. 13, 59; mun. Corp. 10, 11; nuis. 8-12; wat. & w. cos. 1. V. Phillips, 1 Ch. Sent. 70 (5: 1073); prac. 345. 8. Phillips. 9 Paige Ch. 293 (4: 706); prac. 645. Simpson v.. 1 Johns. Ch. 91 (1: 70). «. Small, 4 Paige Ch. 288, 333, 551, 400, (3: 458, 558); notice. 2; plead. 610-613, prac. 6, 10. 8. Ten Eyck, 2 Johns. Ch. 62, 513 (5: 296, 470);ballm.'l, confusion of g.; damag. 8; ex. & ad. 48, 49; ev. 15, S83. e. Tims, 3 Edw. Ch. 236 (6: 686); receiv. 28. Woolcocks «., 1 Paige Ch. 185 (8: 610). Hartsou v. Davenport, 3 Barb. Ch. 77, 6 Ch. Sent, 53 (5: 563, 1211); injunc. 115; mort 481; prac. 96; usury. 114. Hartwell v. White. 9 Paige Ch. 368 (4: 735); costs 299 300 Harwood »! Kirby, 1 Paige Ch. 469 (2; 718); parti. 97-100. Harvey, Howe v., 8 Paige Ch. 78 (4: 349). Murphy v., 4Edw. Ch. 131 (6: ^6). Harvie, Deas v., 3 Barb. Ch. 448 (5: 710). Haskins, CoMen v., 3 Edw. Ch. 311 (6: 670). Hastings v. Palmer, Clarke, Ch. 52 (7: 49); Chan. 39; cred. bill, 73; injunc. 289; prac. 249, 250. Pew «., 1 Barb. Ch. 452 (5: 451). Hatch, Carey v., 2 Edw. Ch. 190 (6: 363). V. Cobb, 4 Johns. Ch. 559 (1: 936); equity. 86; spec. p. 90, 91. «. EuBtaphieve, Clarke Ch. 63 (7: 52); ev. 372; plead. 92, 98. ». Morris, 8 Edw. Ch. 313 (6: 671). Hathaway v. Hathaway, 6 Ch. 27 (5: 1201). V. Scott, 11 Paige Ch. 173, 4 Ch. Sent. 47, (5: 96, 1150); aff'dt 2; discontin. 10; par- ties, 193; peti. 2; plead. 476. Havens v. Bradner, 5 Ch. Sent. 72 (5: 1192); pledge & col. sec. 2-4; ref. 36, trusts, 182, 145, 188, 213. Clark v., Clarke Ch. 560 (7: 800). V. Havens, 1 Sandf. Ch. 324 (7: 346); wills, 68, 176, 239, 412, 487. Huntington v., 5 Johns. Ch. 23 (1: 995). V. Hussey, 5 Paige Ch. 30 (3: 613); insolv. & a. for cr. 109. Partridge «., 10 Paige Ch. 618 (4: 1115). Haviland o. Bloom, 6 Johns. Ch. 178 (2: 98); costs, 114, husb. & w. 69, 70. c. Myers, 6 Johns. Ch. 85 (8: 48); injunc. 149; husb. & w. 69. Hawley v. Bradford, 1 Ch. Sent. 45 (6: 1065). «14 TABLE OF CASES DIGESTED. Hawley v. Bradford, 9 Paige Ch. 200 (4: 667); dower, 39, 30; husb. & w. 147, 148. e Bennett, 4 Paige CJi. 163 (3: 387); cont. 44-46. s Bennett, 5 Paige Ch. 104 (3: 646); app. 185; ev. 199, 387; injunc. 253, 254; real prop. 62. «. Clowes, 2 Jolins. Ch. 122 (1: 316); injunc. 54: waste, 1. Davis v., 11 Paige Ch. 434(5: 188). «. Donnelly. 3 Ch. Sent. 92 (5: 1130). «. Donnelly, 8 Paige Ch. 415 (4: 485); app. 86; prac. 17, 18. «. James, 5 Paige Ch. 318 (3: 734); accum. 2-5; advanc. 3; annuity, 13, 16; dower, 1, 2; eq. conv. 1, 2, 20; ex. & ad. 183, 260, 261; perpetu. 30, 31; real prop. 16-19; trusts, 18, 77, 193; wills, 341, 268, 300, 343, 35S, 398, 401; cred. bill, 268; lim. of ac. 86; lis pend. 20-32. c. James, 7 Paige Ch. 213 (4: 129); confl. of 1, 8; trust, 79, 80. V. Mancius 7 Johns. Ch. 174(2:359); insolv. & a. for cr. 148; judg. d. & o. 180, 335; marsh, of a. & s. 5; trusts, 159, 160. Pentz v., 1 Barb. Ch. 132 (5: 323). Pentz a., 2 Barb. Ch. 552 (5: 750). B. Ross, 7 Paige Ch. 103 (4: 83); asign. 4; trusts, 86, 87. Temple v., 1 Sandf. Ch. 153 (7: 277). 0. Wolverton,5PalgeCh. 533(3:813); plead. 43-44; waste, 6. Hawn «. Banlis, 4 Edw. Ch. 664 (6: 1011); wills, 163, 493. Haxtun i>. Corse, 4 Edw. Ch. 578 (6: 984); bankcy. 23. V. Corse, 2 Barb. Ch. 506(5: 733); accum. 12; bankcy. 16-21; 34, 45; perpetu. 76; power, 3; trusts, 14; wills, 5, 157. Hay, Blunt v.. 4 Sandf. Ch. 863(7: 1184). Murray v., 1 Barb. Ch. 59 (5: 299). v. Power, 3Edw. Ch. 484 (6: 480); prac. 361. Remsen v., 3 Edw. Ch. 535(6: 495). V. Warren, 1 Ch. Sent. 14 (5: 1055); incomp. pers. 45. V. Warren, 8 Paige Ch. 609 (4: 563). Hayden v. Agent of Auburn Prison, 1 Sandf. Ch. 195 (7: 393); judg. d. & o. 280; laches, 5-7. V Bucklin, 2 Ch. Sent. 13 (5: 1083). V. Bucklin, 9 Paige Ch. 512 (4: 796); cred. bill, 268; lim. of ac. 86; lis pend. 20-33. Eayes v. Heyer, 4 Sandf. Ch. 485 (7: 1180); in- junc. 191; insolv. & assign, for cr. 92; part. 19; plead. 310; receiv. 14, 57. ■B. Kershow, 1 Sandf Ch. 258; (7: 321); contr. 6; deed, 17, 36; perpetu. 49; real prop. 25; spec. p. 5. Hayner ®. Hayner, 6 Ch. Sent. 46 (5: 1208). Haynes, Hurd »., 8 Paige Ch. 604 (4: 834). HaysB. Currie,3 Sandf. Ch. 585(7:966); brokers; parties, 19; sale, 9, 25; set-off, 43. Moran «., 1 Johns. Ch. 339 (1: 163). V. Ward, 4 Johns. Ch. 123 (1: 786); debtor* c. 11; prin. & sur. 52-54; subr. 23, 23. Hazard, Be, 9 Paige Ch. 365 (4: 734); infants, 72; jud. sale 44. Seymour «., 1 Johns. Ch. 1 (1: 37). Hazeltine, Pitch b., 2 Paige Ch. 416 (3:969). Uazelton, Wakeman«.,3Barb. Cli. 148(5: 853). Hazen v. Thurber, 4 Johns. Ch. 604 (1: 951); costs, 137; dower, 90-93. Heacock v. Coatesworth, Clarke Ch. 84 (7: 58); prin. & a. 39; trusts, 26. HearttB. Corning, 3 Paige Ch. 566 (3: 276); costs, 380; part. 105, 106; plead. 83, 135, 382, 389, 443. Heath v. Hand, 1 Paige Ch. 329 (2: 667); exec. 47; subr. 1, 2. V. Stryker, 3 Ch. Sent. 13 (5: 1104). Topoan v., 1 Paige Ch. 393 (3: B53). Healley ®. Pinster, 3 Johns. Ch. 158(1:330); lis pend. 6, 7; plead. 510! Heckscher, Howland, v., 3 Sandf. Ch. 519 (7: 942). Hedges, Be, 1 Edw. Ch. 57 (6: 58); guard. & w. 79. V. Riker, 5 Johns. Ch. 163 (5: 1044); ex. & ad. 57, 58. Heeney, Be,2B irb. Ch. 336 (5: 661); incomp. pers, 55-60. O'Brien v.. 3 Bilw. 343(6: 385). V. Trustees of St, Peter's Church, 3 Edw Ch. 608 (6: 622); relig. soc. 15. Heermance, Crippen «., Clark Ch. 133 (7: 72). Crippen v., 9 Paige Ch. 211 (4: 672). Overbach v. ; Hopk. Ch. 337 (3: 442). Heermans, Wheeler v., 3 Sandf. Ch. 697 (7: 970). Heffernan, Rodriguez «., 5 Johns. Ch, 417 (1: 1137). Hegeman, Ross v., 3 Edw. Ch. 373 (6: 434). V. Wilson, 8 Paige Ch. 29 (4: 332); injunc. 347,356. Helie, Ordronaux v., 3 Sandf. Ch. 512(7: 939). Heller, Be, 3 Paige Ch. 199 (3: 115); habitual d. 7; incomp. pers. 75, 78-81. Hemiup, Be, 2 Paige Ch. 316 (2: 924); injunc. 160, 161, 214r-216; ex. & ad. 461, 462. 3 Paige Ch. 305 (8: 164); costs, 35j ex. & ad. 459, 460; ref. 67-71. Hemstead, Barnum «., 7 Paige Ch. 568 (4: 378 North Hemstead v., Hopk. Ch. 388 (8: 435). Hendricks v. Robinson, 2 Johns. Ch. 288, 484 (1: 380, 459); assign. 17-19; cred. bill, 97, 98; discov. 14; exec. 34-36; fraud, conv. 13, 14. 41, 43;pledge& col. sec. 12, 13; prac 41. Hendrickson, Ferris v., 1 EJw. Ch. 133 (6: 86). Henni). Walsh, 2Edw. Ch. 139(6:336); part. 135, 136; receiv. 54-56. Henriquc-s v. Hone, 3 Edw. Ch. 120 (6: 338); insolv. &a. forcr. 153; fraud, conv. 63, 63. Heury, Baggottu., 1 Edw. Cli. 7 (6: 40). Cushney v , 4 Paige Ch. 345 (3: 464). .». Davis, 7 Johns. Ch.40 (2: 318); mort. 18, 19. V. Heniy, 19 Paige Ch. 314(4. 991); receiv. 51. Wilkes v., 4 Edw. Ch. 672 (6: 10i4). Wilkes B., 4 Sandf. Ch. 390(7:1145). Henshaw, Wilkinsons. ,4 Paige Ch. 357 (3: 436). Herckenrath e. American Mut. Ins. Co. 3 Barb. Ch. 63 (5: 818); ins. 16-18. Herrick v. Blair, 1 Jons. Ch. 101 (1: 74); arb. 21. Christie v. 1 Barb. Ch. 254 (5: 375). Hertell v. Bogert, 1 Ch. Sent. 25 (5: 1057); judg. d. & o. 216. V. Bogert, 9 Paige Ch. 52 (4: 605); equity. 127; ex. & ad. 116-118. V. Van Buren, 3 Edw. Ch. 20 (6: 556); ex. & ad. 119, 120; plead. 484. TABLE OF CASES DIGESTED. 616 Hess, Seebor v., 5 Paige Ch. 85 (S: 637). White »., 8 Paige Ch. 544 (4: 536). Hetflelda. Newton, 3 Sandf. Oh. 564 (7:958); ev. 334; prin. & a. 1; usury, 27, 108. Hewlett, Birdsall v., 1 Paige Ch. 32 (2: 550). v. Davis, 3 Edw. Ch. 338 (6: 681); jud. sale, 90. V. Hewlett, 4 Edw. Ch. 6 (6: 779); ev. 20; judg. d. & o. 324; lim. of ac. 95. Heyera. Burger, Hoff. Ch. 1 (6: 1043); husb. & w. 85. 430, 431; plead. 475; power. 29; surro. 3. «. Deaves, 2 Johns. Ch. 154 (1: 338); mort. 328, 339. •Gardner «., 3 Paige Ch. 11 (2: 973). Hayes «., 4 Sandf. Ch. 485 (7: 1180). Osborn «., 2 Paige Ch. 843 (3: 936). «. Pruyn, 7 Paige Ch. 4ti5 (4: 232); judg. d. & o. 125; lim of ac. 38, 111,113; ven. & pur. 166. Heyward v. Stilwell, 3 Edw. Ch. 245 (6: 642); prac. 176. Hickok, Scribner «., 4 Johns. Ch. 530 (1: 926). Hicks ®. Coohran, 4 Edw. Ch. 107 (6: 814); husb. & w. 4, 43, 169. Green «., 1 Barb. Ch. 309 (5: 397). «. Hotchkiss, 7 Johns. Ch. 297 (3: 399); in- solv. & a. for or. 467, 468. ' Pritchard «., 1 PaigeCh. 370 (2: 643). Seaman®.. 8 Paige Ch. 655(4:5'^0). Higbie «. Brown, 1 Barb. Ch. 320, 5 Ch. Sent. 65 (5: 401, 1188); attach. 25; contr. 35; costs, 238, 248; discov. 81; plead. 549; ref. 78-81; wit. 119. 0. Bdgarton, 3 Paige Ch. 253 (3: 141); judg. d. & o. 328, 329. Higgins ads. Woodward, Hopk. Ch. 343 (2: 444); injunc. 276. Highland Bank, Lee v., 2 Sandf. Ch. 311 (7: 606). Higinbotham v. Burnet, 5 Johns. Ch. 184 (1: 1050); deed, 52, 53; estop. 35; plead. 678, 679, 684, 685. Hildreth ». Demming, 2 Ch. Sent. 69 (5: 1097). De Peyster v., 3 Barb. Ch. 109 (5: 576). Hildreth v. Sands, 2 Johns. Ch. 35 (1: 286); ev. 48; fraud, conv. 2-5, 7, 28, 29, 60. Hill, Elridge v., 3 Ch. Sent. 281 (1: 378). Jesup v., 7 Paige Ch. 95 (4: 79). V. Nautilus Ins. Co., 4 Sandf. Ch. 577 (7: 1215); corp. 189; ins. 42. Nott v.. 6 Paige Ch. 9 (3: 877). Hiller, Toll v., 11 Paige Ch. 238 (4: 117). Hills V. Miller, 3 Paige Ch. 254 (3: 141); cont. 63; eas. 4-6. Hilton I. Bissell, 1 Sandf. Ch. 407(7:377); mort. 105, 433, 434; plead. 537. Hoyt v., 3 Edw. Ch. 202 (6- 369). Hillyer «. Bennett, 8 Edw. Ch. 333(6:634); infants, 16. Hinds, Everson »., 2 Barb. Ch. 117 (5: 579). Luce ».. Clarke Ch. 453 (7: 169). Hine «. Handy, 1 Johns. Ch. 6(1:39); deb. & c. 6-8; injunc. 151; mort. 8," 306; usury, 31. Hinman, Jenkins v., 5 Paige Ch. 309.(3: 730). Hitchcock, Curtis v., 10 Paige Ch. 399 (4: 1037). Delaplaine «., 4 Edw. Ch. 321 (6: 893). «. St. John, Hofl. Ch. 511 (6: 1336); fraud, conv. 11, 13; insolv. & assign. 91; part'.16. «. Skinner, HofE. Ch. 21 (6: 1050); dep. 31; parti. 6, 7, 106; prac. 174. Hitchcock v. TreJwell, 1 Ch. Sent. 40(5:1063). Hoag, Me, 5 Ch. Sent. (No. 8) 9, 7 Paige Ch. 313 (4: 169, 5: 1169); incomp. pers. 49. Mills v.. 7 Paige Ch. 18 (4: 41). V. Rathbun, Clarke Ch. 13 (7: 38); mort. 583; quia timet. 3; ven. & pur. 37, 148. Hobby, Rockwell d., 3 Sandf, Ch. 69 (7: 48). Hodgkinson ii. Long Island R. Co., 6 Ch. Sent. 74 (5: 1219). «. Long Island R. Co., 4 Edw. Ch. 411 (6:923); injunc. 305. Hodgson, Kirk B., 3 Johns. Ch. 550(1:486). Kirk v., 3 Johns. Ch. 400 (1: 662). Hoes V. Van Huesen, 1 Barb. Ch. 379, 6 Ch. Sent. 5 (5: 434, 1193); desc. & dist. 33, 34; ex. & ad. 349, ii56-359; expect. 3, release, 6, 7; wills, 383. Hoffman's Petition, Be Stafford, 5 Ch. Sent. 34 (5: 1173). ' Bayard »., 4 Johns. Ch. 450 (1: 898). Bedell «., 3 Paige Ch. 199 (3: 873). V. Livingston, 1 Johns. Ch. 211 (1: 116); in- junc. 282; prac. 35, 36. North River Steamboat Co. v., 5 Johns. Ch. 300 (1: 1090). V. Skinner, 5 Paige Ch. 526 (3: 815); costs, 173 329 330 V. Tredwell,'5 Paige Ch. 82 (3: 636); iudg. d. & 0. 60, 878? V. Tredwell, 6 Paige Ch. 308 (8: 999); re- vival, 29, 30. Warner «., 4 Edw. Ch. 381 (6: 912). Hoffmire v. HofiEmire, 3 Edw. Ch. 173 (6: 614); appear. 2; husb. & w. 285. V. Hofmire, 7 Paige Ch. 6Q (4: 60); husb. &W.288, 305,422. Hogeboom, Williams v., 8 Paige Ch. 469 (4:506). Holbein, Moat «., 2 Edw. Ch. 188 (6: 363). Holbrook v. Champlin, Hoff. Ch. 148 (6: 1095); . judg. d. & o. 283. Coates v., 2 Sandf. Ch. 586 (7: 713). Lasala «., 4 Paige Ch. 169 (3: 390). Mel v., 4 Edw. Ch. 539 (6: 967). V. Receivers of American Fire Ins. Co., 6 Paige Ch. 2^0 (3: 960); set-off, 85, 86. Holcomb V. Jackson, 2 Edw. Ch. 620 (6: 526); cont. 19. Holden v. Gilbert, 7 Paige Ch. 208 (4: 137); mort. 310; setolf , 6, 54, 94. Holford V. Blatchford, 3 Sandf. Ch. 149 (7: 544); bills & d. 2-6; ev. 271, 320; usury, 36, 87, 42. Holgate «. Palmer; 8 Paige Ch. 461(4:508); wit. 43-44 Holland, Draper®., 3 Edw. Ch. 372(6: 654). Hunt v., 3 Paige Ch. 78 (3: 65). HoUey®. Glover, 9 Paige Ch. 9 (4: 589); ref. 33-26. V. Glover, 1 Ch. Sent. 31 (5: 1057); ref. 23- 26. V. 8. G. 4 Edw. Ch. 284 (6: 880); ex. & ad. 71, 385. Holmes v. Cock, 2 Barb. Ch. 426 (5: 701) costs, 68; ex. & ad. 50, 94, 95, 98. «. Dole, Clarke Ch. 71 (7: 54); prac. • 5 prin. & sur. 31; wit. 19. «. Grant, 8 Paige Ch. 243 (4:415); mort. 20-22, V. Holmes, 3 Paige Ch. 363 (3: 186); husb & w. 49, 50. V. Remsen, 4 Johns. Ch. 460(1: 902); bankcy, 36-44; conf. of 1. 34, 35; insolv. & as- sign. 57, 58. 616 TABLE OF CASE 4 DIGESTED. Holmes «. Kemsen, 7 Johns. Ch. 286(3: 395); iudg. d. & o. 109. 336. Ten Byck«., 8 Sandf. Ch. 428 (7: 907). «. Williams, 10 Paige Ch. 326(4: 996): usury, 56. Holridge v. Gillespie, 3 Johns. Ch. 30 (2: 384); mort. 488, 479; trusts, 155, 185; wit. 13. Hone, Clark v., 3 Edw. Ch. 876 (6: 435). Craig D., 2 Edw. Ch. 376, 554 (6: 435,501). B. Fisher, 3 Barb. Ch. 559(5: 743); cov. 3, 4; mort. 410,411. Henriques o., 2 Edw. Ch. 130 (6: 383). Stuyvesant v., 1 Sandf. Ch. 419 (7: 381). v. Van Schaick, 3 Barb. Ch. 488 (5: 983); child; wills, 135, 136. 156, 185, 194, 200. V. Van Schaick, 8 Edw. Ch. 474 (6: 730); wills, 174, 199. V. Van Schaick, 7 Paige Ch. 323 (3: 182); apo. 245; pers. prop. 12; perpetui. 8: trust, 255; wills, 301, 303. ». Woolsey, 2 Edw. Ch. 289 (6: 404); cred. bill, 224; insolv. & assign. 16. Hood V. Inman, 4 Johns. Ch. 437 (1: 894); plead. 33-35. Hoogland v. "Watt, 3 Sandf. Ch. 148 (7: 544); dower, 58. Hooker, Sherwood b., 1 Barb. Ch. 650 (5: 531). Hope D. Brlnckerhoff, 4 Ch. Sent. 79 (5: 1161). V. Brinckerhoff, 3 Edw. Ch. 445 (6: 730); cred. bill, 10. ». Brinckerhoff, 4 Edw. Ch. 848, 660(6: 901, 1010): cred. bill, 185, 238-340. Hopkins, Crowder v., 10 Paige Ch. 183 (4:937). . Leggett v., 7 Paige Ch. 148 (4: 102). McLaren »., 1 Paiee Ch. 18 (3: 545). McLaren »., Hopk. Ch. 576 (2: 529). Hopper, Ee, 5 Paige Ch. 479 (3: 799); chanc. 5, 6; incomp. pers. 76, 77, 86. V. Hopper, 11 Paige Ch. 46, 4 Ch. Sent. 18 (5: 53, 1140); husb. & w. 398; plead. 81, 33. Hoppock «. Conklin, 4 Sandf. Ch. 583 (7: 1317); costs, 77; mort. 461, 466. Hopson, iJe, 1 Edw. Ch. 8(6:40); guard. & w. 55. Horn, Coit, v., 1 Sandf. Ch. 1 (7: 215). Hornbeck's E\r. v. American Bible Society, 2 Sandf. Ch. 133 (7: 537); char, uses, 8, 9, 15; ev. 175, 180; wills, 173. Horner «. Eagls, 3 Ch. Sent. 6(5; 1081). Hornsby's Will, Be, 3 Paige Ch. 429 (2: 975); Wilis, 132-134. Horton, Colegrove v., 11 Paige Ch. 261 (5: 138). Hosack B. Rogers, 6 Paige Ch. 415, 5 Ch. Sent. 14(3:1044); desc. & dist. 1; ex. & ad. 14, 67, 213, 314; insolv. & a for cr. 159; ins. 38. 9. Rogers, 7 Paige Ch. 108 (4: 85); app. 264, 265. 9. Rogers, 8 Paige Ch. 239 (4: 410); ex. & ad. 300; joint d. 2; part. 58; wit. 78, 103. •.•Rogers, 9 Paige Ch. 461 (4: 776); costs, 55, 56, 94, 95; ex. & ad. 70, 383. 384; int. 100. «. Rogers, 11 Paige Ch. 603 (5: 248); ex. & ad. 13, 88, 89; seques. 3, 3. V. Rogers, 1 Ch. Sent. 1, 72(5: 1051, 1073). V. Rogers, 2Ch. Sent. 10, 11 (5: 1083). e. Rogers, 5Ch. Sent. 14(5:1168); attach. 37. Hosford V. Nichols, 1 Paige Ch. 220 (3: 624); conf. of 1. 3, 4, 15-17; ev. 1; insolv. & assign. 78. Hotchkiss, Hicks v., 7 Johns. Ch. 397 (3: 399) House, Clapper v., 6 Paige Ch. 149 (8: 935). V. House, 3Ch. Sent. 13(5: 1103). v. House, 10 Paige Ch. 158 (4: 936); cov. 30; dower, 383; ex. & ad. 387, 394; flxt. 1; subr. 30. V. Root, 1 Ch. Sent. 4 (5: 1052). Housman, Bank of United States »., 6 Paige Ch. 536 (8: 1088). Hovey v. Hovey, 5 Paige Ch. 551 (3: 826); atty. & sol. 69; costs, 401, 403. Morse v.. 1 Barb. Ch. 404(5: 488). Morse o., 9 Paige Ch. 197 (4: 665). Morse v.. 1 Sandf. Ch. 187 (7: 390). Howard. Cagger, s., 1 Barb. Ch. 868 (5: 430). D. Moffatt, 2 Johns. Ch. 306 (1: 350); husb. &. w. 83-86. New York Life Ins. & T. Co. v., 3 Sandf. Ch. 183 (7: 557). V. Sheldon, 11 Paige Ch. 558, 5 Ch. Sent. 12 (5: 233, 1167); exec. 7; cred. bill, 35; fraud, conv. 1. Swan v., 3 Edw. Ch. 287 (6: 659). Howe, Re, 2 Edw. Ch. 484, IPaige Ch. 125, 214 (6:' 475, 2: 586, 621); bankcy. 26; Corp. 36, 87; costs, 49; infants, 141; judg. &o. 243, 343; mort. 1, 388, 384; ref . 60. Bardwell «., Clarke Ch. 281 (7: 115). V. Harvey, 8 Paige Ch. 78 (4: 849); plead. 294, 715. Maples B., 3 Barb. Ch. 611 (5: 1029). Howell ». Baker, 4 Johns. Ch. 118(1:784); atty. & sol. 42; cont. 114; trusts, 180-182. Bond u, 11 Paige Ch. 233 (5: 119). Eldridge v., 4 Paige Ch. 457 (3: 514). «. Ransom, 11 Paige Ch. 538, 5 Ch. Sent. 1 (5: 237, 1154); atty. & sol. 35-37. v. Ripley, 3 Ch. Sent. 71 (5: 1097). «. Ripley, 10 Paige Ch. 43 (4:878); mort. 93, 94; receiv. 101, 102, 157. Howlandu, Ayres, 3 Ch. Sent. 92(5: 1130). Fish v., 1 Paige Ch. 30 (3: 545). V. Heckscher, 8 Sandf. Ch. 519 (7: 943); desc. & disf. 34, 35; ex. & ad. 219-331, 861; wills, 896. Howland «. Scott, 2 Paige Ch. 406 (3: 965); trusts, 51. Hewlett, Stafford v., 1 Paige Ch. 300 (3: 616). Hoxie, Collins «., 9 Paige Ch. 81 (4: 616). V. Hoxie, 7 Paige Ch. 187 (4: 118); real prop. 30; ref. 98; wills, 293, 454. ■B. Scott, Clarke Ch. 457(7:170): plea. 110112. Hoyle, Schuyler v., 5 Johns. Ch. 196 (1: 1055); Hoysradt, Crandall «., 1 Sandf. Ch. 40 (7: 230). McArthur o.. 11 Paige Ch. 495 (5: 310). Hoyt, Boyd c, 5 Paige Ch. 65 (3: 629). Gelston v., 1 Johns. Ch. 543 (1 : 240). v. Hilton, 2 E,lw. Ch. 202 (6: 369); guard. & w. 19; infants, 100; wills, 457. «. Mackenzie, 8Barb Ch. 330 (5: 917);copyr. 13; equity. 30; injunc. 177-180. Schmidt v., 1 Edw. Ch. 653 (6: 37!i). Hubbard, James «., 1 Paige Ch. 328 (2: 636)i. Hubbel, Crane 0., 7 Paige Ch. 41S(4: 210). Hubbell B. Carpenter, 6 Ch. Sent. 37, 36 (5: 1301, 1304). ■0. Cramp, 11 Paige Ch. 310, 4 Ch. Sent. 65 (5: 146, 1157); bankcy, 2, 3, 13, 14, 57. 64, "79-81. TABLE OF CASES DIGESTED. 617' Hubbell, Sell's Admr. d., 2 Johns. Ch. 394 1: 422). Hubbs, Livingston ■o., 2 Johns. Ch, 512 (1 : 469. Livingston v., 3 Johns. Ch. 124(1:563). Huddlestou s. Converse, 1 Ch. Sent. 62 (5: 1069). Hudson, Morton »., Hoff. Ch. 313 (6: 1156). B. Plets, 11 Paige Cb. 180, 4 Ch. Sent. 41 (5: 99, 1148); cred. bill, 166-168, 304; in- junc. 387, 388, ref. 53-55. «. Thome, 7 Paige Ch. 261 (4: 148); injunc. 1 ; mort. 12, 13. Hudson & Del. Canal Co. v. New York & E. R. Co., 9 Paige Ch. 333 (4: 718); injunc. 67, 70; railr. 2. Huffman, Everitt «., 1 Paige Ch. 648 (2: 786). Hughes ». Bloomer, 1 Ch. Sent. 62 (5: 1070) plead. 170. «. Bloomer, 9 Paige Ch. 269 (4: 696); costs, 399; plead. 267, 368. 277, 278. Harrington «., 1 Paige Ch. 569 (3: 756). Parsons v., 9 Paige Ch. 591 (4: 828). Hulbert «. McKay, 1 Ch. Sent. 18 (5: 1056). «. McKay, 8 Paige Ch. 651 (4: 579); money in c' 5-11. Hull, Harrison ^., Hopk. Ch. 112 (2: 361). «. Thomas. 3 Edw. Ch. 236 (6: 640);cont. 10. Humbert •». St. Stevens' Church, 1 Edw. Ch. 308 (6: 150); relig. soc. 40, 41. «. Trinity Church. 7 Paige Ch. 195 (4: 121); Urn. of ac. 34; plead. 398, 533, 707. Humphrey, Irving v., Hopk. Ch. 384, 364, (2: 423, 452). Mclntyre v., Hofl. Ch. 31 (6: 1053). Hunn B. Norton, Hopk. Ch. 344(3: 445); costs, 3-6; int. 21. Hunt, Bell v., 3 Barb. Ch. 391 (5: 945). V. Ferris. 6 Ch. Sent. 39 (5: 1206). ®. Holland, 3 Paige Ch. 78 (3: 65) plead. 187, 193 Pascoag Bank v., 3 Edw. Ch. 583 (6: 770). v. Townsend, 4 Sandf. Ch. 510 (7:1189); Bubr. 36, 37. e. "Wallis, 6 Paige Ch. 371 (3: 1036); app. 301, 113; judg. d. & o. 74, 373, 375, 376; prac. 105, 106. ■ Hunter, Be, 1 Edw. Ch. 1 (6: 37); spec. p. 61, 65; ven. & pur. 1. «. Dashwood, 2 Edw. Ch. 415 (6: 450); costs, 107. V. Hallett, 1 Edw. Ch. 388 (6: 182); husb. & w. 60. Lee »., 1 Paige Ch. 520 (2: 738). Rutgers «., 6 Johns. Ch. 215 (2: 104). Van Alst v.. 5 Johns. Ch. 148 (1: 1038). Watson «., 5 Johns. Ch. 169 (1: 1046)., Huntington v. Havens, 5 Johns. Ch. 33(1:995); estop. 32-24. Trustees of. Nicoll «., 1 Johns. Ch. 166, (1: 101). HuntooD, Lee »., Hofl. Ch. 447 (6: 1303). Hurd V. Everett, 1 Paige Ch. 134 )3: 575) plead. 160. «. Haynes, 2 Ch. Sent. 47 (5: 1091). Haynes, 9 Paige Ch. 604 (4: 834); plead. 113 Hussey, Havens «., 5 Paige Ch. 30 (4: 613). Hutchinson v. Brown, Clarke Ch. 408 (7: 156);. cont. 115; ev. 270; fraud, 10; ven. & pur. 41. ■0. Reed, Hoff. Ch. 316(6: 1157); costs, 532;. cred. bill. 111; disci. 5; fac. 1,2; parties, 171, 182, 184; plead. 214. V. Smith, 7 Paige Ch.;26 (4: 45); insolv. & a. for cr. 113, 113; part. 57, 68; trusts, 36. Huyleri). Westervelt, 7 Paige Ch. 155 (4: 104); abs. & abscon. d. 14; injunc. 119; part. 137. Hyatt, Lindsay v., 4 Edw. Ch. 97 (6: 810). Hyall, Tradesmens' Bank «., 3 Edw. Ch. 195- (6: 365). Hyer v. Burdett, 1 Edw. Ch. 335 (6: 158) part. 168. Sears «., 1 Paige Ch. 483 (3: 734). Hyslop V. Powers, 9 Pa.ge Ch. 323 (4: 717); app. 21. Iddings «. Bruen, 4 Sandf, Ch. 223, 417 (7: 1084, 1155); bonaflde pur. 6; jud. sale, 13; insolv. & assign. 184, part. 126-129; receiv. 136, 170, 175, 183; setoff, 41; trust. 150, 151, 235, 277. Ide, Church v., Clarke Ch. 494 (7: 182). Idley, Bowen v., 1 Edw. Ch. 148 (6: 92). Bowen «., 6 Paige Ch. 46 (3: 893). Indiana v. Sherwood, 5 Ch. Sent. 47 (5: 1182); atty. &sol. 27; parties, 36. Inglee, Bailey «., 2 Paige Ch. 278 (2: 905). Ingold, Corey »., 3 Sandf. Ch. 501 (7: 93.5). Ingraham, Be, 2 Barb. Ch. 35, 5 Ch. Sent. 33 (5:546. 1173); money inc. 12; receiv. 190. Inman, Griswold s., Hopk. Ch. 86 (2; 351). Hood «.. 4 Johns. Ch.437 (1: 894). Innes v. Evans, 3 Edw. Ch. 454(6: 723); plead. 391 «. Lansing, 7 Paige Ch. 583 (4: 383); cred. bill, 110: 273; injunc. 22; receiv. 3. Irving t>. DeKay, 2 Ch. Seat. 17, 70 (5: 1085, 1097). V. De Kay, 3 Ch. Sent. 55 (5: 1117); plead. 633. V De Kay, 9 Paige Ch. 531 (4: 800); annuity,. 15; perpetu. 19-20; trusts, 8, 9, 22, 23, 298; wills, 135, 136, 156, 295-399. DeKay, 10 Paige Ch. 319 (4: 993); plead. 633, prac. 231, set-off, 10, 15, 55, 56, 66. V. Humphrey, Hopk. Ch. 284, 36 i, (3: 423, 452); compo. with cred. 1-3; prac. 56,. ref. 133. Isaacs, Chance »., 2 Edw. Ch. 348(6: 435). Chance »., 5 Paige Ch. 592 (3: 843). Isenhart «. Brown, 1 Edw. Ch. 411 (6: 190);. int. 39, 40; wills, 418, 472. «. Brown, 2 Edw. Ch. 341(6: 423); bonds, 7; ex. & ad. 113; wills, 501. Isnard v. Cazeaux, 1 Paige Ch. 39 (2: 553);. costs. 119-121 ; prac. 54, 55. Israel, Kelly »., 11 Paige Ch. 147 (5: 88). Ithaca & Oswego R. Co. Devoe, «., 5 Paige- 521 (3: 813.) Ives B. Miter, 4 Ch. Seat. 68 (5: 1158). «18 TABLE OF CASES DIGESTED. J . A ., Lewis v., 4 Edw. Ch. 599 (6: 989). Jacks V. Nichols, 3 Sandf. Cli. 313 (7: 865); confl. of 1. 27, 28; usury, 39-41, 111; wit. 73. Jackson v. Baker, 2 Edw. Ch. 471 (6: 470); damag. 9, 28, 29. Breevoort v., 1 Edw. Ch. 447 (6: 204). Coaneclieut «., 1 Johns. Ch. 18 (I: 41). 8. Coruell, 1 Sandf. Ch. 348 (7: 354); insolv. & a. for cr. 105-107; part. ,S2. Denton v., 1 Johns. Ch. 526 (1; 29Z). Denton »., 2 Johns. Ch. 320 (1: 394). Dunham «., 1 Paige Ch. 629 (i: 778). •B. Edwards, 2 Edw. Ch. 583 (6: 512); plead. 231. ■B. Edwards, 7 Paige Ch. 386 (4: 200); deed, 24: jud. sale, 19, 20; parti. 38, 39, 86, 95; power, 1, 2. ■B. Forrest, 2 Barb. Ch. 576 (5: 760); cred. bill, 127; fraud, conv. 19: parties, 92; plead. 317. Fullerton v., 5 Johns. Ch. 276, 278 (1: 1081, 1082). Griswold v., 2 Edw. Ch. 461 (6: 467). Holcomb v., 2 Edw. Ch. 620 (6; 526). LinrjsavB., 2 Paige Ch. ."iSl (3: 1038). D. Losee, 5 Ch. Sent. 26 (5: 1174). V. Losee, 4 Sandf. Ch. 381 (7: 1142); cl. 1; lis pend. 12; insolv. & assign. 76. Partridge «., 3 Edw. Ch. 530 (6: 489). Sanford v., 10 Paige Ch. 266 (4: 971). Smith v., 2 Edw. Ch. 28 (6: 295). Stagg «., 2 Barb. Ch. 86 (5: 567). Underbill «.. 1 Barb. Ch. 73 (5: 305). -Jackson. Marine Ins. Co., Be, 4 Sandf. Ch. 559(7: 1308); Corp. 141, 152;iniunc. 91. Jackway,Boynton».,10PaigeCh. 307(4:988). Jacobs V. Vandervoort, Clarke Ch. 165 (7: 81); ev. 32. Jacocks, Sweet v., 6 Paige Ch. 355 (3: 1018). -Jacot V. Emraett, 11 Paige Ch. 142, 4 Ch. Sent. (5: 86, 1145): ex. & ad. 73; int. 49, 50, 76, 77. James, Be, 6 Ch. Sent. 2 (5: 1192). V. Berry, 1 Paige Ch. 647(2: 786); prac. 119, 120. Hale u, 6 Johns. Ch. 2.i8 (3: 118). Hawley v., 5 Paige Ch. 318 (3: 734). Hawley v., 7 Paige Ch. 213 (4: 129). ». Hubbard, 1 Paige Ch. 228 (2: 636); iudg. d. & o. 286, 298, 299, 301-306. James v. James, 4 Paige Ch. 115 (3: 367); desc. &dist. 26; infants, 112; wills, 346. «. Johnson, 6 Johns. Ch. 417 (3: 169); mort. 11, 42. 65, 136, 137, 165, 171, 172; real prop. 85. V. Vanderheyden, 1 Paige Ch. 385 (3: 686); escr. 1, 2. V. "Woodruff, 3 Ch. Sent. 101 (5: 1133). «. Woodruff, 10 Paige Ch. 541 (4: 1083); corp. 106, 107, 116, 117; stock job. 3. James Bank, The Bank Comrs. v., 9 Paige Ch. 457(4: 774). Jamison, Leonard v., 2 Edw. Ch. 136 (6: 339). Janeway, Bartlett v., 4 Sandf. Ch. 396 (7: 1147). Janeway's Exrs. v. Green, 3 Sandf. Ch. 415 (7: 646); def. 3; int. 42-44; trusts, 275. Jansen v. Cairnes, 3 Barb. Ch. 350 (5: 929); wills. 330-333. Jaques, Crocheron «>., 3 Edw. Ch. 207 (6: 628). Methodist Episcopal Church, v., 1 Johns. Ch. 65, 450 (1: 61, 205). Methodist Episcopal Church, d., 2 Johns. Ch. 543 (1:482); ref. 66. Methodist Eoiscopal Church d., 3 Johns. Ch. 1, 77 fl: 523. 549). Methodist Episcopal Church v., Hopk. Ch. 453 (2: 485). Jarvis«. Jarvis, 3 Edw. Ch. 462 (6: 726); husb. & w. 246; Stat. 10.- ». Palner, 1 Barb. Ch. 379 (5:424); app.lB. V. Palmer, 11 Paige Ch. 650, 5 Ch. Stnt. 28 (5: 297, 1175); ev. 133, 134; plead. 880, 381, 658, 659. D. Peck, 3 Ch. Sent. 1 (5: 1100); contr. 79-81. V. Peck, Hofl. Ch. 479 (6: 1215); contr. 69. V. Peck, 10 Paige Ch. 118 (4: 910); bonds, 9; contr. 79-81; ev. 55, 316. Jaunceys. Rutherford, 9 Paige Ch. 273(4:698); app. 35; reviv. 66-68; trusts. 92, 108; wills, 86. «. Rutherfurd, 1 Ch. Sent. 63 (5: 1071). ®. Thome, 2 Barb. Ch. 40, 6 Ch. Sent. 42 (5: 549. 1208); wills, 35-37, 101, 107-113, 115. Jay V. Ensign, 1 Ch. Sent. 48 (5: 1066); costs, 153 154 B. Ensign, 9 Paige Ch. 230 (4: 679); costs, 153, 154; deic. 6. Jayne, Floyd v., 6 Johns. Ch. 479 (3: 190). Jeffers, White s., Clarke Ch. 206 (7: 93). Jencks e. Alexander, 11 Paige Ch. 619, 5 Ch. Sent. 13 (5: 255. 1168); mort. 345, 351, 352, 451, 453; pay. 26; trusts, 82, 83. Jenkins ». Bisbee, 1 Edw. Ch. 377 (6: 178); husb. & w. 3; parties, 183. V. Freyer, 4 Paige Ch. 47 (3: 336); ex. & ad. 27, 65; husb. & w. 55; infants, 166; plead. 219; reviv. 31; ven. & pur. 146; wills, 182-184 438. Gibbbs v., 3 Sandf. Ch. 130 (3: 698). D. Hinman, 5 Paige Ch. 309 (3: 730); app. 112: chanc. 8; mort. 533. B. Jenkins, 1 Paige Ch. 243 (2: 633); receiv, 43. Trust & Fire Ins. Co. v., 8 Paige Ch. 589 (4: 554). v. Van Schaack, 3 Paige Ch. 242 (3: 136); annuity, 2; parti. 25, 51, 56; wills, 379. ®. Wilde, 2 Paige Ch. 394 (2: 958); injunc. 348-353. Wilde v., 4 Paige Ch. 481 (3: 524). Jennings o. Webster, 8 Paige Ch. 503 (4: 520); set- off, 16-18, 52, 87. Jermain v. Langdon, 8 Paise Ch. 41 (4: 337); abs. & abscon. d. 1, 2, 7, 9. Jerome v. Ross, 7 Johns. Ch. 815 (2: 805); injunc. 63-65. Jersey Company, York & Jersey Steam Boat Ferry Co. «., Hopk. Ch. 460 (2: 487). Jesup V. Hill, 7 Paige Ch. 95 (8: 79): ne es 59-61. TABLE OF CASES DIGESTED. 619 Jervis v. Smith, Ho£E. Ch. 470 (6: 1213); cont. 54; plead. 490; spec. p. 83, 116, 117. Jevrelt v. Albany City Bank, 2 Ch. Sent. 25, 39 (5: 1087, 1090); courts, 11. V. Albany City Banis, Clarke Ch. 57, 59, 179, 341 (7: 50, 51. 85. 103); chan. 10, 35; ex. 386; injunc. 368, 369; prac. 33, 121, 134. «. Belden, 11 Paige Ch. 618, 5 Ch. Sent. 9 (5: 255, 1166); discov. 33, 33: injunc. 333; plead. 60. Burrall v., 2 Paige Ch. 134 (2: 845). Fay B., 3 Edw. Ch. 323 (6: 416). v. Palmer. 7 Johns. Ch. 65 (2: 223); ven. & pur. 122. Winship v., 1 Barb. Ch. 173 (5: 343), «. Ripley, 1 Ch. Sent. 88 (5: 1078); insolv. & a. for cr. 126-128. «. Woodward, 1 Edw. Ch. 195 (6: 103); insolv. & a. for cr. 87, 88. Johnson, Ex parte. 2 Paige Ch. 282 (2: 908); costs, 346-349. Allertont)., 3 Sandf. Ch. 72(7: 775). e. Bush, 3 Barb. Ch. 207 (5: 875); corp. 2, 81, 82, 88, 119; ev. 89; real prop. 45, 60; Stat. 21. «. Corbett, 11 Paige Ch. 265, 4 Ch. Sent. 67 (5: 129, 1157); eq. conv. 35; ex. & ad. 109. 196, 197, 3a3-326, 338, 329, 379, 383-386; subr. 18. «. Everett, 3 Ch. Sent. 51 (5: 1093). Everett, 9 Paige Ch. 636 (4: 846); app. 49; judg. d. & o. 37, 97-99. «. Fitzhugh, 3Barb. Ch. 360(5: 933);bankcy. 68, 76; judg. d. & o. 46, 385; mort. 240, 241. <}ere, 2 Johns. Ch. 546 (1: 483); ven. & pur. 69. James «., 6 Johns. Ch. 417 (2: 169). c. Johnson, 1 Edw. Ch. 439 (6: 200); husb. & w. 282, 286, 287, 325. «. Johnson, 6 Johns. Ch. 163 (2: 87); husb. & w. 305. ■e. Johnson, 4 Paige Ch. 460 (3: 515); ey. 243; husb. & w. 381, 389. Lupton v., 3 Johns. Ch. 439 (1: 436). Matthewson v., Hoff. Ch. 560 (6: 1344). e. Pinney, 1 Paige Ch. 646 (2: 785); cont. 33. «. Quackenbush. 1 Bato. Ch. 292 (5: 390); prac. 27-39, 128, 129, 133. «. Quackenbush, 4 Ch. Sent. 75 (5: 1160). r. Quackenbush, 5 Ch. Sent. 56 (5: 1184); prac. 37-29, 138, 139, 133; ret. 13. «. Smith, 3 Ch. Sent. 34 (5: 1107). Suffern v., 1 Paige Ch. 450 (2: 711). V. Swart, 11 Paige Ch. 385 (5: 171); act. or Buit, 12; ref. 16, 117, 118. Johnson d. Thatcher, 2 Ch. Sent. 71 (5: 1098X e. Thomas, 3 Paige Ch. (2: 950); dower, 81- 84; reviv. 3. Vredenburgh v., Hopk. Ch. 113 (3: 361). Johnston «. Bloomer, 3 Edw. Ch. 328 (6: 677); judg. d. & o. 333. Campbell ®. I Sandf. Ch. 148 (7: 275). Jolly «. Carter, 2 Edw. Ch. 209 (6: 372); costs, 347; ev. 278; plead. 64-67. Jones, Me, 3 Barb. Ch. 33, 6 Ch. Sent. 44 (5: 541, l',!07); infants, 55. Jones, 4 Sandf. Ch. 615(7: 1339); costs, 81; trusts 97 99 Alston v.,'z Birb! Ch. 397 (5: 947). Alston v., 10 Paige Ch. 98 (t: 903). V. Conde, 6 Johns. Ch. 77(3: 60): mort. 191. Jones V. Grant, 3 Ch. Sent. 78 (5: 1135). V. Grant, 10 Paige Ch. 348 (4: 1005); judg. d. & o. 87-90. o. Jones, 2 Barb. Ch. 146, 6 Ch. Sent. 7, 60 (5: 591, 1194, 1213) ; husb. &w. 346-349. o. Lynds, 7 Paige Ch. 301 (4: 165); cont. 67; spec. p. 101. Mason «., 3 Edw. Ch. 497 (6: 739). V. Moore, 1 Edw. Ch. 633 (6: 373); bonds, 13; tender, 1. V. Phelps, 3 Barb. Ch. 440 (5: 707); costs; 144; mort. 53, 54; real prop. 47. v. Powell, 6 Johns. Ch. 194 (2: 97); dower, 75; eq. 5; lim. of ac. 79. V. Roberts, 6 Ch. Sent. 37 (5: 1205). V. RoberU, 4 Edw. Ch. 611 (6: 993); plead.56. Sprague «., 9 Paige Ch. 252, 395 (4: 639, 748). s. Stienbergh, 1 Barb. Ch. 250, 5 Ch. Sent. 48 (5: 374, 1182); judg. d. & o. 13; mort. 406, 407. Vilas v., 10 Paige Ch. 76 (4: 892). v. Weed, 4 Sandf. Ch. 208 (7: 1073); eject. 3; eq. 15; infants, 107. Jordan s. Macy, 4 Ch. Sent. 13 (5: 1138). V. Spear, 1 Ch. Sent. 69 (5: 1073). Joseph, Francia v., 3 E;lw. Ch. 183 (6: 618). Joslin 0. Joslin, 1 Ch. Sent. 55, 63 (5: 1068, 1070); ref. 23. Osgood v., 3 Paige Ch. 19-5 (3: 113). Judah, Sullivan a., 4 Paige Ch. 444 (3: 508). Judd fl. Seaver, 1 Ch. Sent. 9 (-5: 1053). V. Seaver, 8 Paige Ch. 548 (4: 537) ; bills & n. 43-45; ev. 107; usury, 9t. 140. v. Van Cortland, 5.Ch. Sent. 63 (5: 1187). Judson V. Rossie Galena Co., 3 Ch. Sent. 38 (5: 1089.) o. Rossie Galena Co., 8 Paige Ch. 598 (4: 831); corp. 138, 135, 193; parties, 177. Jumel V. Jumel, 7 Paige Ch. 591 (4: 389); app. 261; marsh, of a. & s. 19, 20. K. Kain, Postley v., 4 Sandf. Ch. 508 (7: 1189). 2 Barb. Ch. 375 (5: 681); desc. & dist. 31, 32; infants, 84r^7. e. Bloodgood, 7 Johns. Ch. 90 (2: 231); lim. of ac. 10, 11, 15, 24, 32, 57-61, 63; plead. 531- •. Kane, 3 Edw. Ch. 389 (6: 699); ev. 525. Kain, Livingston d., 3 Johns. Ch. 224 (1: 600). , Powell v.. 2 Edw. Ch. 450 (6: 463). Powell v., 5 Paige Ch. 265 (3: 712). Smith v., 2 Paige Ch. 303 (2: 918). ■B. Vandenburgh, 1 Johns. Ch. 11 (1; 40); in- junc. 46. 620 TABLE OF CASES DIGESTED. Kain v. Van Vranken, 5 Paige Ch. 62 (3: 628); costs, 275, 276; plead. 119. Whittiok «., 1 Paige Ch. 202 (2: 617). Kauffinan, Copous v., 3 Edw. Cli. 370 (6: 692). Copoua®., 8 Paige Ch. 583 (4: 552). Kautuan, Messouaier v., 3 Johns. Ch. 3, 66 (1: 523, 545). Kearney, Smith »., 2 Barb. Ch. 533 (5: 74^. Keeler. Bank of Monroe «., 9 Paige Ch. 249 (4: 688). V. Field, 1 Paige Ch. 312 (2: 660); sale, 10. Franklyn »., 4 Paige Ch. 382 (3: 479). Wilder «., 3 Paige Ch. 164. 167 (8: 99, 101). Keeseville Mfg. Co., Fisk v., 10 Paige Ch. 592 (4: 1103). Keirsted v. Avefy, 4 Paige Ch. 9 (3: 319); escr. 4-; judg. d. & o. 201, 202. Keisselbrack v. Livingston, 4 Johns. Ch. 144 (1: 795); costs, 165; ev. 150-152. Kellett o, Ralhbun, 4 Paige Ch. 103 (3: 361); app. 31, 82, 263; ex. & ad. 344,347:397; infants, 123, 124, 138; int. 47. ' Kellinger, Be, 1 Cb. Sent. 27 (5: 1058.) 9 Paige Ch. 62 (4: 608); taxes, 13, 14. B. Roe, 7 Paige Ch. 362 (4: 189); app. 41, 173; guard. «fe w. 1; infants, 148, 143. Kellogg, Ri, 7 Paige Ch. 265 (4: 149); guard. & w. 49-51. ». Babcock, 1 Ch. Sent. 47(5:1065); mort.366. B. Conner, 3 Ch. Sent. 51 (5: 1116). V. Conner, 10 Paige Ch. 3U (4: 990); mort. 514^516) Peldberg v., 1 Edw. Ch. 27 (6: 47). «. Kellogg, 3 Ch. Sent. 21(5: 1107). ». Rand, 11 Paige Ch. 59, 4 Ch. Sent. 21-56 (5: 1142); estop. 55; marsh. of a. & s. 25; ven. & pur. 159-161. «. Wood, 4 Paige Ch. 578 (3: 568); cov. 21, 22; judg. (1. & o. 224r-327; mort. 166; prac. 145; trusts, 173. V. Eckford, 5 Paige Ch. 548(3: 824); produc. & inspec. of b. & p. 10-12. Freeman «., HofE. Ch. 90 (6: 1074). V. Israel, 11 Paige Ch. 147, 4 Ch. Sent. 33 (5: 88, 1145); app. 25; costs, 160; mas ter, 4; jud. sale, 7, 8; mort. 266-268. Palmer v., 4 Sandf. Ch. 575 (7: 1214). Kelsey. Stoors v., 2 Paige Ch. 418 (2: 970). J). Western, 4 Ch. Sent. 79 (5: 1161). Kempshall. Griffith*., Clarke.Ch. 571 (7: 203). «. Stone, 5 Johns. Ch. 193 (1:1054); eqtfity, 36, 37; spec. per. 112. Kendall «. Kendall, 1 Barb. Ch. 610, 6 Ch. Sent. 59 (5: 514, 1202); costs, 116-118; judg. d. & o. 17. Keneda v. Gardner, 1 Ch. Sent. 61 (5: 1069); cont. 74. Kennedy, Be, 5 Paige Ch. 244 (3: 703); guard. &w. 31. Kenny ®. Udall, 5 Johns. Ch. 464 (1: 1145); husb. & w. 74-81. Kent, Cuddeback v., 5 Paige Cb. 92 (3: 640), ■». Lee, 2 Sandf. Cj. 105 (7: 537); plead. 316. Morris c, 2 Edw. Ch. 175 (6: 358). Kernochan, Dyckman »., 2 Paige Ch. 26 (2: 798. Kerr «, Davis, 7 Paige Ch. 52 (4: 57). «. Djvelin, 4 Edw. Ch. 55r(6: 796). V. Merchants, Exchange Co. 3 Edw. Ch. 315 (6: 673) land. & ten. 54. Kershaw ». Thompson, 4 Johns. Ch. 609 (1: 953); eq. 76; judg. d. & o. 291-293; mort. 443-445. Kershow, Hayes v.. 1 Sandf. Ch. 258 (7: 321> Ketchum r>. Dnrkee, 1 Barb. Ch. 480, 6 Ch. Sent. 17 (5: 464, 1198); part. 41-43. ■0. Durkee, Hofl. Ch. 588 (6: 1237); parties, . 133, 124; part. 29, 30, 160-163. Kettletas v. Gardner, 1 Paige Ch. 488 (2: 725); guard. & w. 15, 26, 27. Robinson v., 4 Edw. Ch. 67 (6: 800). Keyes «. Brush, 2 Paige Ch. 311 (2: 922); as- sign. 20-24. Wood v., 6 Paige Ch. 478 (3: 1068). Wood v., 8 Paige CU. 364 (4: 464). Kidd B. Chapman, 2 Barb. Ch. 414 (5: 696); ex. & ad. 176-181, 317; judg. d. & o. 156. Kimball, Ferguson v., 3 Barb. Ch. 616 (5: 1031). Kimberly, Brad'ford «., 3 Johns. Ch. 431 (1: 673). B. Sells, 3 Johns. Ch. 467 (1: 686); discov. 21; plead. 650. King ». Baldwin, 2 Johns. Ch. 554 (1:487); equity 65, 313; prin. & sur. 11-13. 32; 33; subr. 22. v. Bardeau, 6 Johns. Ch. 88 (2: 47); spec. p. 54-56. V. Clark, 3 Paige Ch. 76 (3: 64); costs, 180, 181. 335; injunc. 265. ®. Donnelly, 5 Paige Ch. 46 (3: 621); parti. 33; trusts, 96, il8, 135. 0. King, 3 Johns. Ch. 553 (1:714); ex. & ad. 85. Lawrence »., 3 Sandf. Ch. 192(7: 821). V. McVickar, 3 Sandf. Cb. 193 (7: 831); mort. 77, 153, 187, 272; parties, 118; plead. 500; real prop. 75; subr. 41, 42, 45. B. Ray, 11 Paige Ch. 235, 4 Ch. Sent. 60 (5: 120, 1155); plead. 405, 456, 457, 460- 462, 520. Rogers b., 8 Paige Ch. 210 (4: 402). B. Stow, 6 Johns. Ch. 323 (2; 139); loan off. 7-12. B. Strong, 1 Ch. Sent. 33 (5: 1061). B. Strong, 9 Paige Ch. 94 (4: 622); cosU, 62, 64, 65; perpetu. 17; wills, 231, 248. B. Whitely, 3 Ch. Sent. 86 (5: 1138). B. Whitely, Hoff. Ch. 477 (6: 1314). B. Whitely, 10 Paige Ch. 465 (4: 1052); husb. & w. 180; mort. Ill, 112. V. Wilcox, 11 Paige Ch. 589, 5 Ch. Sent. (No. ^) 13^5: 243, 1170); £red. bill. 76; fraud, conv. 64. ®. Woodhull, 3 Edw. Ch. 79 (6: 578); char, uses. 4; wills. 249-252. Kingsland, Baker b., 3 Edw. Ch. 138 (6: 601). Baker b., 10 Paige Ch. 366 (4: 1013). B. Belts, 1 Edw. Ch. 596 (6: 250); wills, 816^ Cowman b., 4 Edw. Ch. 627 (0: 999). Pearsall «., 3 Edw. Cb. 193 (6: 6;4). B. Rapelye, 3 Edw. Cb. 1 (6: 549); real prop. 12; wills, 133, 195. B. Roberts, 2 Paige Ch. 193 (2: 870); lim. of ac. 37. B. Spalding, 3Biirb. Ch. 341 (5: 925); bankcy. 59; judg. d. & o. 116, 133, 150; plead, 534; prac. 91. Kingston, Trustees of, b. Tappen, 1 Johns. Ch. 368(1:175). Kinney ®. Halsey, 1 Ch. Sent. 87 (5: 1077). B. M'Cullough, 1 Sandf. Ch. 370 (7: 363); action ors. 5, 9; cont. 33; cov. 9, 10; mort. 416; parlies, 21; subr. 43; ven. & pur. 10, 35, 36. TABLE OF CASES DIGESTED. 621 Kinney, Russell v., 10 Paige Ch. 315 (4: 991). Russell v,, 1 Sandf. Ch. 34 (7: 228). Kip, Be, 1 Paige Ch. 601 (2: 767); ev. 109, 255; witn. 5-8, 99. Graff v., 1 Edw. Ch. 619 (6: 268). Kipp, Mower v., 2 Edw. Ch. 165 (6: 354). Mower v., 6 Paige Ch. 88 (3: 908). V. Mutual Fire Ins. Co., 4 Edw. Ch, 86 (6: 807); ins. 27. Ogden v., 6 Johns. Ch. 160(2: 86). Kirby, Harwood v., 1 Paige Ch. 469 (2: 718). •B. Kirby, 1 Paige Ch. 261, 565 (2: 639, 754); husb. & w. 333, 340, 341, 416, 417. •«. Schoonmaker, 3 Barb. Ch. 46 (5: 809); part. 36-40, 59-61. «.. Taylor. 6 Johns. Ch. 242 (2: 113); guard, w. 7l, 72; plead. 279, 898; release, 1, 2. ®. Thompson, 6 Johns. Ch. 79 (2:60) plead.79. «. Turner, Hopk. Ch. 309 (2: 432); joint d. 8; guard. & w. 42, 73-76, 81-86. IKirk, Eastburn «., 1 Johns. Ch. 444 (1 : 203). Eastburn «., 2 Johns. Ch. 317 (1: 393). «. Hodgson, 2 Johns. Ch. 550 (1:486); witn. 84. «. Hodgson, 3 Johns. Ch. 400 (1: 662); cont. 87; part. 12. £;irkland, French®., 1 Paige Ch. 117 (2: 583). Klrkpajrick, Bradt v., 7 Paige Oh. 68 (3: 60). V. Gibbons, 3 Ch. Sent. 13 (5: 1104). Kirtland, Everson v., 4 Paige Ch. 628 (3: 581). Kissam, Geer v., 3 Edw. Ch. 129 (6: 598). Kitchen v. Lee, 11 Paige Ch. 107, 4 Oh. Sent. 25 (5: 73, 1143); infants, 17-19. Kittle «. Van Dyck, 1 Sandf. Oh. 76 (7: 246); dower, 26, 28; mort. 245; parties, 172. Klines. L'Amoureux, 2 Paige Ch. 419(2: 971); infants, 7, 8. £napp V. Alvord, 10 Paige Oh. 205; 3 Ch. Sent. 21 (5: 1108, 4: 945); power, 16; prin. & a. 2, 3, 51. Knapp V. Burnham, 11 Paige Ch, 330; 4 Ch Sent. 65 (5: 153, 1157); mort. 816, 319, 388; set-oft, 53, 70, 74. Guion v., 6 Paige Ch. 35 (3: 888). "White «., 8 Paige Ch. 173 (4: 389). Kneeland, Staley »., Clarke Ch. 30 (7: 43). Knickerbacker v. Boutwell, 2 Sandf. Ch. 319 (7: 609); costs. 205; courts, 64-65; mort. 186; real prop. 93. V. Brintnall, 2 Barb. Ch. 71 (5: 560); app. 216-218. Bryan v., 1 Barb. Ch. 409 (5: 435). «. De Freest, 2 Paige Ch. 804 (2: 918); in- fants, 150-155, 171, 172. V. Harris, 1 Paige Ch. 209 (2: 619); cont. 62; costs, 10; ev. 840; prac. 141. Knight V. Weatherwax, 7 Paige Ch. 182 (4: 116); wills, 261, 271. Kniskero v. Lutheran Churches, etc., 1 Sandf. Ch. 439 (7: 888); char. uses. 24r-26, 28; ev. 18; relig. soc. 26-31, 85; vis. V. Smith, 4 Johns. Oh. 9 (1: 745). Knowles«. McCamlv, 3 Oh. Sent. .57 (5: 1118). V. McCamlv, 10 Paige Oh. 842 (4: 1003); cont. 123; husb. & w. 103-105; spec, p; 72-74. Kobbi V. Underbill, 3 Sandf. Ch. 277 (7: 851); check, 1: equity, 87; pay. 2. Kohler d. Kohler, 2 Edw. Ch. 69 (6: 311); jud. sale, 40. Kortright v. Smith, 3 Edw. Ch. 402 (6: 704); parti. 40. ' «. Sterling, 6 Ch. Sent. 28 (5: 1202). Kosboth, Norton o., Hopk. Oh. 101 (2: 357). Kuypers v. Reformed Dutch Church, 6 Paige Ch. 570 (3: 1106); discov. 20; plead. 577, 661, 662, 666, 689. Kyle V. Auburn & R. R. Co., 2 Barb. Ch. 489, 1 Ch. Sent. 87 (5: 726, 1077); dam. 15, 16; injunc. 206; railr. 6-10. Xady Superior, etc. v. McNamara. 3 Barb. Ch 375 (5: 939); ev. 44 ;deed, 8, 9; mort. 114 -116. XaFarge, De Carters «., I Paige Oh. 574 (3: 7S8). Decaters «., 2 Paige Ch. 411 (2: 967). LaPayette Bank, Bank Commissioners v., 4 Edw. Ch. 287 (6: 881). Laflin v. Relyea, 7 Paige Oh. 368 (4: 192); exec. 37. Xa Grange ®. L'Amoureux, 1 Barb. Oh. 18, 5 Oh. Sent. 26 (5:- 282, 1174): trusts, 7, 244, 246. V. Merrill, 3 Barb. Oh. 625, 6 Ch. Sent. 40 (5: 1085, 1205); judg. d. & o. 290. Xaight ■». Pell, 1 Edw. Oh. 577 (6: 253); jud. sale, 86. Laimbeer, Blackett v., 1 Sandf. Oh. 366 (7: 862). Lain v. Lain, 4 Ch. Sent. 12 (5: 1188). V. Lain, 10 Paige Oh. 191, 8 Ch. Sent. 17 (4: 989, 5: 1105); app. 19, 20. Lakens «. Fielden, 11 Paige Ch. 644, 5 Oh. Sent. (No. 8) 10 (5: 265, 1169); dep. 28; plead. 189, 665. Lambert, Ensworth v., 4 Johns. Oh. 605 (1: 951). Hamersly «., 2 Johns. Oh. 432, 508 (1: 437, 467. Merritt «., Hoff. Ch. 166 (6: 1103). Merritt v., 7 Paige Oh. 344 (4: 182). Merritt B., 10 Paige Oh. 352 (i: 1007). Shirley v., 3 Edw. Ch. 336 (6: 680). L'Amoureux v. Crosby, 2 Paige Oh. 422 (2: 972); incomp. pers. 68-70, 76, 77, 91, 92; infants, 137. La Grange v., 1 Barb. Oh. 18, 5 Ch. Sent. 26(5:282, 1174). V. Vandenburgh, 7 Paige Oh. 316 (4: 171); estop. 36-38; mort. 123. Kline v., 2 Paige Oh. 419 (2: 971). V. Van Rensselaer, 1 Barb. Ch. 34, 5 Ch. Sent. 27 (5:288, 1175); cred. bill, 196- 198; husb. & w. 132; trusts, 245, 252, 253 V. Woodworth, 2 Ch. Sent. 69 (5: 1097). Lampman v. Hand, 4 Paige Ch. 120 (3: 869) costs, 604-606. Lance, Brandreth «., 8 Paige Oh. 24 (4: 330). Land v. Wicuham, 1 Paige Oh. 256 (2: 637) prac. 201-204. Lane, He, 1 Edw. Oh. 349 (6: 167); dower. 48 V. Clark, Clarke Ch. 809 (7: 128); injunc. 95. 622 TABLE OF CASES DIGESTED. Lane, Galliano «., 2 Sandf. Ch. 147 (7: 543). B. Morrel, 3 Edw. Ch. 185 (6: 620); assess. 5. «. Stebbins, 2 Ch. Sent. 55 (5: 1093). V. Stebbins, 3 Edw. Ch. 480 (6: 733). ®. Stebbins, 9 Paige Ch. 622 (4: 84); disoov. 6, 82. 84, 35, 66. Langdon, Jermain v., 8 Paige Ch. 41 (4: 337) Lansing, Ee. 3Paige Ch. 265 (8: 147); infants, 51, 52, 66. V. Albany Ins. Co., Hopk. Ch. 102 (2: 857); review, 9. Albany Ins. Co. «., 7 Johns. Ch. 142 (2: 248). Baxter v., 7 Paige Ch. 350(4: 184). Brinclierhofl v.. 4 Johns. Ch. 65(1: 765). V. Capron. 1 Johns. Ch. 617 (1: 267); mort. 300, 301. V. Caswell, 4 Paige Ch. 519 (8: 543); highw. 10-14. V. Eddy, 1 Johns. Ch. 49 (1: 55); exec. 40; injiinc. 136, 152; 1.'53; usury, 172. V. EastoD, 7 Paige Ch. 364 (4: 190); cont. 55- 57;injunc. 390, 391. Elmendorf v., 4 Johns. Ch. 562 (1: 937). V. Ferguson, 1 Ch. Sent. 1 (5: 1051); costs, 17. Goelet v., 6 Johns. Ch. 75 (2: 59). Innes v., 7 Paige Ch. 583 (4: 284). Ludlow v., Hopk. Ch. 231 (2: 404). v. M'Pberson, 3 Johns. Ch. 424 (1: 671); Judg. d. & o. 322; mort. 449, 450. e. North River Steamboat-Co., 7 Johns. Ch. 162 (2: 255); injunc. 183. B. Pine, 4 Paige Ch. 639 (3: 591); discov. 18, 19; parti. 2, 3: plead. 711. V. Russell, 3 Barb. Ch. 325 (5:919); ev. 94, 95, 197, 198. V. Starr, 2 Johns. Ch. 150 (1: 827); Urn. of ac. 32, 36. Tenbiook D., 4 Johns. Ch. 601 (1: 950). Whipple v., 3 Johns. Ch. 612 (1: 734). V. Woodworth, 1 Sandf. Ch. 43 (7: 231); in- solv. & a. for cr. 103; judg. d. & o. 3. Lansingh, Meads b., Hopk. Ch. 124 (2: 365). Larkin a. Mann, 2 Paige Ch. 27 (2: 798); in- fants, 139; parti. 44-49, 72. La Roque «. Davis, 2 Edw. Ch. 599 (6: 518) plead. 125. Lasala u. Holbrook, 4 Paige Ch. 169 (8: 890) eas. 7-9; injunc. 40. Lasher, He, 2 Barb. Ch. 97, 6 Ch. Sent. 56 (5 571, 1212); incomp. pers. 14. Smith v., 5 Johns. Cn. 247 (1: 1072). Lateon, Baldwin v., 2 Barb. Ch. 306 (5: 653). Latting d. Hall, 1 Ch. Sent. 85 (5: 1076); prac. 200. V. Hall, 9 Paige Ch. 383 (4: 741); olead. 126. prac. 200. e. Latting, 4 Sandf. Ch. 81 (7: 1012); plead. 311—818 Laurie v. Laurie, 1 Ch. Sent. 53 (5: 1067). e. Laurie, 9 Paige Ch. 234 (4: B81); injunc. 6-8, 247, 884; hush. & w. 876; par. & c. 13. Law, Briggs v., 4 Johns. Ch. 22 (1: 750). V. Ford, 2 Paige Ch. 310 (2: 921); part. 18; receiv. 50, 51. Lawrence v. Bayard, 7 Paige Ch. 70 (4: 65); as- sign. 12; expect. 1. Besley »., 11 Paige Ch. 581 (5: 240). V. Bolton, 6 Paige Ch. 294 (3: 159); plead. 255, 847; writ & p. 8-10. BrlnckerhofE v., 2 Sandf. Ch. 400 (7: 640). Clason J>.. 3 Edw. Ch. 48 (6: 566). Lawrences. Cornell, 4 Jo'ins. Cii. 512, .'54-"^ 930 (1: 931); contrib. 22; julg. d. & <•. 68; mort. 885. «. Dakin, 1 Ch. Sent. 29(5:1059); wit. 1. V. Dale, 3 Johns. Ch. 23 (1: 529); coat. 92j part. 14. Delaphaine v., 10 Paige Ch. 602 (4: 1109;. Frith v.. 1 Paige Ch. 434 (2: 705). V. Greenwich Fire Ins. Co. 1 Paige Ch. 58T (2: 762); receiv. 59. D. King, 8 Sandf. Ch. 192 (7: 821). ■0. Lawrence, 3 Barb. Ch. 71, 6 Ch. Sent. 6T (5: 821, 1215): ex. & ad. 121, 467-470; mort. 211-218. e. Lawrence, 1 EJw. Ch. 241, 557 (6: 124, 245); int. 36, 37; wills, 232. o. Lawrence, 4 Edw. Ch. 234 (4: 691); int. 88; plead. 45, 57. 488, 552. ®. Lawrence, 3 Paige Ch. 267 (3: 148); costs^ 811; husb. & w. 266. 381, 883. Leake & Watts Orphan House v.', 11 Paige- Ch. 80, 4 Ch. Sent. 17 (5: 63); 1140). V. McEvers, 2 Ch. Sent. 25(5: 1087). McEvers «., HofE. Ch. 172 (6: 1105). Mactier v., 7 Johns. Ch. 206 (2: 269). B. Muiray, 3 Paige Ch. 400 (8: 205); int. 72; judg. sale, 112; pay. 14, 15. Lawson, Van Benschooten v., 6 Johns. Cb. 313 (2: 136). Lawton v. Levy, 2 Edw. Ch. 197 (6: 366); fraud conv. 47, 48; insolv. & assign. 173; part. 67. V. Reed, 4 Ch. Sent. 50 (5: 1151). Lawyer v. Cipperty, 7 Paige Cli. 381(4: 156); relig. soc. 41-47; parties, 129. Laytin, Champlin «., 1 Edw. Cli. 467 (6: 213). Ohamplin v., 6 Paige Ch. 189 (3: 930). Leacrafts. Demprey, 4 Paige Ch. 124 ^: 871); plead. 838. 839, 899. Leake & Walts Orphan House v. Lawrence, 11 Paige Ch. 80, 4 Cb. Sent. 17 (5: 93, 1140); app. 187; int. 86; joint d. 12; judg. d. o. 164, 165; lim. of ac. 18, 19; part. 76, 78. Leary, McSorley «., 4 Sandf. Ch. 414 (7: 1154) New York Fire Ins. Co. c, 6 Paige Ch. 511 (3:1081). Padgett®., 10 Paige Ch. 170 (4: 931). D. Reed, 4 . Ch. Sent. 17 (5: 1140). Smith ».. 11 Paige Ch. 206 (5: 109). WalU 0., 8 Paige Ch. 159 (3: 97). Leather Mfrs. Bank, Dykers «., 11 Paige Ch. 612 (5: 252). Leavenworth, Wardell v., 3 Edw. Ch. 244 (6:642). LeavittB. Baldwin, 4 Edw. Ch. 289 (6:882); bankcy. 61. V. Cruger, 1 Paige Ch. 421 (2: 700); writ & p. 25, 26. Curtis v., 4 Edw. Ch. 246 (6: 867). Curtis v., 11 Paige Ch. 386 (5: 172). B. De Launay,4 Ch. 281, 480;(7: 11&5, 1179); act. or s. 17; deposit & pay. into c. l-6r usury, 25, 44, 153, 154. Handy v., 3 Edw. Ch. 229 (6: 637). Muir B., 3 Barb. Ch. 477 (5: 978). Shaw B., 3 Sandf. Ch. 163 (7: 8)9). B. Tylee, 1 Sandf. Ch. 207 (7. 298). corp. 202; lis pend. 18 B. Yates, 4 Edw. 134 (6: 828); bks. & bkg. 36, 41, 03; corp. 88, 68; costs, 169, 170; equity, 94; injunc. 24; plead. 632. B. Yates, 4 Ch. Sent. 9 (5: 113';^. TABLE OP CASES DIGESTED. 623 Le Breton c. Miles, 8 Paige Ch. 261 (4: 422); confl. of 1. 40, 41; husb. & w. 45-47). Ledyard v. Butler, 1 Ch. Sent. 34 {5: 1061). e. Butler, 9 Paige Ch. 132 (4: 637); mort. 70, 71, 83; real prop. 46; ven. & pur. 129. Lee, Congden v., 3 Edw. Ch. 303 (6: 667). Cook v., 6 Paige Ch. 158 (3: 938). «. Highland Bank, 2 Sandf. Ch. 311 (7: 606), ex. & ad. 227; prin. & sur. 10. «. Hunter, 1 Paige Ch. 519 (2: 738); attach. 4-7; fraud, conv. 58. V. Huntoon, Hoff. Ch: 447 (6: 1203); ev. 258, 259; dep. 30; fraud, conv. 8, 9; mort. 537. Kent »., 2 Sandf. Ch. 105 (7: 227). Kitchen «., 11 Paige Ch. 107 (5: 73). «. Porter, 5 Johns. Ch. 268(1: 1079); estop. 44; mort. 287-289. ». Woddle, 1 Ch. Sent. 77 (5: 1074). Leefe, Be, 2 Barb. Ch. 39, 5 Ch. Sent. 41 (5: 548; 1180); chan. 3, 4. 4 Edw. Ch. 395 (6:917); aliens, 30, 31; husb. & w. 189; offic. 5. Leet, Post v., 8 Paige Ch. 337 (4: 451). Le Forte s. Delafield, 3 Edw. Ch. 32 (6: 560); parties, 163; trusts, 114. Leggett V. Boorum, 2 Edw. Ch. 630 (6: 530); cred. bill. 169. «. Dubois, 1 Paige Ch. 574 (2: 757); iniunc. 357, 358. e. Dubois, 2 Paige Ch. 211 (2: 879); reviv. 49 50—62 90 r. Dubois, 3 Paige Ch. 477 (3: 238); ref. 18. V. Dubois, 5 Paige Ch. 114 (3: 649); alien. 32, 40, 41; desc. & dist. 3; trusts, 53, 54, 56. e. Edwards, Hopk. Ch. 530(2:512); costs, 264; equity, 124, 125; ven. & pur. 15- 19. e. Hopkins, 7 Paige Ch. 149 (4: 102); cred, bill, 31, 32. «. M'Carly, 3 Edw. Ch. 124- (6: 596); ven. & pur. 65, ee. B. Postley, 2 Paige Ch. 599 (2: 1046); consp. discoT. 26; plead. 384. V. Sellon, 3 Paige Ch. 84 (3: 67); infants. 109, 110. Leiber. Caldwell v., 7 Paige Ch. 483 (4: 240). Canajoharie & Palatine Church v., 2 Paige Ch. 43 (2: 805). Leitch®. Cumpston, 4 Paige Ch. 476 (3: 522); judg. d. & o. 61, 72. Lemar, Atlantic Ins. Co. v., 10 Paige Ch. 385, 505 (4: 1022, 1069). Lent, Eagle Fire Co. v., 1 Edw. Ch. 301 (6: 148). Eagle Fire Co. v., 6 Paige Ch. 635 (3: 1132). Lentiihon v. Moffat. 1 Edw. Ch. 451 (6: 206); cred. bill, 94-96; insolv. & assign. 21, 49, 50. Lenox, Dowdall v., 2 Edw. Ch. 267 (6: 306). Mitchell v., 1 Edw. Ch. 428 (6: 197). Mitchell v.. 2 Paige Ch. 280 (2: 907). Leonard v. Crommelin, 1 Edw. Ch. 206 (6:112); elec. 3, 3; wills, 388. 0. Jamison, 2 Edw. Ch. 136 (6: 339); rem. of cause, 8. «. Morris, 1 Ch. Sent. 31 (5: 1060); exec. 9. V. Morris, 9 Paige Ch. 90 (4: 620); costs, 540; ex. & ad. 172, 430; mort. 243, 244, 247, 405. Pitney v., 1 Paige Ch. 461 (2: 715). Leonard, Quackenbush e., 9 Paige CL. 334 (4: 722). Quackenbush «., 10 Paige Ch. 131 (4; 915). Le Ray De Chaumont, De Caters v., 3 Paige Ch. 178 (3: 105). LeRoy, Bailey v., 2Edw. Ch. 514 (6: 487). Benson v., 4 Johns. Ch. 651 (1: 969). Benson v.. 1 Paige Ch. 122 (2: 585). c. Globe Insurance Co., 2 Edw. Ch. 657 (6: 540); corp. 114. Grandino., 2 Paige Ch. 509 (2: 1009). V. Joseph, 4 Ch. Sent. 61 (5: 1155). e. New York Corporation, 4 Johns. Ch. 352(1:865); assess. 14; equity, 28. V. Piatt, 4 Paige Ch. 77 (3: 350); deed, 26, 27; eq. 56; trust, 291. 0. Rogers, 3 Paige Ch. 234 (3: 132); cred. bill, 211-214. Leslie, Burrall v., 6 Paige Ch. 455 (3: 1055). Levy, Lawton v., Edw. Ch. 197 (6: 366). Mechanics' Bank v., 1 Edw. Ch. 316 (6: 154). Mechanics' Bank v., 3 Paige Ch. 606 (6 : 292). Mills »., 2 Edw. Ch. 183 (6: 361). Ridabock v., 8 Paige Ch. 197 (4: 397). «. Welsh, 2 Edw. Ch. 438 (6: 459); mort. 538. Lewis, Doolittle v., 7 Johns. Ch. 45 (2: 215). Elliott v.. 3 Edw. Ch. 40 (6: 563). 9. Germond, 1 Paige Ch. 300 (2: 655); costs, 197. u J . A ., 4 Edw. Ch. 599 (6: 989); atty. & sol. 47-49. V. Lewis. 3 Johns. Ch. 519 (1: 703); husb. & w. 352. Wendell v., 5 Paige Ch. 233 (5: 987). Wendell «., 6 Paige Ch. 613 (4: 563). V. Wilson, 1 Edw. Ch. 305 (6: 149); set-off. 24- 25. Life & Fire Ins. Co., Attorney General «., 4 Paige Ch. 224 (3: 413). Attorney General v., 9 Paige Ch. 470 (4: 780). Lindo, Fryatt v., 3 Edw. Ch. 289 (6: 641). Lindsay v. Hyatt, 4 Edw. Ch. 97(6: 810); lim. of ac. 6, 7. V. Jackson, 2 Paige Ch. 581 (2: 1038); setoff. 1, 2, 75-77. Llndsey v. Hunn, 3 Ch. Sent. 24 (5: 1108). Linsman v. Stevens, 5 Ch. Sent. 37 (1178). Little v. Barker, Hoff. Ch. 487 (6: 1218); pledg. & col. sec. 6; usury, 110, 113. Sloan v., 3 Paige Ch. 103 (3: 75). Littlefield, Cunningham b.,1 Edw. Ch. 104(6: 76). Littlejohn v. Munn, 3 Paige Ch. 280 (3: 153); plead. 106-108. Livingston, Be, 2 Ch. Sent. 3 (5: 1079). 1 Johns. Ch. 436 (1: 200); injomp. pers. 38. 9 Paige Ch. 440 (4: 767); incomp. pers. 43, 44, 54. «. Clarkson, 4 Edw. Ch. 596 (6: 988); parti, 66, 67. s. Dean, 2 Johns. Ch. 479 (1: 457); assign. 9, 10. V. Freeland, 3 Barb.Ch. 510 (5: 991); annuity, 20-22; judg. d. & o. 80. V. Gibbons, 4 Johns. Ch. 48, 94, 571, 759(1: 776, 941); appear. 4-7; injunc. 29, 374; prac. 3; rem. of cau. 1-3. V. Gibbons, 5 Johns. Ch. 250 (1: 1073); in- junc. 373. «. Harris, 3 Paige Ch. 528 (3: 261); discov. 75, plead. 695; usury, 146, 147; witn. 4. €34 TABLE OF CASE3 DIGESTED. Livingston, HofEman, IJohns. Ch. 311(1:116). V. Hubbs, 2 Johns. Cli. 512 (1: 469); judg. d. & o. 230-221. 347. Hubbs, 3 Johns. Ch. 124 (1: 563); review, 10- 13. V. Kane, 3 Johns. Ch. 224 (1: 660); action ors. 20;injunc. 268. Keisselbrack v., 4 Johns. Ch. 144 (I: 795). V. Livingston, 2 Johns. Ch. 537 (1: 479); husb. & w. 165-167; trusts, 281. «. Livingston. 3 Johns. Ch. 51, 148, (1: 539, 573); ex. & ad. 333-337; plead. 474; wills, 66, 67. Livingston, 4 Johns. Ch. 287, 394 (1: 842, 845); ev. 75; land. &ten. 57, 58: lim. of ac. 29, 30; plead. 127, 678; prac. 13; set- off, 20, 21. «. Livingston, 6 Johns. Ch. 497 (2: 196); in- junc. 61, 62. V. Livingston, 4 Paige Ch. Ill (3:365); in- junc. 194; plead. 193. «. Lynch, 4 Johns. Ch. 573 (1: 941); asso. 5- 7, 9; part. 10. v. Newkirk, 3 Johns. Ch. 312 (1: 630); desc. & dist. 5, 6; ev. 56; ex. & ad. 64, 230, 331, 380, 381; wills, 333, 335. «. Ogden, 4 Johns. Ch. 48 (1 : 759); injunc. 186; state, 1, 2. D. Oslrander, 3 Barb. Ch. 416 (5: 955). V. Peru Iron Co., 3 Paige Ch. 390 (3: 956); traud. 5, 8; parlies, 67, 84; spec. p. 28. Reade v., 3 Johns. Ch. 481 (1: 690). Schmidt «., 3 Edw. Ch. 213 (6: 631). Steamboat Company v., Hopk. Ch. 139 (2: 374). V. Stickles, 8 Paige Ch. 398 (4: 478); cont. 2; cov. 2; land. & ten. 6, 7. Ten Broeck «., 1 Johns. Ch. 357 (I: 170). V. Thompkins, 4 Johns. Ch. 415 (1: 887); const. 1. 1, 2; eq. 128-131; plead. 383; wat. & w. cos. 7. Weaver v., Hopk. Ch. 595 (2: 536). V. Woolsey, 4 Johns. Ch. 365 (1: 870); prac. 75. Woolsey v., 5 Johns, Ch. 365 (1: 1078). Lloyd V. Brewster, .4i Paige Ch. 537(3:551); action or s. 15, 29; plead. 11. 210; sale, 29 Brewster, 5 Paige Ch. 87(3: 639); costs, 501, 543, 544, 559, 573-575. Locke, Bell v., 8 Paige Ch. 75 (4: 350). Lockwood V. Benedict, 3 Edw. Ch. 473 (6: 739); mort. 328. Ellas v., Clarke Ch. 311 (7: 138). V. Stockholm, 11 Paige Ch. 87, 4 Ch. Sent. 15 (5: 66, 1139); ev. 17; ex. & ad. 339; husb. & w. 30, 63; wills, 446. Williams v., Clarke Ch. 172 (7: 83). Loder, Cleveland v., 7 Paige Ch. 557 (4: 263). De Luze v., 3 Edw. Ch. 419 (6: 710). Lofsky k Maujer, 3 Sandf. Ch. 69 (7: 773); re- ceiv. 107, 108. Logan D. Deshay, Clarke Ch. 209 (7: 91); wills, 480. Long «. Majestre, 1 Johns. Ch. 202, 805 (1: 113, 150); costs, 303; debtor &c. 5; part. 109; parties, 88. Longfellow v. Longfellow, Clarke Ch. 344 (7: 138); husb. & w. 391; judg. d. & o. 95, 314. Long Island R. Co.. Be, 3 Edw. Ch. 487 (6: 735); fences; railr. 12-14. Hodgkinson v., 4 Edw. Ch. 411 (6: 923). Long Island R. Co.. Pitkin o., 2 Barb. Ch. 221 (5:623). V. Smyth. 3 Ch. Sent. 56 (5: 1118). Longley, Strange v., 3 Barb, Ch. 650 (5: 1044). Looker, Burras v., 2 Edw. Ch. 499 (6: 481). BurrasB., 4 Paige Ch. 227 (3: 415). Loomer, Wheelright v., 4 Edw. Ch. 232 (6: 862). v. Wheelright, 3 Sandf. Ch. 135 (7: 800); ev. 65; husb. & w. 153; judg. d. & o. 310, 352; marsh, of a. & s. 24; merger, 1; mort. 185, 415; subr. 36, 89. Loomis, Re, 3 Ch. Sent. 91 (5: 1129). Greenwich BankB., 2 Sandf. Ch. 70 (7: 513). National Fire Ins. Co. ■»., 11 Paige Ch. 431 (5: 187). D. Spencer, 2 Paige Ch. 153 (2: 853); Incomp. pers. 88-90. «. Stuyvesant. 3 Ch. Sent. 93 (5: 1130). «. Stuyvesant, 10 Paige Ch. 490 (4: 1063); es- top. 28; judg. d. & o. 207; mort. 264, Lord, Palmer «.. 6 Johns. Ch. 95 (2: 65). V. Underdunck, 1 Sandf. Ch. 46 (7: 334); cont. 48; parties, 16. 82; prac. 247; spec, p. 110; ven. &pur. 12. Lorlllard v. Coster, 5 Paige Ch. 172 (3: 674); eq. conv. 13, 13; perpetu. 3, 4, 51; trusts, 136; wills, 134, 177, 506. M'Dermut v., 1 Edw. Ch. 273 (6: 136). v. Robinson, 2 Paige Ch. 276 (2: 904);atty. & sol. 54-56. Lorton «. Seaman, 2 Ch. Sent. 46 (5: 1091); cont. 6. V. Seaman, 9 Paige Ch. 609 (4: 836); costs, 298, 310; plead. 83. Losee, Jackson »., 4 Sandf. Ch. 381 (7: 1143). Loud B. Sergeant, 1 Edw. Ch. 164 (6: 98): bonds, 15; judg. d. & o. 343; subr. 22; plead. 368. Loveland o. Burnham, 1 Barb. C!i. 65, 5 Ch, Sent. 34 (5: 302, 1177); injunc. 357, 360- 363. Lovett V. Buloid, 3 Barb. Ch. 137 (5: 847); wills, 367-371. Cowman «., 10 Paige Ch. 559 (4: 1090). V. Dimond, 4 Edw. Ch. 33 (6: 785): pay. 1 usury, 88. V. Steam Sawmill Asso. 6 Paige Ch. 54 (3: 896); acknowl. 6; corp. 57, 58: ev. 109. Tallmadge «., 3 Edw. Ch. 563 (6: 763). Low, Gorman «., 2 Edw. Ch, 334(6: 416). Townsend v., 4 Edw. Ch. 249 (6: 869). Lowe, Smith ■b., 1 Edw. Ch. 33 (6: 49). Lowene v. American Fire Ins. Co. 6 Paige Ch. 482 (3: 1070); corp. 177, 178, 188. Lowerre, Coope v., 1 Barb. Cb. 45 (5: 393). Corning »., 6 Johns. Ch. 439 (2: 178). Lowry v. Chautauque County Bank, Clarke Ch. 67 (7: 53); injunc. 337; usury, 13. 13, 95. S.Morrison, 11 Paige Ch. 327, 4 Ch. Sent. 67 (5: 152, 1157); bankcy. 65; cred. bill, ' 131, 139. Smith «., 1 Johns. Ch. 320 (1: 156). V. Tew, 3 Barb. Ch. 407 (5: 953); cont. 55. 56; mort. 473; plead. 499. Luce r>. Graham, 4 Johns. Ch. 170 (1: 804); plead. 175, 176. Luce V. Hinds, Clarke Ch. 453 (7: 169); judg. d. & o. 11; usury, 103. Ludlow D. Lansing. ' Hopk. Ch. 331 (3:404); exec. 15; mort. 416. TABLE OF CASES DIGESTED. 635 Ludlow D. Maddook, 1 Ch. Sent. 30 (5; 1057); incomp. pers. 110; in.iunc. 355. Morton v., 1 Edw. Oh. 639 (6: 275). Morton v., 5 Paige Ch. 519(3: 813). Rogers v., 3 Sandf. Ch. 104 (7: 788). Ludlum, March »., 3 Sandf. Ch. 85(7: 760). Lumberman's Bank, Crosby v., Clarke Ch. 334 (7: 101). Fenton v., Clarke Ch. 286, 360 (7: 116, 148). Lunar, Atlantic Ins. Co. v., 1 Sandf. Ch. 91 (7: 252). Lupin V. Marie, 3 Paige Ch. 16U(3: 859); costs, 301; sale, 13-15, 19-33. Lupton V. Cornell, 4 Johns. Ch. 363 (1: 884); real prop. 87. «. Johnson, 2 Johns. Ch. 429 (1: 436); produc. & inspec. of b. & p. 23. o. Lupton, 3 Johns. Ch. 614 (1:513); ex. & ad. 349, 306-309; Int. 33, 34; wills, 431, 423; wit. 37. 28. Tuthill v., 1 Edw. Ch. 564 (6: 348). Lutheran Churches, etc., Kniskern v., 1 Sandf. Ch. 489 (7: 888). Lyde, Edmeston «., 1 Paige Ch. 637 (3: 781). Lylburn, Murray v., 3 Johns. Ch. 441(1: 440). Lyman v. Sale, 1 Johns. Ch. 487 (1: 460); mort. ^357. 9. United Ins. Co. 2 Johns. Ch. 630 (1: 519); ev. 303, 308. Lynch, Be, 5 Paige Ch. 120 (3: 652); habitual d. 1-3. V. Benedict, 1 Johns. Ch. 370 (1: 175). Lynch, Brown v., 1 Paige Gb, 147 (3: 595). V. Clarke, 1 Sandf. Ch. 58^ (7: 443); aliens. 1-15, 39; common 1.; desc. & dist. 4. Gouverneur o., 3 Paige Oh. 330 (3: 916). Livingstons.. 4 Johns. Ch. 578 (1: 941). Stoughton «., 1 Johns. Ch. 467 (1: 311). Stoughton »., 3 Johns. Ch. 309 (1: 351). [Jtica Ins. Co. v., 3 Barb. Oh. 573(5: 758). Utica Ins. Co. ■»., 3 Paige Ch. 310 (3: 120). Utica Ins. Co. v., 11 Paige Ch. 580 (5: 319). e. Willard, 6 Johns. Ch. 843 (2: 145); atty. & sol. 53; plead. 139. Lynde v. Budd, 3 Paige Ch. 191 (3: 868); in- fants, 20-34. V. Lynde, 3 Barb. Ch. 73 (5: 561). 0. Lynde, 4 Sandf. Oh. 373 (7: 1188); husb. & w. 317. Lynds. Jones v., 7 Paige Oh. 301 (4: 165). Lyon®. Brooks, 3 Edw. Oh. 110(6: 339); plead. 486. V. Duncan, 8 Johns. Oh. 351 (1: 644). V. Gill, 1 Johns. Oh. 447 (1: 304). 0. Merritt, 6 Paige Ch. 473 (3: 1066); app. 266. o. Richmond, 2 Jouns. Oh. 51 (1: 892); cont. 138; ignorance of 1. 1; mistake, 71. V. Tallmadge. 1 Johns. Ch. 184 (l:l07); plead. 168, 169, 396. Lyons. Bates v., 7 Paige Ch. 85 (4: 76). Lytle, Be, 3 Paige Ch. 851 (3: 140); costs, 31; incomp. pers. 47. Lyttle, Moore v., 4 Johns. Ch. 183 (1: 808). M. McArthur v. Hoysradt. 11 Paige Ch. 495, 5 Ch. Sent. 3 (5: 310, 1164); cred. Mil, 79. 136; fraud, conv. 70; judg. d. & o. 14. MoAuley «. Knickerbocker, 6 Ch. Sent. 13 (5: 1196). McBride o. Mayor, etc.. of N. Y.. 1 Ch. Sent. 82 (5: 1075). Millspaugh v., 7 Paige Oh. 509 (4: 250). McCabe B. Oooney. 3 Sandf. Ch. 314 (7: 608); bankcj', 50; plead. 543-545. McCahill, Hamlin v., Clarke Ch. 349 (7: 106). McOamly. Knowles v., 10 Paige Ch. 343 (4: 1003). McOamraon v. Worrall, 11 Paige Oh. 99, 8Ch. Sent. 100 (5: 70, 1133); app. 268; costs, 83; jud. sale. 60; marsh, of a. & s. 17. McCan, Miller »., 7 Paige Ch. 451 (4: 227). MoCartee v. Camel, 1 Barb. Ch. 455, 6 Ch. Sent. 9 (5: 453, 1195); ev. 30-36, 41; ex. & ad. 185; lim. of ac. 64. Orphan Asylums., Hopk. Ch. 106, 372, 439 (2: 359, 455. 475). ®. Teller, 3 Paige Ch. 511 (3: 1011); dower, 59-74. McCarthy e. Graham, 1 Ch. Sent. 7 (5:1053). s. Graham, 8 Paige Ch. 480 (4: 511); mort. 404 M'Oarty, Leggett o., 3 Edw. Ch. 124 (6: 596). McClean, ifo, 6 Johns. Ch. 440(3:178); incomp. per. Charrier, 5 Paige Ch. 530(3: 817); app. 186; atty. & sol. 33, 33; ref. 19, 20. V. Hopkins, Hopk. Ch. 576 (3: 529); app. 272. McLarens. Hopkins, 1 Paige Ch. 18 (2: 545),~ witn. 54-56. «. Pennington, 1 Paige Ch. 102 (3: 577); cont. 129; corp. 21-37, 155; set off, 3, 81. Van Horns d., 8 Paige Ch. 385 (4: 431). McLaughlin, Be, Clarke Oh. 113 (7: 67); hab- itual d. 16; judg. d. & o. 343. M'Lea, Hammond v., 2 Johns. Oh. 493 (1.- 462). M'Lean, Boyd v., 1 Johns. Ch. 583 (1: 254). McLean, Sandford »., 3 Paige Ch. 117 (3: 80). V. Towle, 3 Sandf. Oh. 117 (7: 793); mort. 153-155; subr. 24. McLeod, Bowden »., 1 Edw. Ch. 588 (6: 257). McSlahan, McWhorter v., Clarke Ch. 400 (7: 154). McWhorter v., 10 Paige Oh. 386 (5: 1023). McMennomy, Harrison v., 2 Edw. Ch. 351 (6: 390). M'Menomy v. Murray, 3 Johns. Ch. 435 (1:. 675); bankcy. 4, 51-53; conf. of I. 36; debtor & c. 1: insolv. & a. for cr. 131, 123; fraud, conv. 39. ®. Roosevelt, 3 Johns. Oh. 446 (I: 679); baniicy. 4; debtor & c. 1; fraud, conv. 39. # McMichael, Dows v., 3 Paige Ch. 345 (2: 937). Dows «., 6 Paige Ch. 139 (3: 931). McNamara®. Dwyer, 7 Paige Ch. 239(4: 139); conf. of 1. 9; ex. & ad. 466, 483; ne ex. 45, 62. Lady Superior, etc. v., 3 Barb. Ch. 375 (5: 939). McNaughton, Beatty v., 1 Barb. Ch. 319 (5: 401). McNeil V. McNeil, 3 Edw. Ch. 550 (6: 758)- husb. & w. 244. McNish, Shaw v., 1 Barb. Ch. 326 (5: 403) McNitt, Sniellu, 9 Paige Ch. 101 (4: 624). Macomb, Campbell ©., 4 Johns. Ch. 534 (1- 937). Ray «., 2 Edw. Ch. 165 (6: 353). Renwick v., Hopk. Ch. 277(2: 430). M'Pherson, Lansing v., 3 Johns. Ch. 434 (1- 671). McSorley «. Leary, 4 Sandf. Ch. 414 (7: 1154); perpetu. 33, 33; surro. 18; trust, 336. V. Wilson, 4 Sandf. Ch. 515 (7: 1192)t perpetu. 10, 47. Mactier v. Lawrence, 7 Johns. Ob. 306 (2- 269)- ex. & ad. 198. McVickars. Constable, Hopk. Oh. 102(2:357);. guard. & w. 16. Kings. 3 Sandf. Oh. 192(7: 831). McWhorter®. Agnew, 6 Paige Ch. Ill (3- 919>t husb. & w. 134, 191. ®. Benson, Hopk. Ch. 28 (3: 331); ex. & ad. 365, 370. ' V. McMahan, Clarke Ch. 400 (7: 154); cont 46; spec. p. 67-69. V. McMahan, 3 Ch. Sent. 86 (5: 1128); cont. 43-44. v. McMahan, 10 Paige Ch. 386 (4: 1033); contr. 43-44; ven. & pur. 52. Magee, Cayuga Bridge Co. v., 3 Paige Ch. 116 (2: 837). Dumond v., 3 Johns. Ch. 240 (1: 362). Dumond v., 4 Johns. Oh. 318 (1: 853). Maghee, Field o., 5 Paige Ch. 539 (8: b39). Magoflen®. Palton, 3 Edw. Ch. 65 (6- 572)- wills, 262. ■ Maguire, Graves v., 6 Paige Ch. 379 (3: 1029X TABLE OF CASES DIGESTED. 627 Main, Re, 1 Ch. Sent. 82 (5: 1060). Majestre, Long v., 1 Johns. Ch. 202, 305 (1: U3, 150). Makie, Cairns «., Hoplc. Ch. 9 (2: 324); ref. 93. Malin o. Malin, 2 Johns. Ch. 238 (1: 361); incomp. pers. 1; parties, 22, 42, 43; trusts, 268. Mallet V. Girard, 8 Edw. Ch. 372 (6: 693); appear. 1. Mallory v. Vanderheyden, 3 Barb. Ch. 9 (o: 795); bankoy. 66; cred. bill, 7; eq. 2; husb. &w. 81,40,106,205. Malsby, Farmers Loan & T. Co. ■»., 8 Paige Ch. 361 (4: 462). t. Powers, 3 Uh. Sent. 21 (5: 1106). Manchester «. Dey, 6 Paige Ch. 295 (3: 993); injunc. 395-299. Mancius, Cook®., 3 Johns. Ch. 427 (1: 672). Cook t)., 4 Johns. Ch. 166 (1: 802). Cook «., 5 Johns. Ch. 89 (1: 1019). Hawley «., 7 Johns. Ch. 174 (2: 259). M'lntyre f>., 3 Johns. Ch. 45 (1: 537). MandevlUe, v. Mandeville, 8 Paige Ch. 475 (4: 509); ex. & ad. 92, 93. Manhattan Co. ■». Evertson, 4 Paige Ch. 276 (3: 434); ref. 116; writ & proc. 2, 3. «. Evertson, 6 Paige Ch. 457 (3: 1060); dower, 35; judg. d. & o. 233, 234; mort. 67; plead. 498. «. Greenwich Bank, 4 Edw. Ch. 315 (6:890); mort. 92, 95. Slee®. 1 Paige Ch. 48 (2; 557). Manice v. New York Dry Dock Co., 3 Edw. Cb. 143 (6: 603); usury, 74, 125. Mann v. iSutler, 2 Barb. Oh. 362 (3:675); aeso. 3, 4; parties, 182. e. Cooper, 1 Barb. Ch. 185, 5Ch. Sent. 44 (5: 348, 1181); mort. 408; witn. 45-47. t. Exrs.of Mann, 1 Johns. Ch. 231(1: 123); ev. 141; money; wills, 219. Larkin v., 2 Paige Ch. 27 (2: 798). e. Pentz, 2 Sandf. Ch. 257 (7: 584); corp. 122- 125, 195-198; ev. 88; receiv. 109, 110, 164, 165. 167, 168, 176. e. Pratt, 2 Sandf. Ch. 257 (7: 584). «. Rice, 3 Barb. Ch. 42 (5: 807); costs, 219, 220, 361, 877, 447-449, 451, 462, 477, 488, 496. Storm u., 4 Johns. Ch. 21 (1: 750). Mannahan.Freelandi)., Hopk. Oh. 276 (2: 420). Manning, Dodge «., 11 Paige Ch. 334 (5: 155), Manning, 1 Johns. Ch. 527 (1: 234); costs, 99; ex. & ad. 868, 369; int. 55; trusts, 237. V. Merrilt, Clarke Oh. 98 (7: 62); cred. bill, 23, 24; Stat. 15. New York Life Ins & T. Co. «., 3 Sandf. Ch. 58 (7: 768). Sififkin v., 4 Edw. Ch. 37 (6: 790). Siflfkin «., 9 Paige Ch. 222 (4: 676). Spofford v., 2 Edw. Cb. 358 (6: 429). SpofEord v.. 6 Paige Oh. 383 (3: 1030). Manny «. Philips, 1 Paige Ch. 472 (3: 719); costs, 89-91; debtor and c. 9. Many v. Beekman Iron Co., 1 Oh. Sent. 40 (5: 1063); plead. 201. e. Beekman Iron Co., 9 Paige Oh. 188 (4: 661); cont. 126; corp. 56, discov. 56, 60; parties, 138; plead. 301, 594, 700. Mapes V. Coffin, 5 Paige Ch. 296 (3: 725); app. 240, 241; cred. bill. 271. Davis v., 2 Paige Ch. 105 (2: 831). Mapes, New York Corp. v., 6 Johns. Ch. 46 (2: 50). Maples V. Howe, 8 Barb. Ch. 611, 5 Ch. Sent. 60 (5: 1039, 1186); ex. & ad. 463-465. Marble, Reed »., 10 Paige Ch. 409 (4: 1031). Marcellous, Sanders®., 6 Paige Ch. 162(3: 939). March ». Davison, 2 Ch. Sent. 35 (5: 1088). 0. Davison, 9 Paige Oh. 580 (4: 828); discov. 25, 30, 41, 42: injunc. 219; libel & s.; plead. 683. «. Ludlum, 3 Sandf. Ch. 35 (7: 760); ev. 225- 228; mort. 462-464. Marfleet, Wiltshire v., 1 Edw. Ch. 654(6:280). Marie, Lupin v., 2 Paige Ch. 169 (2: 859). Marino, Franceschi o., 3 Edw. Ch, 586(6:771). Mark, Roosevelt «., 6 Johns. Oh. 366 (2: 121). Smedberg «., 6 Johns. Oh. 138 (2: 79). Markham ®. Markham, 1 Barb. Oh. 374; 6 Oh. Sent. 1 (5: 433, 1192); injunc. 323. Markle B. Markle, 4 Johns. Ch. 168(1:803); incomp. pers. 101. Marks®. Pell, 1 Johns. Ch. 594(1:258); ev. 156, 158; lim. of ac. 49. Marquand v. Saguez, 2 Ch. Sent. 55 (5: 1098): cred. bill, 215. MarselUs ®. Thalheimer, 8 Paige Ch. 35 (2: 802); desc. & dist. 10-12; ev. 43, 43. Marsh ®. Hague, 1 Edw. Ch. 174 (6: 101); wills, 139, 200, 448. V. Pike, 4 Ch. Sent. 10 (5: 1137). e. Pike, 10 Paige Ch. 595 (4: 1104); cred. bill, 53; mort. 99-101; subr. 31. v. Pike, 1 Sandf. Ch. 210 (7:399); cred. bill, 53; prin. & sur. 3, 38-40. V. "Wheeler, 2 Edw. Oh. 156 (6: 849); eq. conv. 8; wills, 286-388, 321, 420, 493. Marshall o. Barclay, 1 Paige Oh. 159 (2: 600); United States 1-8. Bowman »., 9 Paige Ch. 78 (3: 615). Marston d. Paulding, 10 Paige Ch. 40 (3: 877); surro. 1. Marten®. VanSchaick, 4 Paige Ch. 479 (8: 528); receiv. 49. Martin, Aikin ® , 11 Paige Oh. 499 (4: 212). ®. Black, 3 Ch. Sent. 60 (5: 1094). V. Black, 8 Edw. Oh. 580 (6: 769). «. Black, 9 Paige Ch. 641 (4: 848); land. & ten. 64-68; receiv, 193, 194. Clark ®., 4 Edw. Oh. 434 (6: 937). Gibson ®., 8 Paige Ch, 481 (4: 511). ®. Martin, 8 Ch. Sent. 18(5: 1105\ ®. Martin, Hoff. Ch. 462 (6: 1208); husb. & w. 90, 91. Penney v., 4 Johns. Ch. 566 (1: 988). Poillon ®., 1 Sandf. Oh. 469 (7: 437). ®. Rapelye, 3 Edw. Oh. 239 (6: 637). «. Sherman, 2 Sandf. Oh, 341 (7: 618); eq. conv. 11; estop. 46. Smalley ®., Clarke Ch. 393 (7: 119). Marvin ®. Bennett, 8 Paige Ch. 812 (4: 441); cont. 104; equity, 107; ven. & pur. 73, 75. Brinkerhofl®., 5 Johns. Ch, 339 (1: 1096). ®. Ellwood, 1 Ch. Sent. 20 (5: 1057). V. Ellwood, 11 Paige Oh. 365 (5: 164); atty. & sol. 21-28; interpl. 21-26, 29; prin. & a. 38; stakeholder, 1. ®. Ellwood, 4 Ch. Sent. 67, 81 (5: 1158, 1171). Merchants' Ins, Co. »., 1 Paige Oh. 557 (2: 751). ®. Van Hoesen, 5 Oh. Sent. 52 (5: 1188). Mason, Be, 3 Edw. Ch. 280 (6: 696); incomp. pers. 5. «38 TABLE OF CASES DIGESTED. Mason, Be, 4Edw. Ch. 418 (6: 936); wills, 343. Hopk. Ch. 122 (2: 364); infants, 56, 58. a. Cod wise, 6 Johns. Ch. 183, 297(2: 94, 131); costs, 53, 54, 259. e. Jones, 3 Edw. Ch. 497 (6: 739); annuity, 5. «. Jones, 4 Sandf. Ch. 623 (7: 1232); act. or s. 16; annuity, 4; parlies, 44. «. Mason, 1 Edw. Ch. 278 (6: 139); husb. & w. 263-266. «. Mason's Exrs., 2 Sandf. Ch. 432 (7: 652); accum. 6, 7; perpe. 25, 25; trusts, 11, 129; wills, 145, 162, 175, 314. 326. Piggot v., 1 Paige Ch. 412 (2: 696). Rider ti., 4 Sandf. Ch. 351 (7: 1130). c. Roosevelt, 3 Johns. Ch. 637 (1: 739); dep. 23; ev. 335. «. Roosevelt, 5 Johns. Ch. 534 (1: 1166); ex. & ad. 155, 156, 391-393; int. 65, 66; trusts, 230. Sillick v., 2 Barb. Ch. 79 (5: 464). «. Sudam, 2 Johns. Ch. 172 (1: 337); exec. 41-44; int. 26; ven. & pur. 139. Massey v. Gillelan, 1 Paige Ch. 644 (2: 784); costs, 281. Hasten, Curtis v., 11 Paige Ch. 15 (5: 39). Masters v. Rossie Lead Mining Co., 2 Sandf. Ch. 301 (3:603); corp. 120, 131, 199-301; costs, 183, 183. Matheson, Westervelt®., floff. Ch. 37(6:1055). Mathews v. Neilson, 3 Edw. Ch. 346 (6: 684); cred. bill, 83; receiv. 78. Matthews ». Bristol, 2 Ch. Sent. 18 (5: 1085). «. Matthews, 1 Edw. Ch. 565 (6: 248); dow- er, 44, 46; ex. & ad. 124; parti. 15, 41, 83. Payne v., 6 Paige Ch. 19 (8: 384). Seneca PalU «., 9 Paige Ch. 504 (4: 793). Thompson »., 2 Edw. Ch. 213(6: 373). Matthewson a. Johnson, Hoff. Ch. 560 (6: 1244); act. or s. 39; infants, 15; parti. 14. Mattocks 0. Tremaiu, 3 Johns. Ch. 75 (1: 547); ne ex. 33, 33. Maujer, Lofsky v., 3 Sandf. Ch. 69 (7: 773). Mauran, Clark o., 3 Paige Ch. 373 (3: 163). Maurice n. Graham, 8 Paige Ch. 3S3 (4: 513); real prop. 35. Maxwell, Stevenson v., 2 Sandf. Ch. 273 (7: 591). May, Barton v., 3 Sandf. Ch.. 450 (7: 915). «. May, 11 Paige Ch. 201, 4 Ch. Sent. 47 (5: 107, 1150); costs, 221; mort. 451. Mayer «. Salisbury, 1 Barb. Ch. 540 (5: 487); costs, 142. Maynard v. Mavnard, 4 Edw. Ch. 711 (6: 1029); deed, 81-33; ven. & pur. 51. Mayor, etc. of Albany, Hart v., 3 Paige Ch. 213, 381 (3: 121, 197). Mayor, etc. of Brooklyn, Cumming v., 11 Paige Ch. 596(5:246). Merrill B., 3 Edw. Ch. 421 (6: 711). Mayor, etc. of New York, Gillespie s., 3 Edw. Ch. 513 (6: 744). Schermerhorn «., 3 Edw. Ch. 119 (6: 594). Champlin v., 3 Paige Ch. 573 (3: 379). Stuyvesant v., 11 Paige Ch. 414 (5: 183). Suarez »., 2 Sandf. Ch. 173 (7: 554). Verplank »., 2 Edw. Ch. 820 (6: 376). Mayor, etc. of Rochester, Fish v., 6 Paige Ch. 268 (3: 981). Meach v. Ohappell, 8 Paige Ch. 135 (4: 373); affl. 17,18; ref.44. Meach, Commercial Bank of Lake Erie «., 7 Paige Ch. 448(4:225). Meacham, Cassidy v , 3 Paige Ch. 311 (3: 167). «. Sternes. 2 Ch. Sent. 4 (5: 1080); trusts, 231-334. v. Sternes, 9 Paige Ch. 398 (4: 749): trusts, 193, 281-234. Mead v. M-irritt, 2 Paige Ch. 402 (3: 963); courts, 33, 84; set-off, 4, 61-63. V. Phillips, 1 Sandf. Ch. 83 (7: 348); costs, 166; fraua. conv. 30, 31; insolv. & assign, for c. 22. u. Richards, 4 Edw. Ch. 667 (6: 1012); in- junc. 325. Meads B. Lansingh, Hopk. Ch. 124 (2:865); ev. 189-191. •0. Walker, iHopk. Ch. 537 (2: 583); bks & bkg. 18-24; prin. & a. 20, 21. •0. Wandell, 4Cb. Sent. 14 (5:1139); ferry, 2; injunc. 182. Mechanics' Bank v. Levy, 3 Paigie Ch. 606 (3:292); plead. 413-422; trusts, 35. r>. Levy, 1 Edw. Ch. 316 (6: 154); plead. 418. Murray s., 4 Edw. Ch. 567 (6: 978). ®. Snowden, 2 Paige Ch. 299 (2: 815); costs, 586, 587. Meday, White v.. 2 Edw. Ch. 486 (6: 476). Meeker, Pobes v., 3 Edw. Ch. 452 (6: 723). Meigs, Robinson v., 10 Paige Ch. 41 (4:878). Mel V. Holbrook, 4 Edw. Ch. 539 (6: 967); set off, 31. Melick B. Drake, 6 Paige Ch. 470 (3: 1065); ev. 50; injunc. 348-349. Menck, Partridge v. 2 Barb. Ch. 101 (5: 572). Partridge «., 2 Sandf. Ch. 632 (7: 729). Mennard, Gibbs a., 6 Paige Ch. 258(3: 977). Mercantile Ins. Co. of N. Y., Verplanck o., 2 Paige Ch. 438 (3: 979). Mercein v. Barry, 4 Ch. Sent. 13 (5: 1138). People 0. 8 Paige Ch. 47 (4: 339). Verplanck v., 1 Edw. Ch. 46, 34 (6: 54, 68). Merchant v. Rasvson, Clarke Ch. 124 (7: 69); cont. 103. Merchants' Bank, Thomas v., 9 Paige Ch. 316 (4: 674). Merchants' Exchange Co., Barry b.,1 Sandf. Ch. 380 (7: 339). Kerr v., 3 Edw. Ch. 315 (6: 673). Merchants' Fire Ins. Co. v. Grant, 3 Edw. Ch. 544 (6: 498); infants, 15. Merchants' Ins. Co. v. Marvin, 1 Paige Ch. 557 (3: 751); costs, 204; mort. 279. Merchants' & Mechanics' Bank «. Griffith, 3 Ch. Sent. 96 (5: 1131). «. Griffith. 10 Paige Ch. 519 (4: 1073); cred. bill, 42, 59, 64. Meriam v. Harsen, 2 Barb. Ch. 232, 6 Ch. Sent. 71 (5: 626, 1311); acknowl. 1, 2, 11; deed, 39; estop. 2; ev. 187; husb. & w. 156-159; Stat. 6. V. Harsen, 4 Edw. Ch. 70 (6: 801); acknowl. 10; deed, 48; e.top. 1; husb. & w. 160; parti. 104. Merle, Dias, v., 2 Paige Ch. 494 (2: 1003). Dias v., 4 Paige Ch. 259 (3: 427). Mermaud. Gibbs d., 2 Edw. Ch. 482 (6: 475). Merrill, Dunning b., Clarke Ch. 252(7: 106). La Grange v., 3 Barb. Ch. 625 (5: 1035). V. Mayor etc., of Brooklyn, 3 Edw. Ch 421 (6: 711); high w. 15. Minchin v., 2 Edw. Ch. 333 (6: 420). Shepard «., 2 Johns. Ch. 276 (1: 37'?). Shephard v., 3 Johns. Ch. 423 (1: 671). TABLE OP CASES DIGESTED. 62» Merrill «. Townsend, 5 Paige Ch. 80 (3: 686); courts, 67; exec. 11; writ. & p. 6, 7. Merrilt, Re, 5 Paige Ch. 125 (3: 654); action or 8. 10; eq. I; exec. 86; receiv. 148, 197. ®. Annan, 7 Paige Ch. 151 (4: 103); attach. 28, 29; writ. & p. 18. ■B. Blaclswell, 1 Edw. Ch. 466 (6: 213); prac. 173. V. Farmers' Fire Ins. & Loan Co. , 2 Edw. Ch. 547 (6: 499); wills, 237. «. Lambert, 1 Ch. Sent. 86 (5: 1077). «. Lambert, 3 Ch. Sent. 79 (5: 1136); atty. & sol. 20, 70, 71. D.Lambert, Hoff. Ch. 166 (6:1103); corp, 20; def. 38; ven. & pur. 60. «. Lambert, 7 Paige Ch. 344 (4: 182); mort. 501; notice, 23; tender, 5. ». Lambert, 10 Paige Ch. 352 (4: 1007); atty. & sol. 20, 70, 71. ' Lyon s., 6 Paige Ch. 473 (3: 1066). Mannings., Clarke Ch. 98 (7: 63). Mead v., 2 Paige Ch. 403 (2: 963). Tradesman's Bank v., 1 Paige Ch. 303 (2: 655). Mersereau, Seorlng a., Hopk. Ch. 501 (3: 503). Bank of Utica v., 3 Barb. Ch. 528 (5: 998). Mervin, M'Kinstry®.,3 Johns. Ch. 466(1:685). Meserole v. Brooklyn, 8 Paige Ch. 198 (4: 398); assess. 6; em. dom. 6, 7; highw. 4, 5. Mesier, Campbell «., 4 Johns. Ch. 334 (1: 858). Campbell «., 6 Johns. Ch. 21 (2: 41). Messere, Ortley v., 6 Johns. Ch. 139 (3: 247). Messereau, Bank of Utica v., 7 Paige Ch. 517 (4: 255). Messervie, Ellis v., 11 Paige Ch. 467 (5: 300). Messionnier v. Eauman, 3 Johns. Ch. 3, 66 (1: 533, 545); app. 103; insolv. & a. for cr. 151. Metcalf, Northup v., 11 Paige Ch. 570(5: 337). Methodist Episcopal Church v. Jaques, Hopk. Ch. 453 (3:485); account. 23; ev. 289; plead. 556; ref. 83-84. «. Jaques, 1 Johns. Ch. 65, 450 (1: 61, 205); costs, 1, 227, 338; deed, 13; husb. & w. 108-117, 192; infants, 96; plead. 78, 412- 415; trusts, 81, 290. Jaques »., 2 Johns. Ch. 543 (1: 483). ®. Jaques, 3 Johns Ch. 1, 77 (1: 533, 549); costs, 339, 331; ev. 397. 398; ref. 87. Mlckle. Gilbert v., 4 Sandf. Ch. 357 (7: 1133). Mickles v. Brayton, 3 Ch. Sent. 14 (5: 1104). D. Brayton, 10 Paige Ch. 138 (4: 918); set-off, 111. V. Rochester City Bank, 11 Paige Ch. 118, 4 Ch. Sent. 37 (5: 77, 1147); corp. 59, 113, 160, 193; exec. 55, 56; injunc. 90, 109; ins. 32, 23; parties, 126, 127; receiv. 181. Micklethwaite c. Bhodes, 6 Ch. Sent. 69 (5:1216). V. Rhodes, 4 Sandf. Ch. 434 (7: 162); costs, 292-295; fac. 6. Middle District Bank, Re, 1 Paige Ch. 585 (2: 762); set-off, 78, 80. Bruyn «., 1 Paige Ch. 584 (3: 761). Mildeberger v. Mildeberger, 1 Ch. Sent. (5: 1070). «. Milderberger, 3 Ch. Sent. 2 (5: 1079). Miles, LeBreton v., 8 Paige Ch. 261 (4: 433). Millandon v. Brugiere, 11 Paige Ch. 163, 4 Ch. Sent. 31 (5: 93, 1145); costs, 159, 161. Millard, Cheesebrough «., 1- Johns. Ch. 409 (1: 190). Farmers' Loan & T. Co. «)., 9 Paige Ch. 630 (4: 840). Miller, Astor v., 3 Paige Ch. 68(3: 816). V. Avery, 2 Barb. Ch. 583 (5: 763); cov. 7; estop. 49; ev. 343; land. & ten. 16; mort. 380; plead. 404; prac. 143, 143; ven. & pur. 30, 63, 64. ®. Bear, 3 Paige Ch. 468 (3: 334). Buloid «., 4 Paige Ch. 473 (3: 530). V. Burrough, 4 Johns. Ch. 436 (1: 896); int. 87. V. Case, Clarke Ch. 395 (7: 153); mort. 396, 397 299 ■B. Chance, 3'Edw. Ch. 399 (6: 703); corp. 39, 40. Decker «., 3 Paige Ch. 149 (3: 851). 9. Fenton, 11 Paige Ch. 18, 4 Ch. Sent. 14 (5: 40, 1139); contrib. 1; plead. 485; joint. d. 3, 4, 6, 7. PishD., HofE. Ch. 367 (6: 1138). Fish v., 5 Paige Ch. 36 (3: 613). e. Franklin Bank, 1 Paige Ch. 444 (2: 708); set-off, 39, 40. Gable »., 10 Paige Ch. 637 (4: 1118). Gaul »., 3 Paige Ch. 192 (3: 112). Gillespie «., 5 Johns. Ch. 21 (1: 994). Hills «., 3 Paige Ch. 254 (3: 141). ■0. McCan, 7 Paige Oh. 451 (4: 227); equity, 77; injunc. 133; parties, 80, 175; prin. & sur. 14; wit. 18. Macomb «., 9 Paige Ch. 365 (4: 695); wit. 18. 9. Miller, 6 Johns. Oh. 91 (3: 64): husb. & w. 387, 388. J). Miller, 1 Sandf. Ch. 103 (7: 356). Newburgh Tump. Co. o., 5 Johns. Ch. 101 (1: 1033). V. Pelletier, 4 Edw. Ch. 103 (6: 813); contr. 31; spec. p. 70. ■0. Philip, 5 Paige Ch. 573 (3: 843); wills, 449. ' Rushmore »., 4 Edw. Oh. 84 (6: 806). Sizer »„ 9 Paige Ch. 605 (4: 831). Sperry «., 3 Barb. Ch. 633 (5: 781). Wright v., 3 Barb, Ch. 382 (5: 941). Wright v., 1 Sandf. Oh. 108 (7: 256). Mills «. Argall, 6 Paige Ch. 577 (3: 1109); insolv. & assign, for c. 17, 85, 94, 110, HI. Chazournes c, 2 Barb. Ch. 466 (5: 717). ■B. Comstock, 5 Johns. Ch. 214 (1: 1061); mort. 178; ven. & pur. 140. ■0. Denniss, 3 Johns. Ch. 367 (1: 651); in- fants, 46, 114-117. e. Fogal, 4 Edw. Ch. 559 (6: 975); conf. of 1. 6. V. Hoag, 7 Paige Ch. 18 (4: 41); app. 23, 24; judg. d. & 0. 97, 100; parlies, 60. ■0. Hallock, 2 Edw. Ch. 652 (6: 538); custom & u. 4; sale, 11. ». Levy, 2 Edw. Ch. 133 (6: 361); insolv. & assign, for c. 46. V. Morris, Hofl. Ch. 419 (6: 1193); fraud. conv. 58. «. Pittman, 1 Paige Ch. 400(3: 726); plead. 643; tender, 4. ■0. Seymour, 1 Ch. Sent. 33(5: 1057). Taylor s., 3 Edw. Oh. 318 (6: 414). Millspaugh ®. McBride, 7 Paige Oh. 509 (4: 350); judg. d. & o. 363; mort. 181. Miln, McDougall v., 3 Paige Ch. 335 (3: 928). Milner v. Milner, 3 Edw. Oh. 114 (6: 330); plead. 247. Milnor, New York Life Ins. & T. Co. «., 1 Barb. Ch. 353 (5: 414). «30 TABLE OF CASES DIGESTED. Minard, Dunbam v., 4 Paige Ch. 441 (3: 508). Minchin v. Merrill, 3 Edw. Ch. 333 (6: 420); gift. 15; trusts, 267. Minor v. Betts. 7 Paige Ch. 596 (4: 292); in: fants, 146, 147. Minthorne'sExrs. v. Tompkin's Exrs., 3 Paige Ch. 103 (2: 830); judg. d. & o. 39, 40. Minton, Kyerson v., 3 Edw. Oh. 333 (6: 697). Minturn v. Seymour, 4 Johns. Ch. 173, 497 (1: 805, 914); injunc. 363, 280; spec. p. 4. Minuse v. Cox, 5 Johns. Ch. 441 (1: 1135); costs, 35; int. 69; prac. 131; ref. 88; trusts, 189, 190; wills, 63, 64. Mitchell v. Bliin, 5 Paige Ch. 588 (3:841); costs, 133, 379; desc. &. dist. 29, 30. B. Bunch, 2 Paige Ch. 606 (3: 1049); abate. 1; courts, 31-25; discov. 15; ne ex. 17- 21, 48. . Cram «., 11 Paige Ch. 156 (5: 90). Cram »., 1 Sandf. Ch. 251 (7: 318). D. Lenox, 1 Edw. Oh. 438 (6: 197); parties, 113, 117. fl. Lepox, 2 Paige Ch. 280 (3: 907); plead. 479, 480, 721. Moehring v., 1 Barb. Ch. 264 (5: 379). 9. Oakley, 7 Paige Oh. 68 (4: 63); equity, 4; injunct. 98, 197; usury, 48. Partridge v., 3 Edw. Oh. 180 (6: 617). «. Smith, 3 Paige Ch. 287 (3: 650); discov. 46. Storm 9., 1 Sandf. Ch. 251 (7: 318). s. Tighe, Hopk. Oh. 119 (3: 63): courts, 55. «. Wilson, 4 Edw. Ch. 697 (6: 1033); cont. 65; spec. p. 95. Mix ®. Mackie, 2Edw.Ch. 486(6:454); prac. 66. D. Mix, 1 Johns. Oh. 108, 204 (1: 78, 113); husb. & w. 245, 370. Moak, Ottman d., 3 Sandf. Ch. 431 (7: 909). Moat v. Holbein, 3 Edw. Oh. 188 (6: 863); cont. 11; injunc. 345, 378. Morrison »., 4 Edw. Ch. 35 (6: 786). Moehring ». Mitchell, 1 Barb. Ch. 264, 5 Ch. Sent. 60 (5: 379, 1186); ev. 37, 38; husb. & w. 53, 219, 220; ins. 38; wills, 23-34. Moffatt, Ellison «., 1 Johns. Ch. 46 (1: 54). Howard «., 3 Johns. Ch. 306 (1; 350). Moffat, Lentilhon o., 1 Edw. Ch. 451 (6: 306). Moffat V. Winslow, 7 Paige Ch. 134 (4: 92); bills & n. 7; contr. 100; prin. & a. 4; sale, 30. Mohawk & H. R. Co. v. Artcher, 6 Paige Ch. 83 (3: 907); highw. 7-9; injunc. 38. t. Clute, 4 Paige Ch. 384 (3; 480); corp. 84; interpl. 33-35, 40; taxes, 3-4. «. Costigan, 2 Sandf. Ch. 306 (7: 604); ev. 192; prin. & sur. 4. ®. Davidson, 5 Ch. Sent. (No. 3) 9 (5: 1169). Mohawk Bank «. Atwater, 2 Paige Ch. 54 (2: 810); cred. bill, 72; fraud, conv. 37; jud. sale, 11, 18; judg. d. &o. 251. «. Burrows, 6 Johns. Ch. 317 (2: 137); set- off, 105. t). Schermerhorn, 6 Ch. Sent. 76(5: 1220). Mohawk Bridge Co. ■». Utica & S. R. R. Co., 6 Paige Ch. 564 (3: 1099); bridges, 1; Corp. 17, 18; injunc. 73-75. Mollan V. Griflath, 3 Paige Ch. 402 (3: 306); ex. & ad. 363-264; set-off, 67. Monell 0. Cole, Clarke Ch. 331 (7: 98); discon- tin. 3. «. Monell, 4 Johns. Co. 283 (1: 1084); trusts, 131-138, 376. Monnell, Woods v., 1 Johns. Oh. 503 (1: 223). Monholland, Blyer t., 2 Saudf. Ch. 478 (7:669). Monk V. Harper, 3 Edw. Ch. 109 (6: 590); act. or s. 14. Monro, Cherry v., 3 Barb. Ch. 618 (5: 775). Whitney v., 4 Edw. Ch. 5 (6: 778). Monroe a. Douglas, 4 Sandf . Ch. 126 (7: 1049); courts, 17; judg. d. & o. 269-278. Monroe Bank v. Folsom. 4 Ch. Sent. 14 (5: 1139). B. Widner, 11 Paige Ch. 529 (5: 233); arb. 3, 6; ref. 1. Monroy s. Monroy, 1 Edw. Ch. 383 (6: 180); husb. & w. 301, 364, 393, 415. Montgomery ®. Montgomery, 3 Barb. Oh. 132 (5: 845); ev. 21, 207; husb. & w. 9; in- comp. pers. 103; lim. of ac. 76. Nelson v., 1 Edw. Ch. 657 (6: 383). Southgate v., 1 Paige Oh. 40 (3: 554). Moody ®. Payne, 2 Johns. Oh. 548 (1:484); exec. 22; part. 74. o. Payne, 3 Johns. Oh. 394 (1: 623); prac. 163, 164. Mooers v. Saunders, 4 Ch. Sent. 61 (5: 1155). «. Saunders, 6 Ch. Sent. 75 (5: 1219); costs, 577-579. V. Smedley, 6 Johns. Oh. 38 (3: 43); mjunc. 163; supreme court. «. White, 6 Johns. Ch. 360 (2: 150); aliens, 33-35; ex. & ad. 431-435; lim. of ac. 38, 84, 108; wills', 77. Moon, Gillespie v., 2 Johns. Ch. 585 (1: 500). Moore, Baring »., 4 Paige Oh. 166 (3: 388). Baring®., 5 Paige Oh. 48 (3: 623). «. Cable, 1 Johns. Ch. 385 (1: 180); adv. poss. 5; lim. of ac. 26; mort. 513. V. Des Arts, 2 Barb. Ch. 636 (5: 782); custom & u. 2; duties, 3; ev. 45. Gardner v., 2 Edw. Oh. 313 (6: 412). Jones v., 1 Edw. Oh. 633 (6: 273). V. Lyttle. 4 Johns. Ch. 183 (1: 808); courts, 45. V. Moore, 4 Sandf. Ch. 37 (7: 1014); infants, 4, 119. 130; prin. & a. 41, 42. Parker »., 3 Edw. Ch. 234 (6: 639). White «., 1 Paige Ch. 551 (2: 749). ' Willis «., Clarke Ch. 150(7: 77). Morans. Dawes, Hopk. Oh. 365 (2:452); fraud. conv. 17; injunc. 18-20. Morange, Star «., 3Edw. Ch. 345 (6: 683). More «. Smedburgh, 1 Oh. Sent. 8 (5: 1053). V. Smedburgh, 8 Paige Oh. 600 (4: 558); plead. 332-234; spec. p. 71, 93; ven. & pur. 25, 26, 78. Morehouse B. Cooke, Hopk. Ch. 226 (2:402); guard. & w. 10. Moreland, Cuyler «., 6 Paige Oh. 273 (3: 988). Morgan, Be, 236 (4: 138); incomp. pers. 6, 7. Bristol »., 3 Edw. Ch. 143 (6: 603). Brown a., 8 Edw. Ch. 278 (6: 656). Canfield »., Hopk. Ch. 234(2: 401). V. New York & Albany R. Co., 3 Ch. Sent. 30 (5: lUO); cred. bill, 369. V. New York & Albany R. Co., 10 Paige Ch. 290 (4: 981); corp. 131, 133, 133, 183, 193; cred. bill, 369; discov. 54- in- junc. 33, 38. ■0. Schermerhorn, 1 Paige Ch. 544 (2: 746)- usury, 68, 137, 138. Stone «., 10 Paige Ch. 615 (4: 1113). Moritz, Veeder «., 9 Paige Ch. 371 (4: 736). TABLE OF CASES DIGESTED. 631 Morleyn. Green, 4 Ch. Sent. 59 (5: 1154); prac. 48; product. & insp. of b. & p. 18-15. V. Green, 5 Ch. Sent. 11 (5: 1167). V. Green. 11 Paige Ch. 240 (5: 122); prac. 48; produc. & inspec. of b. & o. 13-15; sum. pro. Morrel, Lane 8., 8 Edw. Ch. 185 (6: 620). Morrell, Be, 4 Paige Ch. 44 (8: 335); costs, 524; infants, 53, 54. V. Dickey, 1 Johns. Ch. 153 (1: 96); confl. of 1. 31, 32; costs, 66; ex. & ad. 478; guard. & w. 36, 89, 90; wills, 28. "Withers v., 3 Edw. Ch. 560 (6: 763). "Woods v., 1 Johns. Ch. 103 (1: 76). V. Post, 2 Cb. Sent. 39 (5: 1090). Morris, Aikin «., 2 Barb. Ch. 140 (5: 588). «. Crane. 4 Ch. Sent. 6(5:1136); arb. 19; Sunday. Denston«., 2 Edw. Ch. 37 (6: 300). Hamilton «., 7 Paige Ch. 39 (4: 511). Hatch v., 3 Edw. Ch. 313 (6: 671). V. Kent, 2 Edw. Ch. 175(6: 358); ex. & ad. 380; wills, 483-485. Leonard v., 9 Paige Ch. 90 (4: 620). Mills v., Hoff. Ch. 419 (6: 1193). «. Mowatt, 2 Paige Oh. 586 (2: 1041); ex. & ad. 269-274; judg. d. & o. 203, 261- 263; judg. sale, 51-54; mort. 87. «. Mowatt, 4 Paige Ch. 142 (3: 379); ex. & ad. 166-169. ■B. Mullett, 1 Johns. Ch. 44 (1: 53); costs, 576. ■B. Parker, 3 Johns. Ch. 297(1: 634); plead. 448, 456-459. Van Rensselaer v., 1 Paige Ch. 13 (2: 543). Morris Canal & Banking Co. v. Emmett, 1 Ch. Sent. 37 (5: 1062). Morris Canal Co. v. Emmett, 9 Paige Ch. 168 (4: 652); trusts, 299; ven. & pur. 4, 5, 74. Morrison, Campbell v., 7 Paige Ch. 157 (4: 105). Lowry v., 11 Paige Ch. 337 (5: 152). ®. Moat, 4 Edw. Ch. 25 (6: 786); cont. 12. Youngs v., 10 Paige Ch. 325 (4: 995). Mofse, Burns v., 6 Pai?e Ch. 108 (3: 918). V. Cloyes, 6 Ch. Sent. 11 (5: 1196). 0. Hovey, 1 Barb. Ch. 404 (5: 433); bankcy. 3; discov. 37; plead. 134. ®. Hovey, 1 Ch. Sent. 42 (5: 1064); usury, 155 ®. Hovey, 6 Ch. Sent. 10 (5: 1195); usury, 128 V. Hovey, 9 Paige Ch. 197 (4: 665); parties, 169; plead. 719; usury, 91, 123, 155. «. Hovey, 1 Sandf. Ch. 187 (7: 290); bankcy. 58, 60; parties, 76, 77; plead. 134; usury, 115, 127, 131. Morss V. Eimendorf, 11 Paige Ch. 377, 4 Ch. Sent. 65 (5: 135, 1157); equity, 84, 35, 80-82; spec. p. 36-38. Mortimer b. Cornwell, Hoff. Ch. 851 (6: 1169); prin. & a. 18, 33. Peters »., 4 Edw. Ch. 379 (6: 878). Morton v. Hudson, Hoff. Ch. 312 (6: 1150); guar; prac. 137. v. Ludlow, 1 Edw. Oh. 639 (6: 375); int. 70; pay. 3; setoff, 49. «. Ludlow, 5 Paige Ch. 519 (3: 812); duties, 1; pay. 9. «. Morton, 2 Edw. Ch. 457 (6: 465); advanc. 7. Moses, Depau v., 3 Johns. Ch. 349 (1: 643) Moses «. Murgatroyd, 1 Johns. Ch. 119, 473(1: 83,218); C08ts,58, 59; ev.l60; ex.& ad.36 -39; pledge and col. sec. 16; trusts, 286. Mosley v. Green, 4 Ch. Sent. 31 (3: 1145). Mott, Dutch Church in Garden St. v., 7 Paige Ch. 77 (4: 67). v. Mayor, etc. of N. Y., 1 Oh. Sent. 83 (5: 1079). Shotwell v., 2 Sandf. Oh. 46 (7: 501). Stafford «., 3 Paige Oh. 100 (3: 74). Striker v., 3 Paige Ch. 397 (3: 954). V. Walkley, 3 Edw. Ch. 590 (6: 772); ]ud. sale, 93; mort. 348. Moulton V. Moulton, 3 Barb. Ch. 809 (5: 655); hush. & w. 275, 330, 381. Mount ». Mount, 11 Paige Ch. 383 (5: 170); app. 191. V. Suydam, 4 Sandf. Ch. 399 (7: 1148); atty. & sol. 64; usury, 80. Thompson v., 1 Barb. Ch. 607 (5: 513). Mo van «. Hays, 1 Johns. Oh. 339 (1: 168); ev. 185, 136, 163; insolv. & assign. 169, 170; parties, 11. Mowatt, Oarow »., 1 Edw. Ob. 9 (6: 41). Oarow v., 2 Edw.. Oh. 57 (6: 307). «. Carow, 7 Paige Ch. 338 (4: 175); costs, 585; real prop. 86; wills, 160, 198, 366. 377. 490. V. Graham, 1 Edw. Oh. 13, 575 (6: 43, 252); hush. «S; w. 215; wit. 13. Morris v., 2 Paige Ch. 586 (2: 1041). Morris v., 4 Paige Oh. 142 (3: 379). North American Fire Ins. Co. «., 2 Sandf. Oh. 108 (7: 528). Mower a. Kip, 2 Edw. Ch. 165 (6: 354); bonds, 3; int. 8. 35; judg. d. & o. 249, 357. V. Kip, 6 Paige Ch. 88 (3: 910); bonds, 5, 6. judg. d. & o. 253, 254; mort. 41. Mowry «. Bishop, 5 Paige Ch. 98 (3: 643); int. 95; usury, 22-34. Muir B. Leake & "Watts Orphan House, 3 Barb. Ch. 477 (5: 978); ex. & ad. 78, 79; plead. 291, 706, 730; wills, 87. V. Wilson, Hopk. Oh. 512 (2: 506); guard. & w. 88. Mullett, Morris «., 1 Johns. Ch. 44 (1: 53). Mulligan a, Johnson, 6 Ch. Sent. 46 (5: 120 Mulock v. Mulock, 1 Edw. Ch. 14 (6: 42); costs, 332; ev. 266, 267, 294; hush. & w. 305; new tr. 7, 8; prac. 178. Mumford v. Murray, 6 Johns. Oh. 1, 452 (2: 85, 182); int. 56; parties, 191; part. 114; 125, trusts, 208, 309, 337. e. Murray, Hopk. Ch. 369 (3: 454); atty. & sol. 3, 16, V. Murray, 1 Paige Oh. 630 (3: 774); hush. & w. 71-73. Nicoll v., 4 Johns. Ch. 533 (1: 938). Ontario Bank v., 3 Barb. Ch. 596 (5: 767). Parsons «., 3 Barb. Ch. 153 (5: 853). 0. Sprague, 11 Paige Ch. 438; 4 Oh. Sent. 85 (5: 191, 1163); parties, 56; prac. 109. Munn, Llttlejohn v.. 3 Paige Oh. 180 (3: 158). Munro, Cram v., 1 Edw. Ch. 123 (6: 83). Munson, Chapman v., 3 Paige Oh. 347 (3: 183). V. Reed, Clarke Ch. 580 (7: 205); prac. 180. Murgatroyd, Moses «., 1 Johns. Oh. 119, 473 (1:83,213). Murphy v. Harvy, 4 Edw. Ch. 181 (6: 826)', wills, 193, 205. Murray, Re. 6 Paige Ch. 204 (3: 956); insolv. & assign, for cr. 131-133. 632 TABLE OF CASES DIGESTED. Murray e.Ballou.l Johns. Ch. 566 (1 :24T); costs, 173; lispend. 3; plead. 498; real prop. 89; trusts, 44; ven. & pur. 57-59, 116, 126. Boyd v., 3 Johns. Ch. 48 (1: 538). Carson v., 8 Paige Ch. 483 (3: 241). Coster v., 5 Johns. Ch. 522 (1: 1163). Coster v., 7 Johns. Ch. 167 (2: 257). ■0. De Rottenham, 6 Johns. Ch. 52 (2: 52); bankey. 54, 55; trusts, 238, 339. ®. FinBter,2Johns. Ch. 155 (1: 329); lispend. 5; plead. 498; ven. & pur. 116; wit. 76. e. Graham, 6 Paige Ch. 62'3 (3; 1136); costs, 381; equity, 30; highw. 16, 21. Gray v., 3 Johns. Ch. 167 (1: 580). Gray «., 4 Johns. Ch. 413 (1: 886). V. Hay, 1 Barb. Ch. 59, 5 Ch. Sent. 35 (5: 299, 1177); cred. bill, 101; parties, 150- 152, 156;plead. 303, 304; judg. d. & o.24. Murray, Lawrence v., 3 Paige Ch. 400 (3: 205X V. Lylburn, 2 Johns. Ch. 441 (1: 440); assign, 9: costs, 173; trusts, 272-274; ven. & pur. 11. M'Menomy v.. 3 Johns. Ch. 435 (1: 67S). V. Mayor, etc. of N. Y., 1 Ch. Sent. 81, 82" (5: 1075, 1076). ». Mechanics' Bank, 4 Edw. Ch. 567 (6: 978);. lim. of ac. 110; plead. 648. Mumford v., Hopk. Ch. 369 (2: 454). Mumford v., 6 Johns. Ch. 1, 452 (3: 35, 182). Mumford v., 1 Paige Ch. 620 (3: 174). V. Murray, 2 Ch. Sent. 23, 25 (5: 1086, 1087)^ eq. conv. 4, 26. ®. Murray, 5 Johns. Ch. 60 (1: 1009); bankey. 6, 7; parti. 143-146; parties, 159; judg.. d. & o. 308. Paton v., 6 Paige Ch. 474 (3: 1066). Powell v., 10 Paige Ch. 256 (4: 968). N. Nash, Musgrove «., 3 Edw. Ch. 173 (6: 614). i Nathan ». "Whitlock, 1 Ch. Sent. 30 (5: 1060). a. Whitlock, 3 Edw. Ch. 315 (6: 633); corp. 136. B. Whitlock, 9 Paige Ch. 153 (4: 645); corp. 101-103; receiv. 166. National Fire Ins. Co. v. Loomis, 11 Paige Ch. 431, 4 Ch. Sent. 80 (5: 187, 1161); auc. 1; cont. 30; jud. sale, 16-18, 38, 39; mort. 344. ». Sackett, 11 Paige Ch. 660, 5 Ch. Sent. 23 (5: 270, 1173); prac. 97; usury. 58. Nautilus Ins. Co., Hill ®., 4 Sandf. Ch. 577 (7: 1215). Neafle v. Neafle, 7 Johns. Ch. 1 (3: 201); iudg. d. & o. 110. Needham, Town »., 3 Paige Ch. 545 (3: 268). Neefus «. Vanderveer, 3 Sandf. Ch. 268 (7: 848); usury, 78, 79. Neilsono.M'Donald, 6 Johns. Ch. 301 (3: 100); exec. 61; wit. 29. Mathews »., 3 Edw. Ch. 346 (6: 684). Titus «., 5 Johns. Ch. 452 (1: 1139). V. Nellson, 6 Paige Ch. 108 (3: 917); wills, 328. Neimcewicz v. Gahn, 3 Paige Ch. 614(3: 395); husb. & w. 149-152; prin.& sur. 37-30; subr. 28. Nelson, Ferris v., 5 Johns. Ch. 263 (1: 1077). «. McGifEert, 3 Barb. Ch. 158 (5: 855); ev. 306; wills, 33. 55, 56, 97-99, 113, 114. V. Montgomery, 1 Edw. Ch. 657 (6: 383). Nesmith v. Halsted, 11 Paige Ch. 647, 5 Ch. Sent. 17 (5: 266. 1171); cred. bill, 217; plead. 387; prac. 30; receiv. 22, 23, 90; writ & p. 14. Neufville v. Thomson, 3 Edw. Ch. 92 (6: 588); gift, 17, 18. New V. Bame, 10 Paige Ch. 503 (4: 1067); injunc. 284. V. Bame, 3 Sandf. Ch. 191 (7: 831); ev. 269. V. New, 6 Paige Ch. 337 (8: 969); habitual d. 10, 11. Newburgh, Trustees of, Gardner a., 2 Johns. Cb. 163 (1: 333). Newburgh Turnp. Co. v. Miller, 5 Johns. Ch. 101 (1: 1033); injunc. 187; stat. 5. Newcomb c. St. Peter's Church, 2 Sandf. Oh. 636 (7: 737); char, uses, 10; estop. 51;. ex. & ad. 394, 399; judg. d. & o. 148; lim. of act. 62, 74; wills, 486. Newell «. Burbank, 4 Edw. Ch. 586 (6: 966); costs 590 V. Hall, 3'ch. Sent. 65 (5: 1095). ■D. Newell, 1 Oh. Sent. 16 (5: 1055). V. Newell, 9 Paige Ch. 25 (4: 596); ev. 129. Newkirk, He. 1 Ch. Sen. 27 (5: 1058). Newkirk, Livingston v., 8 Johns. Ch. 313 (1: 630). Newland ». Rogers, 3 Barb. Ch. 433 (5:961); act. or s. 30, 35; plead. 399, 300. Newman v. Ogden, 6 Ch. Sent. 40 (5: 1206); costs, 18; mort. 389, 391. New Orleans Gaslight & Banking Co. v. Dud- ley, 1 Ch. Sent. 5 (5: 1053). V. Dudley, 8 Paige Ch. 453 (4: 500); plead.. 516, 517; prac. 182, 183, 185-188. Newton, Hetfield «., 3 Sandf. Ch. 564 (7: 958)> New York, Bell «., 10 Paige Ch. 49 (4: 881). Gouverneur »., 2 Paige Oh. 434 (2: 977). Leroy «., 4 Johns Oh. 352 (1: 865). «. Mapes, 6 Johns. Ch. 46 (3: 50); injunc. 14, 88. Pattersons., 1 Paige Ch. 114 (2: 582). Van Doren v., 9 Paige Ch. 388 (4: 743). Varick »., 4 Johns Oh. 53 (1: 761). West »., 10 Paige Ch. 539 (4: 1081). Whitney «., 1 Paige Ch. 548 (3: 748). Wiggin v., 9 Paige Ch. 16 (4: 591). New York Banking Co., Boisgerard a., 2' Sandf. Ch. 33 (7: 492). New York Chemical Co. •». Flowers, 6 Paige Ch. 654 (3: 1141); plead. 130. New York Chemical Mfg. Co. ». Trask, 1 Ch; Sent. 54, 87 (5: 1067, 1077). New York Dry Dock Co. e. American Life Ins. & T. Co. 11 Paige Ch. 384 (5: 171);. injunc. 99-101. V. American Life Ins. & T. Co. 3 Sandf. Ch. 315(7:839); conf. of 1.29; loan, 1-4: usury, 28, 70. Manice »., 3 Edw. Oh. 143 (6: 603). New York Fire Ins. Co. ■». Delevan, 8 Pai^re Ch. 419 (4: 496); injunc. 26; insur. 13. TABLE OF CASES DIGESTED. 63» New York Fire Ins. Co. o. Donaldson, 3 Edw. Oh. 199 (6: 625); usury, 45. V. Lawrence, 6 Paige Oh. 511 (3: 1081): plead. 596, 597. Fulton Bank v., 4 Paige Ch. 127 (3: 372). Varet v., 7 Paige Ch. 560 (4: 275). New York L. Ins. & T. Co. ». Allen, 3 Ch. Sent. 41 (5: 1113). «. Bailey, 3 Edw. Ch. 416 (6: 709); mort. 262. Balcom »., 11 Paiee Ch. 454 (5: 196). V. Cutler, 3 Sandf. Ch. 176 (7: 815); mort. 298; plead. 504; ven. & pur. 136. V. Davis, 3 Ch. Sent. 96 (5: 1131). «. Davis, 10 Paige Ch. 507 (4: 1069); costs, 316, 385, 398. 403, 408, 409, 515, 518, 529; infants, 157. c. GofE, 4. Ch. Sent. 31 (5: 1145). e. Howard, 2 Sandf. Ch. 183 (7: 557); mort. 156, 157; pav. 29. V. Manning, 3 Sandf. Ch. 58 (7: 768); pay. 30; receipt, 3, 4. e. Milnor, 1 Barb.Oh. 353, 5 Ch. Sent. 67 (5:414, 1188); eas. 10-14; jud'P d. & o. 20, 21; mort. 327, 362. J). Smith, 2 Barb. Ch. 82, 6 Oh. Sent. 51 (5: 565, 1210); mort. 139, 140. New York, Mayor, etc., Suarez v., 2 Sandf. Ch. 173 (7: 554). New York Printing & Dyeing Establishment n. Fitch, 1 Paige Ch. 97(2: 574); injunc. 60, 193-196. New York State Bank o. Jessup, 1 Oh. Sent. 7 (5: 1058). New York & Albany R. R. Co., Morgan «., 10 Paige Oh. 290(4:981). New York & E. R. Co., Douglass v., Clarke Ch. 174 (7: 84). Hudson & Del. Canal Co. a., 9 Paige Oh. 323 (4: 718). New York & Harlem R. Co., Hamilton v., 9 Paige Oh. 171 (4: 653). Thompson s., 8 Sandf. Ch. 625 (7: 980). New York & Sharon Canal Co. , Fulton Bank «. 1 Paige Ch. 219, 311 (2: 623, 659). Fulton Bank v., 8 Paige Ch. 31 (3: 45). Niagara Bank, Camp v., 2 Paige Ch. 283 (2: 908). Niagara Ins. Co., He, 1 Paige Ch. 258(2: 638); corp. 138-140. Nicholl V. Nicholl, 8 Paige Ch. 349 (4: 456); iud. sale. 21, 22. Nichols, Hosford v., 1 Paige Ch. 221 (2: 624). Jacks «., 3 Sandf. Ch. 313 (7: 865). Piercer., 1 Paige Ch. 244 (2: 633). V. Wilson, 4 Johns. Oh. 115 (1: 783); injunc. 269. Nicholson, Dumont v., 2Barb. Oh. 71 (5: 561). e. Halsey, 1 Johns. Oh. 417 (1: 193); deed, 34; desc. & dist. 7-9. Nicoll, Ee, 1 Johns. Oh. 25 (1: 46); guard. & w. 24. e. Mumford, 4 Johns. Ch. 522 (1: 923); insolv. & assign. 4, 5; partn. 69-73; ship. 1-3. V Nicoll, 2Edw. Ch. 574(6: 509);set-off, 99. «. Roosevelt, 3 Johns. Ch. 60 (1: 543). e. Trustees of Huntington, 1 Johns. Ch. 166 (1: 101); cloud on t. 1-3; costs, 7, 8; deed, 21; pub. lands, 10. Niles «. Hempstead, 4 Ch. Sent. 16 (5: 1140). V. Mohawk & Hudson R. Co. 1 Ch. Sent. 69' (5: 1072). Nixon, Thompson v., 3 Edw. Ch. 457(6: 724). Noah, Snowden v., Hopk. Ch. 347 (2: 446). V. Webb, 1 Edw. Ch. 604 (6: 262); bonds, 8, 12; GOV. 19; spec. p. 15. Noble V. Wilson, 1 Paige Ch. 164 (2: 601); injunc. 311-315; ref. 76. Nodine v. Greenfield, 7 Paige Oh. 544 (4: 367); mort. 216-218; spec. p. 61; wills, 272. Noe 8. Gibson, 7 Paige Oh. 513 (4: 252); Ian. & ten. 70; receiv. 146. 147. Nors worthy's Exrs., Rapaljes , 1 Sandf. Ch. 399 (7: 374). North V. North, 1 Barb. Ch. 241, 5 Ch. Sent. 51 (5: 370, 1183); husb. & w. 358-361. v. Silver Lake Bank, 4 Johns. Ch. 370 (1 : 871). North American Coal Co. ■». Dyett, 2 Edw. Oh. 115 (6: 831); costs, 211; injunc. 238 V. Dyett, 4 Paige Oh. 273 (3: 433); app. 57, 170; notice, 9. V. Dyett, 7 Paige Ch. 9 (4: 37); bills & n. 8; husb. & w. 100, 101, 126. North American Fire Ins. Co. v. Handy, 2 Sandf. Oh. 492 (7: 675); contrib. 10; joint, d. 1, 5. r>. Mowatt, 2 Sandf. Oh. 108 (7: 528); comp. 2; estop. 43; int. 10. North Hempstead v. Hempstead, Hopk. Ch. 288 (2: 425); town, 7-13. North River Bank ». Rogers, 8 Paige Ch. 648 (4: 577); ev. 14; plead. 204, 380, 487. V. Rogers, 1 Ch. 8ent.l7 (5: 1056). North River Steamboat Co. v. Hoifmaa, 5 Johns. Oh. 300 (1: 1090); injunc. 186, rem. of cau. 4, 5. Lansing v., 7 Johns. Ch. 163 (1: 255)., B.Livingston, Hopk. Oh. 149(2: 374);comm. 1-19. Northrup v. Metcalf, 11 Paige Oh. 570, 5 Oh. Sent. 10 (5: 237, 1167); eq. 126; judg. d. & o. 236, 237; ven. & pur. 164. Norton, Hunn»., Hopk. Ch. 344 (8: 445). ». Kosboth. Hopk. Oh. 101 (2: 357): prac. 4. Penniman v., 1 Barb. Oh. 246 (5: 372). People v., 1 Paige Oh. 17 (2: 544). V. Stone, 8 Paige Ch. 222 (4: 407); mort 370; trusts, 72. V. Tallmadge, 8 Edw. Ch. 310(6: C39); judg. d. & o. 199. «. Warner, 8 Edw. Ch. 106 (6: 589); plead 447. e. Whiting, 1 Paige Oh. 578 (3: 759); costs, 344, 345; judg. d. & o. 289. V. Woods, 5 Paige Ch. 249, 260(8: 705, 711); costs, 231; eq. 69, 70; ev. 103. 257; injunc. 124; plead. 45, 48, 50, 148. Norwood, Cooper v., 2 Edw. Ch. 633 (6: 528). Nott, Freeland v., 8 Paige Oh. 431 (4: 491). «. Hill, 6 Paige Oh. 9 (3: 877); mort. 271. Nourse v. Prime, 4 Johns. Oh. 490 (1:911); bailm. 3. v. Prime, 7 Johns. Oh. 69 (2: 224); pledge & col. sec. 10; usury, 7, 33. Noyes n. Clark, 7 Paige Oh. 179(4: 114); costs, 16; mort. 302-304. «34 TABLE OF CASES DIGESTED, o. Oakey ®. Bend, 3 Edw. Ch. 483 (6: 733); par- ties, 35, 71. ■Oakley, Be, 3 Edw. Ch. 478 (6: 473); ev. 80; lim of ac. 30; trusts, 178, American Ins. Co. v., 9 Paige Ch. 359, 496 (4: 693, 789). V. Bard, 4 Ch. Sent. 15 (5: ]139). Mitchell v., 7 Paige Ch. 68 (4: 63). Tooker v., 10 Paige Ch. 388 (4: 980). «. Trustees of Willlamsburgh, 6 Paige Ch. 263 (Z: 978); highw. 38; injunc. 45. Wood v., 3 Edw. Ch. 562 (6: 976). Wood «., 11 Paige Ch. 400(5: 176). -O'Blemis, Be, 6 Ch. Sent. 37 (5: 1205). O'Brien «. Heeney, 2 Edw. Ch. 242 (6: 385); judg. d. & o. 140; parties, 100, 173; wills, 164, 240. v. O'Brien, 1 Ch. Sent. 52 (5: 1067). Ocobock V. Bakeman, 2 Ch. Sent. 38 (5: 1088). 7'Connor, Crane v., 4 Edw. Ch. 409 (6: 933). V. Debraine, 3 Edw. Ch. 330 (6: 637); ne ex. 55 Oddie, Francia v., 3 Edw. Ch. 455 (6: 723). Odell, Vermillya«., 1 Edw. Ch. 617(6: 267). Vermillyea »., 4 Paige Ch. 131 (3: 370). Ogden, Evertson v., 8 Paige Ch. 375 (4: 427). Garr «., 4 Edw. Ch. 625 (6: 998). «. Gibbons, 4 Johns. Ch. 1.50, 175 (1: 797, 805); injunc. 186; wat. & w. cos. 4-6. ■B. Kip, 6 Johns. Ch. 160(2: 86); injunc. 102. Livingston v., 4 Johns. Ch. 48 (1: 759). ®. Smith, 2 Paige Ch. 195 (3: 870); ex. & ad. 114, 115; trusts, 144. Olcott, Tripler »., 3 Johns. Ch. 473 (1: 688). Oliver, Kay v., 6 Paige Ch. 489 (3: 1073), •Olmstead, Van Buren v., 2 Paige Ch. 9 (8: 605). Oneida County, Utica Cotton Mfg. Co. «..l Barb. Ch. 433 (5: 444). •Ontario Bank d. Mumford, 2 Barb. Ch. 596 (5: 767); bankcy, 46; eq. 33, 33; parties, 54, 55, 57, 164, 165. v. Root, 3 Paige Ch. 478 (3: 339); plead. 74, 75, 489; trusts, 263. n. Schermerhorn, 3 Ch. Sent. 2 (5: 1100). V. Schermerhorn, 10 Paige Ch. 109 (4: 907); bks. & bkg. 4; plead. 7-9; usury, 38. «. Strong, 1 Paige Ch. 301 (2:917); mort. 307-309; prac. 171; writ. & p. 37, 28. Oppenheim v. Wolf, 3 Sandf. Ch. 571 (7: 961); ev. 40; ex. & ad. 43; interpl. 17, 27, 28; judg. d. & o. 29: prin. & a. 10. Oroutt '0. Orms, 3 Paige Oh. 459 (3: 231); ex. & ad. 85, 135, 489; judg. d. &o. 185; plead. 393-398, 401. Winsor »., 11 Paige Ch. 578 (5: 239). Ordronaux v. Helie, 3 Ch. Sent. 69 (5: 1097); ne ex. 12. «. Helie, 3 Sandf. Ch. 512 (7: 939); ex. & ad. 162, 500; prac. 151, 152. V. Rey, 2 Sandf. Ch. 33 (7: 496); confl. of 1. 39; husb. & w. 48. Orms, Orcutt v., 3 Paige Ch. 459 (3: 231). Orphan Asylum «. McCartee, Hopk. Ch. 106, 373, 439 (3: 359, 455, 475); prac. 4, 341 receiv. 25, 36, 45. Orr ». Post, Hopk. Ch. 10 (2: 324); attach. 3. Ortley ■». Messere, 7 Johns. Ch. 139 (2: 247) incomp. pers. 93, 109. Osborn, Dunham «., 1 Paige Ch. 634 (2: 780), Hitnnan »., 4 Paige Ch. 336 (3: 460). «. Heyer, 2 Paige Ch. 342 (2: 936); receiv, 13. 141. B. Taylor, 5 Paige Ch. 515 (3: 810); injunc, 198, 199. Osborne, Goldsmiths.. lEdw. Ch. 560(6: 346), V. Mann, 6 Ch. Sent. 43 (5: 1207). Woodhull v., 2 Edw. Ch. 614 (6: 524). Osgood B. Franklin, 2 Johns. Ch. 1 (1: 275); cent. 111-113; ex. &ad. 159; parties, 36; powers, 6, 18-15; spec. p. 34; trusts, 136; wills, 395. «. Joslin, 3 Paige Ch. 195 (3: 113); judg. d. & o. 330, 377; prac. 133. 123. «. Osgood, 2 Paige Ch. 631 (2: 1056); husb. &w. 362. Ostrander ».. Livingston, 3 Barb. Ch. 416 (5: 955); improv. 3; Ian. & ten. 15;plead. 319: parties, 66; trusts, 76. Oswego Falls Edge. Co. v. Fish, 1 Barb. Ch. 547, 6 Ch. Sent. 25 (5: 489, 1300); canals; Corp. 18. Otis B. Forman, 1 Barb. Ch. 30, 5 Ch. Sent. 19 (5: 287, 1171); costs, 213. 217, 218, 260, 331, 367, 368, 450, 504-507; exec. 1. «. Wells. 1 Edw. Ch. 83 (6: 68); abs. & ab- scon. debtors, 16; judg. d. & o. 33. Ottman v. Moak, 3 Sandf. Ch. 431 (7: 909); in- fants, 14; mort. 540; subr. 25. Outtrin t>. Graves, 1 Barb. Ch. 49; 5 Ch. Sent. 36(5: 295, 1178); costs, 23; incomp. pers. 97, 98: injunc. 128. Overbach®. Heermance,Hopk. Ch. 387(2: 442); infants, 25. Overbagh ». McCarty, 4 Ch. Sent. 10 (5: 1137). P. Paddock®. Wells, 3 Barb. Ch. 331 (5:663); af- finity. 1-4; Courts, 9, 10; trial. Padgett «. Lawrence, 3 Ch. Sent. 21 (5: 1106). «. Lawrence, 10 Paige Ch. 170 (4: 931); ev. 16, 350-253; name; trusts, 74; ven. & pur. 123. PaflE V. Paflf, Hopk. Ch. 584 (2: 533); husb. & w. 354, 413, 413. Paine, Warner «., 3 Barb. Oh. 630 (5: 1037). Pal «. Birkbeck, 1 Ch. Sent. 61 (5: 1069). Palmer, Dart »., 1 Barb. Ch. 92 (5: 312). V. Delafleld, 4 Ch. Sent. 23 (5: 1143). B. Elliott, 4 Edw. Ch. 643 (6: 1004); costs. 256. V. Poote, 7 Paige Ch. 437(4: 231); costs, 803; cred. bill, 13, 18. TABLE OF CASES DIGESTED. 635 i^lmer, Haggarty v., 6 Johns. Ch. 437(1: 176). Hastings «., Clarke Ch. 52 (7: 49). Holgate v., 8 Paige Ch. 461 (4: 508). Jarvis v., 1 Barb. Ch. 379 (5: 424). Jarvis v., 11 Paige Ch. 650 (5: 267). Jewett v., 7 Johns. Ch. 65 (3: 223). V. Kelly, 4 Sandf. Ch. 575(4: 1214); cont. 61. v. Lord, 6 Johns. Ch. 95 (2: 65): usury, 120- 122, 179. ■0. Palmer, 1 Paige Ch. 276 (3: 645); husb. & w. 814r-316, 321, 380. Studwell v., 5 Paiee Ch. 57, 166 (626, 671). «. Talcott, 5 Ch. gent. 33 (5: 1173). V. Van Doren. 2 Edw. Ch. 192, 384, 425 (6: 364, 438, 454); discontin. 5; ne ex. 36; judg. d. & o. 83; witn. 32, 33. Parcells,VanRansto.,2Edw.Ch. 600(6: 518.) Pardee z. .De Cala, 7 Paige Ch. 132 (4:95); cred. bill, 46;prac. 144. Pardon, Connolly «., 1 Paige Ch. 391 (3: 651). Pardow, Barnett «., 1 Edw. Ch. 11 (6: 41). Parish, Champlin »., 3 Edw. Ch. 581 (6: 769). Champlin c, 11 Paige Ch. 405 (5: 178). Wilkinson v., 3 Paige Ch. 653 (3: 310). Parisien, Williamson v., 1 Johns. Ch. 389 (1:183). Park V. Peck, 1 Paige Ch. 477 (3: 731); costs, 149: ev. 208, 209. Parke, Smith »., 2 Paige Ch. 298 (2: 915). Parker. He, 1 Barb. Ch. 154, 5 Ch. Sent. 39, (5: 335 1179); ex. & ad. 171. «. Baker, Clarke Ch. 136, 233 (7:73,98); affl. 1, 2, 14, 15; commr. of d. 1, 2; in- fants, 5; injunc. 272. s. Baker, 8 Paige Ch. 428 (4: 490); offlc. 3, 8. V. Browning, 8 Paige Ch. 338 (4: 473); courts, 6; receiv. 122-124, 143, 144. V. Grant, 1 Johns. Ch. 434, 630 (1: 200, 271); judg. d. & o. 360, 361; plead. 166. Hammersley u., 1 Barb. Ch, 25 (5: 285). s. Moore, 3 Edw. Ch. 234(6: 639); cred. bill, 11; receiv. 77. Morris «., 3 Johns. Ch. 297(1: 624). o. Parker, 8 Paige Ch. 428 (4: 490); ev. 49. V. Rochester, 4 Johns. Ch. 329 (1: 856); prin. & sur. 26; Dtica Ins. Co. Vincent «., 7 Paige Ch. 65 (4: 63). «. Wakeman, 10 Paige Ch. 485 (4: 1060). V. Williams, 1 Ch. Sent. 26 (5: 1058); eq. 54: plead. 403. V. Williams, 4 Paige Ch. 439(4: 505); injunc. 237, 319; nrac. 6. Parkhurst b. Van Cortlandt, 1 Johns. Ch. 273 (1: 138); cont. 45; ev. 131, 132, 299-301; spec. p. 66, 119. Parkins, Rvckman v., 5 Paige Ch. 543 (3: 822). Stephenson©., 2 Edw. Ch. 218(6: 375). Parkist b. Alexander, 1 Johns. Ch. 394 (1 : 184); pria. & a. 43, 44; real prop. 74, 81; trusts 149 Parks B. Parks, 1 Ch. Sent. 80 (5: 1058). «. Parks,- 9 Paige Ch. 107 (4: 637); perpetu. 31, 35; wills, 135-137, 141, 294, 334-340, 508. V. Williams, 1 Ch. Sent. 26 (5: 1060). Parmelee v. Bgan, 7 Paige Ch. 610 (4: 298); cred. bill, 104, 105. Parmly v. Tenth Ward Bank, 3 Edw. Ch. 395 (6:702);bk8. &bkg. 65. v. West, 2 Ch. Sent. 20 (5: 1086). . Parsons v. Bowne, 7 Paige Ch. 354 (4: 186); const. 1. 4; cred. bill. 89, 132; ex. & ad. 419. Parsons v. Hughes, 2 Ch. Sent. 39 (5: 1090). V. Hughes, 9 Paige Ch. 591 (4: 838); fraud. 13, 14. ®. Mumford, 3 Barb. Ch. 152 (5: 853); mort. 37, 38. Parten, Tingle v., 3 Edw. Ch. 338 (6: 637). Partridge ®. Havens, 4 Ch. Sent. 15 (5: 1139). «. Havens, 10 Paige Ch. 618 (4: 1115); ad- vanc. 1; ev. 59; husb. & w. 173, 197; in- solv. & assign. 79, 80. V. Jackson, 3 Edw. Ch. 530 (6: 489); plead. 99. v. Menck. 3 Barb. Ch. 101; 6 Ch. Sent 57 (5:572, 1212); injunc. 166, 167, 203, 204. V. Menck, 3 Sandf. Ch. 632 (7: 729); injunc. 165, 168, 174; trade.mark, 6, 7. V. Mitchell, 3 Edw. Ch. 180(6: 617); lim. of ac. 12, 13. Pascalis «. Canfield, 1 Edw. Ch. 201 (6: 111); eq. conv. 14; wills, 431. Pascoag Bank v. Hunt, 3 Edw. Ch. 583 (6: 770); eq. 21. Paterson v. Bangs, 9 Paige Ch. 627 (4: 843); discov. 61; judg. d. & o. 338, 339; par- ties, 25. ». Bangs, 3 Ch. Sent. 55 (5: 1093). Rogers B., 4 Paige Ch. 409, 450 (3: 493, 511). Paton ». Murray, 6 Paige Ch. 474 (3: 1066); dower, 54; mort. 242. Patrick, Arnold v., 6 Paige Ch. 310 (3: 1000). V. Warner, 4 Paige Oh. 397 (3: 486); attach. 26. Patterson «. Ackerson, 1 Edw. Ch. 96 (6: 73); ev. 286; land. & ten. 50, 53; new tr.ll. V. Ackerson, 2 Edw. Oh. 427 (6. 454); re- ceipt, 3. Arden «., 5 Johns. Oh. 44 (1: 1002). V. Brewster, 4 Edw. Ch. 353 (6: 903); corp. 139, 130; partn. 95. V. Elder, 6 Oh. Sent. 26, 38(5: 1201, 1205). V. New York, 1 Paige Ch. 114 (2: 582); highw. 17-20. Pattison v. Patiison. 5 Oh. Sent. 31 (5: 1173) V. Powers, 4 Paige Ch. 549 (3: 557); mort. 193—195 Patton, Magoffen n., 3 Edw. Oh. 65 (6; 573). Patty®. Pease, 8 Paige Ch. 377 (4:438); mort. 110, 151, 152; ven. & pur^ 152. Paulding, Marston v., 10 Paige Ch. 40(4:877). Payn, Delavan v., 8 Paige Oh. 459 (4: 503). Payne v. Matthews, 6 Paige Ch. 19 (3: 881); ex. & ad. 313; partn. 31, 133, 133. Moody v., 3 Johns. Oh. 548 (1: 484). Moody v., 3 Johns. Oh. 394 (1: 633). Peabody b. Penton, 3 Barb. Oh. 451 (5: 968); bifls & u. 33; bona fide pur. 4; mort. 118, 137, 133. Peabody «. Thomas, 4 Oh. Sent. 9 (5: 1137); mort. 97. Peacock, Frost «., 4 Edw. Ch. 678(6: 1016). Peale v. Bloomer, 8 Paige Oh. 78 (4: 351); ref. 31. Pearce, Stow v., 9 Paige Oh. 367 (4: 734). Pearsalls. Kingsland, 3 Edw. Oh. 195 (6:634); usury, 89, 167, 168. V. Oslrander, 5 Oh. Sent. 38 (5: 1175). Rayner v., 3 Johns. Oh. 578 (1: 723). Pearson, Snediker v., 3 Barb. Ch. 107 (5: 575). Van Vechten v., 5 Paige Ch. 513 (3: 809). Pease, Patty v., 8 Paige Ch. 377 (4: 428). Peck, Beekman «., 3 Johns. Ch. 415 (1: 667). V. Elder, 6 Ch. Sent. 38 (5: 1205); nuis. 14; parties, 157, 158. 636 TABLE OF CASES DIGESTED. Peck «. Ellis. 2 Johns. Ch. 131 (1:320); con- trib. 2-5; fraud, conv. 60. Guild v.. 11 Paige Ch. 475 (5: 203). Jarvis v., Hofl. Ch. 479 (6: 1215). Jarvis v., 10 Paige Ch. 118 (4: 910). V. Hamlin, 1 Paige Ch. 247 (2: 634); witn. 115. Park v., 1 Paige Ch. 477 (3: 721). Turner v., 1 Barb. Ch. 549 (5: 490). Peckford v. Peckford, 1 Paige Ch. 274 (2: 614); huab. & w. 389, 890. Peckham,Edgenon ».,11 Paige Ch. 353 (5: 159). Stuyvesant v., 3 Edw. Ch. 579 (6; 769). Peele, Douglass v., Clarke Ch. 563 (7: 201). Peirson n. Smith, Clarke Ch. 228 (7: 100); Stat. 18; usury, 123, 170, 173. Pelissier, Schuyler «., 3 Edw. Ch. 191 (6: 623). Pell, Cunningham b., 5 Paige Ch. 607 (3:850). Cunningham v., 6 Paige Ch. 655 (3: 1141). Drakes.. 3 Edw. Ch. 251 (6: 646). Eagle Fire Ins Co. v., 2 Edw. Ch. 681 (6: 531). V. Elliot, Hopk. Ch. 86 (2: 852); reviv. 82, 83 Elliott •!).,-l Poige Ch. 263 (2: 640). Laight v., 1 Edw. Ch. 577 (6: 253). Marks v., 1 Johns. Ch. 594 (1: 258). V. Stuyvesant, 2 Cb. Sent. 21 (5: 1086). Talmage v.. 9 Paige Ch. 410(4: 754). "Webb B., 1 Paige Oh. 564 (2: 754). WebbB., 3 Paige Ch. 368 (3: 191). Pelletier. Miller c, 4 Edw. Ch. 102 (6: 812). Pelletreau v. Frelinghuysen, 4 Paige Ch. 204 (6: 404). Pells V. Coon, Hopk. Ch. 450 (2: 484); reviv. 7.81. Pelton, Cogge8hall«.,7Johns. Ch. 293(2:297). Pemberton, Egberte v., 7 Johns. Oh. 208 (2: 270V a. Mills, 6 Ch. Sent. 28 (5: 1202). Pendleton B. Eaton, 3 Johns. Ch. 69(1: 546); costs, 14. V. Fay, 2 Paige Ch. 202 (2: 874); costs, 168; ex. & ad. 59, 60; mort. 120; notice, 14; trusts, 287. v. Fay, 3 Paige Ch. 204 (3: 117); plead. 254; review, 25; reviv. 76, 77, 87, 88. Goodrich tf., 3 Johns. Ch. 384, 520 (1: 657, 703. Goodrich v., 4 Johns. Ch. 549(1: 932). Pennell, Tier v., 1 Edw. Ch. 354 (6: 170). Penniman s. Briggs, Hopk. Ch. 300(2:429); corp. 165-169. V. Norton, 1 Barb. Ch. 246; 5 Ch. Sent. 50 (5: 373, 1182); bankcy. 22, 77;*;red. bill, 124, 125, 129, 130, 138, 140; reviv. 72. Pennington, McLaren n., 1 Paige Ch. 102 (2: 577). • Penny®. Martin, 4 Johns. Ch. 566 (1:938); equity, 108; partn. 171. Pentz V. .^tna Fire Ins. Co., 2 Ch. Sent. 25 5: 1087). B. ^tna Fire Ins. Co., 3 Edw. Oh. 341 (6: 682); insur. 19. V. ^cnaFire Ins. Co. 9 Paige Ch. 568 (4: 818); dam. 12; insur. 19. D. Hawley, 1 Barb. Ch. 132; 5Ch. Sent. 39 (5: 323, 1179); corp. 115; receiv. 169; injunc. 110. o. Hawley. 2 Barb. Ch. 552, 6 Oh. Sent. 69 (5: 750, 1211); costs, 216, 560, 562, 503; plead. 359. Mann v., 2 Sandf. Ch. 257 (7: 584). People V. Bennett, 4 Paige Ch. 282 (8: 437)^ cont, 52-54. V. Bower, 4 Paige Ch. 405 (3: 49l)j cont. 2; judg. d. & o. 76. ■B. Cleveland, 'l Ch. Sent. 86 (5: 1077). v. Craft, 7 Paige Ch. 325 (4: 174); attacji. 13; writ. & p. 20. ®. Elmer, 3 Paige Ch. 85 (3: 68); attach. 16; costs, 251, 252, 342, 601; prac. 22;: sher. 5. Farmers' Loan & T. Co. «., 1 Sandf. Oh. 139 (7: 271). «. Goodhue. 2 Johns, Ch. 198 (1: 347); cert. 1 : habeas c. 8, 9. «. Mercein, 8 Paige Oh. 47, 4 Ch. Sent, la (5: 1188, 4: 339); habeas c. 5-7; husb. & w. 435; infants, 32-34; wit. 94, 95. V. Norton.l Paige Ch.l7(2: 544); receiv.4-7. V. Rogers, 2 Paige Oh. 103 (2: 831); cont. 48-50. V. Spalding, 2 Paige Oh. 436 (3: 938); affi. 9-12; cont. 7, 58. V. Spalding, 9 Paige Ch. 607 (4: 835); app. 52, 53. «. Spalding, 10 Paige Ch. 284 (4: 978); bankcy" 62, 63; exec. 92; habeas c. 1;. insol. & a. for cr. 163. v. Stone, 4 Oh. Sent. 15 (5: 1139). B. Stone, lOPaige Ch. 606 (4: 1110); escape, ■j__i 1 • hA,)ipfls o 2—4 V. Wheeler, 7 Paige Oh. 433 (4: 220); attach. 23-24. ex rel Backus, b. Spalding, 2 Ch. Sent. 4& (5: 109). ex rel Backus d. Spalding, 3 Oh. Sent. 28^ (5: 1109). ex rel Perry, ». Gerald, 1 Ch. Sent.' 16 (5: 1053); cred. bill, 216. ex rel Hawley, b. Bennett. 4 Paige Ch. 334 (3: 437). ex rel Morrison v. Brower, 4 Paige Ch. 405 (3: 491). ex rel Wyckoff ®. Boyd, 2 Edw. Ch. 51ft (6: 488); dep. 19; plead. 103; prafi. 31. People's Bank ». Hamilton Mfg. Co., 3 Ch. Sent. 91 (5: 1130). a. Hamilton Mfg. Co. 10 Paige Ch. 481 (4: 1059); mort. 263, 265, 270. Ferine «. Dunn, 3 Johns. Oh. 508 (1: 69a);. fraud, conv. 35. 36; maintenance; mort. 471; power, 27, 28. v. Dunn, 4 Johns. Oh. 140 (1: 798); mort. 389-496; plead. 536. Perkins, ife,2 Johns. Oh. 124 (1: 317); incomp. pers. 67. Day v., 2 Sandf. Oh. 359 (7: 725). s. Washington Ins. Co., 6 Johns. Ch. 485- (1: 192); insur. 5. V. Wilson, 1 Ch. Sent. 53(5: 1067). Perley n. Sands, 3 Edw. Ch. 325 (6: 676); ex^ & ad. 15, 16. Perrine, Davis «., 4 Edw. Ch. 62 (6: 798). ■B. Striker, 7 Paige Oh. 598 (4: 293). B. Swaim, 2 Johns. Oh. 475(1:455); costs. 191; ev. 131. B. Swaine, 1 Johns. Ch. 24 (1:46); plead. 364. Perry, Bogart «., 1 Johns. Ch. 52 (1: 56). Farmers' Loan & T. Co. b., 3 Sandf. Ch. 339 (7: 875). B. Gerard, 2 Ch. Sent. 24 (5: 1078). B. Perry, 1 Barb. Ch. 516 (5: 478); husb Ss w. 269, 270. 802. TABLE OF CASES DIGESTED. 637 Perry «. Perry, 2 Barb. Ch. 285, 311 (5: 646, 655); costs, 249; husb. & w. 248, 327- B29 378 3Qfi V. P«rry, 6 Ch. Sent. 17, 68 (5: 1198, 1216). u Perry, 2 Paige Ch. 501 (2: 1006); husb. & w. 6, 7, 248, 259-261. Wood «., 2 Sandf. Ch. 7 (7: 485). T'eru Iron Co., Livingston b., 2 Paige Ch. 390 (2: 956). Peter, a colored man, Be, 4 Ch. Sent. 19 (5: 1141). Peters, Dorr v., 3 Brtw. Ch. 132 (6: 599). B.Mortimer, 4 Bdw. Ch. 279 (6:878); in- junc. 114. Peterson, Re, 3 Paige Ch. 510 (3: 252); atty. & sol. 3-6. Petten, Avery o., 7 Johns. Ch. 211 (2: 371). Pettingale v. Graves, 2 Ch. Sent. 54 (5: 1093). Pettis. Gove «., 4 Sandf. Ch. 403 (7: 1150). Pettit, He, 2 Paige Ch. 174, 596 (2: 861. 1045); incomp. pers. 9-11, 50, 51. Candler v., 1 Paige Ch. 168, 427 (2: 603, 793). D. Shepherd, 5 Paige Ch. 493 (3: 801); cloud on t. 4; judg. d. «& o. 255, 256. Pew ». Hastings, 1 Barb. Ch. 453, 6 Ch. Sent. 6 (4: 451, 1194); judg. d. & o. 365, 366. Phelps, Clarke «., 6 Johns. Ch. 314(2:104). o. Garrow, 3 Edw. Ch. 139 (6: 601); chano. 40; plead. 376. V. Garrow, 8 Paige Ch. 323 (4: 445); bills & n. 30, 21; prln. & sur. 1. V. Green, 3 Johns. Ch. 303 (1: 626); costs, 185; parti. 22, 62, 80. Jones v., 1 Barb. Ch. 440(5: 707). ■B. Mayor, etc. of N. Y., 1 Ch. Sent. 82 (5: 1076). V. Phelps, 7 Paige Ch. 150 (4: 102); writ. & proc. 21. Philip, Miller v., 5 Paige Ch. 573 (3: 834). Philips B. Belden, 2 Edw. Ch. 1(6:285); ac- counting, 33-36; account stated, 4, 5; ev. 10; laches, 3. Boughton v., 6 Paige Ch. 334, 433 (3: 1018, 1051). Hart «., 9 Paige Ch. 298 (4: 706). Manny v., 1 Paige Ch. 472(2: 719). V. Wickham, 1 Paige Ch. 590 (8: 763); corp. 60-63, 153, 154; drain, 3; equity, 19. Phillips, Burchard d., 11 Paiee Ch. 66 (5: 59). Mead »., 1 Sandf. Ch. 83 (7: 248). «. Prevost, 4 Johns. Ch. 205 (1: 816); plead. 409-411. Rowe v., 2 Sandf. Ch. 14 (7: 388). V. Stagg, 2 Edw. Ch. 108 (6: 328); assign. 1; atty. & sol. 53. «. Thompson, 1 Johns. Ch. 131 (1: 87); cont. 29; dep. 24, 25; drain, 4; ev. 112, 245, 299-301; spec. p. 118. V. Thompson, 2 Johns. Ch. 418 (1: 433); bills & n. 24-36; pledge & col. sec. 17, 18: subr. 5. Phoenix, Acker v., 4 Paige Ch. 305 (3: 447). Phoenix P. Ins. Co. v. Gurnee, 1 Paige Ch 278 (3: 646); Insur. 2. Stebbins v., 3 Paige Ch. 350 (3: 184). Phyfe, Gratacap v., 1 Barb. Oh. 485 (5: 466). V. "Warden, 2 Edw. Ch. 47 (6: 304); ev. 149; spec. p. 81. B. Warden, 5 Paige Oh. 268 (3: 714); land. & ten. 38-30. Pierce ®. Alsop, SBarb. Ch. 184 (5: 867); exec. 2. 58; ex. & ad. 194, 195. Pierce v. Nichols, 1 Paige Ch. 244 (2: 633); int. 16; ven. & pur. 20, 31. V. Gunn, 3 Ch. Sent. 27 (5: 1109). PiersouB. Thompson, 1 Edw. Oh. 312 (6: 114); commis. 3; contr. 73; trusts, 125, 219- 321. Worthington s., 3 Edw. Ch. 297 (6: 664). Piggot V. Mason, 1 Paige Oh. 412(2: 696): cov. 26; land. & ten. "31-33. Pike, Marsh v., 10 Paige Ch. 595 (4: 1104). Marsh v., 1 Sandf. Ch. 310 (7: 2!)9). Pinckney, Cromer v., 3 Barb. Oh. 466 (5: 974). Pine, Lansing v., 4 Paige Ch. 639 (3; 691). Pinkerton, Scott v., 3 Edw. Ch. 70 (6: 574). Pinkney, Watkins b., 3 Edw. Oh. 533 (6: 752). Pinney, Johnson v., 1 Paige Oh. 646 (3: 785). Pirnie, Aspinwall «., 4 Bdw. Ch. 410 (6: 933). Pitcher ®. Carter, 4 Sandf. Ch. 1 (7: 1001); infants, 13, 45, 79; judg. d. & o. 186, 187. 196; mort. 119, 335; trusts, 197, 243. Pitkin V. Long Island R. Co., 2 Barb. Oh. 221, 6 Ch. Sent. 73 (5: 633, 1318); contr. 31, 27; eas. 16. WinslowB.,lBarb. Ch. 402(5:433). Pitney v. Leonard, 1 Paige Ch. 461 (3: 715); ev. 63; notice, 11. Pittman, flaggarty®., 1 Paige Ch. 298 (3:654). Mills V. , 1 Paige Ch. 490 (3 : 736). Pitts, Winship «., 3 Paige Oh. 359 (3: 145). Planck B. Schermerhorn, 3 Barb. Ch. 644, 6 Ch. Sent. 75 (5: 1043, 1319); insolv. & assign, for c. 23-25, 95. Platner, Bumpus b.. 1 Johns. Ch. 213 (1: 116). B. Sherwood, 6 Johns. Ch. 118 (2: 73); civ. mort. 3. Piatt, Bank of Plattsburgh b., 1 Paige Ch. 464 (3: 716). B. Cadwell, 9 Paige Ch. 386 (4: 742); cred. bill, 44, 45; exec. 13. V. Oaldwen, 1 Oh. Sent. 81 (5; 1075). Le Roy v., 4 Paige Oh. 77 (3: 350). B. Litten, 5 Ch. Sent. 41 (5: 1179). V. Varick, 2 Oh. Sent. 15 (5: 1084); plead. 308. Plestoro V. Abraham, 1 Paige Oh. 236 (2: 6^0); bankcy. 47-49. Plet B. Bouchaud, 4 Edw. Oh. 30 (6: 787); ev. 341. Plets, Hudson b., 11 Paige Oh. 180 (5: 99). Poillon «. Martin, 1 Sandf. Oh. 569 (7: 437); atty. & sol. 38-41; fraud, 16, 17; mort. 124. Pollock, Bank of America b., 4 Edw. Oh. 215 (6: 856). Pomeroy b. Avery, 9 Paige Ch. 591 (4: 828); wit. 68. V. Pomeroy, 1 Johns. Ch. 606 (1: 263); costs 289, 312: husb. & w. 305. . B. Wells, 8 Paige Ch. 406(4: 480); husb. & w. 28, 29; parlies, 139; poor persons 1,3. Pond B. Bergh, 3 Ch. Sent. 13 (5: 1104). V. Bergh, 10 Paige Ch. 140 (4: 919); curt. 3; desc. &. dlst. 20; real prop. 1- 4; wills, 1, 2, 138, 147, 218, 221, 336- 238, 240, 373-376. B. Wilber, 3 Ch. Sent. 4 (5: 1101); usury, 57. Pool B. Pool, 3 Edw. Ch. 193 (6: 364); judg. d. & 0. 16. Poppe, Tyler v.. 4 Edw. Ch. 430(6:929). 638 TABLE OP CASES DIGESTED. Porter, Lee v., 5 Johns. Ch. 268 (1: 1079). D. Spencer, 2 Johns. Ch. 169 (1: 335); accounting, 6; ne ex. 38. Post. Re, 3 Bdw. Ch. 365 (6: 691); clerks, 1. V. Bordman, Clarke Ch. 333, 533 (7: 134, 190); review, 26; usury, 148-151. ■V. Boardman, 4 Ch. Sent. 6 (5: 1136). V. Boardman. 10 Paige Ch. 580 (4: 1098); diseov. 36, 38. V. Dart, 8 Paige Ch. 689 (4: 573); exec. 57; usury, 163-165; wit. 21. V. Dorr, 4 Edw. Ch. 412 (5: 923); prac. 11; receiv. 2. «. Leet, 8 Paige Ch. 337 (4: 451); jud. sale, 63, 64. ' V. Leete, 1 Ch. Sent. 40 (5: 1063). Orr.®., Hopk. Ch. 10 (2:324). Roosevelt*., 1 Edw. Ch. 579(6: 253). Scoville v.. 2 Edw. Ch. 203(6: 627). Smith v.. 2 Edw. Ch. 533 (6: 490). Van Gelder v., 2 Edw. Ch. 577 (6: 510). Whitney v., 8 Paige Ch. 36 (4: 334). Postley V. Kain, 4 Sandf. Ch. 508 (7: 1189); parti. 17. Postley, Leggett b., 2 Paige Ch. 599 (2: 1046). Potter, Alderman « , 6 Paige Ch. 658 (3: 1143). V. Baker,4 Paige Ch. 390 (3:441); app. 74,181. ». Chapin, 6 Paige Oh. 639 (3: 1135); char. uses. 11-14; costs, 584. ®. Crandall, Clarke Ch. 119(7: 68);mort.225. Day D., 9 Paige Ch. 645 (4: 851). Western Reserve Baak »., Clarke Ch. 433 (7: 163). Potter's Heirs o. Dyer's Heirs, 2 Johns. Ch. 153(1:338). Poultney v. Wambaugh, 5 Ch. Sent. 1 (5:1164). Powell, Jones «., 6 Johns. Ch. 194 (2: 97). V. Kane, 3 Edw. Ch. 450 (6: 463); affl. 6; costs, 369; plead. 566. V. Kane. 5 Paige Ch. 365 (3: 713); costs, 370; prac. 50, 51. V. Murray, 3 Ch. Sent. 17 (5: 1105). V. Murray, 2 Edw. Ch. 636 (6: 532); d'led, 46, 55; husb. & w. 132; laches, 1. V. Murray, 10 Paige Oh. 356 (4: 968); cont. 11; costs, 100, 101; wills, 479. Sears v., 5 Johns. Ch. 259 (1: 1076), Tupper »., 1 Johns. Cb. 439 (1: 203). V. Tutlle, 3 Ch. Sent. ^9 (5: 1182). V. Tuttle, 10 Paige Ch. 532 (4: 1075); affl. 19; prac. 150, 151. Power, Brewster v., 10 Paige Ch. 562 (4: 1091). Hay v., 2 Edw. Ch. 494 (6: 480). Utica Ins. Co. v., 3 Paigo Ch. 365 (3: 190). Powers, Chapin v., 7 Paige Oh. 145 (4: 100). Hyslop v., 9 Paige Oh. 322 (4: 717). Pattison v., 4 Pai^e Oh. 549 (3: 557). Withers o., 2 Sandf. Oh 350 (note 7: 633). .Pratt «. Adams, 7 Paige Oh. 615 (4: 300); bills &n. 40, 41; conf. of 1. 19-28; dep. 8; insolv. & a. for cr. 114, 137, 138; insolv. & assign. 96, 97; spec. p. 10; usury, 63; wit. 67. Pratt V. Babcock, 10 Paige Ch! 295 (4: 984); prac. 255. Mann v. 2 Sandf. Ch. 257 (7: 584). «. Rathbun, 7 Paige Ch. 269 (4: 151); cred. bill, 106; insolv. & a. for cr. 125, 145. V. Richmond, 2 Ch. Sent. 21 (5: 1086). Prendergast, Whiteside®., 2 Barb. Ch. 471(5:^ 718). Prentice v. Achorn, 2 Paige Oh. 30 (2: 800); cont, 68; costs, 167; drunkenness, 1. V. Dole, Clarke Ch. 71 (7: 54). Preswick, Robiuson »., 3 Edw. Oh. 246(6: 644). Prevost, Philips v.. 4 Johns. Ch. 205 (1: 816). Price V. Betts, 6 Paige Ch. 44 (3: 893); costs, 288; prac. 229. V. Church, Clarke Ch. 358, 428, 429 (7: 142, 162); cont 20, 21; deposit & pay. into c. 7; exec. 88. Eager v., 2 Paige Ch. 333 (2: 932). V. Jackson, 3 Ch. Sent. 26 (5: 1108); partn. 138 Washington Ins. Co. d., Hopk. Ch. 1 (2: 321). Prime, Nourse®., 4 Johns. Ch. 490 (1: 911). Nourse b., 7 Johns. Oh. 69 (3: 224). Prince v. Camman, 3 Edw. Ch. 413 (6: 708); 6X6C. 8 V. Mumtord, 4 Ch. Sent. 68 (5: 1158). Pritchard v. Hicks, 1 Paige Oh. 270 (2: 643); costs, 61; ev. 176, 177; ex. & ad. 267: parties, 103. 103; wills, 121. Proctor V. Parnam, 5 Paige Oh. 614 (3: 853); jud. sale, 29, 30. V. Wanmaker, 1 Barb. Oh. 303, 5 Ch. Sent. 56 (5: 394, 1184); ex. &ad. 10-12, 23. Prosier®. Acer, 7 Paige Ch. 137 (4: 97); contr. 77. Prosser ®. Masten, 3 Ch. Sent. 78 (5: 1125). Pruyn, Heyer ®., 7 Paige Ch. 465 (4: 282). Public Adrar. of New York e. Walls, 1 Paige Ch. 347 (2: 673); wills, 29-31, 80-83. Pugsley ®. Pugsley, 9 Paige Oh. 589 (4: 82T>- husb. & w. 324. V. Pugsley, 2 Ch. Sent. 36 (5: 1089); husb. & w. 324. Pulver, Shultz v., 3 Paige Ch. 182 (3: 107). 11. Thayer, 5 Ch. Sent. 27 (5: 1175). Pumpelly, Suarez «.. 2 Sandf . Oh. 336 (7: 616). Purcell V. Purcell, 3 Edw. Oh. 194 (6: 633); husb. & w. 356. Puidy ®. Doyle, 1 Pai^e Ch. 558 (2: 751); judgj d. & o. 215, 246, 259; marsh, of a. & s. 1. 2; mort. 371, 372. Williams v., 6 Paige Ch. 166 (3: 941). Purmort, Attorney General s., 5 Paige Ch. 620 (3: 856). Purser ®. Anderson, 4 Edw. Oh. 17 (6: 783); mort. 143. Putnam ®. Ritchie, 6 Paige Ch. 390 (3: 1033); ev. 26iJ; improv. 4, 5; infants, 77, 78; guard. & w. 9, 39; joint ten. 3. V. Ritchie, 7 Paige Oh. 43 (4: 53); costs, 358, 455, 486. Putney, Aldrich v., 11 Paige Ch. 204 (5: 108). TABLE OF CASES DIGESTED. 63» Q. Quackenhoss, Ex parte, 3 Johna. Ch. 408 (1: 665); liiii. of ao. 53, 54; trusts, 283, 283. Quackenbusli, Johnson v., 1 Barb. Ch. 292 (5: 390). ®. Leonard, 1 Ch. Sent. 77 (5: 1074). V. Leonard, 3 Ch. Sent. 4 (5: 1101); judg. d. & o. 97. B. Leonard, o Ch. Sent. 43 (6: 1180). v. Leonard, 9 Paige Ch. 334 (4: 732); int. 94; mort. 1S6; trusts, 47, 172; usury, 21. V. Leonard, 10 Paige Ch. 131, 3 Ch. Sent. 4 (4: 915, 5: 1101); abatement, 8, ' 9, 10; app. 142, 143; judg. d. & o. 97, 171, 296, 297;parties,181; ref. 27-32: reviv.6,84,4.7. Quay, Sage v., Clarke Oh. 847 (7: 189). Quick V. Stuyvesant, 2 Paige Ch. 84 (2: 823); cont. 95-99. Quin a. Brittain, Hofl. Ch. 858 (6: 1170). Quinn v. Brittain, 3 Edw. Ch. 314 (6; 671)^ receiv. 64. Qufbcy s. Cheesman, 4 Sandf. Ch. 405 (7: 1150); receiv. 67, 68. V. Foot, 1 Barb. Ch. 496, 6 Ch. Sent. 13 (5 471, 1196); affl. 5; plead .104; prac. 90, 97. R. Racey, Dobson «., 3 Sandf. Ch. 60 (7: 770). Radcliff, Ainslie v., 7 Paige Ch. 489 (4: 223). Berg »., 6 Johns. Ch. 302 (2: 132). «. Coster, Hoff. Ch. 98 (6: 1077); insur. 36, 37; treaty. r. Rowley, 2 Barb. Ch. 23, 6 Ch.' Sent. 44 (5: 542, 1207); cloud on t. 6, 11; iud. sale, 26; plead. 297, 667. t). Rowley, 4 Edw. Ch. 646 (6: 1005). •B. Coster, 1 Ch. Sent. 89 (5: 1063). Radley v. Shaver, 1 Johns. Ch. 200 (1: 112); judg. d. & o. 313, 315. Shaver v., 4 Johns. Ch. 310 (1: 851). Ragusin, Fort «., 2 Johns. Ch. 146 (1: 336). Rainetaux, Bowman®., Hofl. Ch. 150 (6: 1066). Burrall v., 2 Paige Ch. 331 (2: 931). Ramsay b. Harris, Clarke Ch. 380 (7: 184); wit. 17. Rand, Kellogg «., 11 Paige Ch. 59 (5: 56). Randolph, Allen®., 4JohnsCh. 698.(1: 988). V. Dickerson, 5 Paige Ch. 517(8: 811);husb. & w. 321; plead. 692; reviv. 28. Rankin 0. Atherton. 3 Paige Ch. 143 (3:91); ven. & pur. 29. D. Reformed Dutch Church, 1 Edw. Ch. 20 (6: 44). St. Felix «., 3 Edw. 823 (6: 675). Ransom, Howell d., 11 Paige Ch. 538 (5: 337). Ransow e. Taw, 4Ch. Sent. 9 (5: 1137). Rapalje v. Hall, 1 Sandf. Ch. 399 (7: 374); int. 51, 59, 63, 64; guard. & w. 46, 52. Rapelve, Anderson o. , 9 Paige Ch. 483 (4: 785). V. Hoyt, 5 Ch. Sent. 85, 41 (5: 1177, 1179). Kingsland «., 3 Edw. Ch. 1 (6: 549). Martin e., 3 Edw. Ch. 329 (6: 637). Rathbone d. Clark, 9 Paige Ch. 648(4: 852); mort. 358; ven. & pur. 165. «. Dyckman, 3 Paige Ch. 9 (3: 37); wills, 149, 150, 154, 155, 260. 364. Rathbun, Hoag ®., Clarke Ch. 12 (7: 38). Kellett v.. 4 Paige Ch. 102 (3: 361). Pratt®., 7 Paige Ch. 269 (4: 151). Rogers v., 1 Johns. Ch. 367 (1: 174). Rattoon, Billings »., 5 Johns. Ch. 189(1: 1052). Rawdon v. Benedict, 1 Ch. Sent. 48 (5: 1065) cred. bill, 48. «. Blatchford, 3 Ch. Sent. 78 (5: 1125). Rawdon ®. Blatchford, 1 Sandf. Ch. 844 (7: 353); fraud, 15. Rawson, Boynton v., Clarke Ch. 584 (7: 207). ®. Copland, 2 Sandf. Ch. 251 (7: 582); cov. 8-, mort. 96; pay. 4; set-off, 68, 69. V. Copland, 3 Barb. Ch. 166 (5: 859); set-off, 60, 64. Merchant v., Clarke Ch. 133 (7: 69). Robb®., Clarke Ch. 584 (7: 207). Sherrill v., Clarke Ch. 584 (7: 207). Ray. King «., 11 Paige Ch. 285 (5: 120). ®. Connor, 3 Edw. Ch. 478 (6: 782); laches,. 4; prac. 206. ■0. Macomb, 2 Edw. Ch. 165 (6: 353); receiv. 201. V. Oliver, 6 Paige Ch. 489 (3: 1073); jud.. sale, 3. V. Reed, 4 Ch. Sent. 81 (8: 1145). Raymond v. Redfleld, 2 Edw. Ch. 196 (6: 366);. costs, 258. Rayner v. American Life Ins. & T. Co., 1 Ch. Sent. 85 (5: 1077); plead. 514; usury, 6. a. Pearsall, 3 Johns. Ch. 578 (1: 728); ac- counting. 16-18; ex. & ad. 87, 836; lim. of ac. 67. Rea, Gilchrist v., 9 Paige Ch. 66, 219 (4: 611,. 676). Requa »., 2 Paige Ch. 839 (2: 984). Read, Bradford v., 3 Sandf. Ch. 168 (7: 549). Taylor v., 4 Paige Ch. 561 (8: 561). Reade S.Livingston, 8 Johns. Ch. 481 (1:690).;. cont. 17-30; fraud, conv. 51-57. Sherwood v., 8 Paige Ch. 633 (7: 570). Receivers of American Fire Ins. Co., Hol- brook »., 6 Paige Ch. 330 (3: 960). Receivers of Buffalo City Bank, He, 8 Ch. Sent. 65 (5: 1131); bks. & bkg. 79. Receivers of Globe Ins. Co. Me, 6 Paige Ch. 103 (3: 916); chan. 7; receiv. 145, 187;. prac. 31. 2 Edw. Ch. 625 (6: 538). Redfleld, Raymond «., 2 Edw. Ch. 196 (6: 366). Schroeppel v., 5 Paige Ch. 245 (3: 703). V. Supervisors, etc., Clarke Ch. 42 (7: 46);. iuterpl. 82; injunc. 163. V. Supervisors of Genesee & Erie, 8 Clu Sent. 92 (5- 1180); taxes, 10-13. ■640 TABLE OF CASES DIGESTED. liedmond v. Wemple, 4Edw. Ch.231 (6:859); cred. bill, 335; insolv. & assign. 86. Eeed v. Bank of Newburgh. 1 Paige Cli. 315 (2: 633); eq. 62; set-off, 7, 8. ». Bank of Newburgh, 6 Paige Ch. 337 (3: 1011); Corp. 69;embez. 1; pay. 6. v. Darrow, 2 Bdw.Ch. 412 (6: 449); land. & ten. 62, 71; lien, 1. «. Emery, 8 Paige Ch. 417(4: 485); insolv. & assign. 31. Hall «., 2 Barb. Ch. 500 (5: 730). Halsey «., 9 Paige Ch. 446 (4: 769). Hutchinson v., Hoff. Cb. 316 (6: 1157) «. Marble, 3 Ch. Sent. 90 (5: 1139); mort. 138. c. Marble, 10 Paige Ch. 409 (4: 1081); mort. 138, 237; plead. 722; prin. & a. 16, 17; real prop. 86; witn. 23. Munson b., Clarke Ch. 580 (7: 205). Sylvester u., 8 Edw. Ch. 296 (6: 684). v. Warner, 5 Paige Ch. 650 (3: 869); compo. with cred. 4; plead. 84; prin. & a. 45. V. Wheaton, 7 Paige Ch. 663 (4: 319); cred. bill, 59, 68. Eeeder v. Reeder. 1 Ch. Sent. 77 (5: 1074). Rees V. Evans, 1 Ch. Sent. 6 (5: 1053); plead. 58. iBeeve, Gregory v., 5 Johns. Ch. 333 (1: 1067). «. Mayor, etc. of N. Y., 3 Ch. Sent. 101 (5: 1133). Reformed Dutch Church v. Molt, 7 Paige Ch, 77(4:77);relig. soc. 12-14, Kuypers v., 6 Paige Ch. 570 (3: 1106). Rankin v., 1 Edw. Ch. 30 (6: 44). Van Kleeck ®., 6 Paige Ch. 600 (3: 1118). iieid. Farmers' Loan & T. Co. v., 3 Edw. Ch. 414 (6: 709). V. 6ifEord,6 Johns. Ch. 19(2: 40); injuac.82. V. Gifford, Hopk. Ch. 416 (3: 470); canity, 16; injunc. 379; wat. & w. cos. 16-30. v. Mynderse, 3 Ch. Seat. 38 (5: 1089). V. Peters, 6 Ch. Sent. 80 (5: 1221). Vanderheyden «., Hopk. Ch. 408 (2: 467). iReigal d. Wood, 1 Johns. Ch. 403 (1: 187): iudg. d. & o. 338-334. Relyea, Laflin v., 7 Paige Ch. 368 (4: 192). Jlemer v. Peck, 3 Ch. Sent. 89 (5: 1139). Remsen, Brinkerhoof v., 8 Paige Ch. 488 (4: 514). Cooper »., 3 Johns. Ch. 383 (1: 656). Cooper o., 5 Johns. Ch. 459 (1: 1141). V. Hay, 2 Edw. Ch. 535 (6: 495). Holmes v., 4 Johns. Ch. 460 (1: 903). Holmes v., 7 Johns Ch. 386 (3: 395). V. Remsen, 3 Johns. Ch. 495 (1: 463); ref.45. Vail D., 7 Paige Ch. 206 (4: 125). WyckofE v., 11 Paige Ch. 561 (5: 235). iRensselaer & Saratoga R. R. Co. , Be, 4 Paige Ch. 553 (3: 558); damag. 13; railr. 11. :Renwick «. Campbell, 1 Ch. Sent. 69 (5: 1073). «. Cooper, 8 Ch. Sent. 48 (5: 1113). V. Cooper, 10 Paige Ch. 803 (4: 987); app. 79-81; infanU, 145; reviv, 69-71. «. Mack, 4 Edw. Ch. 380 (6: 912); costs, 535; plead. 548. V. Macomb. 1 Ch. Sent. 61 (5: 1069). Macomb, Hopk. Ch. 377 (3: 420), 9. Renwick, 4 Ch. Sent. 32 (5: 1143). c. Renwick, 5 Ch. Sent. 52 (5: 1183). c. Renwick, 10 Paige Ch. 420, 3 Ch. Sent. 81 (4: 1035, 5: 1126); dep. 5-7, 36; husb. & w. 288, 290, 384-386, 400, 401; lim. of ac. 75; ref. 38, 109, 110. Renwick, Watson v., 4 Johns. Ch. 381 (1: 875). v. Wilson, 6 Johns. Ch. 81 (3: 61); plead. Requa v. Rea, 2 Paige Ch. 889 (3: 934); jud. sale, 43, 48, 92. Rexford s. Rexford, 4 Ch. Sent. 39 (5: 1148). V. Widger, 3 Barb. Ch. 640, 6 Ch. Sent. 73 (5: 1040, 1218); tisury, 158. Rev, Ordronaux v., 2 Sandf. Ch. 33 (7: 496). Reynolds, Aldrich v., 1 Barb. Ch. 43, 613, (5: 293,516). Brownson «.. Hopk. Ch. 416 (3: 470). V. Reynolds, 1 Ch. Sent. 7, 40 (5:1053, 1068). Reynolds, 5 Paige Ch. 161 (3: 669); dower, 19; parti. 86, 60, 61. Winne v., 6 Paige Ch. 407 (3: 1041). Rhinelander, Barrow v., 3 Johns. Ch. 550 (1, 242). Barrow »., 3 Johns. Ch. 120, 614 (1: 563, 735). Rhoades v. CanfieW, 1 Ch. Sent. 1 (5: 1031). V. Canfield, 8 Paige Ch. 545 (4: 536); mort. 50-53. Rhodes «. Evans, Clarke Ch. 168 (7: 83); mort. 409. Micklethwaite «., 4 Sandf. Cb. 484 (7: 1163). V. Rhodes, 3 Sandf. Ch. 379 (7: 853); cont, 7—9 53 Smiths', 4 Sandf. Ch. 484(7:1163). Ward v., 4 Sandf. Ch. 434(7: 1162). Wilkinsons., 4 Sandf. Ch. 434(7:1163). Rice, Mann «., 8 Barb. Ch. 42 (5: 807). o. Tonnele, 4 Sandf. Ch. 568 (7: 1312); infants, 92, 93; parlies, 110. Rich, Be, 2 Ch. Sent. 28 (5: 1088). Richard, Barron v., 3 Edw. Ch. 98 (6: 585). Barrow B., 8 Paige Ch. 351 (4: 457). Richards «. Barlow, 1 Paige Ch. 138, 333 (3: 591, 664); costs, 331-284, 386, 237. 340, 375, 481, 482, 493; writ & p. 16, 17. Mead v., 4 Edw. Ch. 667 (6: 1012). D. Salter, 6 Johns. Ch. 435 (2: 180); costs, 4«; int. 20; interpl. 20. 45. Richardson v. Richardson, 5 Paige Ch. 58 (8: 637); costs, 139, 322; plead.. 138. D. Rust. 1 Ch. Sent. 64 (5: 1070). V. Rust, 9 Paige Ch.34d (4: 686); assign. 3,3; injunc. 386. Richmond, Lyon v., 3 Johns. Ch. 51 (1: 393). «. Stevenson, 2 Ch. Sent. 31 (5: 1086). Rickets, Brown v., 4 Johns. Ch. 308 (1: 848). Ricketts, Brown v., 3 Johns. Ch. 425 (1: 435). Brown v., 3 Johns. Cb.63, 553 (1: 544, 714). Ridabock v. Levy, 8 Paige Ch. 197 (4: 397); acknowl. 14; app. 178, 183; piac. 7. Rider v. Mason, 4 Sandf. Ch. 351 (7: 1130); cred. bill, 193, 198, 330. Ridgway s. Weeks, 6 Ch. Sent. 29 (5: 1202); receiv. 96, 97. Righter d. Stall, 8 Sandf. Ch. 608 (7: 974); costs, 9; pay. 38; usury, 77. Riggs V. Murray, 8 Johns. Ch. 565 (1: 493); cred. bill, 268; insolv. & a. for c. 13, 100, 101, 139. 9. Murray, 3 Johns. Ch. 160 (1: 578); app. 111. Riker s. Darke, 4 Edw. Ch. 668 (6: 1013); parti. 16. Hedges «., 5 Johns. Ch. 168 (1: 1044). Wood v., 1 Paige Ch. 616 (3: 778). Ripley, Howell •s., 10 Paige Ch. 43 (4: 873). Ritchie, Putnam v., 6 Paige Ch. 390 (3: 1033). Putnam v., 7 Paige Ch. 43 (4: 52). TABLE OF CASES DIGESTED. 611 Robb «. Rawson. Clarke Ch. 584 (7: 307). V. Stevens, Clarke Cb. 191 (7: 289); partn. 82-35, 172, 173. fiobbins®. Cooper, 6 Johns. Ch. 186 (2: 95); attach. 1, 2. .Roberts, Se, 3 Johns. Ch. 43 (1: 537); commis. 4; incomp. pers. 42. (Roberts' "Will, Be, 8 Paige Ch. 446, 519(4: 497, 527); dom. 1, 2; ev. 83; wills, 12, 27, 82, 100. iRoberts ». Anderson, 2 Johns. Ch. 202 (1: 348); injunc. 281, 290-292, 327. u. Anderson, 3 Johns. Ch. 371 (1: 653); ev. 120; fraud, 7; fraud, conv. 15, 16; ven. & pur. Ill, 112, 131, 132; witn. 22. Hamilton v. , 3 Edw. Ch. 234 (6: 639). Jones »., 4 Edw.Ch. 611 (6: 993). Kingsland v., 2 Paige Ch. 193 (2: 810). Mutual Safety Ins. Co. ■»., 5 Sandf. Ch. 593 (7: 1221). «. Robertson, 3 Paige Ch. 387 (3: 200). 11. Wendell, 6 Paige Ch. 320 (3: 1004). Slobertson, Chapman «., 6 Paige Ch. 627 (3: 1128). B. McGeoch, 11 Paige Ch. 640, 5 Ch. Sent. (No. 3) 10 (5: 264, 1169); app. 66; ex. & ad. 17-19. 4). Robertson, 3 Paige Ch. 38 (3: 200); costs, 124; husb. & w. 338, 339. n. Robertson, 1 Edw. Ch. 360 (6: 172); husb. & w. 366. s. Wendell, 6 Paige Ch. 320 (3: 1004); costs, 263. 'Robeson ®. Ford, 3 Edw. Ch. 441 (6: 718); con- tempt, 13. Robinson ». Cropsey, 3 Edw. Ch. 138 (6: 340); eq. 133. ». CroDsey, 6 Paige Ch. 480 (3:1069); mort. 23, 24. Franklin v., 1 Johns. Ch. 157 (1: 98). Furgison «., Hopk. Ch. 8 (2: 324). Htndricks «., 2 Johns. Ch. 283, 484 (1: 380, 459). «. KetUetas, 4 Edw. Ch. 67 (6: 800); land. & ten. 88; trusts, 279. Lorrilard v., 3 Paige Ch. 276 (3: 906). V. Meigs, 10 Paige Ch. 41 (4: 878); jud. sale. 98 e. Pres'wick, 3 Edw. Ch. 346 (6: 644); fixt. 3. «. Smith, 3 Paige Ch. 332 (3: 126); corp. 69, 70, 79; parlies, 125; plead. 672, 694, 725. Waring v., Hoff. Ch. 524(6: 1231). «. Woodgate, 3 Edw. Ch. 422 (6: 712); plead. 440, 467. iRochester «. Curtiss, Clarke Ch. 336 (7: 135); Genesee River, l;injuuc. 200-202. Parker v.. 4 John. Ch. 329 (1: 858). -Rochester City Bank u. Caipenter, 4 Ch. Sent. 22(5:1142). MicklesD., 11 Paige Ch. 118 (5: 77). Rockett, Carter »., 8 Paige Ch. 437 (4: 493). Rockwell V. Folsom, 4 Johns. Ch. 165 (1: 803); dep. 10. Hobby, 2 Sandf. Ch. 9 (7:498); mort. 15, 16; subr. 44. -Rodgers «. Rodgers, 1 Paige Ch. 424, 426 (2: 701, 703); injunc. 286, 366; plead. 182, 183. Rodriguez v. Heflernan, 5 Johns. Ch. 417 (1: 1127); partn. 139; pledge & col. ^ec. 1 ; sale, 31. Roe, Doe»., Hopk. Ch.276 (2: 420). <:!h Dig-. 41 Roe, Kellinger®., 7 Paige Ch. 363 (4: 189). Roff, Ayraar »., 3 Johns. Ch. 49 (1: 538). Rogers, Badeau «., 2 Paige Ch. 209(2: 878). ®. Benson, 5 Johns. Ch. 431 (1: 1133); husb. & w. 41, 138; insolv. & aseign. 33. Bolt v., 3 Paige Ch. 154 (3: 95). 11. De Forest, 3 Edw Ch. 171(6: 614); plead. 181. «. De Forest, 7 Paige Ch. 272 (4: 152); in- solv. & assign. 66, 67. V. Dibble, 8 Paige Ch. 388 (3: 184); witn. 106, 107, 113. ®. Dibble, 8 Paige Ch. 9 (4: 825); exBC. 89- 91; witn. 67. Hosack «., 6 Paige Ch. 415 (3: 1044). Hosack «. 7 Paige Ch. 108 (4: 85). Hosack v., 8 Paige Ch. 529 (4: 410). Hosack «., 9 Paige Ch. 461 (4: 776). Hosack v., 11 Paige Ch. 603 (5: 248). v. King, 8 Paige Ch. 210 (4: 403); abatement, 6; injunc. 139; judg. d. & o. 183; surr. 7. Le Roy »., 3 Paige Ch. 384 (3: 132). e. Ludlow, 3 Sandf. Ch. 104 (7: 788); husb. & w. 36, 124, 125; power. 85; trusts, 27, 28. ■e. Murray, 3 Paige Ch. 390(3: 201); loan off. 13, 14; trusts, 62, 63. Newland «., 3 Barb. Ch. 482 (5: 961). North River Bank v., 8 Paige Ch. (4: 577). V. PatersOh, 4 Paige Ch. 409, 450, (3: 492. 511); app. 13, 184, 236; contempt, 1, 23: disc. & dist. 23; reviv. 8-5, 75. People «.. 2 Paige Ch. 108 (2: 881). v. Rathbun, 1 Johns. Ch. 367 (1: 174); in- junc. 112; usury, 139. «. Rogers, Hopk. Ch. 515 (2: 507); trusts, 176, 177. ®. Rogers, 1 Paige Ch. 183, 188 (2: 609, 611); judg. d. & o. 71, 212; rem. of cau. 6, 7; trusts, 210. n. Rogers, 2 Paige Ch. 458 (2: 987); atty. & sol. 62, 63; costs, 317, 819, 330, 337, 350, 369, 870, 373, 374, 407, 417, 431-428, 488- 437, 445, 446, 456-458, 463, 464, 467- 469, 473. 474, 499, 500, 561, 566. ®. Rogers, 8 Paige Ch. 379 (3: 196); judg. d. & o. 141; parties, 44. , ■». Rogers, 4 Paige Ch. 516 (3: 541); husb. & w. 425-427. ■g. Ross, 4 Johns. Ch. 888, 608 (1: 878, 953); costs, 62; wills, 461-466. v. Salmon, 8 Paige Oh. 559, 1 Ch. Sent. 2 (4: 541, 5: 1052); mort. 290; ven. & pur. 39 Stafford v., Hopk. Ch. 98 (2: 356). ®. Toole, 11 Paige Ch. 212, 4 Ch. Sent. 51 (5: 111, 1152); costs, 67, 70; discontin. 11; judg. d. & o. 64, 65; prac. 60. s. Traders' Ins. Co., 6 Paige Oh. 583(3:1111); ev. 282; insur. 12, 40; mort. 539; parties, 37, 50; prin. & a. 54. ■0. Vermilyea, 2 Ch. Sent. 34, 60 (5: 1087, 1094). V. Vosburgh, 4 Johns. Ch. 84 (1: 773); act. or suit, 38. 38. Romaine, Byrne v., 1 Edw. Ch. 318 (6: 155). Byrne v., 2 Edw. Ch. 445 (6: 461). Romayne, Astor ». 1 Johns. Ch. 310 (1: 153). Roorbach v. Dale, 6 Johns. Ch. 469 (2: 187). V. North River Steamboat Co. , 6 Johns. Oh. 469 (2: 187); ship. 4, 5. Roosevelt, Carroll v., 4 Edw. Ch. 211 (6: 855). 612 TABLE OP CASES DIGESTED. Roosevelt. Dale v., 5 Johns. Ch. 174 (1: 1047). Dale v., 6 Johns. Ch. 255 (3: 117). v. Ellithorp, 3 Ch. Sent. 86 (5: 1128). B.Ellithorp, 10 Paige Ob. 415 (4: 1033); costs, 83-85; ex. & ad. 163; husb. & w. 56; mort. 206; plead. 154, 155; witn. 66. M'Menomy «., 3 Johns. Ch. 446 (1: 67fl). V. Mark, 6 Johns. Ch. 566 (3: 121); assump. bankcy. S-12; lim. of ac. 33, 105-107; wills, 419. Mason v., 3 Johns. Ch. 627 (1:739). Mason v. , 5 Johns. Oh. 534 (1: 1166). Nicoll «., 3 Johns. Ch. 60 (1: 543). V. Post, 1 Edw. Ch. 579 (6: 253); accounting, 19-21; wharf, 6. V. Thurman, 1 Johns. Ch. 220 (1: 119); real prop. 5; ref. 119; wills, 158, 266, 267. Root, Be, 1 Ch. Seiit. 13 (5: 1054). 8 Paige Oh. 625 (4: 568); costs, 313, 341, 382, 404, 429, 438, 484, 494, 495, 513, 526-528; inoomp. pers. 27. Bradley v., 5 Paige Ch, 632 (3: 860). Ontario Bank!)., 3 Paige Oh. 478(3: 239). V. Stafford, 2 Barb. Ch. 83, 6 Ch. Sent. 65 (5: 546, 1215); receiv. 81. V. Spalding, 2 Ch. Sent. 12 (5: 1083). Rose 8. Clark, 1 Ch. Sent. 9 (5: 1053). ®. Clark, 8 Paige Ch. 574 (4: 548); desc. & dist. 2; ev. 30, 31; husb. & w. 1. D.Rose, 11 Paige Ch. 166(5:93); husb. & w. 302, 365, 395; injunc. 2a, 209; plead. 188, 189. e. Woodruff, 4 Johns. Ch. 547 (1: 932); judg. d. & o. 6, 7; prac. 83. Roseboom v. Vedder, Hopk. Ch. 228 (2: 403); costs, 514. Rosevelt v. Bank of Niagara, Hopk. Ch. 679 (2: 530); set-off, 115-118. Dale «., 1 Paige Oh. 35 (2: 552). Fulton v., 1 Paige Oh. 178 (2: 607). Ross, Oolton «., 2 Paige Ch. 396 (2: 959). «. Crary, 1 Paige Ch. 416 (2: 698); ex. & ad. 145, 146. Hawley «., 7 Paige Ch. 103 (4: 83). V. Hegeman,2 Edw. Ch.373 (6:434) ;trusts,69. Jerome v.. 7 Johns. Ch. 315 (2: 305). n. Lockwood, 3 Ch. Sent. 88 (5:1128). Rogers v., 4 Johns. Ch. 388,608 (1:878, 953). Rosse V. Rust, 4 Johns. Ch. 300 (1: 847); judg. d. & o. 111. ^ ^ Rossie Galena Co., Judson v., 9 Paige Ch. 598 (4: 831). Rossie Lead Mining Co., Masters v., 2 Sandf. Ch. 301 (7: 603). Rowe V. Phillips, 2 Sandf. Oh. 14 (7; 488); ev. 322, 323; plead. 515. Rowley, Radc'iff »., 4 Eihv. Oh. 646 (6: 1005)^^ Radclifl v., 2 Barb. Ch. 23 (5: 542). Roy i>. Willink, 4 Sandf. Ch. 525 (7: 1196)^ contr. S3; spec. p. 96. Ruckman v. Astor, 3 Ch. Sent. 20 (5: 1086)^ mort. 507-509. «. Astor, 3 Edw. Oh. 373 (6: 693). V. Astor, 9 Paige Ch. 517 (4: 799); mort. 507-509. Ruggles, Storms »., Clarke Oh. 148 (7: 76). Rushmore ■». Miller, 4 Edw. Ch. 84 (6: 806);. prin. & aur. 6. Russell, Be, 1 Barb. Ch. 38, 5 Oh. Sent. 35, 6- Ch. Sent. 3(5:390, 1174, 1192); incomp. pers. 21-23, 25, 113-115. e. Allen, 3 Ch. Sent. 21 (5: 1106). V. Allen, 10 Paige Oh. 249 (4: 965); jud. sale, 102-104; trusts, 73; ven. & pur. 100. V. Austin, 1 Paige Oh. 193 (2: 612); cosls>. 136; dower, 33-37; mort. 177. V. Haight, 4 Ch. Sent. 16 (5: 1140). V. Kinney, 10 Paige Ch. 315 (4: 991); app. 108; chanc. 37. V. Kinney, 1 Sandf. Oh. 34 (7: 228); ev. 140;. mort. 104; plead. 79. Lansing «., 3 Barb. Ch. 325 (5: 919). V. Mayor, etc. of N. Y., 1 Ch. Sent. 8^ (5: 1075). V. Popham, 4 Ch. Sent. 80(5: 1161); nuis. 7. Sewall «., 2 Paige Oh. 175 (2:863). Russel, Wakeman v., 1 Edw. Oh. 509 (6: 328). Williams, 1 Sandf. Ch. 195 (7: 293). Rust, Richardson »., 9 Paige Oh. 243 (4: 686). Rutgers v. Hunter, 6 Johns. Oh. 315 (3: 104);. land. & ten. 24, 25. Rutherford, Jauncey »., 9 Paige Ch. 373 (4:698). Ryckman v. Parkins, 5 Pia,ige Ch. 543 (3: 822);. costs, 39, 51; int. 27-29; receiv. 199. Ryder, Be, 4 Edw. Ch. 338 (6: 898); par. & c. 7. 11 Paige Ch. 185, 4 Ch. Sent. 47 (5: 101,. 1151); costs, 104; par. & c. 1-4, 6; wills, 460. Croton Turnpike »., 1 Johns. Ch. 611 (1: 265). Ryerson v. Minton, 3 Edw. Oh. 383 (6: 697);. plead. 199; receiv. 91. s. 8- -. G- -., HoUey «., 4 Edw. Oh. 284 (6: 880). Sabbath,, Ohipman o., 7 Paige Ch. 47 (4: 54). Sackett, American Life Ins. & T. Co. v., 1 Barb. Ch. 585 (5: 504). V. Giles, 3 Barb. Ch. 204 (5: 874); exec. 48; husb. & w. 175, 418; jud. sale, 106. National Fire Ins. Co. v., 11 Paige Ch. 660 (5: 270). Safford v. Douglas, 4 Edw. Ch. 537 (6: 967); ored. bill, 266. Root v., 2 Barb. Ch. 33 (5: 546). V. Safford, 7 Paige Ch. 259 (4: 147); dower, 3, 4; parti. 109. Sage V. Quay, Clarke Ch. 347 (7: 139); iniunc 293, 382, 383. Sagory ®. Dubois, 3 Sandf. Ch. 466 (7: 922)- bks. & bkg. 37-31; corp. 104; int. 17^ receiv. 162, 163. Sailly V. Elmore, 2 Paige Ch. 497 (2: 1004)- equity, 78, 79; prin. & sur. 24-26. St. Andrew's Church v. Tompkins, 7 Johns Ch. 14(1:205); mort. 39. St. Felix V. Rankin, 3 Edw. Ch. 323 (6- 675)- parti. 73. St< John V. Benedict, 6 Johns. Ch. Ill (3- 7iy- ev. 173; spec. p. 25. v • ^i- Hitchcock*., Hoff. Ch. 511 (6: 1226) TABLE OF CASES DIGESTED. US St. John, Jones v., 4 Sandf. Ch. 208 (7: 1078). V. Sewall, 3 Edw. Ch. 248(6: 645). St. Peter's Church, De Ruyter v., 2 Barb. Ch. 555 (5: 751). St. Peter's, De Ruyter «., 3 Barb. Ch. 119(5: 840). St. Peter's Church, Newcomb v., 2 Sandf. Ch. 636(7:737). St. Stephen's Cnurch, Humbert v., 1 Edw. Ch. 308 (6: 150). Sale, Lyman v., 3 Johns. Ch. 487 (1: 460). Salisbury, Be, 3 Johns. Ch. 347 (1: 643); In- comp. pcrs. 52, 53. Mayer »., 1 Barb. Ch. 540 (5: 487). Salmon, Rogers «., 8 Paige Ch. 559 (4: 541). Salter, Baldwin v., 8 Paige Ch. 473 (4: 508). Richards «., 1 Johns. Ch. 445 (1: 180). Salters v. Tobias, 3 Paige Ch. 338 (b: 179); const. 1. 5; ev. 124; insolv. & a. for cr. 162; plead. 542; stat. 3. Saltus V. Tobias, 7 Johns. Ch. 214 (2: 272); plead. 19, 20. Sampson » Taylor, 1 Ch. Sent. 89 (5: 1078); cred bill, 186; ref. 48. Sand, Carroll v., 10 Paige Ch. 298 (4: 985). Sanders, Be, 4 Paige Ch. 293 (3: 442); real prop. 8-10, 27. Burnett «., 4 Johns. Ch. 503 (I: 917). «. Marcelious, 6 Paige Ch. 162(3: 939); costs, 327, 328, 436, 491, 492. Sandford, De Bevoise v., Hoff. Ch. 192 (6: 1112). «. Jackson, 3 Ch. Sent. 26 (5: 1108). McGown v., 9 Paige Ch. 290 (4: 705). V. McLean, 3 Paige Ch. 117 (3: 80); dower, 56, 57, 80; husb. & w. 136, 137; jud. sale, 65; subr. 14, 15. «). Sinclair, 3 Edw. Ch. 393 (6: 701): receiv. 38. Sinclair v., 7 Paige Ch. 432 (4: 219). V. Sinclair. 8 Pa.ige Ch. 373 (4: 467); cred. bill, 225; receiv. 8. 9. Spring «>.. 7 Paige Ch. 550 (4: 270). B. Trust Fire Ins. Co., 11 Paige Ch. 547, 5 Ch. Sent. 2 (2: 231, 1164); insur. 1. Sands, Hildreth v., 2 Johns. Ch. 35 (1; 286). Perley «., 3 Edw. Ch. 325 (6: 676). 0. "White, 3 Ch. Sent. 39 (5: 1113). Sanford v. Bissell, 1 Johns. Ch. 383 (1: 180); plead. 615-618. 8. Jackson, 10 Paige Ch. 266 (4: 971); wills, 255, 391, 892, 404, 405, 410. Shepard v., 3 Barb. Ch. 127 (5: 844). Sanger, Eames «., 3 Paige Ch. 556(3: 273). «. "Wood, 3 Johns. Ch. 416 (1: 668); action or s. 22. Saratoga & Schenectady R. Co., Beekmant)., 3 Paige Ch. 45 (3: 50). Sarles v. Sarles, 3 Sandf. Ch. 601 (7: 972); in- junc. 56; life ten; waste, 7-13. Satterlee, Aikin v., 1 Paige Ch. 289 (2: 651). o. Bargy. 3 Paige Ch. 142 (3: 90); injunc. 321 322 V. Fine.'l Ch. Sent. 2 (5: 1051). 0. True, 3 Edw. Ch. 423 (6: 712) cred. bill, 148. Saunders v. Saunders, 2 Edw. Ch. 491 (6: 478); husb. & w. 394. Savage, Cole v., Clarke Ch. 361, 482, (7: 143, 179). Cole «., 10 Paige Ch. 583 (4: 1099). V. Todd, 2Ch. Sent. 28 (5: 1088); witn. 59. o. Todd, 9 Paige Ch. 578(4: 833); eq. 59, 60. Savetier, Decouche v., 3 Johns. Ch. 190 (U 587). Sawyer, Clarke v., 2 Barb. Ch. 411 (5: 695). Clarke «„ 3 Saudf. Ch. 351 (7: 879). ®. Sawyer, 3 Paige Ch. 263 (3: 146); prac. 67-66. Saxton «. Stowell, 11 Paige Ch. 526, 5 Ch, Sent. 3 (5: 323, 1164); abatement, 5; act. or suit 11; atty. &soI. 3; discontin. 8, 9; writ. & p. 13. V. Wyckoff, 6 Paige Ch. 183(3: 947); injunc. 133 Sayles v. Kellis, 4 Ch. Sent. 9 (5: 1137). Schatzell, "Woodward v., 3 Johns. Ch. 413 (1: 666). Schenck v. Ellingwood, 3 Edw. Ch. 175 (6: 615); parties, 161; power, 33. Schmerhorn, Be, 5Ch. Sent. 60(5: 1186). Albany City Bank v., Clarke Ch. 214, 297. 366 (7: 96, 121, 144.) Albany Cily Bank »., 9 Paige Ch. 872 (4: 736). Albany City Bank v., 10 Paige Ch. 263 (4r 970). Bank of Monroe v., Clarke Ch. 214, 297, 303, 366 (7: 96, 121, 123, 144). v. Barhydt, 1 Ch. Sent. 35 (5: 1058). Barhydt v., 9 Paige Ch. 28 (4: 597); exec. 80- 83; ex. & ad. 433-439. Beekman v., 3 Sandf. Ch. 181 (7: 817). V. Campbell, 1 Ch. Sent. 39 (5: 1063), Carpenter v., 2 Barb. Ch. 314(5: 656). Gardiner v., Clarke Ch. 101 (7: 63). V. Divendorfl, 1 Ch. Sent. 84 (5: 1076). D. Mavor etc., of N. Y. 3 Edw. Ch. 119 (6: 594); highw. 2, 3. Morgan «., 1 Paige Ch. 544 (3: 746). Ontario Bank «., 10 Paige Uh 109 (4: 907). Planck v., 3 Barb. Ch. 644 (5: 1043). Schermerhorne ». Schermerhorne, 6 Johns. Ch. 70 (1:48); wills, 314, 315. SchiefEelin, Field v., 7 Johns. Ch. 150, 350 (3. 351, 384). V. Stewart, 1 Johns. Ch. 630 (1: 268); 57, 58, 99; costs, 148. Schlessinger v. Gooding, 1 Ch. Sent. 27 (5: 1058), Schmeck, Van Slyke v., 10 Paige Ch. 301 (4: 986). Schmidt «. Dietericht, 1 Edw. Ch. 119 (6: 81). auc. 2; eq. 10; plead. 386. V. Hoyt,l Edw.Ch.652 (6:379); real prop.68. «. Livingston, 8 Edw. Ch. 218(6: 631); spec, p. 27, 29. Schoonmaker o. Gillett, 3 Johns. Ch. 311 (1: 630); contempt, 37. Kirby v., 3 Barb. Ch. 46 (5: 809). Schroeppel «. Redfleld, 5 Paige Ch. 345 (3: 703); discov. 4, 39; plead. 702. Schryver v. Teller, 1 Oh. Sent. 39 (5: 1003). V. Teller, 9 Paige Ch. 173 (4: 655); ven. & pur. 153, 154. Schubert «. Bull, 4 Ch. Sent. 33 (5: 1145); ne ex. 16. Schuyler, Bradstreet v., 3 Barb. Ch. 608 (5. 1038). Coutanf v., 1 Paige Ch. 816 (2: 663). Ham v., 2 Johns. Ch. 140 (1: 323). Ham»., 4 Johns. Ch. 1 (1: 743). V. Hoyle, 5 John. Ch. 196 (1: 1055); husb. & w. 58, 59, 310. V. Pelissier,3Edw. Ch. 191 (6: 632); interpl. 30, 31. U4. TABLE OF CASES DIGESTED. Scott v. Depeyster, 1 Edw. Ch. 513 (6: 339); Corp. 71-77; trusts, 133. 8. Eagle Fire Ins. Co., 7 Paige Ch. 198 (4: 133); Corp. 176; Insur. 46-48. «. Grant, 10 Paige Ch. 485 (4: 1060); bankcy, 67, 67; contempt, 9. «. Hathaway, 11 Paige Ch. 173 (5: 96). Howland v., 3 Paige Ch. 406 (3: 965). Hoxie v., Clarke Oh. 457 (7: 170). s. Pinkerton, 3 Edw. Ch. 70 (6: 574); partn. 170. «. Schufeldt, 5 Paige Ch. 43 (3: 620); husb. & w. 10-12. V. Thorp, 4 Edw. Ch. 1 (6: 777); costs, 163, 164; ev. 85; ref. 63; ven. & pur. 70. v. Thorpe, 1 Edw. Ch. 512 (6: 339); spec. p. 7. V. Young, 4 Paige Ch. 542 (3: 554); wit. 15, 113, 114. Scouten «. Bender, 1 Barb. Ch. 647, 6 Ch. Sent. 39 (5: 530, 1205); assign. 11; par- tipg YO Scovell, Wetmore v., 3 Edw. Ch. 515 (6: 745). Scoville V. Post, 3 Edw. Ch. 203 (6: 627); ex. & ad. 401; gift, 19. Scribner ®. Crane, 3 Paige Ch. 147 (2: 850); wills, 53. . V. Hickok, 4 Johns. Ch. 530 (1: 926); contrib. 15, 16. V. Williams, 1 Paige Ch. 550 (2: 748); app. 325-328. Scrugham, Be, Hopk. Ch. 83 (3: 352); mort. 379-383 Scudder ». Bogert, 1 Edw. Ch. 373 (6: 176); plead. 63, 63. V. Van Amburgh, 4 Edw. Ch. 39 (6: 787); lis pend. 10; plead. 686. Sea Ins. Co. ». Darrow, 1 Ch. Sent. 3 (5: 1051). c. Day, 1 Oh. Sent. 64, 80 (5: 1071, 1075). V. Day, 9 Paige Ch. 347, 369 (4: 688, 735); discon. 6; judg. d. & o. 108, plead. 120; prac. 184, 240. V. Matthews, 1 Ch. Sent. 3 (5: 1051). B. Stebbins, 1 Ch. Sent. 8 (5: 1053). «. Stebbins, 8 Paige Oh. 565 (4: 543); affl. 7, receiv. 16, 70, 75, 137. Ward v.. 7 Paige Oh. 394 (4: 163). Seaman, Ee. 3 Paige Oh. 409 (3: 966); atty. & sol. 14; guard. & w. 43-45; infants, 71. «. Hicks, 1 Oh. Sent. 33 (5: 1057). «. Hicks, 8 Paige Ch. 655 (4: 580); em. dom. 16; hiehw. 6; jud. sale, 59, 63. LortonB.,"'9Paige Ch. 609 (4: 836). ®. Stoughton, 3 Barb. Ch. 344 (5: 937); in- solv. &a. for cr. 115; plead. 546, 547. Searing v. Searing, 1 Ch. Sent. 67 (5: 1071). V. Searing, 9 Paige Oh. 283 (4: 703); husb. & w. 51, 65-67, 306, 224. Searle ». Scovell, 4 Johns. Oh. 218 (1: 820); ship. 14r-21. Sears ®. Barnum, Clarke Ch. 139 (7: 74); ev. 273 «. Hyer,' 1 Paige Ch. 483 (2: 734); husb. & w. 95, 222, 223; parti. 101; plead. 95. c. Powell, 5 Johns. Ch. 359 (1:1076); prac. 14. Seaver, Judd v., 8 Paige Ch. 548 (4: 537). Seaving ■». Briukerhoif, 5 Johns. Ch. 339 (1: 1099); insolv. & a. for cr.'154; judg. d. & o. 1, 2. Sabring ®. Mersereau, Hopk. Ch. 501 (2: 502); costs, 351; parti. 30, 87-90. Sedgwick v. Cleveland, 7 Paige Ch. 287 (4: 159); parties. 12, 58, 61, 63; reviv. 65. Cowman v., Hoff. Ch. 60 (6: 1063). V. Fish, Hopk. Ch. 594 (2: 536); jud. sale, 15; mort. 340, 841. Seebor v. Hess, 5 Paige Oh. 85 (3: 637); costs, 432; injunc. 234-236, 803. Selden «. Vermilya, 4 Sandf. Ch. 573 (7: 1314); injunc. 374; plead. 181. Sellon, Leggetto., 3 Paige Oh. 84 (3: 67). Sells ». Hubbell's Admrs., 3 Johns. Ch. 394 (1: 432); contrib. 23-34; insolv. & a. for cr. 171. Kimberly v., 3 Johns. Ch. 467 (1: 686). Seneca Falls v. Matthews, 9 Paige Ch. 504 (4: 793); injunc. 86, 207; ne ex. 14. 15. V. Matthews, 2 'Oh. Sent. 18 (2:1085); in- junc. 328. Seneca Woolen Mills v. Tillman, 2 Barb. Ch. 9, 6 Ch. Sent. 43 (5: 537, 1207); injunc. 39; wat. & w. cos. 32-34. Senior, M'Credie v., 4 Paige Ch. 378 (3: 477). Sergeant, Loud o., 1 Edw. Oh. 164 (6: 98). Sewall D. Russell. 2 Paige Ch. 175 (2: 862); fraud, conv. 26. St. John v.. 3 Edw. Ch. 348 (6: 645). Seward, Van Wyck v., 1 Edw. Ch. 327 (6: 158). Van Wyck v., 6 Paige Ch. 63 (3: 899). V. Wood, 3Ch. Sent. 34 (5: 1108). Seymour v. Brewster, 3 Ch. Sent. 63 (5: 1095); plead. 568; ref. 111. B. De Lancy, Hopk. Ch. 436 (3: 478). ®. Delancey, 6 Johns. Ch. 222 (2: 106); spec. p. 1, 2, 25, 35, 46-51. Farmers' Loan & T. Co. v., 9 Paige Ch. 538, (4:808). Green v., 3 Sandf. Ch. 285 (7: 855). V. Hazard, 1 Johns. Oh. 1 (1: 37); ne ex. 42, 43. V. McDonald, 4 Sandf. Ch. 502 (7: 1186) cov. 11, 12; injunc. 42. ■D. Marvin, 3 Ch. Bent. 39 (5: 1113); plead 137. Minturn v., 4 Johns. Ch. 173. 496 (1: 805, 914). V. Seymour. 4 Johns. Ch. 409 (1: 885); dis cov. 16, 17; surro. 7, 8. Shafer, Bellinger «., 2 Sandf. Ch. 293 (7: 599), Sharp, iJe, 6 Oh. Sent. 36(5: 1204). V. Sharp, 3 Johns. Oh. 407 (1:664); discov, 65; plead. 385. Sharpsteen. Tillou v., 5 Johns. Ch. 260 (1 1076). Sharts, Dumond «., 2 Paige Ch. 182 (3: 865). Shattuck V. Oassidy, 3 Edw. Oh. 153 (6: 606) courts, 26. Shaver, Radley «., 1 Johns. Ch. 200 (1: 112). V. Radley, 4 Johns. Ch. 310 (1: 851); costs, 207, 208; lim. of ac. 55; trusts, 284. Shaw v. Chester, 2 Edw. Oh. 405 (6: 446)- in- terpl. 11, 38, 39. «. Coster, 8 Paige Ch. 389 (4: 452); costs, 203; interpl. 14-16, 41. Dorr v., 4 Johns. Ch. 17 (1: 748). V. Leavitt, 3 Sandf. Ch. 163 (7: 810); account ing, 13; contr. 64; ev. 125. V. McNish, 1 Barb. Ch. 336, 5 Ch. Sent 72 (5: 403, 1190); costs, 538, 539, 553-554- mort. 353. Torrey v., 3 Edw. Ch. 356(6: 687). Shelden v. Barnard, 6 Ch. Sent. 51 (5: 1310) Douw v., 2 Paige Ch. 333 (2; 927). TABLE OF CASES DIGESTED. 645 Sheldon, Telverton «., 2 Sandf. Ch. 481 (7: 670). Howard «., 11 Paige Ch. 558 (5: 233). V. Morgan, 3 Ch. Sent. 13 (5: 1104). Shelton, Vanderkemp v., Clarke Ch. 321 (7: 131). Vanderkemp v., 11 Paige Ch. 28 (5: 45), Shepard v. Guernsey, 1 Ch. Sent. 75 (5: 1078). V. Merrill, 2 Johns. Ch. 276 (1: 377); arb. 26; land. & ten. 59. v. Sanford, 3 Barb. Ch. 127 (5: 844); equity, e. Shepard, 7 Johns. Ch. 57 (2: 219); husb. & w. 162, 163. V. Merrill, 3 Johns. Ch. 423(1: 671); plead. 207, 213. Shepherd v. Guernsey, 9 Paige Ch. 357 (4: 730); bks & bkg. 75. «. M'Evers, 4 Johns. Ch. 136 (1: 791); trusts, 1, 100, 293, 294. ' Pettit v., 5 Paige Ch. 493 (3: 801). Sheridan, State o., Clarke Ch. 583 (7: 192). Sherman, Bloomer v., 2 Edw. Ch. 452 (6: 464). Bloomer v., 5 Paige Ch. 575 (3: 835). D. BurnhaoQ, 6 Ch. Sent. 14, 47 (5: 1197, 1208); trusts, 85. 0. Dodge, 2 Johns. Ch. 107 (2: 69): loan off. 8. Douglass ■B., 3 Paige Ch. 358 (2: 942). Martin v.. 2 Sandf. Ch. 341 (7: 618). Sherrill v. Rawson, Clarke Ch. 584 (7: 207). Sherryd, Be, 2 Paige Ch. 602 (2: 1048); insolv. a. for c. 166. Sherwood B. Hooker, 1 Barb. Ch. 650 (5: 531); jadg. d. & o. 75. Plainer®., 6 Johns. Ch. 118 (3: 73). ®. Reade, 1 Ch. Sent. 16, 45 (5: 1055, 1064). o. Reade, 8 Paige Ch. 633 (4: 570); mort. 465. Troup v., 3 Johns. Ch. 558 (1: 716). V. Wooster, 11 Paige Ch. 441, 4 Ch. Sent. 85 (5: 193, 1163); advanc. 5. 6; ex. & ad. 305; judg. d. & o. 139; laws of La. Shetzler v. Shetzler, 2 Edw. Ch. 584 (6: 513); husb. & w. 247. Shiell V. MoNitt, 1 Ch. Sent. 34 (5: 1061). V. McNitt, 9 Paige Ch. 101 (4: 624); dam. 26, 27. Shirley v. The Congress Steam Sugar Refinery, 2 Edw. Ch. 505 (6: 483); insolv. & a. for c. 152; mort. 75; ven. & pur. 90, 91. r. Lambert, 8 Edw. Ch. 336 (6: 680); husb. & w. 181. f). Shirley, 9 Paige Ch. 363 (4: 782); husb. & w. 57, 171, 172. Shottenkirk b. Wheeler, 3 Johns. Ch. 275 (1: 616); exec. 29; iudg. d. & o. 181, 3Bi. Shotwell. Eagleson v., 1 Johns. Ch. 536 (1: 237). French v., 4 Johns. Ch 50i (1: 917). French v., 5 Johns. Ch. 555 (1: 1173). French v., 6 Johns. Ch. 235 (2: 111). V. Mott, 3 Sandf. Ch. 46 (7: 501); char, uses, 1, 2, 6-8; eq. conv. 5; perpetu. 1, 2. «!. Murray, 1 Johns. Ch. 512 (1: 227); igno- rance of 1. 1; judg. d. & o. 264, 371, 373; mistake, 2. «. Smith, 3 Edw. Ch. 588 (6: 773); receiv. 65, 71. Shuler, Covenhoven v., 2 Paige Ch. 122 (2: 839). Shufeldt, Scott v., 5 Paige Ch. 43 (3: 630). Shufelt V. Shufelt, 1 Ch. Sent. 34 (5: 1061). V. Shufelt, 9 Paige Ch. 137 (4: 639); estop. 3; judg. d. & o. 173; mort. 161; plead. 334; usury, '321. Shultz V. Pulver, 3 Paige Ch. 182 (3: 107); costs, 103; ex. & ad. 46, 86. Sickels, Van Cleef v., 3 Edw. Ch. 393 (6: 441). Sickles, Van Cleef «., 5 Paige Ch. 505 (3: 806). Sidway v. City of Buffalo, 4 Ch. Sent. 17 (5: 1140). Siemon v. Wilson, 3 Edw. Ch. 36 (6: 562)' contr. 116; gift, 16. Siffkin V. Manning, 9 Prtige Ch. 223 (4: 676): plead. 579, 586-590. D. Manning, 1 Ch. Sent. .55(5; 1068). V. Mannine,4Edw.Ch. 37(6:790); plead.495. Sigourney v. Waddle, 9 Paige Ch. 381 (4: 740); atty. & sol. 65; costs. 373, 274, 277. V. Woddle, 1 Ch. Sent. 77, 83 (5: 1074, 1076). Silleck «. Mason, 4 Sandf. Ch. 351 (7: 1130). Sillick «. Mason, 2 Barb. Ch. 79, 6 Ch. Sent. 53 (5: 564, 1210); cred. bill, 191. Sills V. Blown, 1 Johns. Ch. 444(1: 203); prac. 207. Silver Lake Bank v. North, 4 Johns. Ch. 370 (1:871); bks. & bkg. 12; corp. 204-206; subr. 38. Simmons, Tyler®., 6 Paige Ch. 127 (3: 935). Simons, v. Brewster, 1 Ch. Sent. 65, 84 (2: 1071, 1076). Cassilear v., 8 Paige Ch. 373 (4: 426). Harrison «.. 3 Edw. Ch. 394 (6: 701). Simpson v. Brewster, 9 Paige Ch. 345 (4: 687); abatement, 4; costs, 193, 308, 309; discontin. 6; judg. d. & o. 108; prac. 240, 258, 359; set-off, 110. V. Hart, 1 Johns. Ch. 91 (1:70); injunc. 136, 141; judg. d. & o. 177, 197; new tr. 4; setoff, 88. .Ten Bick v., 11 Paige Ch. 177 (5: 98). Ten Eick v., 1 Sandf. Ch. 244 (7: 31.5). Sinclair. Sandford »., 3 Edw. Ch. 893(6: 701). v. Sandford, 7 Paige Ch. 432 (4: 319); plead. 103. Sandford v., 8 Paige Ch. 373 (4: 467). Sizer, Day v., Clarke Ch. 199 (7: 91). V. Miller, 2 Ch. Sent. 44 (5: 1090). V. Miller, 9 Paige Ch. 605 (4: 834); courts, 53; cred. bill, 143; Injunc. 339. D. Northrup, 4 Ch. Sent. 84 (5: 1168). Skeel ». Spraker, 8 Paige Ch. 182 (1: 392); mort. 182, 183; ven. & pur. 103, 158. Skidmore ». Davies. 3 Oh. Sent. 61 (5: 1120). «. Davies, 10 Paige Ch. 316 (4: 991); app. 145, 146, 149, 167-169; guard. & w. 47; judg. d. & o. 335. V. Shaw, 3 Ch. Sent. 54 (5: 1117). Skinner, Bank of Orleans «., 9 Paige Ch. 305 (4: 711). V. Christmas, Clarke Ch. 268(7:111); eq.51. V. Dayton, 3 Johns. Ch. 226, 526 (1: 356, 475); contr. 89, 90; eq. 136; injunc. 259, 260; judg. d. & o. 57-59. V. Davton, 5 Johns Ch. 191, 351 (1: 1053, li06); dep.l4; prac. 8,9;prin. &a.58-60. V. Hitchcock »., Hoflf. Ch. 81 (9: 1050). Hoffman v., 5 Paige Ch. 536 (3: 815). V. White, Hopk. Ch. 107 (2: 359); partn. 123. Woods »., 6 Paige Ch. 76 (8: 905). Slade«. VanVechten, 11 Paige Ch. 21, 4 Ch. Sent. 13 (5: 42, 1139); ex. 21; Insolv. & a. for c. 146; marsh, of a. & s. 14; subr. 17; trusts, 157, 158. TABLE OF CASES DIGESTED. Slater b. Slater, 4 Gh. Sent. 45, 46 (5: 1150). Blatter v. Carrol, 3 Sandf. Ch. 573 (7: 708); conf. of I. 3; courts, 30; ex. & ad. 483- 485; insolv. & assign. 55; partn. 76, 77; trusts, 270. Slayter, Green v., 4 Johns. Ch. 38 (1: 756). Slee V. Bloom, 5 Johns. Ch. 366 (1 : 1111); oorp. 144-149. v. Bloom, 7 Johns. Ch. 137 (3: 346); ref. 94. «. Manhattan Co., 1 Paiee Ch. 48 (3: 557); costs, 148; lim. of ac. 36; mort. 480, 517, 518. Washington Ins. Co. v., 2 Paige Ch. 365 (3: 945). Sleight V. Purdy, 1 Ch. Sent. 36 (5: 1063). Sloan V. Little, 3 Paige Ch. 103 (3: 75); plead. 464-466. Slocum v. Mosher, 3 Ch. Sent. 13 (5: 1104). n. Slocum, 4 Edw. Ch. 613 (6: 994); wills, 319 Slosson, Tooker «., 4 Edw. Ch. 114 (6: 817). Smack v. Duncan. 4 Sandf. Ch. 631 (7: 1331); costs, 158; mort. 355. Small, Hart v.. 4 Paige Ch. 388, 333, 551, 440, 458 (3: 558). Smalley v. Martin, Clarke Ch. 293 (7: 119); costs, 555; mort. 833. Smedberg v. Mark, 6 Johns. Ch. 138 (2: 79); 116 6X 41 «. Whittlesey, 3 Sandf. Ch. 320 (7: 868); ev. 53, 53, 375, 318; parties, 20; usury, 101, 103. fimedburgh. More »., 8 Paige Ch. 600 (4: 558). Smedley, Mooers v., 6 Johns. Ch. 28 (3: 43). Smets o. Williams, 4 Paige Ch. 364 (3: 471); courts, 42-44; cred. bill, 273; plead. 471, 701. Smith V. Adams, 6 Paige Ch.435(3: 1051); ev. 66; wat. & w. cos. 38, 39. V. American Life Ins. & T. Co., Clarke Ch, 307 (7: 127); injunc. 135. «. Ballantyne, 2 CJi. Sent. 71 (5: 1098). •s. Ballantyne, 10 Paige Ch. 101 (4: 904); cred. bill, 83; judg. d. & o. 163 Benedict v.. 10 Paige Ch. 126 (4: 913). v. Bleeker, 4 Ch. Sent. 28 (5: 1144). V. Blunt, 4 Ch. Sent. 75 (5: 1160). Bowers v., 10 Paige Ch. 193 (4: 940). Brayton v., 6 Paige Ch. 489 (3: 1073). Brush, 1 Johns. Ch. 459 (1: 208); ev. 338; prac. 156, 177. Burgess v., 3 Barb. Ch. 276 (5: 643). «. Carll, 5 Johns. Ch. 118 (1: 10 i9); equity, 8, 9. -c. Clark, 4 Paige Ch. 368 (3: 473); ev. 108. Cooke v., 3 Sandf. Ch. 333 (7: 873). Coxes., 4 Johns. Ch. 371 (1: 837) lead. 698,699. Souzers. De Meyer, 3 Paige Ch. 574 (3: 1035); chanc. 9; lim. ofao.33, 68: plead. 335- 337, 340-344, 397. Spader d. Davis, 5 Johns. Oh. 380 (1:1083); cred. bill. 357; trusts, 323. Spalding, Kingsland «., 8 Barb. Ob. 341 (5: 935). People v., 3 Paige Ch. 326 (3: 928). People v., 9 Paige Ch. 607 (4: 835). People v., 10 Paige Ch. 284 (4: 978). Sparks, Conant v., 3 Edw. Ch. 104 (6: 588). Spear v. Given, 9 Paige Oh. 363 (4: 733); courts, 49, 50. o. Tinkham, 3 Biirb. Oh. 105, 311, 6 Ch, Sent. 72(5:575. 618, 1318); chanc. 39; ex.&ad. 300-303); int. 48; life ten. 11 12. -B. Warden, 2 Barb. Oh. 291, 6 Oh. Sent. 77 (5:648, 1220); cred. bill, 37, 38: exec. 28, 93-96; insolv. & a. for or. 117, 135. Speiglemyer v. Crawford, 6 Paige Ch. 354 (3: 973): cred. bill, 3, 34; fraud, 9; prin. & sur. 44. Spencer, Bank of Wooster v., Clarke Ch. 386 (7: 150). ». Barber, 11 Paige Ch. 517 (5: 318). -Gould v., 5 Paige Oh. 541 (3: 833). ioomis «., 2 Paige Oh. 153 (2: 853). Porter ».. 3 Johns. Ch. 169 (1: 335). «. Spencer, 4 Ch. Sent. 31 (5: 1145). Spencer v. Spencer, 6 Oh. Sent. 3 (5: 1193). B. Spencer, 11 Paige Ch. 159, 399 (5:91, 142); annuity, 6; costs, 11, 74, 75; ev. 78; trusts, 141, 335; wills, 166. V. Stagg. 3 Edw. Oh. 108 (6: 338). V. "Van Duzen, 1 Paige Ch. 555 (3: 750). plead. 167, 567. Sperryi). Miller,3Barb. Ch. 632(5:781);discov. 72; judg. d & o. 83; plead. 370, 371. Spier V. Nessle, 6 Ch. Sent. 33(5: 1300). SpofCord V. Manning, 3 Edw. Oh. 358 (6: 429); disci. 1-3. «. Manning, 6 Paige Oh. 383 (3 : 1030) ; plead. 731; ven. & pur. 115; wills, 360, 361. Spoor V. Wells, 3 Barb. .Oh. 199 (5: 873; lim. of ac. 4, 5, 41. Spottiswoode». Clark, 3 Sandf. Ch. 638(7: 733) ; injunc. 369. Sprague v. Duel, Clarke Oh. 90 (7: 60); cont. 118-120. V. Duel, 11 Paige Oh. 480, 4 Ch. Sent. 79 (2: 305, 1161); contr. 117, 131. Ely «., Clarke Ch. 351 (7: 140). 0. Jones, 9 Paige Ch. 253, 395 (4: 689, 748); judg. d. & o. 70; plead. 101. ®. Jones, 1 Ch. Sent. 60 (5: 1069). Mumford v., lliPaige Oh. 438 (5: 191). Warren v., 4 Edw. Oh. 416 (6: 935). Warren «., 11 Paige Ch. 200 (5: 106). Spraker, Skeel v., 8 Paige Ch. 182 (4: 393). Spring V. Sandford, 7 Paige Oh. 550 (4: 270); jud. sale, 57, 61; parti 92-94, 96. Springer v. Vanderpool, 4 Edw. Oh. 362 (5: 906); cred. bill, 246. Squire v. Harder, 1 Paige Ch. 494 (2: 728); es- top. 12; hush. & w. 96, 97; trusts, 57, 58. Staats V. Bicknell, 3 Ch. Sent. 4 (5:1101). V. Evarts, 3 Ch. Sent. 59 (5: 1094). Stackhouse v. Halsey, 3 Johns. Oh. 74 (1: 547); mort. 346. Stafford, Me, 4 Ch. Sent. 10 (5: 1137). 5Ch. Sent. 34(5:1173). ». Brown, 1 Oh. Sent. 33 (5: 1061). «. Brown, 4 Paige Ch. 88, 360 (3: 355, 470); attach. 17, 18; contempt, 41-43; discov. 8, 11; jndg. d. & o. 52; plead. 558, 571, 576. V. Bryan, 1 Paige Ch. 339 (3; 631); ev. 330; lim. of ac. 33. V. Bryan, 2 Paige Oh. 45 (3: 806); costs, 318, 396, 397, 419, 430, 437-499, 460, 488, 489; lim. of ac. 104; review, 14. V. Howlett, 1 Paige Oh. 200 (2: 616); plead. 211, 212, 243, 244. 693. V. Mott, 3 Paige Oh. 100 (3: 74); costs, 53, 580; int. 33, 24. v. Eogers, Hopk. Oh. 98 (2: 356); ref. 74. Snyder »., 11 Paige Oh. 71 (5: 60). Van Rensselaer 9., Hopk. Oh. 569 (2:526). Stagg D. Beekman, 2 Edw. Ch. 89 (6: 320); trusts, 91; wills, 483, 491. Graham v., 3 Paige Oh. 321 (2: 926). o. Jackson 2 Barb. Ch. 86, 6 Oh. Sent. 55 (5: 567, 1211); app. 358, 359; ex. & ad. 814, 331-324. Phillips v., 2 Edw. Oh. 108 (6; 328). Spencer v., 3 Edw. Oh. 108 (6: 338). Stainer v. Bell, 6 Ch. Sent. 19 (5: 1198). Staley v. Kneeland, Clarke Ch. 30(7: 43); husb. & w. 419; prac. 343; usury, 5,53-55. Stall, Righteri)., 3 Sandt. Ch. 608 (7: 974). Stanford v. Stanford, 1 Edw. Ch. 317 (6: 154); husb. & w. 355. 419. 648 TABLE OF CASES DIGESTED. Stanley, Burrs., 4Edw. Ch. 37(6:786). Staples, Brewer v., 3 Sandf. Ch. 579 (7: 964). Star «. Morange, SEdw.Ch. 345(6:683); ref.56. Starkey, DeMott «., 8 Barb. Ch. 403 (5: 950). Starkweather o. Sherwood, 6 Ch. Sent 8, 32 (5: 1203). Starr v. Ellis, 6 Johns. Ch. 892 (3: 161); mort. 174-176. V. Lansing, 2 Johns. Ch. 150 (1: 327). V. Strong, 3 Sandf. Ch. 139 (7: 540); bona fide pur, 1; fraud, conv. 44. State V. Delafleld, 8 Paige Ch. 527 (4: 539); in- juno. 37; prin. & a. 35-37; stock. (111.) V. Delalield, 2 Ch. Sent. 46 (5: 1091). 8. Sheridan, Clarke Ch. 533 (7: 192); costs, 551 (Ind.) V. Sherwood, 5 Ch. Sent 10, 47 (5: 1168, 1182). Steam Sawmill Asso., Lovett v., 6 Paige Ch. 54(3:896). Stebbins, Corning v., 1 Barb. Ch. 589 (5: 506). Gram «., 6 Paige Ch. 124 (3: 923). Lane v., 3 Edw. Ch. 480 (6: 733). Lane »., 3 E dw. Ch. 480 (4: 841). V. Phoenix Fire Ins. Co. , 8 Paige Ch. 350 (8: 184); Corp. 108-111. Sea Ins. Co. v., 8 Paige Ch. 565 (4: 548). Steel ®. Finch, 3 Ch. Sent. 65 (5: 1095). Steele v. Fisher, Edw. Ch. 435 (6: 199); wills, 416. V. White, 2 Paige Ch. 478 (3: 995); app. 36, 27; comp. 5. Steer v. Steer, Hopk. Ch. 363 (3: 451); witn. 121. Steereo. Steere, 5 Johns. Ch. (1: 987): ev. 167, 185; trusts, 5, 6, 59, 60. Steinbrenner, Arnoux o., 1 Paige Ch.82(2: 569). Stephens «. Brooks, Clarke Oh. 130 (7: 71); wills, 84. V. Van Buren, 1 Paige Ch. 470 (3: 723); costs, 93; int. 52; infants, 113. SteDhenson v. Parkins, 3 Edw. Ch. 248 (6: 375); judg. d. & o. 28. V. Stephenson. 6 Paige Ch. 354 (8: 1017); in- fants, 125, 126 ; plead. 133. Sternes, Meacham v., 9 Paige Ch. 398 (4: 749). Steny v. Arden, 1 Johns Ch. 63, 361 (1: 60, 133); plead. 684; prac. 287; ven. & pur. 141-145. Stevens, Adams v., Clarke Ch. 536 (7: 193). v. Beekman, 1 Johns. Ch. 318 (1: 155); in- junc. 57, 58. Byam «., 4 Edw. Ch. 119 (6: 819). V. Cooper, 1 Johns. Oh. 425(1: 196); contrib. 11, 12, 14; ev. 187-139. Stevens «. Rising, 4 Ch. Sent. 69 (5: 1158). Robb »., Clarke Ch. 191 (7: 89). Thomas v., 4 Johns. Ch. 607 (1: 952). Stevenson, Me, 8 Paige Ch. 420 (8: 213); trusts, 98, 134. V. Associate Congregation of Cambridge, 1 Oh. Sent. 32(5:1060) EUingwood v.. 4 Sandf. Ch. 866 (7: 1136). ®. Gregory, 1 Barb. Oh. 73 (5: 304); ref. 102. V. Maxwell, 2 Sandf. Ch. 273 (7: 591); com- miss. 1, 3; int. 1-7, 88. D. Stevenson, 5 Ch. Sent. 31 (5: 1172). V. Stevenson, 3 Edw. Oh. 340 (6: 682): atty. & sol. 16, 17. Weed »., Clarke Ch. 166 (7: 82). Steward v. Green, 11 Paige Ch. 535 (5: 225); bankcy. 75; costs, 589. «. Winters, 4 Sandf. Oh. 5»7 (7: 1219); in- junc. 31, 86; land. & ten, 8. Stewart. Be, 11 Paige, 398, 4 Ch. Sent. 7J (5: 175, 1158); conf. of 1. 6; wills, 19-21. «. Burt, 5 Oh. Sent. 65 (5: 1187). V. Chambers, 2 Sandf. Ch. 382 (7: 634); ex. & ad. 188); wills, 471, 474-478 Dexter v., 7 Johns. Ch. 52 (3: 218). ®. Elice, 2 Paige Ch. 604 (3: 1049); ac. or s. 18; conf. of 1. 15. v. Green, 5 Oh. Sent. 2 (5: 1164); cred bUl, 154; plead. 138. v. Nicholson, 1 Ch. Sent. 33 (5: 1061). «. Palmer, 3 Oh. Sent. 93 (5: 1180). Schieffelin «., 1 Johns. Ch. 620 (1: 268). V. Stewart, 7 Johns. Ch. 229 (3: 277); husb. & w. 61, 62, 181-188; wiln. 88. Strong v., 4 Johns. Ch. 167 (1: 803). B. Turner, 3 Edw. Ch. 458 (6: 734). v. Vail, 3 Edw. Ch. 507 (6: 74:d); wills, 381. Stickle, Wager v., 3 Paige Ch. 407 (3: 308). Stickles, Livingston v., 8 Paige Ch. 398 (4: 478. Stienbergh, Jones »., 1 Barb. Ch. 250 (5: 374>. Stiles, He, Hopk. Ch. 341 (3: 44); Infants, 81. B. Burch, 5 Paige Ch. 132 (3: 657); app. 254, 255; ex. & ad. 299, 355; judg. d. & o. 133. Stilwell, Heyward v., 3 Edw. Ch. 245 (6: 642). «. VanEpps. 1 Paige Ch. 615 (3: 772); cred. bill, 13, 360. Stirnermaun v. Cowing, 7 Johns. Ch. 375 (2: 392); prin. & a. 11, 38. Stockholm, Lookwood v., 11 Paige Ch. 87 (5: 66). Stoddard, Butler »., 7 Paige Ch. 163 (4: 108). Stone, Kempshall v., 5 Johns. Ch. 198 (1: 1054). ». Morgan, 4 Ch. Sent. 16 (5: 1140). B. Morgan, 10 Paige Oh. 614 (4: 1118); app. 63, 70, 204; ex. & ad. 398. Norton v., 8 Paige Ch. 222 (4: 407). People v.. 10 Paige Ch. 606 (4: 1110). Stoney v. American Life Ins. & T. Co., 5 Ch. Sent. (No. 3) 9 (5: 1169). V. American Life Ins. & T. Co., 4 Edw. Oh» 332(5: 896); injunc. 809; usurv, 69. «. American Life Ins. Co., 11 Paige Ch. 635 (5: 261); bills & n. 31; usury, 166; corp. 203. Stoors V. Kelsey, 2 Paige Ch. 418 (3: 970); cred. bill 447" exec< 17, storm V. 'Badger, 8 Paige Ch. 130 (4: 731); cred. bill, 41, 218. Bunner v.. 1 Sandf. Oh. 357 (7: 858). «. Davenport, 1 Sandf. Oh. 135 (7: 268); cred. bill, 186; fraud, conv. 33; iusolv. & assign. 73; parties, 173. Green «., 3 Sandf. Oh. 305 (7: 862). a. Mann, 4 Johns. Oh. 21 (1: 750); injunc. 47. ». Mitchell, 1 Sandf. Ch. 351 (7: 318). o. Waddell, 2 Sandf. Ch. 494 (7: 675); bankcy. 30-35: cred. bill, 3iJ9, 347, 248, 250, 359; receiv. Ill, 112. ®. Buggies, Clarke Ch. 148(7: 76); cred. bilL 70. V. Storms. 1 Edw. Ch. 358, 586 (6: 171, 256): plead. 473, 654, 655. Storrow, Atlantic Ins. Co. »., 1 Edw. Ch. 631 (6: 369). Atlantic Ins. Co. ■»., 5 Paige Oh. 285 (8: 720). Storrs «. Barker, 6 Johns. Ch. 166 (2: 88)^ estop. 41, 42; ignorance of 1. 8. Williams v., 6 Johns. Ch. 353 (2: 148) TABLE OF CASES DIGESTED. 049^. Story, Brown v., 1 Paige Ch. 588 (2: 763). Brown v., 2 Paige Oh. 594 (8: 1044). Brown, 4 Paige Ch. 112 (3: 365); account- ing, 25, 26; ref. 47. Stoughton «. Lynch, 1 Johns., Ch. 467 (1: 211); parln. 115-117. «. Lynch, 2 Johns. Ch. 209 (1: 351); accounting, 30; estop. 21; int. 78-80; partn. 118-122. Seaman r>., 3 Barb. Ch. 344 (5: 927). Stow, Best V , 2 Sandf . Ch. 298 (7: 601). King »., 6 Johns. Ch. 323 (1: 139). V. Pearce, 1 Ch. Sent. 79 (5: 1074). V. Pearce, 9 Paige Ch. 367 (4: 734); costs, 246. Stov?ell, Saxton v., 11 Paige Ch. 526 (5: 322). Strang ■b. Devin, 2 Ch. Sent. 65 (5: 1095). Strange v. Longley, 3 Barb. Ch. 650 (5: 1044); cred. bill, 146, 147, 156-158; injunc. 324; • receiv. 82. Straw, Woodruff v., 4 Paige Ch. 407 (3; 492). Street ». McKeen, 6 Ch. Sent. 72 (5: 1218). Striker «. Mavor, etc. of N. Y., 1 Ch. Sent 82 (5: 1075). «. Molt, 2 Paige Ch. 387 (2: 954); parti. 4, 5, 34, 35. Perrine v., 7 Paige Ch. 593 (4: 288). Strong, Auburn Academy «., Hopk. Ch. 278 (2: 421). Bangs v., 10 Paige Ch. 11 (4: 866). Bank of Monroe v., Clarke Ch. 76 (7: 56). Dodge v., 2 Johns. Ch. 227 (1: 357). Ferris®., 3 Edw. Ch. 127 (6: 597). Garliok v., 3 Paige Ch. 440 (3: 223). King®., 3 Paige Ch. 94 (4: 622). M'Dermutt v., 4 Johns. Ch. 687 (1: 981). Ontario Bank®., 2 Paige Ch. 301 (2: 917). ®. Prendergrast, 2 Ch. Sent. 55 (5: 1098). ®. Skinner, 2 Ch. Sent. 5 (5: 1080). Starr ®., 2 Sandf. Ch. 139 (7: 540). V. Stewart, 4 Johns. Ch. 167 (1: 802); ev. 159; mort. 470. ®. Waterman, 11 Paige Ch. 607, 5 Ch. Sent. 13 (5: 250, 1158); eject. 4; ind. 1-5; in- junc. 49. ®. Wilkin, 2 Barb. Ch. 9, 5 Ch. Bent. 26 (5: 227, 1174); husb. & w. 133, 190, 200,201; power, 19, 20; wills, 25. Stryker, Western Reserve Bank v., Clarke Ch. 380 (7: 148). Stuart, Be, 1 Edw. Ch. 168 (6: 99j; husb. & w. 145, 146. Studwell ®. Palmer, 6 Paige Ch. 57, 166 (3:636,671), app. 56,91-93; 190,231; judg. d. & o. 374. Sturges ®. Cargill, 1 Sandf. Ch. 318 (7: 344); ev. 147; wills, 144, 263. Sturtevant ®. Waterbury, 1 Edw. Ch. 442 (6:301); ev. 117, 118, 339. Stiiyvesant, He, 3 Edw. Ch. 399 (6:665); ref.2. o. Davies, 2 Ch. Sent. 7 (5: 1081); land. & ■ ten. 60, 61. ®. Davies, 3 Edw. Ch. 537 (6: 753); set-off, 108. ®. Davis, 9 Paige Ch. 427(4: 760); act. or s. 34; land. & ten. 36-38, 60, 61. «. Hall, 3 Barb. Ch. 151, 6 Ch. Sent. 74 (5: 592, 1219); ex. & ad. 113; lis pend. 1; mort. 106, 150, 164; notice, 17; real prop. 41, 83; ven. & pur. 15a, 160. Stuyvesant, Loomis ®., 10 Paige Ch. 490 (4. 1063). ®. Hone, 1 Sandf. Ch. 419 (7: 381); lis pend. 2; real prop. 71-73, 94. ®. Mayor of N. Y., 1 Ch. Sent. 81 (5: 1075). ®. Mayor of N. Y., 4 Ch. Sent. 76 (5: 1160). ®. Mayor of N. Y., 5 Ch. Sent. 27 (5: 1175). «. N. Y., 11 Paige Ch. 414 (6: 182); act. or s. 31, 32; cov. 17; plead. 679; spec. p. 18, 19; ven. & pur. 23. 1). Peckham, 3 Edw. Ch. 579 (6: 769); ev. 242. Quick ®., 3 Paige Ch. 84 (3: 823). Totten ®., 3 Edw. Ch. 500 (6: 740). Van Schaick v., 2 Edw. Ch. 204 (6; 370). Suarez v. Mayor, etc., of N. Y., 2 Sandf. Ch. 173 (7: 554); ex. & ad. 496-499; int. 71; money in pub. tr. 1-3. ®. Pumpelly, 3 Sandf. Ch. 336 (7: 60); trusts,. 89, 116, 117. Suffern «. Johnson, 1 Paige Ch. 450 (2; 711); mort. 353-355. Sullivan ®. Judah, 4 Paige Ch. 444 (3: 508): contempt, 8; injunc. 246, 345. Wolcott®., 1 Edw. Ch. 399 (6: 186). Wolcott «., 6 Paige Ch. 117 (3: 922). Summers ®. Burtia, 4Eaw. Ch. 738 (6: 1035); deed, 23; wills, 357. V. Murray, 8 Edw. Oh. 305 (6; 370); arb. 33; plead. 374, 584. Sumner, Buchan v., 3 Barb. Oh. 165 (5: 599). Supervisors, etc., Redfield v., Clarke Ch. 42- (7: 46). Supervisors of Albany County ». Durant, 1 Oh. Sent. 48 (5: 1062). Sutherland v. Brush, 7 Johns. Oh. 17 (1: 206} ex. & ad. 110, 403. 404. Sutphen ®. Fowler, 1 Ch. Sent. 69 (5t. 1072). ®. Fowler, 9 Paige Oh. 280 (4: 700); costs, 105, 106; set-off, 65; spec. p. 8. Suydam®. Barlle, 1 Ch. Sent. 71 (5: 1073); mort. 204, 205. Barlle, 2 Ch. Sent. 73(5: 1099). ®. Bartle, 9 Paige Oh. 294 (4: 706); mort. 204, 205. ®. Barlle, 10 Paige Ch. 94 (4: 901); plead. 649; usury, 29, 30. Mount v., 4 Sandf. Oh. 399 (7: 1148). Waring ®., 4 Edw. Oh. 426 (6: 928). S^vaine v. Ferine, 5 Johns. Ch. 482 (1: 1148); contrib. 18; dower, 65, 71-77. Swan V. Howard. 3 Edw. Oh. 287 (6: 659);. Corp. 163. West ®., 3 Edw. Ch. 430 (6: 711). Swart, Johnson ®., 11 Paige Ch. 385 (5: 171) Swartwout v. Wyckoff, 2 Ch. Sent. 70 (5: 1097); veil. &pur. 89. Sweet V. Green, 1 Paige Ch. 473 (2: 720); estop. 13; exec. 54; ven. & pur. 134. ®. Jacocks, 6 Paige Ch. 355 (3: 1018); mort. 378, 386; prin. & a. 46; trusts, 48. V. Van Wyck, 3 Barb. Oh. 647 (5: 1043); judg. d. & o. 12; pledge & col. sec. 11. Swift V. Eckford, 6 Paige Ch. 22 (3: 882);. plead. 165, 309, 315. Swords ®. Blake, 3 Edw. Oh. 112 (6: 591); setoff, 84. Sylvester®. Ree<-', 3 Edw. Ch. 296 (6: 664); re- ceiv. 78. •«50 TABLE OP CASES DIGESTED. Tabele «. Tabele, 1 Johns. Ch. 45 (1: 53); dower, 11, 12. Taggard «. Talcott, 3 Edw. Ch. 628 (6: 539); contempt, 3; husb. & w. 98. "Talbot 1). Ohamberlin, 3 Paige Ch. 319 (3: 124); exec. 23. 25, 26. Talcott V. BfonsoD, 4 Paige Ch. 501 (3: 522); atty. &sol. 66, 68. Taggard v., 2 Edw. Ch. 628 (6: 529). Tallmadge, Bay»., 5 Johns. Ch. 305 (1: 1091). «. Cu3hman,4 Ch. Sent. 8(5: 1136). Genet v., 1 Johns. Ch. 3, 561 (1: 37, 346). «. Lovelt, 3 Edw. Ch. 563 (6: 763); plead. 708; review, 28. Lyon v., 1 Johns. Cb. 184 (1: 107). Norton «., 3 Edw. 310 (6: 669). V. Tallmadge, 3 Barb. Ch. 390 (5: 647); wit. 118. Tallman?). Mayor, etc. of N. T., 1 Ch. Sent. 81 (5: 1075). Talmadge. Wallis v., 10 Paige Ch. 443 (4: 1043). Talmage v. Pell, 9 Paige Ch. 410 (4: 754); Corp. 156, 157; plead. 264; receiv. 198. ■V. Pell, 2 Ch. Sent. 4 (5: 1080); plead. 639, 640. Talman, Barclay v., 4 Edw. Ch. 133 (6: 820). Taopan v. Gray, 9 Paige Ch. 507, 3 Ch. Sent. 14, 3 Edw. Ch. 450 (4: 794, 5: 1083. 6: 731); offic. 1, 2; receiv. 40. Tappen, Evertson v., 5 Johns. Ch. 497 (1: 1154). Thompson «., 5 Johns. Ch. 518 (1: 1161). Tappin ». Craig, 3 Sandf . Ch. 78 (7: 515). Tarbell v. Griggs, 3 Paige Ch. 307 (3: 119); cred. bill, 55; judg. d. & o. 295. Tarlton, Smith v., 3 Barb. Ch. 336 (5: 665). Taylor, He. 3 Ch. Sent. 56 (5: 1094). 9 Paige Ch. 611 (4: 836); ev. 218-220; husb. & w. 3; incomp. pers. 39, 40. Taylor ®. Bogert, 5 Paige Ch. 33 (3: 615); plead. 190. V. Bruen, 3 Barb. Ch. 301, 6 Ch. Sent. 76 (5: 651, 1220); bks. & bkg. 7, 8, 11; discov. 76. 77. •». Carpenter, 11 Paige Ch. 293, 4 Ch. Sent. 68 (5: 140, 1158); aliens, 23; injunc. 164; trade-mark, 3-5, 10. V. Carpenter, 3 Sandf. Ch. 603 (7:730); app. 331; costs, 262; injunc. 165. «. Fire Department, 1 Edw. Ch. 294 (6: 144); gift, 13, 14. «. Gardner, 1 Ch. Sent. 5 (5: 1052). Haggerty v., 10 Paige Ch. 261 (4: 969). Kirby v., 6 Johns. Ch. 243 (2: 113). v. Mills, 2 Edw. Ch. 318 (6: 414); cred. bill, 120; exec. 53. D. Osborn, 5 Paige Ch. 515 (3: 810). n. Read, 4 Paige Ch. 361 (3: 561); app. 243; damages, 1-5; ref. 121. 1). Titus, 2 Edw. Ch. 135 (6:339); plead. 263, 628. v. Wood, 2Edw. Ch. 94 (6: 322); prac.lll- 113. "Wright v., 1 Edw. Ch. 236 (6: 119). Teal V. Wood worth, 3 Paige Ch. 470 (3: 335); app. 342; costs. 588; husb. & w. 135; incomp. pers. 94; parti. 131. Teller, M'Cartee v., 3 Paige Ch. 511 (3: 1011). Schryver v., 9 Paige Ch. 173 (4: 655). Valentine v., Hopk. Ch. 433 (3: 472). 0. Van Deusen, 3 Paige Ch. 33 (3: 46); injnnc. 131, 218. Temple v. Hawley, 1 Sandf. Ch. 153 (7: 377); husb. & w. 184-188; infants, 76; real prop. 34; ref. 3; trusts, 84. Ten Broeck v. Livingston, 1 Johns. Ch. 357 (1: 170); deed, 39, 30; spec. p. 53, 53. Tenbrook v. Lansing, 4 Johns. Ch. 601 (1: 950); mort. 497. Ten Eick v. Simpson, 11 Paige Ch. 177, 4 Ch. Sent. 47 (5: 98, 1151); app. 77, 78, 180, 195, 196; Chan. & v. c. 23. v. Simpson, 1 Sandf. Ch. 344 (7: 315); spec, p. 104: ven. & pur. 33, 103. Ten Eyck, Becker »., 6 Paige Ch. 68 (3: 903). Hart v.. 3 Johns. Ch. 63, 513 (1: 396, 470). ®. Holmes, 3 Sandf. Ch. 428 (7: 907); costs, 9; prin. & sur. 47; subr. 6. Tenth Ward Bank, Parmly »., 3 Edw. Ch. 395 (6: 703). Terry, Van Vechten e. , 3 Johns. Ch. 197 (1: 346). Tew, Lowry v., 3 Barb. Ch. 407 (5: 952). Thalhimer, Marsellis «., 3 Paige. Ch. 35 (3: 803). Thallhimer, BrinkerhofE v., 2 Johns. Cn. 486 (1: 459). Theological Sem. of Auburn «. Childs, 4 Paige Ch. 419 (3: 497); Corp. 51-53. Thomas ®. Brown, 1 Ch. Sent. 80 (5: 1075). v. Brown, 9 Paige Ch. 370 (4:735); mort.303. V. Fish, 3 Ch. Sent. 30 (5: 1086). V. Fish, 9 Paige Ch. 478 (4: 783); sale, 26; usury, 52, 85. Hull«., 3 Edw. Ch. 236(6: 640). Johnson »., 2 Paige Ch. 377 (3: 950). V. McEwen. 11 Paige Ch. 131, 4 Ch. Sent. 33 (5: 83, 1146); cred. bill, 66, 341-243; plead. 473. T. Mayor, etc. of N. Y., 1 Ch. Sent. 83 (5: 1075). V. Merchants' Bank, 1 Ch. Sent. 45 (5: 1065). «. Merchants' Bank, 9 Paige Ch. 316 (4: 674); attach. 14. 15; cred. bill, 8. V. Stevens, 4 Johns. Ch. 607 (1: 952); wills, 172. Thompson, Be, 11 Paige Ch.453, 4 Ch. Sent. 81 (5: 195, 1162); app. 36; wills, 54. V. Berry, 3 Johns. Ch. 395 (1: 660); discov. 63; usury. 90, 133, 133, 170. «. Brown. 4 Johns. Ch. 619 (1: 957); cred. bill, 77, 78; 6?. &. ad. 75, 81, 83, 125- 139, 199, 440-443; judg. d. &o. 341; parln. 11; trusts, 131. V. Carmichael, 3 Sandf. Ch. 130 (7: 794); advanc. 3, 4; wills, 325. V. Carmichael'sExrs., 1 Sandf. Ch. 378 (7: 369). ®. Clendening, 1 Sandf. Ch. 387 (7: 369); perpetu. 43-46; power, 5; triists. 4: wills, 394. V. Dimond, 3 Edw. Ch. 398 (6: 65): iud. sale, 89. V. Ellsworth, 1 Barb. Ch. 634, 6 Ch. Sent 33 (5: 530, 1304); app. 139, 140, 176. 177; husb. & w. 218; set-off, 51. TABLE OF CASES DIGESTED. 651 Thompson v. Graham, 1 Paige Ch. 384, 452 (3: 686, 712); contr. 107; equity, 63; par- ties 94 Gray v. ' 1 Johns. Ch. 83 (1 : 67). Hallett D., 6 Paige Ch. 583 (3: 838). «. Hammond, 1 Edw. Ch. 497(6:223); judg, d. & o. 120; scire facias. V. Hardman, 6 Johns. Ch. 436 (3: 176); parti. 52. Kershaw «., 4 Johns. Ch. 609 (1: 953). Kirby «., 6 Johns. Ch. 79 (3: 60). M'Kinnon v., 3 Johns. Ch. 307 (1: 628). -». Matthews, 2 Edw. Ch. 213 (6: 873); in- June. 10, 13. c. Mount, 1 Barb. Ch. 607, 6 Ch. Sent. 38 (5: 513, 1303) iud. sale, 79,. 80; mort. 455. .«, New York & Harlem R. Co. 3 Sandf. Ch. 635(7: 980); accounting, 5; corp. 10, 39; equity, 134; fran. 1-6; injunc. 188; railr. 1. «. Nixon, 3 Edw. Ch. 457 (6: 724); cred. bill, 180. Pierson «., 1 Edw. Ch. 312 (6: 114). Phillips v., 1 Johns. Ch. 131 (1: 87). PhiUips v., 2 Johns. Ch. 418 (1: 432). «. Tappen. 5 Johns. Ch. 518 (1: 1161); ex. & ad. 277. Thompson v. Dudley, 3 Edw. Ch. 137(6: 601); iudg. d. & o. 9. V. Ebbets, Hopk. Ch. 272 (2:419); interpl. 36, 87. Neufville v., 3 Edw. Ch. 93 (6: 583). Thorburn v. Mayor, ete. of N. Y., 1 Ch. Sent. 82(5:1076). Thorn v. Coles, 3 Edw. Ch. 330 (6: 678); per- petu. 53. V. Devereux, 6 Ch. Sent. 73 (5: 1218). V. Germand, 4 Johns. Ch. 363 (1: 869); plead. 184-186. Williams u., 11 Paige Ch. 459(5: 198). Thorne, Be, 1 Edw. Ch. 507 (6: 337) infants, 63. Cheesman v., 1 Edw. Ch. 639 (6: 271). ■». Halsey, 7 Johns. Ch. 189 (2; 264); ne ex. 6,7. Hudson B., 7 Paige Ch. 261 (4: 148). Jauncey v., 2 Barb. Ch. 40 (5: 549). Thorp «. Amos, 1 Sandf. Ch. 26 (7: 225); ex. ad. 809, 310; gift. 7; husb. & w. 37; wit 71. Scott v., 4 Edw-. Ch. 1 (6: 777). ' «. WoodhuU, 1 Sandf. Ch. 411 (7:378); corp. 95; equity, 91. Thorpe, Scott «., 1 Edw. Ch. 512 (6: 329). Throckmorton, Van Hook v., 8 Paige Ch. 33 (4:333). Thurber, Hazen ®., 4 Johns. Ch. 604 (1 : 951). Thurman, Roosevelt »., 1 Johns. Ch. 220(1: 119). Tibbits V. Tibbits. 7 Paige Ch. 204 (4: 125); costs, 187; parti. 107. Tice V. Annin, 2 Johns. Ch. 135 (1: 817); mort. 196-300. Tier v. Pennell, 1 Edw. Ch. 354 (6: 170); wills, 300, 301. Tiernan a. Wilson, 6 Johns. Ch. 411 (2: 167); costs, 80; exec. 46, 64, 65. Tighe, Mitchell v., Hopk. Ch. 119(3: 363). Tillinghast, Dickerson v., 4 Paige Ch. 215 (8: 409). Tillman, Seneca Woolen Mills o., 2 Barb. Ch. 9 (5: 537). Tillotson V. Armstrong, 1 Ch. Sent. 11 (5: 1054). Gouverneur «., 8 Edw. Ch. 348 (6: 685). Tillotsons, Jfe, 2Edw. Ch. 113 (6: 330); infants, 67. Tillou «., Sharpsteen. 5 Johns. Ch. 360 (1: 1076);4njunc. 370. Tims. Hart v., 3 Edw. Ch. 336 (6: 636). Tingle v. Parten, 3 Edw. Ch. 228 (6: 637); costs, 212. Tingley, Ward«., 4 Sandf. Ch. 476 (7: 1177). Tinkham, Spear v., 3 Barb. Ch. 106, 311 (5: 575, 618); Tisdale, Yates v., 3 Edw. Ch. 71 (6: 575). Titsworth v. Titsworth, Clarke Ch. 273 (7: 113); ven. & pur. 96. Titus, Gouverneur v., 1 Edw. Ch.477 (6: 217). Gouverneur v., 6 Paige Ch. 347 (8: 1015). V. Neilson, 5 Johns. Ch. 453 (1: 1139); dow- er, 18, 14. Taylor B., 3 Edw. Ch. 135 (6: 889). ■0. Velie, 6 Johns. Ch. 435 (3: 176); costs, 145. Tobias, Salters v., 8 Paige Ch. 338 (3: 179). Saltus v., 7 Johns. Ch. 214 (2: 272). Todd i>. Barlow, 2 Johns. Ch. 551 (1: 486); arb. 23-25; new ir. 32. Savage v., 9 Paige Ch. 578 (4: 828). Toland, Murray v.. 3 Johns. Ch. 569 (1: 719). Toll V. Hiller, 11 Paige Ch. 228, 4 Ch. Sent. 50 (5: 117, 1153); int. 93; jud. sale, 81; mort. 145; writ of assist. 7. Tolley ®. Greene, 1 Sandf. Ch. 91 (7: 521); , contr. 22; wills, 324. Tompkins v. Anthon, 4 Sandf. Ch. 97 (7: 1039); plead. 198, 890, 511, 512, 645. V. Fonda, 4 Paige Ch. 448 (8:510); dower, 50-58. Livingston v., 4 Johns. Ch. 415 (1: 887). St. Andrew's Church »., 7 Johns. Ch. 14 (3: 305. B. Ward, 4 Sandf. Ch. 594 (7: 1331); plead. 503, 503, 507, 508. Tompkin's Exrs., Minthorne's Exrs. v., 3 Paige Ch. 103 (3: 830). Tone V. Brace, Clarke Ch. 391, 503 (7: 119, 184); equity, 61; injunc. 87, 367, 376; land. & ten. 11, 12; set-off. 26. V. Brace, 1 Ch. Sent. 11 (5: 1054). V. Brace, 5 Ch. Sent. 10 (5: 1167). ®. Brace, 8 Paige Oh. 597 (4: 557); injunc. 121; land. & ten. 13; set-off. 36. V. Brace, 11 Paige Ch. 567 (5:236); gov. 5; land. & ten. 1. Tonnele, Rice v., i Sandf. Ch. 568 (7: 1213). Tooker v. Oakley, 3 Ch. Sent. 37 (5: 1109). V. Oakley, 10 Paige Ch. 288 (4: 980); ex. & ad. 160; parties, 170, 176; plead. 218. V. Slosson, 4 Edw. Ch. 114 (6: 817); plead. 494. Toole ». De Kay, 4 Sandf. Ch. 385 (7: 1143); husb. & w. 336, 339. Rogers v., 11 Paige Ch. 212 (5: 111). Toppan ». Heath, 1 Paige Ch. 298 (3: 652); arb. 39. Topping, Dougrey v., 4 Paige Ch. 94 (3: 357). V. Van Pelt, HofE. Ch. 545(6: 1239); ev. 248; parties, 23; usury, 92, 98, 117, 1 34; wit. 16. Torrey «. Bank of Orleans, 9 Paige Ch. 649 (4: 853); bk8& bkg. 55; marsh, of a. &s. 26, 37; trusts, 161. Somers v., 5 Paige Ch. 54 (8: 625). 633 TABLE OP CASES DIGESTED. Torrey v. -Shaw, 3 Edw. Oh. 356(6: 687); deso. & dist. 14; parti. 105; wills, 378. Torry v. Bank of Orleans, 2 Ch. Sent. 64 (5: 1095). Totten V. Stuyvesant. 3 Edw. Ch. 500 (6: 740); abs. & abscon. d. 15; judg. d. & o. 331; lis pend. 29. Touslev, Ells v., 1 Paige Ch. 280 (2: 647). TowerV White, 10 Paige Ch. 395 (4: 1036); judg. d. & o. 123; mort. 273, 274, 294, 295 390 «. White, 3 Ch. Sent. 90 (5: 1129), Towle, Case v.. 8 Paige Ch. 479 (4: 510). Case v., 2 Sandf. Ch. 426 (7: 650). McLean v., 3 Sandt. Ch. 117 (7: 793). Town s. Needham, 3 Paige Ch. 545 (3: 268); contr. 61; cov. 6; estop. 40; ev. 340; joint ten. 8; parti. 75; wit. 108. Townsend v. Graves. 3 Paige Ch.453 (3: 282); app. 9, 11, 247: ev. 279-281; prac. 179. Hunt «., 4 Sandf Ch. 510 (7: 1189). n. Low, 4 Edw. Ch. 349 (6: 868); judg. d. & o. 8, 79, 356; ret. 61. V. McBride, 6 Ch. Sent. 3 (5: 1192). Merrill v. , 5 Paige Ch. 80 (3: 636). V. Townsend, 3 Paige Ch. 413 (2: 968); app. 70,71; plead. 355. Tracy, Se, 1 Paige Ch. 580 (3: 760); habitual d.; incomp. pers. 19, 20, 32-34, 48. Traders Ins. Co., Rogers v., 6 Paige Ch. 583 (3: 111). Tradesman's Bank, Covell v., 1 Paige Ch. 131 (2: 589). V. Merritt, 1 Paige Ch. 302 (2: 655); bks. & bkg. 59; injunc. 212, 213, 317. Tradesmen's Bank v. Hyatt, 2 Edw. Ch. 195 (6: 365). Traver, Eddyu., 6 Paige Ch. 521 (3: 1086). Travis v. Waters, 1 Johns. Ch. 48, 85 (1: 55, 68); costs, 26, 27; judg. d. & o. 73, 96; parties, '33; prac. 205. Tredwell, Hoffman v., 5 Paige Ch. 82 (3: 636). Hoffman v., 6 Paige Ch. 308 (3: 999). Tremain, Mattocks »., 3 Johns. Ch. 75 (1: 547). Tremble, Belknaps., 3 Paige Ch. 277 (2: 995). Trimble, Belknap v.. 3 Paige Ch. 577 (3: 281). Trinity Church, Bugardus v., 4 Paige Ch. 179 (3:394). Bogardus v., 4 Sandf. Ch. 369, 633 (7: 1137, 1235). Humbert «.. 7 Paige Ch. 195 (4: 121). Tripler v. Olcott, 3 Johns. Ch. 473 (1: 688); prin. & a. 53, 53. Tripp, Curtiss «., Clarke Ch. 318 (7: 130). v. Vincent, 3 Barb. Ch. 613, 5 Ch. Sent. 63 (5:1030, 1187); judg. d. & o. 28; marsh, of a. & s. 17; mort. 147-149; plead. 262, 485. D. Vincent, 8 Paige Ch. 176 (4: 390); app. 7; judg. d. & o. 363; partn. 169. Trott, Walker n., 4 Edw. Ch. 38 (6: 790). Trotter v. Bunce, 1 Edw. Ch. 573 (6: 251); plead. 444. Troup 1). Haight, 6 Johns. Ch. 335 (3: 142); wit. 132. ». Haight, Hopk. Ch. 239 (2: 407); account stated, 6-9; acknowl. 7-9; plead. 623; prod. & inspec. of b. & p. 3; set-off, 48, 49; 'Stat. 2. Troup ». Wood. 4 Johns. Ch. 328 (1: 823)^ • bonds, 4; civ. mort. 1, 3; exec. 49, 50; judg. d. & 0. 283, 282. Harris a., 8 Paige Ch. 423 (4: 488). V. Sherwood, 3 Johns. Ch. 558 (1: 716); prac. 166-169; wit. 131, 132. Wilson v., 7 Johns. Ch. 25(2: 209). Trowbridge v. Christmas, 3 Ch. Sent. 7 (5: 1103). s. Christmas, Clarke Ch. 371 (7: 112); usury, 130. True, Salterlee v., 3 Edw. Cb. 423 (6: 712). Wickoff v., Clarke Ch. 337 (7: 102). Trustees of Kingston ®. Tappen, 1 Johns. Ch. 3.6.8 (1: 175); dep. 35. of M. E, Church. Wright v., Hoff. Ch. 303 (3: 1115). of St. Peter's Church, Heeney «., 2 Edw. Ch. 608 (6: 532), of South Baptist Church v. Yates, Hoff. Ch, 143 (6: 1093); rell!?. soo. 1, 3. of Union College, Mulntyre v., 6 Paige Ch, 339 (3: 970). of Watertown v. Cowen, 4 Paige Ch. 510i (3: 5:^6); cov. 37; dedication; injunc. 44, 77; parlies, 193; wit. 98. 120. V. Cowen, 5 Paige Ch. 510 (3: 808); costs, 278. of Williamsburgh, Oakley v., 6 Paige Ch. 263 (3: 978). Trust & Pire Ins. Co. ». Jenkins, 8 Paige Ch. 589 (4: 554); costs, 400, 414; judg. d. & o. 35, 26; plead. 118. 228: prac. 86, 87. c. Jenkins, 1 Ch. Sent. 9 (5: lOoB). Sandford b., 11 Paige Ch. 547 (5: 231). Tucker v. Clarke, 2 Sandf. Ch. 90 (7: 533)t spec. p. 6, 63. V. Tucker, 6 Cb. Sent, 68 (5: 1216). Tupper B. Powell, 1 Johns. Ch. 439 (1: 202); injunc, 113; usnrv, 139. Turner, Astor v., 11 Paige Ch. 436 (5: 189). Kirby v., Hopk. Ch. 309 (3: 43J). V. Peck, 1 Bdrb. Ch. 549, 6 Ch. Sent. 25 (5- 490, 1200); cov. 13-15; ven, &. pur. IBS, 163. Stewart v., 3 Edw. Ch. 458 (6: 724). Turney ». Turney, 4 Edw. Ch. 566 (6: 977); ev. 293, 29J. Turrel ®. Tunel, 2 Johns. Ch. 391(1:421); husb. & w. 402. Tuthill B. Lupion, 1 Edw. Ch. 564 (6: 248U cred. bill, 122. Tutlle, Powell v., 10 Paige Ch. 522 (4- 1075). Tyack ®. Bromley, 4 Edw. Ch. 258 (6: 871); equity, 84; fran. 7, 8; injunc. 11; master & w. of N. Y. 1-4. V. Brumley, 1 Barb, Ch. 519; 6 Ch. Sent. 17 (5: 479. 1199); master & w. of N, Y. 1- 4; offic. 4. Tylee, Badeau v., 1 Sandf. Ch. 270 (7: 3i5). Hall v.. 1 Sandf, Ch, 370 (7: 325). Leavitt v., 1 S. n If. Ch, 307 (7: 398). Tyler, Curtis v.. 9 Paige Ch. 4S3 (4: 763). V. Poppe, 4 Edw. Ch. 430 (6: 9:i9); iniunc. 389. B. Simmons, 6 Paige Ch. 127 (3: 925); app.. 56, 102; ref. 9J, 103, 128, 129. TABLE OF CASES DIGESTED. 65-i IT. TJdall, Kenny v., 5 Johns. Ch. 464 (1: 1145). Ulster & Orange Turnpike Co., Couch v., 4 Johns. Ch. 26(1: 752). Underdunck, Lordu., 1 Sandf. Ch. 46 (7: 234 ) Smith, 1 Sandf. Ch. 579 (7; 441). Underhill «. Dennis, 1 Ch. Sent. 43 (5: 1064). ■B. Dennis, 2 Ch. Sent. 6(5: 1081). ». Dennis, 9 Paige Ch. 203, 1 Ch. Sent 43 (4: 668); app. 42^44; courts, 8; guard. & w. 2-8; surro. 17. Jingle » ., 3 Edw. Ch. 249 (6: 645). «. Jackson, 1 Barb. Ch. 73(5: 305); parti. 63- 65. Kobbi v., 3 Sandf. Ch. 277 (7: 851). V. Seymour, 1 Ch. Sent. 61 (5: 1069). ^. Van Cortlandt. 1 Johns. Ch. 500 (1: 233); prac. 162. «. Van Cortlandt, 2 Johns. Ch. 339(1:400)- arb. 14, 15, 30, 28-31; dep. 27-29; ev. 360-263; eq. 57; plead. 630, 703. ITnion Bank «. Barker, 3 Barb. Ch. 358 (5: 932); discov. 79-80. Union Ins. Co. ». Rensselaer, 4 Paige Ch. 85 (2: 343); costs, 36, 37, 138, 393; mort. 291; plead. 41. United German Lutheran Churches, Cam- meyer v., 4 Edw. Ch. 323 (6: 859). United Ins. Co., Carters., 1 Johns. Ch. 463 (1:209). Lyman v., 3 Johns. Ch. 630 (1: 519). United Lutheran Churches, etc., Cammeyer i v., 2 Sandf. Ch.l86 (7: 558). I United States is. Crookshank, 1 Edw. Ch. 233 (6: 121); ex. & ad. 191; insolv. & a. for cr. 160, 161; mort. 144. Utica Bank v. Mersereau, 3 Barb. Ch. 528 (5: 998); costs, 19; custom & u. 1; eq. 53; estop. 4-10; 52-54; ev. 221, 233, 240; exec. 30, 31; judg. d. & o. 173; jud. sale, 45-48; max. 3; prac. 130; taxes, 20-30; witn. 60-65. Utica, Bank of Utica «., 4 Paige Ch. 399 (3; 487). Utica Bauk e. Finch, 3 Barb. Ch. 793 (5: 906); app. 149; mort. 46-49. Utica Cotton Mfg. Co. v. Oneida County, 1 Barb. Ch. 432, 6 Ch. Sent. 8 (5: 444, 1194); app. 15; Corp. 83; costs, 224; taxes, 5-9. Utica Ins. Co., Attorney-General »•, 2 Johns. Ch. 371(1:413). ®. Lynch, 3 Barb. Ch. 573 (5: 758); receiv. 308; ref. 120. V. Lynch, 3 Paige Ch. 210 (3: 130); plead. 402, 435, 440, 452-454. V. Lynch, 11 Paige Ch. 520, 5 Ch. Sent. 4 (5: 1165, 219); int. 53, 54; receiv. 185, 186; trusts, 164, 165. V. Power, 3 Paige Ch. 365(3: 190); insolv. & assign. 60; set off, 95-98. Utica & Schenectadv R. Co., Mohawk Bridge Co. v., 6 Paige Ch. 554 (3: 199); railr. 3. Y. Vail e. Remsen, 7 Paige Ch. 206 (4: 135); app. 106, 107, 213. Stewart «., 3 Edw. Ch. 507 (6: 743). V. Vail, 4 Paige Ch. 317 (3: 453); accom. 8; wills, 310, 355. Valentine, Ayres v., 3 Edw. Ch. 451 (6: 463). Catlin «., 9 Paige Ch. 575 (4: 821). V. Parrington, 2 Edw. Ch. 53 (6: 305); abate- ment, 7; bonds, 14; prin. & sur. 9. Gregory v., 4 Edw. Ch. 282 (6: 880). V. Teller, Hopk. Ch. 433 (3: 473); writ of V. Valentine'. 2 Barb. Ch. 430 (5:703); ac- com. 31; app. 38, 82; arb. 1, 5; ex. & ad. 386, 388. Valleau v. Valleau, 6 Paige Ch. 207 (3: 957); husb. & w. 254-258; lim. of ac. 77. Valk ». Crandall, 1 Sandf. Ch. 179 (7:286); bks. & bkg. 13-17; Corp. 98. Van AernamB. Van Aernam, 1 Barb. Ch. 375, 6 Ch. Sent. 1 (5: 422, 1192); ev. 37. 38; husb. . Semler, 3 Ch. Sent. 23 (5: 1107). Whitingham v. Cttmmings, 3 Ch. Sent. 64 (5: 1095). Whitlock ». Duffield, 2 Edw. Ch. 866 (6: 433); cov. 1; plead. 679. «. Duffeld, Hoff. Ch. 110 (6: 1081); arb. 8, 20, 86, 37; land. & ten. 18-23. «. Duffield, 1 Ch. Sent. 26 (5: 1058). «. Piske, 3 Edw. Ch. 131 (6: 599): plead. 69. Forbes »., 8 Edw. Ch. 446 (6: 720). Nathan «., 3 Edw. Ch. 215 (6: 632). Nathan v., 9 Paige Ch. 152 (4: 645). ». State Bank, 1 Ch. Sent. 6, 54 (5: 1052, 1068). Van Hook «., 3 Edw. Ch. 304 (6: 409). Van Hook v., 3 Paige Ch, 409 (3: 209). Van Hook v., 7 Paige Ch. 373 (4: 194). Whitman «. German Reformed Church, 6 Ch. Bent. 3, 65 (5: 1193, 1215). Whitmarsh v. Campbell, 1 Paige Ch. 645 (2; 785); plead. 560, 561. «. Campbell, 3 Paige Ch. 67 (2: 815); plead. 195. Whitney 3. Belden, 1 Edw. Ch. 386 (6: 183); plead. 426. ». Belden, 4 Paige Ch. 140 (3: 378); iudg. d. & 0. 54-56, 115. «. M'Kinney, 7 Johns Ch. 144(2: 249); mort. 249, 251, 530). v. Mayor of N. Y. , 1 Paige Ch. 548 (2: 748); cerlio. 3; prac. 251, 252; supreme court. «. Monro, 4 Edw. Ch. 5 (6:778); ex. & ad. 26. ». Post, 8 Paige Ch. 36 (4: 334); ehanc. &v. c. 38. Weaver «., Hopk. Ch. 11 (2: 335). Whittick V. Kane, 1 Paige C. 203 (2: 617); ev. 156; mort. 90, 91; real prop. 58, 59. Whiltimore «. Whittimore, 7 Paige Cb 38 (4: 51); costs, 535. Whittlesey, Smedberg v., 3 Sandf. Ch. 320 ^^■ 868). ^ Wickes «. Clarke, 8 Edw. Ch. 58 (6: 570)- fraud, conv. 45, 50, 59; husb. & w. 198* 194. ' V. Clark, 8 Paige Cb. 161 (4: 384); husb & w. 198, 199. .1, u. «, Wickham, Land «., 1 Paige Ch. 2-i6 (2- 637^ Philips 9., 1 Paige Ch. 590 (2: 763) Wickoff ». True, Clarke Ch. 237 (7: 102)- set- off, 44. Widger, Rtxford «., 3 Bi\rb. Ch. 640 (5- 1040) Widner, Bank of Monroe »., 11 Paige Ch. 529 \*i'. li/oo). Wiggin V. Mayor, etc. of N.Y., 1 Ch Spnt 20. 81 (5: 1046, 1075). ' V. New York, 9 Paige Ch. 16 (4: 591); assess 4; cloud, on t. 7; dam, 14; iniunc 85- muQ. Corp. 1-5. ' ' TABLE OF CASES DIGESTED. 659 Wiggins «. Armstrong, 3 Johns. Ch. 144(1: 824; in June. 21. Douglass v., \ Johns. Ch. 435(1: 300). Wightman v. Wightman, 4 Johns. Ch. 343 (l:861);husb. & w. 15-20. Wilber, Bouclt »., 4 Johns. Ch. 405 (1: 883). «. Collier, 3 Barb. Oh. 437 (5: 959); cred. bill, 80, 81; disc. 3; ex. & ad. 8, 33, 80, 207, 308, 412; judg; d. &o. 300. Poster B., 1 Paige Ch. 5:W (3: 744). V. Collier, Clarke Ch. 815 (7: 130); cred. bill, 153, 237. Wilcox, King «., 11 Paige Ch. 589 (5: 243). Wilde, Jenliins, »., 2 Paige Oh. 394 (3: 958). Wilde V. Jenljins, 4 Paige Ch. 483 (3: 524); Corp. 162; parti. 58, 59; partn. 20, 130; reviv. 79. Wilder, Colt v., 1 Edw. Oh. 484 (6: 219). Dyliers v., 3 Edw. Ch. 496 (6: 738). «. Keeler, 3 Paige Oh. 164, 167 (3: 99, 101); cred. bill, 107-109; marsh, of a. & s. 7, 8, 10; partn. 32, 44-48, 75; plead. 335, 236. Wildes V. Chapman, 4 Edw. Ch. 669 (6: 1013); partn. 56. Wiley V. Angel, Clarlie Ch. 217 (7: 97); mort. 356, 457. Wilgus V. Tolfree, 6 Ch. Sent. 59 (5: 1213). Wilkes, BanliSB., 8 Sandf. Ch. 99 (7: 785). ®. Brisbane,6 Ch. Sent.79 (5:1221); nolice, 7. v. Harper,2 Barb. Oh. 338 (5: b6(i); ex. & ad. 410,411; judg. d. & o. 205; lien, 3; max. 2; subr. 7, 8. v. Harper, 3 Sandf. Oh. 6 (7: 749); ex. & ad. 305, 206. s. Henry, 4 Edw. Ch. 672 (6: 1014); ref. 107. ®. Henry, 4 Sandf. Ch. 390 (7: 1145); app. 117-120. V. Wilkes, 1 Barb. Ch. 73 (5: 304); infants, 164. V. Wilkes, 4 Edw. Ch. 630 (6: 1000); contr. 94. Wilkin, Brush c, 4 Johns. Ch. 506 (1: 918). Strong «., 1 Barb. Ch. 9 (5: 377). V. Wilkin, 1 Johns. Ch. Ill (1: 79); parti. 20, 21; plead. 70. Wilkins, McGown »., 1 Paige Ch. 120 (2: 684). ®. Mayor, etc. of N. Y., 1 Ch. Sent. 89 (5: 1078). Williams v., 8 Johns. Ch. 65 (1: 544). Wilkinson v. Henshaw, 4 Paige Oh. 357 (3: 426); costs, 214, 344, 345. «. Parish, 8 Paige Oh. 653(3:310); parti. 84; reviv. 33-27, 74. V. Rhodes, 4 Sandf. Ch. 434 (7: 1162). WillarJ, Lynch®., 6 Johns. Oh. 313(3:145). Williams n. Birkbeck, 3 Oh. Sent. 93 (6: 1130). V. Birkeck, HofE. Ch. 359 (6: 1172); prin. & a. 6, 13-15; real prop. 44, 51, 88, 96, 97. v. Blakeman, 4 Ch. Sent. 8 (5: 1186); bankcy. 37; recelv. 138. V. Brown, 4 Johns. Ch. 683 (1: 979); cred. bill, 39. 30, 255, 256; debtor &c. 3-4. ». Corwin, Hopk. Ch. 471 (3: 491); ev. 6-8. V. Cox, 3 Edw. Ch. 178 (6:617); assess. 1; dower, 73, 74. V. Craig, 3 Edw. Ch. 397 (6: 407); contrib. 36; courts, 36. ®. Hance, 7 Paige Ch. 581 (4: 283); pay. 13; usury, 46, 47. -«. Harden, 1 Barb. Ch. 298, 5 Ch. Sent. 55 (5: 393, 1184); costs, 92: discov. 33; ex. & ad. 183. Williams, Harris «., 10 Paige Ch. 108 (4: 906). D. Hogeboom, 8 Paige Ch. 469 (4: 506); cred. bill, 337, 328, 284. Holmes v., 10 Paige Ch. 836 (4: 996). 11. Lockwood, Clarke Ch. 173(7:83); injunc. 320; judg. d. & o. 340, 341; usury, 141. «. Loomis, 4 Ch. Sent. 64 (5: 1155). Parker »., 4 Paige Ch. 439 (3: 405). V. Purdy, 6 Pdige Oh. 166 (3: 941); ex. & ad. 164. 170, 345, 846. Russell »., 1 Sandf. Ch. 195 (7: 393). Scribner »., 1 Paige Ch. 550 (3: 748). Smets «., 4 Paige Ch. 364 (3: 471). V. Storrs, 6 Johns. Ch. 353 (3: 148); ex. & ad. 473; guard. & w. 91; iuf.iUts, 80; int. 67; par. & c. 16. V. Thorn, 11 Paige Ch. 449, 4 01). Sent. 84 (5: 978, 1163); costs, 141; estop. 35; mort. 13, 119, 131. Vandervoort v., Clarke Oh. 377 (7: 148). 0. Vermeule, 4 Saudf. Ch. 388 (7: 1144); bankcy. 28, 29; plead. 338. v. Voorhees, 4 Oh. Sent. 68 (5: 1158). «. Walker, 2 Sandf. Ch. 33o (7: 611); pay. 18- 24. White v., 1 Paige Oh. 502 (2: 731). V. Wilkins, 3 Johns. Ch. 65 (1:544); costs, 136, 137. V. Williams, 3 Barb. Oh. 638, 6 Ch. Sent. 60 (5: 136, 1313); husb. & w. 363; judg. d. & o. 174. V. Wilson, 4 Sandf. Oh. 379(7: 1141): partn. 148. Williamson, Baldwin «., Hopk. Oh. 117(2: V. Ohamplin, Clarke Oh. 9 (7: 37); discov. 1; mort. 192. V. Ohamplin, 8 Paige Oh. 70 (4: 348); mort. 192 Cummxngv., 1 Sandf. Ch. 17 (7: 231). V. Dale, 3 Johns. Oh. 290 (1:633); mort. 447, 448. V. Field. 2 Barb. Oh. 281, 6 Ch. Sent. 69 (5: 644, 1216); app. 137, 141, 160, 161; judg. d. & o. 104. V. Field, 2 Sandf. Ch. 533 (7: 692); judg. d. & 0. 153; jud. sale, 58; lim. of ac. 1; mort. 219-222, 434; real pr<»p. 20-23: Stat. 11; trusts, 196, 347; wills, 279. Field 11., 4 Sandf. Oh. 613 (7: 1328). Harrison v., 3 Edw. Ch. 430 (6; 455). Mclntyre v., 1 Edw. Ch. 34 ;6: 50). V. Parisien, 1 Johns. Ch. 389 (1: 182); husb. & w. 5, 343. V. Parisien, 3 Oh. Sent. 36 (5: 1089); husb. & w. 343, 343. V. Williamson, 1 Johns. Ch, 488 (1:218); husb. & w. 371-274, 313. V. Williamson, 6 Paige Oh. 398 (3: 994); ex. & ad. 72; int. 35; surro. 16; wills, 450- 453. Willink, Roy v., 4 Sandf. Oh. 535 (7: 1196). Willis V. Astor, 4 Edw. Ch. 594 (6: 987); land. &ten. 17. Butchers' & Drovers' Banks., 1 Edw. Ch. 615 (6: 377). v. Corlies, 3 Edw. Ch. 381 (6: 401); receiv. 61, 63. McElwain «., 3 Paige Oh. 505 (8: 250). V. Moore, Clarke Ch.l50 (7:77); ored.bill,63. WlUoughliy, Me, 11 Paige Ob. 357, 4 Oh. Sent. 50, 59 (5: 136, 1151, 1154); husb. & w. 178; incomp. pars. 61-66. 660 TABLE OF CASES DIGESTED. Willoughby, Clark »., 1 Barb. Ch. 68 (5: 303). V. Comstock, 3 Edw. Ch. 424 (6: 713): usury, 64. Wilson, Be. 2 Paige Oh. 413 (3: 960); infants, 69, 70. Hegeman v., 8 Paige Ch. 29 (4: 332). Lewis v., 1 Edw. Ch. 305 (6: 149). Mc Sorley v., 4 Sandf. Ch. 515 (7: 1193). Mitchell ffl., 4 Edw. Ch. 697(6: 1033). Muir «., Hopk. Ch. 513 (3: 506). v. Naile, 1 Ch. Sent. 5 (5: 1052); receiv. 155, 156. Nichols v.. 4 Johns. Ch. 115 (1: 783). Noble v.. 1 Paige Oh. 164 (2: 601). Renwick v., 6 Johns. Ch. 81 (2: 61). Siemnn v., 3 Edw. Ch. 36 (6: 562). Tiernan v., 6 Johns. Ch. 411 (2: 167). V. Troup, 7 Johns. Ch. 25 (3: 209); mort. 475-477; power, 7-9; prin. & a. 7. «. "Van Pelt, 1 Ch. Sent. 70 (5: 1072). V. Van Pelt, 3 Ch. Sent. 70 (5: 1097). V. Williams, 4 Sandf. Ch. 379 (7: 1141). D. Wilson, 1 Barb. Ch. 593, 6 Ch. Sent. 36 (5: 507. 1201); receiv. 104-106. Wiltshire v. Marflect, 1 Edw. Ch. 654 (6: 230); cred. bill, 89. Winans, Dunham a., 3 Paige Ch. 24 (3: 797). Faure v.. Hopk. Ch. 283 (3: 432). Wetmore v., 8 Paige Ch. 370 (4: 466). Winchester v. Crandall, Clarke Ch. 871 (7: 146); cred. bill 187; exec. 18. Windle, Be, 3 Edw. Ch. 585 (6: 513); aliens, 43; infants, 167. Windt «. German Reformed Church, 4 Sandf. Ch. 471 (7: 1175); cemetery, 1-3. Wing, Be, 6 Ch. Sent. 39 (5: 1306). V. Stevens, 3 Ch. Sent. 7 (5: 1103). Winne, Adams »., 7 Paige Ch. 97 (4: 80). V. Reynolds, 6 Paige Ch. 407 (3f 1041); spec, p. 35, 40-45; ven. & pur. 9. Winship ». Jewett, 1 Barb. Ch. 173 (5: 343): arb. 16-18, 23, 40; prac. 103, 133. «. Pitts, 3 Paige Ch. 359 (8: 145); ac counting, 4; injunc. 377; waste, 8, 4. 5. Winslow, Augur v., Clarke Ch. 358 (7: 108). V. Collins, 3 Paige Ch. 88 (3: 69); appeal, 15, 17, 18. Moffat v., 7 Paige Ch. 134 (4: 92). n. Pitkin, 1 Barb. Ch. 402 (5: 432); cred. bill, 61, 345. Warner v.. 1 Sandf. Ch. 430 (7: 385). Winsor v. Orcutt, 11 Paige Ch. 578, 5 Ch. Sent. 11 (5: 389, 1169; attach. 9; courts, , 48. Winter, Bennett «., 2 Johns. Ch. 205 (1: 349). Green v., 1 Johns. Ch. 26, 60, 77 (1: 47, 60, 66). Winters, Steward v., 4 Sandf. Ch. 587 (7: 1219). Winthrop, Be, 3 Ch. Sent. 27 (5: 1109). Bunn v., 1 Johns. Ch. 329 (1: 159). Gaines u, 3 Edw. Ch. 571 (6: 508). Winthrop Bank v. Miller, 2 Ch. Sent. 64 (5: 1095). Wise, Webster v., 1 Paige Ch. 319 (3: 668). Wisera. Blachly, 1 Johus. Ch. 487,607(1:201, 263); gu ard. & w. 78; mistake, 7; parties, 4, 85; plead. 653. V. Blachly, 3 Johns. Ch. 488 (1: 460); judg. d. & o. 38; prac. 314; review, 1-3. Wiswall, Eager «., 2 Paige Ch. 369 (2: 947). V. Hall, 3 Paige Ch. 318 (3: 168); bounds.- 3; deed, 28; plead. 470; spec. p. 31, 33. wharf. 1. Wiswall ». Mc Gowan, Hoff. Ch. 135 (6: 1087): contr. 91; les. pend. 30, 31; spec. p. 97. V. Wandell. 8 Barb. Ch. 313; 6 Ch. Sent. 78 (5: 913, 1318); ferry. 1; plead. 429. Witbeck, Fitch v., 3 Barb. Ch. 161 (5: 597). Witherell, Baptist Ch. in Hartford v., 3 Paige Ch. 396 (3: 159). Withers v. Codwise, 3 Sandf. Ch. 350 (7: 632);. cov. 16. «!. Morrell, 3 Edw. Ch. 560 (6: 763). V. Powers, 3 Sandf. Ch. 850 ("7: 633). Wolcott V. Sullivan, 1 Edw. Ch. 399 (6: 186); mort. 580; set-off, 37, 58. V. Sullivan, 6 Paige Ch. 117(3: 933); eq. 119; land. & ten. 55; set-off, 47. Wood V. Riker, 1 Paige Ch. 616 (2: 778); lim. of ac. 87; plead. 524. Taylor v., 2 Edw. Ch. 94 (6: 323). Troup v. 4 Johns. Ch. 338 (1: 833). V. Vandenburgh, 6 Paige Ch. 377 (3: 985);. costs, 63; ex. & ad. 367; wills, 467-470. V. Wood, 4 Ch. Sent. 9, 69 (5: 1137, 1158). V. Wood, 2 Paige Cb. 108, 454 (3: 833, 986);. costs, 113; husb. & w. 380-382, 293-297, 384-337. 851, 853. r>. Wood, 4 Paige Ch. 299 (3: 445); ex. & ad. 90-91. s. Wood, 5 Paige Ch. 596 (3: 844); confl. of of 1. 7; guard. & w. 38; infants, 26-38;^ perpetu. 50; trusts, 19, 30, 127. 205;. wills, 4tl. Woodgate, Robinson' v., 3 Edw. Oh. 432- (6: 712). Woodhull, King v., 8 Edw. Ch. 79 (6: 578). V. Osborne, 3 Edw. Ch. 614 (6: 534); jud. sale 10, 68, 69. Thorp v., 1 Sandf. Ch. 411 (7: 378). WoosteT v., 1 Johns. Ch. 539 (1: 338). Woodruff V. Bunce, 2 Oh. Sent. 5 (.5: 1080). «>. Bunce, 9 Paige Ch. 443 (4: 768); ven. & pur. 88, 62. V. Cook, 3 Edw. Ch. 359 (6: 393); ex. & ad. 450; plead. 505, 506; fraud, conv. 25; judg. d. & o. 193. James «., 10 Paige Ch. 541 (4: 1088). V. Straw 4 Paige Ch. 407 (3: 492); costs^ 530, 521; master, 10. Rose v., 4 Johns. Ch. 547(1:933). Yates ®., 4 Edw. Ch. 700 (6: 1034). Woods, Barker v., 1 Sandf. Oh. 139(7: 365). Danforth v., 11 Paige Ch. 9 (5: 37). V. Monell, 1 Johns. Oh. 502 (1: 233); exec. 45, 63, 63. B. Morrell, 1 Johns. Ch. 103(1: 76); plead. 36- 40, 434, 435, 437, 556; ref. 13. Norton v., 5 Paige Oh. 349, 260 (3: 705, 711. Sanger v. , 8 Johns. Oh. 416 (1: 668). V. Skinner, 3 Oh. Sent. 89 (5: 1139). ■». Skinner, 6 Paige Oh. 76(3:905), witn. 53,. 53, 81. Woodruff®. Straw. 4 Paige Ch. 407 (3: 492) Wolf, Oppenheim «., 8 Sandf. Ch. 571 (7: 961) Wolfe V. Dumbleton, 3 Oh. Sent. 69 (5: 1097) 0. Frost. 4 Sandf. Ch. 72 (7: 1027); contracts, 35, 53; easem. 1-3: licen. 1-3. Wollstonecraft, Be, 4 Johns. Ch. 80 (1: 770);. infants, 42, 43; party wall. Wolverton, Hawley v., 5 Paige Ch. 522 (8- 813). ^ ■ Wood, Be, Hopk. Ch. 6 (2: 323); atty. & sol 1 Armsby «., Hopk, Ch. 229 (2: 403). V. Boland, 1 Oh. Sent. 3 (5: 1051); judg. d & o. 348. TABLE OF CASES DIGESTED. 661 Wood V. Bolard, 8 Paige Oh. 556 (4: 540); insolv. & a. for cr. 103, 104. V. Burnham, ,6 Paige Oli. 513 (8: 1083); real prop. 7; trusts, 128; wills, 364. ». Byington, 3 Barb. Ch. 387, 6 Oh. Sent. 47 (5: 686, 1308); appeal, 219; costs, 134; ev. 146; judg. d. & o. 107, 155, 158- 161; ex. &ad. 449; slat. 13. Byington v., 1 Paige Ch. 145 (2; 594). «. Olute, 1 Sandf. Oh. 199 (7: 295); joint. ten, 10; parti. 18. «. Cone, 7 Paige Ch. 471 (4: 236); eq. conv. 18; wills, 290. V. Dwight, 7 Johns Ch. 395 (3: 299); appeal, 123 Egberts' ■»., 3 Paige Ch. 517 (3: 255). Foster v., 6 Johns. Ch. 87 (3: 63). V. Genet, 8 Paige Ch. 137 (4: 374); husb. & w. 93, 93, 133. Hall v., 1 Paige Ch. 401 (3: 694). Hamilton v., 3 Edw. Ch. 134 (6: 600). V. Hathaway, 2 Ch. Sent. 12 (5: 1083); plead. 678. Kellogg v., 4 Paige Ch. 578 (3: 568). V. Keyes, 6 Paige Ch. 478 (3: 1068); dower, 79; judg. d. & o. 51. V. Keyes, 8 Paige Ch. 364 (4: 464); eq. conv. 19; wills, 233. V. McCabe, I Ch. Sent. 4 (1: 1053). V. Oakley, 4 Edw. Ch. 563 (6: 976); mort. 361. a. Oakley, 11 Paige Ch. 400, 4 Ch. Sent. 73 (5: 176, 1159); eq. 118; mort. 487; stat. 7-9. V. Perry, 3 Sandf. Ch. 7 (7: 485); parties, 163. Reigal v., 1 Johns. Ch. 403 (1: 187). Woodward, Higgins B„Hopk. Ch. 342 (3:444). Jewett v., 1 Edw. Oh. 195 (6: 108). «. Shalzell, 3 Johns. Ch. 413 (1 : 666); injunc. 33; ne ex. 23, 34. Vaupell ».. 3 Sandf, Ch. 143(7: 543). B. Campbell, 5 Paige Ch. 518 (3; 812); parti. 1. Eights v., 9 Paige Ch. 391 (4: 746). Gibson v., 8 Paige Ch. 133 (4: 372). Lansing ® , 1 Sandf. Ch. 43 (7: 231). Teal B., 3 Paige Ch. 470 (3: 335). «. Van Buskerk, 1 Johns. Ch. 433(1:199); arb. 38; iniunc. 118; new tr. 18, 19. Westcott «.. Hopk. Ch. 508 (3: 505). "Woolcocks «. Hart, 1 Paige Ch. 185 (3: 610); marsh, of a. & s. 6. Woolsey, Hone v., 3 Edw. Ch. 289 (6: 404). Livingston «., 4 Johns. Ch. 865 (1; 870). • V. Livingston, 5 Johns. Ch. 265 (1: 1078); reviv. 55. Woolstonecraft, Be, 4 Johns. Ch. 80 (1: 770). Wooster, Sherwood «., 11 Paige Oh. 441 (5: 193). V. Woodhull, 1 Johns. Ch. 539(1: 288); judg. d. & 0. 358, 359. Worden v. Worden, 2 Edw. Ch. 387 (6: 699); husb. & w. 845; ref. 62. Worrall, McCammon v., 11 Paige Ch. 99 (5: 70). Worthington v. Pierson, 3 Edw. Ch. 397 (6.: 664); prac. 65. Wotten V. Copeland, 7 Johns. Ch. 140 (2: 247); parti. 8, 9. Wright, M'CombB., 4 Johns. Ch. 659 (1: 971). MXiomb v., 5 Johns. Ch. 263(1: 1077). ». Miller, 3 Barb. Oh. 383 (5: 940; appeal, 156-159; judg. d. & o. 101; real prop. 31. V. Miller, 1 Sandf. Ch. 103 (7: 356); annuity, 3; estop. 147; infants, 111, 137, 138, judg. d. & o. 315, 346; trusts 296. V. Taylor, 1 Edw. Ch. 226 (6: 119); deed, 1; plead. 624; spec. p. 17. V. Trustees of M. E. Church, Hofl. Oh. 203 (6: 1115); aliens, 86; char, uses, 18-20; eq. conv. 15-17; judg. d. & o. 130, 137, 138, 167; marsh, of a & s. 9; relig. soc. 3-5; wills, 313, 314, 383, 234, 322. V. Wright, 1 Edw. Ch. 63 (6: 60); husb. & w. 344, 393. Wrigley, Ashworth o. 1 Paige Oh. 301 (3: 655). Wyckoff, Hamersley?)., 8PaigeCh. 73(4: 349). ». Remsen, 11 Paige Ch. 564; 5 Ch. Sent. 10 (5: 335, 1167); insolv. & a. for or. 147; mort. 29; real. prop. 93. Saxton v.. 6 Paige Oh. 182 (3: 947). Smith v., 4 Edw. Ch. 543(6: 969). Smith «., 11 Paige Ch. 49 (5: 53), Smith's Exrs. «., 3 Sandf. Ch. 77 (7: 777). », Sniffen, 2 Edw. Ch. 581 (6: 513); plead. 499). Van Wezel v., 3 Sandf. Ch. 528 (7: 945). Wyman v. Griffith, 2 Ch. Sent. 38 (5: 1088). Wynans v. Kearney, 1 Ch. Sent. 4 (5: 10.")2). Wynkoop, Demarest ®., 3 Johns. Ch. 461 (1: 451). Demarest v., 2 Johns. Ch. 129 (1: 566). Y Yates V. Bartlett, 2 Ch. Sent. 56 (5: 1098); in- terpl. 19. ■B. Feeter, 1 Ch. Sent. 89 (5: 1078). Fuller v., 8 Paige Ch. 335 (4: 446). Leavitt®., 4Edw. Oh. 134 (6: 828). V. Tisdale, 3 Edw. Ch. 71 (6; 575); interpl. 13, 13; sale, 3. Trustees of South Baptist Church «., Hon. Oh. 143 (6: 1093). Vander Volgen «., 3 Barb. Ch. 242 (5: 888). «. Woodruff, 4 Edw. Oh. 700 (6: 1C24); judg. d. & o. 355; jud. sale, 85. Yaw Bortholomewu, Clarke Ch. 16(7. 89). Bartholomew v., 9 Paige Ch. 165 (4: 651). Ydverton«. Sheldon, 2 Sandf. Ch.481 (7: 670); mort. 128-130, 238, 239. Yerks, M'Qown v., 6 Jonns. Oh. 450 (2: 183) Yoe, Van Nest v., 1 Sandf. Ch. 4 (7: 216). Youman, Harris »., Hoff. Ch. 178(6: 1107). Young V. Beardsley, 11 Paige Ch. 93, 4 Ch. Sent. 18, 33 (5: 68, 1138, 1143); conv. labor; judg. d. & o. 337; stat. 13, 14. D. Borst, 5Ch. Bent. 14 (5: 1168). V. Cooper, 3 Johns. Ch.295 (1:634); parti. 81. V. Micklfcs, 5 Ch. Sent. 7(5: 1194). Scott v., 4 Paige Ch. 542 (3: 554). Youngs «.' Moirisson, 10 Paige Ch. 835 (4: 995);cred. bill, 51, 60. York & Jersey Steam Boat Ferry Co. v. Jersey Co., Hopk. Ch. 460 (3: 487); marsh, of a. & s. 38-30. «. 2 Ch. Sent. 36 (5: 1089).